1. The Law Officers
Although Canning still included the judge-advocate general among the law officers in 1826,1 the term was more usually confined to the Attorney-General, Solicitor-General and king’s advocate. The division was essentially hierarchical. Each gave his opinions on important questions of law and Mansfield’s judgment of 1770 in R v. Wilkes 2 ruled that except where expressly reserved, the Attorney-General’s prerogative and statutory functions were exercisable also by the Solicitor-General.
How much influence the Solicitor-General had obviously depended upon the law officers’ personalities and aptitudes. Thus while Campbell reduced Attorney-General Horne to a cypher and Palmer eclipsed Atherton,3 others formed partnerships of equals, like James and Herschell,4 and some Solicitor-Generals were quite overshadowed. It was recognized that the Solicitor-General had a strong claim to the senior post, but it fell short of an entitlement, so that Bovill had to accept that Rolt would leapfrog him once Cairns (also from the equity bar) ceased to be Attorney-General.5
(p.1064) The third law officer, the king’s advocate, was always a leading civilian, and often also held a civilian judgeship.6 The Foreign Office made regular use of his expertise in the civil law, questions of international law being sometimes sent to him alone, or, if they were more important, sent to him before the other law officers.7 However, the circulation arrangements were dangerously informal, and their inadequacy was demonstrated with calamitous effect in the Alabama fiasco in 1862.8 After that episode papers invariably went first to the Attorney-General and last to the queen’s advocate. In 1872, when Sir Travers Twiss resigned,9 the office was abolished10 and Dr (later Sir James Parker) Deane was appointed legal advisor to the Foreign Office. The arrangement was not a success. Deane interpreted the terms of his employment narrowly and the Foreign Office continued to send almost everything to the law officers as well as Deane.11 Another result of the change was that the law officers were landed with formal court appearances on behalf of the queen’s proctor, for which they received no fees.12Later the Foreign Office acquired a legal assistant under secretary, but opinions on international law continued to make up much of the law officers’ most challenging business.13
The Attorney-General as Head of the Bar
As noted earlier, in 1814 the Attorney-General was accorded precedence over all others at the English bar, and in 1834 the House of Lords affirmed that he had precedence over the Lord Advocate even in Scottish appeals. In this capacity it was generally allowed that he might speak authoritatively on behalf of the bar, though Giffard rebuffed Coleridge’s attempt to exert this authority in the courtroom.14 On the rare occasions where it was felt desirable to call the bar together to discuss a matter of major importance to the profession, such as Daniel’s proposals for law reporting,15 it was the Attorney-General who issued the call, and it also (p.1065) fell to him to pronounce upon matters of bar etiquette. After the creation of the Bar Council this role usually devolved upon them, although it was not formally yielded up. The Attorney-General’s position as head of the bar and defender of its privileges sometimes sat uneasily with another function, that of presenting bills emanating from the Lord Chancellor’s Office in the Commons. Certainly Muir McKenzie felt that the lack of a junior minister in the lower house was a significant handicap.16
Choice in selection
The choice of a law officer was limited by several considerations. He should be an eminent counsel17with suitable political opinions, and if not already an MP, he must be prepared to enter the House.18Before the first Reform Act these requirements seldom created difficulties. The usual avenue to the highest judicial posts lay through serving the government, and ambitious Georgian lawyers took care that their politics would not disqualify them or were prepared to turn their coat at need.19 Later on, in an era when ‘every child that is born into the world alive is either a little Liberal or else a little Conservative’, the choice was more restricted, particularly for the Whigs in the mid-1830s,20 though there were always lawyers who wore their politics lightly and could be recruited by either party as soon as they rose to prominence in the profession.
It was also desirable that one law officer should be from the common law bar and the other from equity,21 but this was not a binding convention.22 However, it was necessary to have someone capable of examining witnesses and addressing a jury.23 The choice had a long-term importance because, besides giving a claim (p.1066) to judicial perferment,24 the seniority acquired by the Attorney- General over the Solicitor-General, and his claim to re-appointment if a ministry came back in, could hardly be overlooked. No doubt, for instance, Palmerston would have much preferred to promote Palmer over the head of the inadequate Atherton, but did not,25 and choosing Gorst in 1885 stored up trouble for the Conservatives when they later had to juggle his claims with those of Webster and Clarke.26 Moreover, Webster’s selection ahead of Clarke (over Clarke’s protests) put him permanently ahead in their claims to office.27
Government and parliament
Law officers, even those most favoured by the Prime Minister, were not expected to have a seat in the cabinet, but in 1912 Asquith’s need to mollify Rufus Isaacs for preferring Haldane as Lord Chancellor brought about a short-lived change, several of Isaacs’ successors being similarly favoured.28Membership of the Privy Council, however, a consolation prize first offered to Sir J. D. Coleridge for being denied cabinet rank, was conferred upon most of his successors and some Solicitor-Generals.29
The law officers were expected to take a leading part in parliamentary business relating to the law and the courts, even though the Lord Chancellor (if anyone) was the minister with responsibility for law reform.30 This could be awkward when their relations with the Chancellor were bad, as most notoriously between Cranworth and Bethell in the 1850s. If Coleridge’s experience is typical, the Attorney-General was not always consulted in advance on law bills,31 and neither was he always the best person to forward them; as head of the bar, the Attorney-General was unlikely (p.1067) to be enthusiastic about legislation such as Loreburn’s County Court Bills which the bar vociferously opposed.
Canning expressed disappointment that the Admiralty advocate and king’s advocate were no longer in the Commons, but the law officers’ usefulness in debate varied enormously according to their ability and commitment.32 Edward Law had been one of the most dependable speakers in Addington’s administration, which was unusually weak in debate, and a century later Isaacs and Simon, both with serious political ambitions, were equally prominent; indeed all the law officers of the Liberal ministries worked hard on its heavy programme of social legislation.33 In earlier times some had played a major role in seeing through particular bills, as Bethell did with the Succession Duty Bill and Page Wood with the Ecclesiastical Titles Bill.34 Others, such as Cockburn, ostentatiously held aloof from non-legal matters35 and some, however effective in court, had such limited parliamentary skills that whips and ministers would not call on them unless it was unavoidable; Rolfe, for example, was quite hopeless and Pollock and Jessel disappointing.36
In general, however, the governmental and parliamentary duties of the law officers were encroaching remorselessly on their private practice. Jervis voiced concerns about this in 185037 and though Jessel questioned Baggallay’s claim that they were paid for attending at cabinet, he acknowledged that attendances on ministers now formed a major part of their duties.38 So did sittings of the (p.1068)Commons, where pressure from MPs was beginning to be felt by 1872.39 The strain on the Attorney-General in particular led Sir Henry James to contend that the position had become impossible, and besides Cairns’ breakdown after only a few months, it was thought to have contributed to the early deaths of Karslake and Holker.40 Among their burdens was the annual Finance Act,41 and as legislative programmes grew more ambitious and the legislation more complex it became harder for the law officers to set limits upon their participation.
These growing demands on their time highlighted the inherent ambiguities in the law officers’ position. MPs might regard them as servants of the Crown like other ministers, but they preferred to see themselves as ordinary barristers with a retainer from the Crown to provide a range of legal services. This conception emphasized their independence and standing within a profession in which salaried barristers were an inferior rarity, but though it received some superficial endorsement from the withdrawal in 1831 of the £40 salary which law officers and KCs had received,42 the conception gradually lost plausibility as their public duties expanded. Some, such as parliamentary engagements, were regarded as incidental to membership of the house, and therefore unremunerated; but in the case of opinions given to ministers, payment seems to have turned on the mode and channel through which the request came, which was plainly unsatisfactory.43 The fees for contentious business where a brief was delivered were conventionally set well below the market rate,44 but each law officer had a token ‘complimentary’ brief for each Crown prosecution irrespective of whether he was being asked to conduct it in person,45 and a large income—£2500 a year in 1850 and rising—accrued from the scrutiny of patents, which most left to a competent clerk.46
The overall result (not unfamiliar in the courts and their offices) was that they were underpaid for important work and overpaid for purely formal business. For a long time it hardly mattered to the law officers themselves, for though Scott had greatly overstated the loss of income he suffered, and though others down to Jervis also experienced a fall, it was not steep enough for anyone (except perhaps(p.1069) Charles Austin) to refuse the place on that account.47 Furthermore, few of those who were not translated to the bench if they wished remained law officers long enough for their practice to suffer irreparably.48 The principle that public servants should be paid purely and fully for the actual services they rendered only slowly became established, and although the Select Committee on Official Salaries in 1850, finding that (exclusive of what their private practice produced), the law officers’ bemusing arrangements yielded an excessive income, recommended that they be salaried instead, no action was taken.49
However, by the 1870s the law officers were feeling the strain. Some MPs were aggrieved that these junior ministers were not more readily available to justify their actions and those of the government, while the law officers themselves were having an increasing struggle to conduct their private practice and attend to the multifarious business of government; whereas Bethell had felt it prudent to limit his private practice, Holker gave up his altogether.50 The Treasury viewed with disapproval the rising sums paid for their services and precipitated a change. Under the new arrangement the Attorney-General would have £7000 per annum and the Solicitor-General £6000 to cover all non-contentious business, with fees continuing to be paid for contentious business, but now on ‘the ordinary professional scale’. There would no longer be complimentary briefs.51 This scheme, embodied in a Treasury minute in December 1871, was inadequately explained in the Law Officers’ Fees Act 1872 (c.70), which merely added that all other fees should henceforth be accounted for to the Treasury.
A combination of incompetence and concealment at the Treasury, and culpable lack of clarity in the definition of ‘non-contentious’ business, produced a row with the Attorney-General which obliged the government hastily to convene a committee under Jessel MR (a former Solicitor-General).52 Even Baggallay, who favoured the old system, acknowledged that there could be no going back,53 and the committee’s narrow remit precluded a thorough review of the antediluvian (p.1070) way the law officers were obliged to do their business, though it did publicize it.54 Greater precision in the distinction between non-contentious and contentious business (several departments had been encouraged by the Treasury to adopt a construction very unfavourable to the law officers55) was the only outcome directly affecting the law officers,56 though the committee then proceeded to suggest the incorporation of standing counsel employed by sundry government departments into the office of Treasury counsel.57
The new system lasted less than 20 years. There had been strong criticism of the law officers combining private practice with public duties when Coleridge, upon becoming Solicitor-General in 1871, promptly undertook the prosecution of the Tichborne claimant, whom he had relentlessly cross-examined in the civil action a few months before.58 Far more damage was done by Webster’s representing The Times in Parnell’s action and at the subsequent inquiry ordered by the government to which he belonged.59 That insensitive action bolstered Gladstone’s insistence that his law officers must abandon private practice, though he was either strangely ill-informed or deliberately misleading in telling them that their Conservative predecessors had also been severely restricted. He also substituted an inclusive salary (£10,000 and £9000 respectively) for the mixture of salaries and fees.60 The Conservatives, Webster and Clarke, denied that they had been so restricted and, on the party’s return to office in 1895, were supported by Halsbury in seeking a return to the old ways. Given the difficulty of finding adequate substitutes, they might have overcome cabinet opposition, but Webster, perhaps conscious that his past actions had made him vulnerable, ratted on his colleague, salving his conscience by securing the concession that fees would again become the basis for conducting contentious business. Clarke stood out on principle, but it was not one with which laymen sympathized, nor was it really compatible with the amount of assorted public business which now fell to the law officers.61
Private practice was gone for good, but the fees system was attacked again by Lloyd George in 1901, drawing ammunition from published figures showing incomes temporarily swollen by several big international arbitrations. However, that, and subsequent attacks, were repulsed, and the same structure continued (p.1071) until the 1940s.62 Men like Isaacs, Simon, and Smith could not hope to match the remarkable incomes they could make at the bar, and their incredulous and indignant clerks had to learn to accept briefs marked with what they thought contemptibly low sums,63 but these were men with political ambitions who had been able to amass big sums much more quickly than most of their predecessors, so governments were still able to attract the biggest names at the bar.
Whereas the Lord Chancellor had a collection of officers who could be employed on official business64the law officers had only their own personal clerks, who might well be entirely ignorant of the ways of government.65 For professional assistance it had become the invariable custom for the Attorney-General to employ a devil66 and there seems also to have been a clerk with knowledge of the patent business upon whom they could call.67 Karslake reckoned that these services, and the payment to his own clerk on account of government business, cost him close to £1000 per annum.68 The lack of any permanent location for a ‘Law Officers’ Department’ does not seem to have been a concern in the first half of the nineteenth century, when (if Campbell is typical) law officers seem not to have troubled even to have a copy of the opinions they delivered,69 but by Harcourt’s time the ‘archives of the Solicitor-General’, comprising a coachload of assorted and unsorted opinions and papers, were passed unceremoniously from the chambers of one incumbent to the next.70 More alarming was the practice of merely bundling up Foreign Office documents, sometimes highly secret ones, and sending them between law officers by a clerk on the railway.71 With law officers dependent upon the department bespeaking the opinion to supply them with earlier relevant materials, and the department expecting the law officers to have a copy of anything emanating from their predecessors, it was a discreditable and inefficient way of doing business.72
(p.1072) Harcourt’s disclosure did not, as he had hoped, lead immediately to the establishment of a permanent secretariat, even after Selborne had argued that the law officers needed at least a secretary capable of ensuring that all relevant bills in the Commons were drawn to their attention.73 Finally in 1893 they were given a small office in the RCJ, consisting of two clerks (raised to three just before the War) along with law officers’ own clerks.74 There was no equivalent to the Lord Chancellor’s permanent secretary, and Simon was surprised at the old-fashioned way opinions were still prepared.75
It had long been one of the law officers’ chief duties to provide a minister upon request with an opinion on a question of law. Some requests arrived in a formal shape which attracted a fee, but others were contained in a letter and were treated more informally; curiously, there was no convention to distinguish which approach was appropriate.76 As the law officers noted with suspicion, formal requests increased following the Minute of 1871 under which they need not be paid for individually, and Holland of the Colonial Office admitted that they now had less doubt about making them.77Baggallay reckoned there were then 600 a year, rising sharply when war conditions increased the demand for opinions on international law.78 The law officers’ main complaint, however, was the lack of discrimination rather than the number; in Harcourt’s view ‘an enormous mass of business was sent from the Foreign Office which had no possible relation to law at all, and might just as well have been sent to anybody else as to the law officers’.79 The Foreign Office may have become more selective once it acquired its own in-house lawyer; at all events the number of formal opinions, 187 in 1893, remained fairly constant down to the First World War, though this may conceal a growing reliance on informal requests.80
Different views were expressed on whether these opinions were confidential. When Palmerston wished to quote from an opinion on the Belfast riots in 1865 the speaker ruled that it would not breach the rules of the House, and although in (p.1073) 1901 Balfour made a very uncompromising pronouncement in favour of complete confidentiality, Isaacs provided the Commons with a full account of his opinion on the Archer-Shee case in 1911 and the question remained unsettled.81
The law officers were sometimes involved in the drafting of bills. Though Coleridge complained that he was sometimes unaware of the contents even of law reform bills until he had to commend them to the House,82 it seems that in general they expected that once the draftsman had furnished a bill they would settle it with the minister and others who would be responsible for its passage. However, Baggallay jibbed at being expected to draft clauses himself, something Jessel thought was a novelty, although in the 1850s the struggle to get through the stages of controversial bills such as those on probate and divorce had required frequent recourse to extempore drafting under harassing circumstances.83 It may be, however, that the involvement of the Parliamentary Counsel Office reduced such demands.84
In 1872 the Chancellor of the Exchequer claimed that advising on and conducting government prosecutions was the law officers’ most important duty, but his view was out of date.85 Most criminal proceedings instigated by government departments were for routine breaches of revenue law and were conducted on behalf of the Customs & Excise, Board of Trade, Post Office, and Mint. It had been customary to send a complimentary brief to the Attorney-General with a modest fee, in the expectation that he would usually return his opinion (often rather perfunctory) to the department, which would then hire junior counsel to conduct the case.86 The move to salaries for non-contentious business in 1871 seems to have confused matters, with the Post Office in particular now treating the brief as a request for an opinion, which attracted no separate fee even where it led to a prosecution. Baggallay protested, insisting on his right to decide for himself whether to conduct the case, and on this being classed as contentious business.87
The law officers’ position was safeguarded in most of the proposals to create public prosecutors, including the bill which finally succeeded in 1879.88 Though (p.1074) the Attorney-General lost out to the Home Secretary in the right to appoint the Director of Public Prosecutions, and was to exercise only a ‘superintendence’,89 he kept intact his patronage, that is, the right to nominate the counsel whom the Director was to employ, not only at the Old Bailey90 but elsewhere, defeating the Treasury Solicitor’s bid for a formal advisory role.91
A more serious issue arose in those important cases where the Attorney-General as a member of the government was involved in the decision whether to bring a prosecution. Sir John Scott had insisted that he exercised an independent discretion, but when Denman advanced this view of the constitutional position to William IV he concluded with words suggesting that the government might nevertheless issue an express direction to him.92 There are certainly later instances when the Home Secretary or the cabinet resolved on a prosecution before consulting the law officers, and Herschell was justified in demurring to Halsbury’s reiteration of their absolute independence in 1896, although there was a distinction between the decision that a prosecution would be desirable and the advice of the law officers on whether the likelihood of success would warrant it.93 Balfour also adopted the absolutist position in 1903, but this neither reflected the past nor would hold good for the near future.94
The law officers’ very prolific use of informations for criminal libel (particularly by Vicary Gibbs) to suppress radical publications during the long war with France had been politically controversial, and although Copley desisted from using them,95 Tenterden’s complaisant acceptance of informations from both common informers (‘Crown Office informations’) and the law officers held out a strong temptation. However, dismayed by the failure to convict Cobbett in 1831, Denman, despite pressure from the King, gave them up,96 and although (p.1075) some of his successors (e.g. A. L. Smith97) regretted that they were not more readily used in appropriate cases, they became a rarity.98
The most objectionable thing about ex officio informations was that they sent the accused straight to trial, by-passing the normal safeguards of committal and grand jury,99 and the Attorney-General’s other privileges in litigation also came under scrutiny as the accused’s position was gradually improved. He kept the right to insist on a trial at bar in cases where he claimed that the Crown had an interest in the outcome (though that claim might itself be disputed100), and if he waived a trial at bar his right to choose the venue was expressly enacted in the Crown Suits Act 1865.101 However, his claim to be entitled to the last opportunity to address the jury in a criminal trial proved more difficult to sustain. It was upheld by Mansfield, at any rate for state trials,102 and following the Prisoners Counsel Act 1836 the judges agreed it should apply to all prosecuting counsel in public prosecutions for felonies.103 However, it was much criticized104 and in 1884 it was confined to the law officers acting in person.105
Besides his role in the decision to bring prosecutions there were cases in which the Attorney-General exercised control over their continuation.106 The broadest was the long-standing prerogative power to discontinue a prosecution on indictment by entering a nolle prosequi, whether the prosecution had been initiated by a private individual or by the Crown (Denman thereby extricated himself from embarrassment after the jury would not convict Cobbett of a criminal libel in 1831).107 It was exercisable at any stage before the entry of the verdict (even after the jury’s verdict, as in R v. Johnson108) but until the authoritative review in R v. Allen,109 it remained unclear whether it only terminated proceedings on the (p.1076) particular indictment or also barred future proceedings for the same offence. In Allen the court not only ruled that the Attorney-General’s practice of consulting the prosecutor or his counsel beforehand, though desirable, was not a requisite, but held that the proceedings thus halted could not be revived.110 The nolle prosequi appears to have been used chiefly for two reasons: ‘to dispose of technically imperfect proceedings instituted by the Crown; and to put a stop to oppressive, but technically impeccable, proceedings issued by private prosecutors’.111 Once the DPP was empowered to take over a private prosecution and, if he chose, discontinue it, the latter became unnecessary, and with the simplifications of the Indictments Act 1915 so did the former, rendering the nolle prosequi obsolescent until the 1950s.112
The Attorney-General also controlled appeals to the House of Lords from criminal convictions by writ of error.113 A dictum of Mansfield’s suggested that his consent ought not to be withheld ‘if there be probable cause’,114 but in Ex p Newton 115 an attempt to obtain a mandamus against his refusal was not only unsuccessful, but led Campbell CJ to doubt the authenticity as well as the correctness of the dictum.116 According to J. F. Stephen, ‘the criminal law is for the most part now so well settled and understood that it is a matter of little practical importance’,117 but the rarity of successful applications probably also owed something to the deficiencies of the writ of error as a corrective mechanism. At any rate, during the passage of the Court of Criminal Appeals Act 1907 the writ of error was abolished and section 1(6) provided instead that an appeal would lie on a certificate of the Attorney-General that ‘the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought’.118 This provision placed the Attorney-General in a rather unsatisfactory position, and while the statutory terms looked very restrictive (and were intended to be), it was (p.1077) predictable that in capital cases there might be considerable newspaper and parliamentary pressure, as was soon demonstrated with Steinie Morrison and Roger Casement.119
The Attorney-General’s third restraint on proceedings was a new development, commencing with the Roman Catholic Relief Act 1829.120 This and certain later statutes provided that no prosecution might be brought without his consent.121 The justifications were usually either (as in the Roman Catholic Relief Act) that it was likely to attract many malicious or vexatious private prosecutions or, as with the Official Secrets Act 1911, that the offence was essentially against the state rather than an individual. Before the Criminal Law Commission in 1854 Campbell CJ and the Attorney-General (Cockburn) differed fundamentally on whether this restraint should be adopted more widely, and though the Commission produced a rather startling proposal that it should be necessary ‘in cases where the defendant has not previously been taken before a magistrate’122 no general rule was made. It spread piecemeal, and with no discernible rationale, but did not become seriously problematic until these clauses proliferated in wartime emergency legislation.123
Quite distinct from these roles was the Attorney-General’s position as the guardian of the public interest.124 Originally exercised (either directly or through a relator action) chiefly in relation to alleged misuse of charitable funds, it was expanded by degrees to other wrongs which were not particular enough to give any individual interest or reason to bring an action or which for various reasons might otherwise escape challenge. Beginning with public nuisances, these situations extended to a wide range of ultra vires actions by public bodies.125 As Lord Halsbury made clear in LCC v.Attorney-General,126 his discretion fell outside the courts’ control, though he could not claim an injunction as of right.127 Lastly, it was the Attorney-General who was made defendant in actions against the Crown. RSC 1883 Ord. 25, r 5 enabled declaratory judgments to be obtained in this way with a view to creating a strong moral obligation in lieu of an injunction, (p.1078) but only after Dyson v.Attorney-General 128 where the rules were given a broad enough interpretation to encourage this course of action.129
2. The Inns of Court and Chancery
Each inn of court was governed by its benchers, a self-perpetuating body of unrestricted size who added to their number as and when they chose. The normal qualifications remained age, wealth, and personal convenience rather than professional competence or success,130 and benchers became a byword for elderly men, remote from the concerns of juniors and students and more interested in their dinners than anything else.131 Though the composition of the benches did change significantly it was fortuitous rather than a response to the discontent of juniors. It had become the practice to elect new KCs almost automatically and this created two unforeseen difficulties: that the size of the bench would become unwieldy, and that either any discrimination must be abandoned or its exercise must be defensible, lest it create an invidious position for the rejected silk.132
The latter surfaced first and in the most embarrassing fashion. In 1845 the Tory Abraham Hayward, outspoken former editor of the Law Magazine, was blackballed by the Whig J. A. Roebuck in retaliation for an old slight. Hayward took his case to the judges, who correctly decided that he had no ‘inchoate right’ capable of being infringed but deplored the Inner Temple’s practice; the response, to substitute a requirement of four black balls for one, was scarcely the improvement the judges had in mind.133
QCs continued to be chosen (only a few refused134) except in a handful of cases, such as Edwin James, where the inn judged them unsuitable, and the benches therefore grew ever larger and ever more remote from the junior bar, since no attempt was made to balance this influx by the addition of younger men. By 1877 (p.1079) they numbered between 50 and 70, except at Grays (just 21).135This trend had not perturbed the Inns of Court Commission in the 1850s and when a challenge came it was the result of the bad publicity over the handling of the disciplinary cases of James and Seymour.136
Sir George Bowyer, an equity draftsman and conveyancer, and two non-practising barristers presented a bill in 1862 which coupled reforms of the disciplinary jurisdiction with proposals to have a slender majority of benchers elected. Though the contrary arguments, that elections were undignified affairs in which men of refinement would shrink from standing and even voting and that because the Crown (via the QCs) in effect controlled the benches all was well, were unconvincing there was little support for this part of Bowyer’s bill and he let it drop.137 Roundell Palmer’s mild attempt at democratization in the 1870s was equally unsuccessful. His Inns of Court Bill of 1874 would have reduced the number of benchers (50 for Lincoln’s, 40 for each of the Temples, 20 for Grays) by allowing alternate vacancies to remain unfilled and the others to be filled alternately by a QC and a practising barrister of at least five years’ standing. Some minor changes were made. The inns had to confront the situation brought about by the Judicature Acts and the dissolution in 1877 of Serjeants Inn. The judges returned to their own inns and except at Lincoln’s Inn (which was accustomed to having judges as benchers) were accorded a sort of honorary status on the benches.138 Lincoln’s also limited benchers to 70 in 1875 and later made rather faint-hearted moves towards getting juniors onto the bench, but even there, the government of the inns remained essentially oligarchical, and reflective observers wondered at the apathy of the members.139 Despite the attempts of a few brave souls at the Middle Temple in the 1890s to demand more democratic selection of benchers and the publication of accounts, the finances of the inns, audited only in the most perfunctory and amateurish manner, remained shrouded in secrecy.140
(p.1080) Admission and Call
The inns had acquired the right both to lay down general requirements governing entrance to the profession and to exclude either from admission or call any individual whom they felt undesirable.141Spasmodic attempts to harmonize their rules had produced a substantial, though not complete, uniformity; thus, while none of the inns would call a person ‘in trade’, Grays and the Inner Temple would not even admit him.142 Moreover, for some 20 years from 1829 the Inner Temple was unique in also imposing an entrance examination, while candidates at Lincoln’s Inn had still to be approved by the ‘Bar Table’ (those barristers who happened to be dining in hall when he was proposed for admission); this veto could be overridden by the benchers, who took a more generous view in cases such as an inspector of taxes and the editor of The Satirist.143 The principal safeguard against undesirable entrants was a certificate signed by a bencher or two barristers that the applicant was ‘a gentleman of character and respectability’. Though the Commissioners objected that it might work hardship on those without connections it does not seem to have been too rigorous in practice.144
The power to refuse admission or call, being exercised without reference to any published criteria, was certainly liable to criticism. Its origin was ‘involved in considerable obscurity’145 and was supposed to have been devolved by the judges, who retained the power to police its exercise, though which judges and whether as visitors or otherwise remained obscure. The King’s Bench, which had consistently declined to intervene in disputes between the benchers and members of the inns,146 abdicated all responsibility when Thomas Wooler, whom Lincoln’s Inn had not only refused to admit but even to supply reasons for their refusal, sought a mandamus.147 Littledale J. held that ‘those are voluntary societies, not submitting to any government. They may in their discretion admit or not, as they please; and the Court…has no power to compel them to admit any individual.’148
Littledale distinguished this situation from a refusal to call, where an appeal did lie to the judges, on the doubtful ground that the candidate once admitted (p.1081) acquired ‘an inchoate right to be called’,149 but this was not a distinction that commended itself to the Commissioners and in 1837 the inns had agreed to extend the same right of appeal to admissions.150 In fact no further refusals attracted any public attention until those of Miss Day and Christobel Pankhurst in the Edwardian era, and those refusals were upheld on the grounds of their sex rather than personal characteristics.151
However, in the 1830s the benchers of the Inner Temple were courting trouble by refusing to call D. W. Harvey, a former attorney with a dubious record, despite admitting him 11 terms before.152 Harvey’s appeal did not persuade the judges to overturn the benchers’ refusal but he was elected MP for Colchester in 1832 and returned to the charge. Though his attempts to have the inns compelled to frame fairer regulations failed, the Common Law Commissioners were instructed to investigate.153Meanwhile Harvey obtained a rehearing, but the benchers remained obdurate even in the face of a critical select committee report.154
The Commissioners deplored the lack of any regulations governing the conduct of appeals and rejected Littledale’s position: ‘the ordinary immunities of a voluntary society ought not to be allowed to any body of persons claiming to be the medium of admission into one of the learned professions. If the body is to enjoy this privilege, it is not longer a private association, but one in which the public has a deep interest, and the proceedings of which, if not adapted to the pruposes of general utility, ought to be made so by the interposition of law.’155
While pronouncing the inns’ general rules unexceptionable, they recommended that any new rules should require the sanction of the judges; refusals of admission and call should be subject to an appeal and the veto of the Lincoln’s Inn bar table should be abolished.156 As we have seen, the inns did extend the right of appeal and Lincoln’s did abandon the bar table’s veto. As usual, the inns escaped regulation by taking the minimum action required to deflect criticism.
Like any voluntary society the inns had the power to expel members. In keeping with its general attitude, the King’s Bench, through Lord Ellenborough CJ, had (p.1082) firmly refused to involve itself in disputes over non-payment of dues.157 More difficult were allegations that a barrister had contravened the ethical norms of the profession since, as critics were pointing out with increasing frequency, the inns had taken no steps to inform the profession what those norms were. Cockburn CJ quite aptly likened their general tenor to the military’s catch-all ‘conduct unbecoming’,158 but the lack of definition meant that sanctions were restricted to the most blatant violations of the unwritten code.159
The range of sanctions was limited, with nothing between ‘screening’ a censure (perhaps coupled with a ban on dining in hall) and permanent disbarment, so seldom used that a good deal of uncertainty surrounded the procedure.160 Though this could lead to complaints of unfairness and inconsistency, action was sometimes unavoidable.161 James Townshend Saward, barrister, master forger and high-class receiver known to the London underworld as ‘Jem the Penman’, lived his double life so long and so notoriously that his downfall in 1857 was a humiliating episode for the high-minded profession.162Such delinquencies seemed to reflect a growing disregard among barristers for the etiquette of the profession, and the weaknesses of the disciplinary process as well as the moral shortcomings of individuals were scandalously exposed in several cases around 1860.
The most sensational involved Edwin James. James epitomized a new type of barrister. A flashy, sometimes effective advocate but a shallow lawyer, he had long been suspected of gaining publicity by unscrupulous use of the press and was rumoured to have been made Recorder of Rye for hushing up the part played by Sir John Jervis in a corrupt by-election. Fashionable, high living and free spending, James was tipped as a coming law officer but was so questionable a character that the Inner Temple had not made him a bencher when he took silk.163
In the end rumours of scoundrelly conduct in two law cases, of immense debts, and of leeching the young son of a peer compelled the benchers to take action, (p.1083) but because, as was customary, details of the disbarment were not published, James was able to restart his career in the United States, presenting himself as the aggrieved victim of a prejudiced establishment.164 Meanwhile the Middle Temple was grappling with the less straightforward case of W. Digby Seymour, another who had not been offered a seat on his inn’s bench when given silk, this time on account of some questionable business dealings, which had also led to expulsion from the northern circuit mess. He escaped with a censure, but not before benchers had lost their dignity by engaging in a farcical struggle with a witness for possession of a document, leading to charges of assault.165 Seymour refused to accept the verdict, raised it in the Commons,166 and pointed to numerous deficiencies in the process against him—in particular that the succession of after-dinner hearings had been attended by different benchers each time.167
To correct these manifest deficiencies, Bowyer and Sir John Romilly brought forward schemes168 and though neither came to fruition the inns were sufficiently alarmed at the threat to their autonomy to hold their own discussions about establishing some body to deal with questions of practice.169 As noted elsewhere, they yielded to Cairns’s Bar Education and Discipline Bill which would have created a council of 30 members, including six Crown nominees, but when it was dropped the reform of the disciplinary process lapsed. The Judicature Act 1873 did substitute the Lord Chancellor and a single judge of the KBD for the common law judges as a domestic tribunal170 and in the last of the century’s scandals, the disbarment by Grays of Kenealy in 1876, it was confirmed that the accused had the right to be given reasons for an adverse decision.171 However, the only joint body to be set up was a 20-man committee established in 1894 to report on general issues of discipline.172
Chambers and Libraries
Not all London barristers were located in the inns. Some conveyancing counsel such as Swanston and the eccentric Charles Trevelyan had spilled out of Lincoln’s (p.1084) Inn into Chancery Lane, but only the very best could afford to take that risk.173 All the inns had gone over to yearly tenancies, lettings for life were gradually extinguished and the practice of designating some eligible sets as ‘benchers’ chambers’ was phased out after criticism from the Commissioners in 1855.174
There were other changes besides. With the exception of underpopulated Gray’s, the inns sought to confine lettings to their own members. They ceased to be family residences and being exclusively the haunt of bachelors, the Temple at night became notorious for loose women (dollymops) and prostitutes.175 That changed with the evolution of chambers into places purely of business. Young and impecunious men who still needed residential chambers were pushed upwards into the less spacious, less client-friendly chambers on the upper floors.176 The rising number of bar students was accommodated by carving small, inconvenient rooms out of former bedrooms and closets but the inns did also build new chambers. Inner undertook a joint venture with Middle when the Thames embankment gave them extra space towards the river, resulting in some rather grand chambers by E. M. Barry.177 None of the inns seems actually to have run short of space, and despite complaints about exorbitant rents178 and some mismanagement, they did show sensitivity to the laws of supply and demand. Inner cut rents by 7½ per cent in the early 1850s during the slump at the common law bar and the Lincoln’s Inn investigation in the 1890s recommended lower rents to attract the uncommitted student who gravitated to the Temple partly through cheapness.179
What did not change until the end of the century was the tradition that chambers would be shabby, drab and dim—it was hackneyed enough to feature in verses in Punch.180 Only the new breed of super-rich Edwardian counsel seems to have begun smartening them up, Fletcher Moulton using trophies from his patent cases, and Joseph Walton with pictures.181
All the inns had libraries which possessed rare and valuable items, but they were not well adapted to student use in the content of their collection, their buildings or (p.1085) their opening hours.182 In all cases, however, the buildings were either replaced and/or enlarged.183 They were not always generous with their spending, however, and it was said that the meanness of the Middle Temple librarian over textbooks led the British Museum to complain of too many law students resorting to its collection.184 To their credit, however, all the inns contributed in proportion to their members to the expense of the bar library in the Royal Courts of Justice in 1884.185
The Four Inns
Inner for the rich man, Middle for the poor, Lincoln’s for the gentleman,
When quoting the old rhyme in 1919, J. A. Strahan was careful to disclaim its continuing applicability to Gray’s.186 Nevertheless, for almost all of the period under consideration, Gray’s was unfashionable and in a decline which at one stage threatened to become terminal. From an entry comparable with Middle Temple in the 1820s there was a rapid and inexplicable falling off to only 15 admissions in 1850, and not a single student was called in 1873.187
Gray’s for the boor.
Gray’s was less convenient for the courts, particularly while the London streets were in the condition described in Bleak House, and with the legal world so compact even a short distance could be isolating. However, that does not explain the earlier fluctuations nor the precipitate decline in mid-century and it meant that it was cheaper to rent chambers.188 This attracted a considerable Irish contingent, and since for the most part they came to fulfil the two-year qualification period before returning home, cheapness was a serious consideration.189 The Irish contributed to a convivial atmosphere but hibernian numbers and boisterousness were thought to have put off home students.190 Gray’s was unlike the other inns in not becoming exclusively a barristers’ haunt and had a motley character as(p.1086) ‘that straggling caravanserai for the reception of moneylenders, Bohemians, and eccentric gentlemen’.191
The critical state of its affairs in the 1870s finally prompted the benchers to action, and though scholarships and a new library192 were offset by a rising overdraft and a peculating steward, rescue efforts led by Lewis Coward and Miles Mattinson and the urgings of F. E. Smith revived admissions dramatically from 29 in 1893 to 113 in 1910. Though still the smallest of the inns Gray’s was no longer the poor relation.193
Lincoln’s began the nineteenth century as the premier inn both for the ‘gentleman’ and for the ambitious practitioner.194 In 1842 it mustered 42 per cent of barristers named in the Law List and had been busily buying back chambers, renovating old buildings and erecting new ones; £88,000 went on its new hall and library, opened in 1845.195 Uniquely it still maintained the form of exercises for pupils but they had become a ritual farce and were abolished in 1856.196
From the 1850s Lincoln’s went into a worrying decline. In part this was a direct result of its ever-closer links with the court of Chancery and the equity bar and its advocacy of concentrating the courts of equity within the precincts of the inn.197 This made it almost necessary for leading equity counsel to reside in there, which drove up rents and put off newcomers whose aspirations lay at common law.198Top floors remained largely residential, it being felt that solicitors would not willingly climb so high199and by the time rents of the cheaper sets were reduced to competitive levels a rapid loss of popularity had already set in.200
By 1863 the inn’s share of the bar had fallen abruptly to 13 per cent and the removal of the courts of equity to the Strand in 1883 and the difficulties of the junior equity bar hit hard. A committee set up by the benchers in 1890 was decidedly pessimistic about the prospects of the equity bar and the inn but the pessimism was misplaced.201 Chancery rallied and with the general expansion of the bar Lincoln’s returned to favour, though numbers did not match the Temple. More sedate than the Temple, it was closer to the big solicitors in the Fields outside the (p.1087) gate, and when the Land Registry and the Public Trustee were located there, it reinforced the ‘property’ character of the inn.
‘Inner for the rich man’ was only true if the rich man could be equated with the ‘varsity man’, for its reputation was certainly as the preferred inn for the public school and Oxbridge product.202 Besides its shortlived entrance examination, it made laudable but unsuccessful attempts in the 1830s and 1840s to revive learning through the creation of lectureships.203 Profiting from the fire started by the inattentive William Maule to improve some wretched old sets, equipped with a new hall and library, and offering the reduced rents in the 1850s, the Inner boomed. In 1878 it admitted more than 200, a figure unmatched until Middle Temple in 1910204 and its 400 sets were all needed, since for the rest of the period it regularly admitted more than 150 a year, around 30 per cent of the total.
Among the inns the Middle Temple was the most cosmopolitan, the most democratic in its dining arrangements (being alone in not ordering the tables by seniority) and perhaps the most sociable.205If not ‘for the poor’ it was certainly the favourite among those who came late to the bar and later among graduates of London University.206 From the 1880s onwards, however, it was most clearly distinguished from the other inns by the influx of students from the empire, in particular from the east. By 1914, when three-fifths of the intake were from overseas, it had become the biggest inn.207 More generous scholarships were part of the attraction, but cheapness was probably a bigger one, though the most sought after chambers, those new ones towards the river, were expensive.208
The Inns of Chancery
Each of the inns of Chancery, reduced to eight in number by Coke’s time, was loosely affiliated to an inn of court which exercised ‘a certain supervisory jurisdiction over it’.209 However, having first become the haunt of attorneys rather than barristers, they subsequently lost any real connection with the legal profession.210 (p.1088) Their mostly ancient buildings occupied prime sites along Holborn and Chancery Lane and were all sold as the area was redeveloped.
Since the Inns of Court Commission had dismissively concluded that they held no property on charitable trusts, nor possessed any income which might be devoted to public purposes,211 there seemed no reason to obstruct this process and the sale of Lyon’s Inn in 1863 aroused little interest,212but controversy generated by the sale of Serjeants’ Inn in 1877 and lively debates about legal education made the sale of Clement’s Inn in 1884 less straightforward. The Law Society failed in its allegation that the inn was subject to charitable trusts, but some of the members who benefited by the windfall prudently made a large donation for the purpose of legal education.213 Threats of a further challenge were made when the Prudential bought Staple and Furnival’s Inns but seemingly did not materialize and an attempt to intervene in the sale of Barnard’s in 1892 was unsuccessful.214
Nevertheless, when the last two, Cliffords and New Inn were disposed of, the latter as a compulsory purchase by the LCC for road widening, claims were made. The New Inn case was settled on terms which extracted £55,000 for the provision of legal education.215 The other case was fought out and inSmith v. Kerr the bulk of its proceeds of £100,000 was held charitable; both sums went to swell the war chest of the proposed ‘general school of law’.216 The halls of Barnard’s Inn and (more prominently) Staple Inn survive, but the inns themselves are dead and gone.
3. The Bar Committee and Bar Council
Many members of the junior bar, especially on the common law side, were aggrieved that during the threatening reformist ferment of the 1870s their interests were not adequately defended. The Attorney-General was in an equivocal position and the numerous barristers in Parliament were mostly eminent and successful men, remote from the concerns of the rank-and-file. The latter looked enviously at the solicitors’ institutions, which were more vigorous in defence of their members than the gerontocracy of the inns.217
In 1883 this exasperation translated into purposeful activity. A new set of rules of court threatened drastically to reduce the openings for juniors and came hard (p.1089) on the heels of legislation tending to diminish counsel’s conveyancing role.218 More than 1000 attended a bar meeting and a Bar Committee was formed ‘to collect and express the opinion[s] of the members of the Bar on matters affecting the profession and to take such action thereon as may be deemed expedient’. A telling indication of the truculent mood of the juniors was the composition of the Committee, with equal numbers drawn from the QCs, the men of 10 years’ standing and the more junior.219
The Committee failed in its immediate object, a review of the new rules, despite a forceful challenge by its chairman, Sir Hardinge Giffard, in the Commons.220 However, the bar benefited from Giffard becoming Lord Chancellor in 1885. Selborne had agreed that the Bar Committee should be given an opportunity to make representations before new rules became effective, but Halsbury gave them the right to be consulted at the drafting stage. Their comments were usually conservative, as in their desire to revert to closing the Westminster courts during the circuits.221 The Committee also sought a role in the internal regulation of the profession in such matters as the two-counsel rule and retainers,222 but as it became clear that it had no real authority and external threats receded, early enthusiasm waned, attendance at annual meetings dropped, and despite the efforts of its energetic secretary S. H. S. Lofthouse, subscribers diminished.223
The apathy was dispelled in 1894, partly through the energetic efforts F. O. Crump, editor of The Law Times. His views were not generally accepted, not least because he sought to have the Committee operate explicitly in the interests of the ‘working part’ of the profession,224 but they seem to have stirred the bar from its slumbers. Another very large meeting transformed the Bar Committee into a Bar Council with a wider remit, though one which still fell well short of Crump’s grandiose ideas.225
The Bar Council was accepted as the counterpart of the Law Society and officially recognized in the Rule Committee Act 1909, which gave it two representatives (in practice a KC and a junior) on the Committee.226 Moreover, it always provided a (p.1090) nominee for royal commissions and departmental committees and to judge from the reports of the annual bar meeting it gave general satisfaction in that role.
The relationship of the Council with the circuits and the inns was more delicate. Gradually circuit messes acquiesced in the Council making rules of etiquette binding on their members227 but it had been folly for the bar meeting to demand an annual subsidy of £1000 from the inns to fund a permanent secretariat while seeking to take over their disciplinary function. After some testy negotiations, the Council had to be satisfied with £600 a year and was forced to leave the inns’ powers essentially intact.228 In fact the new body soon found itself able to cohabit quite comfortably with the old. It was convenient for the inns to have another body pronounce upon difficult questions of etiquette, while the Council’s existence masked their scarcely challengeable powers over admissions and calls. 229
4. Circuits and Bar Messes
Circuit life had an importance in the life of the bar which transcended the Assizes as a source of briefs.230 On circuit barristers were most nearly able to live up to the elevated conception of their calling which they affected and, in their own eyes at least, made them more than a mere profession. On circuit they partook of the majesty of the law in its solemn progress round the counties and circuit etiquette emphasized that this was a company of gentlemen. The ban on travelling by public conveyance (and later the insistence on first-class rail travel); insistence on staying in lodgings rather than hotels, and communal dining, besides creating a cordon sanitaire preventing contamination by attorneys, were ways of maintaining social difference.231
Circuit life was also designed to emphasize the collective aspect of the bar and to soften the harsh individualism that underlay the competition for business. Men who went without any expectation of briefs were particularly welcomed and the customs of the mess—temporary inversions of status, mock courts, and fines—helped the unsuccessful to sublimate their envy of the successful.232 Not (p.1091)everyone enjoyed the atmosphere of bachelor jollity; Campbell soon grew tired of it, Disraeli disparaged it in fiction as ‘a cold and mercantile adventure’, and the patrician intellectual Robert Cecil found the ‘childish ceremony’ an ordeal. 233
Each circuit had its own character. They had their own songs and stories and a hard core of veteran circuiteers who were the custodians of circuit traditions, men like Thomas Blofield on the Norfolk.234Some of these customs were assembled into collections, yet the best account of circuit life, Alderson Foote’s Pie-Powder (1911), is suffused with melancholy and is really an elegy for a passing world.235And many were marked by a common theme: circuit life was not what it was.236
In fact it is striking how much of circuit life survived well into the twentieth century. The nineteenth had opened with six English circuits and closed with six. The northern had been divided, the home and Norfolk amalgamated in the south-eastern, but of the others only the midland had undergone substantial alterations. Circuit membership had risen remarkably from 316 in 1820 to 1994 in 1900.237 Whole sets of chambers like Salter’s still emptied for the circuits and most of the ritual of the circuit mess was still intact.238
Yet the laudatores tempori acti were right. Making all allowances for their nostalgia, circuits were less attractive than before. On the south-eastern and the northern it became impossible to know all one’s fellow circuiteers and at least from the 1850s some men were no longer going the whole circuit, something which Coleridge found especially saddening.239 Successful men forsook the smaller towns, making it a farce in some places on the midland, as Atlay (a circuit enthusiast) lamented.240 A small core kept up the old tradition but the railway, and at the very end of the period the motorcar, made it easy for men to drop in and out of the circuit and the rules had to bend to accommodate realities;241the sale of the western circuit’s van in 1893 marked an epoch.242 The circuits furthest from London found it easier to keep up a semblance of the old life, but it was no longer the same anywhere.
(p.1092) ‘Social’ circuiteers, the gentlemen barristers, were seen no more; Joseph Sharpe, a yeoman bachelor, was the last on the northern.243 Assize balls disappeared, judges ceased to give dinners to local worthies and to their friends among the bar.244 ‘Grand Nights’ remained, but much of their splendour had departed, and the hard-drinking culture which had been a feature of some circuits in their heyday also vanished.245 Many blamed the railway, but other causes were intrinsic to the legal system. County courts and the extended jurisdiction of quarter sessions took away business and continuous sittings of the High Court in London (helped by the creation of district registries) offered litigants an alternative to waiting on the next Assize, as well as forcing barristers to choose whether to go circuit or remain in town.246 Local bars created formidable competition for business just where it was heaviest and the wonder is perhaps that so many men continued to go circuit.247
The shrinking attendance at circuit dinners had its effect on the role of the bar mess as an arbiter of conduct. This echoed the way the inns sought to be private clubs exercising public functions and had been controversial enough when the Norfolk acted against Kelly and O’Malley in the 1830s and the home against Ellis-Davis in the 1870s,248 but it could not be pretended that the deliberations of a handful of men (and often juniors at that) without access to precedents on their own, or practice on other circuits, represented the feeling of the circuit.249 Some circuits resorted to delegating duties to their wine committee, since that necessarily met regularly for their primary purpose, and at least on the Norfolk and western, these acquired disciplinary functions—indeed Foote felt that the chairman had become something of a tyrant.250
With the formation of the Bar Council the role of the circuit messes in developing and defining etiquette became much diminished and a greater uniformity prevailed, so it was no longer necessary for the newcomer to ask the circuit leader what its rules were.251 The mess could now concentrate on its social side.252
(p.1093) Each circuit had its own distinctive character and rules. The western always prided itself on being rather special and thanks to the writings of the Coleridges (three generations went the circuit and attained the bench) and Foote is probably the best known. It included many west countrymen and was perhaps at its zenith in the 1830s and 1840s when Cockburn, Crowder, and Follett competed for the lead, but remained strong for most of the century.253 Renowned for the discursiveness of its practitioners, even some leaders such as Crowder, which drove Assize judges to distraction,254 it was barely affected by the changes of the 1870s and the Bristol bar was not strong enough to be much of a threat.255 Traditions were upheld by Foote, E. U. Bullen, and ‘Tommy’ Bucknill, but though the numbers had risen to 200 from just 58 in 1820 the calibre declined, perhaps because it did not produce much commercial work.256
The chronicler of the Oxford circuit, Sir R. Bosanquet, tells the same tale of departing glories as Foote. The van was gone; men who could not get briefs gave up more quickly; the seniors were highly selective in their choice of towns, and for a time the nominal and invisible leader was Lewis Edmunds of the patent bar.257 Perhaps the most of conservative of circuits, it preserved the old ways longer than most and much of the social life remained intact, the fortunate being entertained at Stavely Hill’s country house.258 It was weak in the 1820s, the leader, Dauncey being little regarded even in the Exchequer, not the strongest of courts.259 His successor John Jervis was much more formidable, though it was not from men of the world like Jervis that the circuit gained its reputation for refinement,260 but rather from Oxonians who liked the opportunity to keep in touch with their old college. Even so, it grew more slowly than most until near the end of the century, when it mustered 239.261 Business failed to keep pace, hence perhaps its reputation for slow speech and a capacity for drawing out proceedings.262 Even crime was not (p.1094) abundant except in the savage parts of Staffordshire and the Forest of Dean, and circuiteers found the Birmingham local bar a formidable competitor.263
Short and compact, except between 1864 and 1876, when York and Leeds were added to relieve the northern, the midland was favoured by juniors.264 In 1884 Birmingham at last became an Assize town, inconveniently tacked onto the end of the circuit apparently to preserve the holidays of the Clerks of Assize.265 Lord Birkenhead disparaged it as ‘provincial in sympathy and prejudiced in influence’, and it never seems to have been really fashionable.266 M. D. Hill and Thomas Denman in the 1820s chose it for cheapness and small numbers267 and it remained small (just 63 in 1860) until a spectacular rise with the addition of big cities, when numbers tripled in 20 years.268 Ballantine found it highly convivial and it certainly had its share of ‘characters’ like the Clarkes, father and son, who were among the leaders in the 1820s and 1830s.269 The local Birmingham bar contributed its share of oddities—apparently it ‘ran to freaks’, men like Pye, successively an anglican and roman catholic clergyman, and the tempestuous Pym Yeatman.270