The difference in lawyers
So… it happened again yesterday.
The Legal Genealogist had some fun describing the training for a barrister in the English system, and its history, and its records.1
The Inns of Court system isn’t something we use in the United States, so an American finding a relative — direct or collateral — who trained as a barrister needs some help understanding it.
And poking around in the aspects of the archives that are online made it doubly fun.
But, as so often happens, just about as soon as the blog post went live, someone asked the other half of the question. Reader Sara Brower popped into the comments with: “And what about Solicitors?”
Because, you see, where we in the U.S. have lawyers and lawyers and lawyers,2 in England there has long been a division in the ranks of the lawyers between solicitors and barristers.
So… first… a bit of defining terms. The ABCs of lawyering in England, shall we say…
Historically, anyone who practiced any aspect of the legal field was called a lawyer. It included any “person learned in the law; as an attorney, counsel, or solicitor.”3
In English law, an attorney at law was “a public officer belonging to the superior courts of common law at Westminster, who conducted legal proceedings on behalf of others, called his clients, by whom he was retained; he answered to the solicitor in the courts of chancery, and the proctor of the admiralty, ecclesiastical, probate, and divorce courts. An attorney was almost invariably also a solicitor. It is now provided by the judicature act, 1873, § 87, that solicitors, attorneys, or proctors of, or by law empowered to practise in, any court the jurisdiction of which is by that act transferred to the high court of justice or the court of appeal, shall be called ‘solicitors of the supreme court.’”4
A barrister was an “advocate; one who has been called to the bar. A counsellor learned in the law who pleads at the bar of the courts, and who is engaged in conducting the trial or argument of causes. To be distinguished from the attorney, who draws the pleadings, prepares the testimony, and conducts matters out of court.”5
A counsellor was an “advocate or barrister. A member of the legal profession whose special function is to give counsel or advice as to the legal aspects of judicial controversies, or their preparation and management, and to appear in court for the conduct of trials, or the argument of causes, or presentation of motions, or any other legal business that takes him into the presence of the court.”6
And a solicitor was a “legal practitioner in the court of chancery. The words ‘solicitor’ and ‘attorney’ are commonly used indiscriminately, although they are not precisely the same, an attorney being a practitioner in the courts of common law, a solicitor a practitioner in the courts of equity. Most attorneys take out a certificate to practice in the courts of chancery, and therefore become solicitors also, and, on the other hand, most, if not all, solicitors take out a certificate to practice in the courts of common law, and therefore become attorneys also.”7
In other words, we have the lawyers — all the legal practitioners. Then they’re broken down between the trial lawyers (called advocates or barristers or counsellors) who were trained through the Inns of Court we spoke of yesterday. And then we have those who didn’t train specifically to go to court but rather to serve general legal needs, called attorneys at law for the law courts and solicitors for the chancery courts — but who generally did both.
What? What’s the difference between law and chancery? We’ve dealt with that before,8 but as a reminder: Chancery meant “equity; equitable jurisdiction; a court of equity; the system of jurisprudence administered in courts of equity.”9 And a court of chancery was “a court administering equity and proceeding according to the forms and principles of equity … a court possessing general equity powers, distinct from the courts of common law.”10
So there was a difference between equity courts and law courts: “the former being such as possess the jurisdiction of a chancellor, apply the rules and principles of chancery law, and follow the procedure in equity; the latter, such as have no equitable powers, but administer justice according to the rules and practice of the common law.”11
In plain English, the law courts had to follow very strict rules of pleading, and they had limited remedies. Usually, if you sued at law, you wanted money damages. Equity courts had the power to look at fairness and to provide “a specific and preventive remedy … where courts of common law only give subsequent damages.”12 So if, for example, you wanted out of a marriage, you went to the equity court — the chancery court.
Okay… so how did all the people who did that law and chancery stuff, but not the going-to-court stuff, get trained? Well, initially, they all learned by watching the older experienced people through the Inns of Court.
As the trial lawyers got more exclusive, however, they pushed the others out of the Inns of Court… and into the arms of more senior practitioners. By the beginning of the 17th century, aspiring attorneys and solicitors entered into training contracts with older members of the field called Articled Clerkships, and, later, Training Contracts.13
Records of who these trainees were are spotty in the 17th and early 18th centuries, though some do exist, but by 1730, the law required that nobody could be a solicitor without being on the roll of the court — and nobody could get on the roll of the court unless he’d done some apprenticeship period, called a clerkship.14
By the beginning of the 18th century, these practitioners started organizing, first into the Society of Gentlemen Practisers in the Courts of Law and Equity and today as the Law Society of England and Wales.15 These groups trained and supervised and regulated these legal practitioners.
All of which means, of course, records.
Held by the National Archives of the United Kingdom, there are registers of articled clerkships, rolls of solicitors and attorneys and other goodies recording the names of thousands of men who became legal practitioners as far back as the 17th century. The author of the English Legal History blog reported that there were approximately 9,500 Clerks recorded in the Articled Clerkships of the Court of Common Pleas in the 82 years from 1785 to 1867, and 7,600 solicitors admitted to the court roll from 1729 to 1788.16
Some of these (Articles of Clerkship (1756-1874)) are available on Ancestry if you have a world subscription; much more is available only as textual records at the National Archives of the United Kingdom. There’s a research guide for Lawyers and another called Lawyers: further research. The two in combination are a great overview of the records.
Gotta love it when the law works in the genealogists’ favor… and we get records as a result.
Image: “An example page from the Register detailing the names of Clerks, their masters and the term of years. (National Archives).” Photo by Ben Darlow, “History of the Solicitors’ Training Contract,” English Legal History blog, posted 10 Feb 2014 (https://englishlegalhistory.wordpress.com/ : accessed 15 May 2017).)
- See Judy G. Russell, “The temples of England,” The Legal Genealogist, posted 15 May 2017 (http://www.legalgenealogist.com/blog : accessed 15 May 2017). ↩
- No jokes about too many lawyers, please. (I’ve heard them all, trust me.) ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 695, “lawyer.” ↩
- Ibid., 104-105, “attorney at law.” ↩
- Ibid., 122, “barrister.” ↩
- Ibid., 283, “counsellor.” ↩
- Ibid., 1105, “solicitor.” ↩
- See e.g. Judy G. Russell, “The oratrix,” The Legal Genealogist, posted 12 Aug 2013 (http://www.legalgenealogist.com/blog : accessed 15 May 2017). ↩
- Black, A Dictionary of Law, 193, “chancery.” ↩
- Ibid., 289, “court of chancery.” ↩
- Ibid., 287, “court.” ↩
- Ibid., 428, “equity.” ↩
- See Ben Darlow, “History of the Solicitors’ Training Contract,” English Legal History blog, posted 10 Feb 2014 (https://englishlegalhistory.wordpress.com/ : accessed 15 May 2017). ↩
- Ibid. ↩
- See ibid. See also The Law Society (https://www.lawsociety.org.uk/ : accessed 15 May 2017). ↩
- Darlow, “History of the Solicitors’ Training Contract,” English Legal History blog. ↩