1911 Encyclopædia Britannica/Barrister
|←Barrington, William Wildman Shute, 2nd Viscount||1911 Encyclopædia Britannica, Volume 3
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BARRISTER, in England and Ireland the term applied to the highest class of lawyers who have exclusive audience in all the superior courts, the word being derived from the "bar" (q.v.) in the law courts. Every barrister in England must be a member of one of the four ancient societies called Inns of Court, viz. Lincoln's Inn, the Inner and Middle Temples, and Gray's Inn, and in Ireland, of the King's Inns. The existence of the English societies as schools can be traced back to the 13th century, and their rise is attributed to the clause in Magna Carta, by which the Common Pleas were fixed at Westminster instead of following the king's court, and the professors of law were consequently brought together in London. Associations of lawyers acquired houses of their own in which students were educated in the common law, and the degrees of barrister (corresponding to apprentice or bachelor) and sergeant (corresponding to doctor) were conferred. These schools of law are now represented by the Inns of Court (q.v.).
Students are admitted as members of the Inns of Court, on paying certain fees and on passing a general (elementary) examination or (alternatively) producing evidence of having passed a public examination at a university; their subsequent call to the bar depends on their keeping twelve terms (of which there are four in each year), and passing certain further examinations (see English Law ad fin.). A term is "kept" by dining six times (three for a student whose name is on the books of a university) in hall. This is a relic of the older system in which examinations were not included, the only requisite being a certificate from a barrister that the student had read for twelve months in his chambers. Dining in hall then applied a certain social test, which has now become unmeaning. The profession of barrister is open to almost every one; but no person connected with the law in any inferior capacity or who is a chartered or professional accountant, can enter an Inn of Court as a student until he has entirely and bona fide ceased to act or practise in such capacity. Some of the Inns also make a restriction that their members shall not be engaged in trade. A form of admission has to be filled up, containing a declaration to this effect, and mentioning inter alia the age, nationality, condition in life and occupation of the applicant. Previous to the student's call this declaration must be repeated, and he must further declare that he is not in holy orders, has not held any clerical preferment and has not performed any clerical functions during the year preceding. Subject to the above, practising solicitors of not less than five years' standing may be called to the bar without keeping any terms, upon passing the necessary examinations, and, per contra, a barrister of the same standing may, without any period of apprenticeship, become a solicitor upon passing the final examination for solicitors. Irish barristers of three years' standing may be called to the English bar without passing any examination upon keeping three terms, and so also may barristers of those colonies where the professions of barrister and solicitor are still kept distinct. No one can become a barrister till he is twenty-one years old.
The benchers of the different Inns of Court have the right of rejecting any applicant for membership with or without cause assigned; and for sufficient reasons, subject to an appeal to the common-law judges as visitors of the Inns, they may refuse to call a student to the bar, or may expel from their society or from the profession ("dis-bar" or "dis-bench") even barristers or benchers. The benchers appear to take cognizance of any kind of misconduct, whether professional or not, which they may deem unworthy of the rank of barrister. The grade of barrister comprehends the attorney-general and solicitor-general (appointed by and holding office solely at the will of the government of the day), who rank as the heads of the profession, king's counsel and ordinary practitioners, sometimes technically known as "utter barristers."
The peculiar business of barristers is the advocacy of causes in open court, but in England a great deal of other business falls into their hands. They are the chief conveyancers, and the pleadings (i.e. the counter statements of parties previous to joining issue) are in all but the simplest cases drafted by them. There was formerly, indeed, a separate class of conveyancers and special pleaders, being persons who kept the necessary number of terms qualifying for a call but who, instead of being called, took out licences, granted for one year only, but renewable, to practise under the bar, but now conveyancing and special pleading form part of the ordinary work of a junior barrister. The higher rank among barristers is that of king's or queen's counsel. They lead in court, and give opinions on cases submitted to them, but they do not accept conveyancing or pleading, nor do they admit pupils to their chambers. Precedence among king's counsel, as well as among outer barristers, is determined by seniority. The old order of serjeants-at-law (q.v.) who ranked after king's counsel, is now extinct. Although every barrister has a right to practise in any court in England, each special class of business has its own practitioners, so that the bar may almost be said to be divided into several professions. The most marked distinction is that between barristers practising in chancery and barristers practising in the courts of common law. The fusion of law and equity brought about by the Judicature Acts 1873 and 1875 was expected in course of time to break down this distinction; but to a large extent the separation between these two great branches of the profession remains. There are also subordinate distinctions in each branch. Counsel at common law attach themselves to one or other of the circuits into which England is divided, and may not practise elsewhere unless under special conditions. In chancery the king's counsel for the most part restrict themselves to one or other of the courts of the chancery division. Business before the court of probate, divorce and admiralty, the privy council and parliamentary committees, exhibits, though in a less degree, the same tendency to specialization. In some of the larger provincial towns there are also local bars of considerable strength. The bar of Ireland exhibits in its general arrangements the same features as the bar of England. For the Scottish bar, see under Advocates, Faculty of. There is no connexion whatever between the Scottish and English bars. A distinctive dress is worn by barristers when attending the courts, consisting of a stuff gown, exchanged for one of silk (whence the expression "to take silk") when the wearer has attained the rank of king's counsel, both classes also having wigs dating in pattern and material from the 18th century.
Counsel is not answerable for anything spoken by him relative to the cause in hand and suggested in the client's instructions, even though it should reflect on the character of another and prove absolutely groundless, but if he mention an untruth of his own invention, or even upon instructions if it be impertinent to the matter in hand, he is then liable to an action from the party injured. Counsel may also be punished by the summary power of the court or judge as for a contempt, and by the benchers of the inn to which he may belong on cause shown.
The rank of barrister is a necessary qualification for nearly all offices of a judicial character, and a very usual qualification for other important appointments. Not only the judgeships in the superior courts of law and equity in England and in her colonies, but nearly all the magistracies of minor rank—recorderships, county court judgeships, &c.—are restricted to the bar. The result is a unique feature in the English system of justice, viz. the perfect harmony of opinion and interest between the bar as a profession and all degrees of the judicial bench. Barristers have the rank of esquires, and are privileged from arrest whilst in attendance on the superior courts and on circuit, and also from serving on juries whilst in active practice.
Revising Barristers are counsel of not less than seven years' standing appointed to revise the lists of parliamentary voters.
Barristers cannot maintain an action for their fees, which are regarded as gratuities, nor can they, by the usage of the profession, undertake a case without the intervention of a solicitor, except in criminal cases, where a barrister may be engaged directly, by having a fee given him in open court, nor is it competent for them to enter into any contract for payment by their clients with respect to litigation.
- J. R. V. Marchant, Barrister-at-law: an Essay on the legal position of Counsel in England (1905).
1 ^ A king's counsel is appointed by letters patent to be "one of His Majesty's counsel learned in the law." The appointment rests with the lord chancellor, to whom the barrister desiring a silk gown makes application. There is no definite time required to elapse between "call" and application for a seat within the bar, but it is generally understood that a barrister must be of at least ten years' standing before he is appointed a king's counsel. The first king's counsel was Sir Francis Bacon, who was appointed by Queen Elizabeth "queen's counsel extraordinary," and received a payment, by way of "pledge and fee," of £40 a year, payable half-yearly. Succeeding king's counsel received a similar payment, until its abolition in 1831. There was not another appointment of a king's counsel until 1668, when Lord Chancellor Francis North was so honoured. From 1775 king's counsel may be said to have become a regular order. Their number was very small so late as the middle of the 19th century (20 in 1789; 30 in 1810; 28 in 1850), but at the beginning of the 20 century there were over 250. A king's counsel may not, unless by special licence, take a brief against the crown, but such a licence is never refused unless the crown desires his services in the case.