SK1U, 





: 1 



do Novii; 889), or ierjeant of the peace (or UM district (Cowcll, 

 lutrrpr.*) Hence, UM (toward of a private loei, or of a manor to 

 which a ket u attached, to whom the lord always delegate* hU jn,l.. i il 

 power, b sometimes daignatod ai Servian* aire (eoesoallus. 

 Rep..' 21.) Utterly, indeed, it ha. been conaidered that a tenure by 

 erjeanty could only be created by, and held under, the crown. <<',.. 

 latU, 108 a.) Thia waa not the oaaa, however, in the time of Henry HI., 

 a> appeara by Bncton (35 b.). 



The tenure, by which lands were held by a " Serjeant of the county," 

 or " serjeant in fee," waa a (erjeanty belonging to that clan which waa 

 called grand (erjeanty, a* being connected with the administration of 

 justice. Edmund, earl of Lancaster, brother of Edward I., died seised 

 " de magna sergeantia totius comitatus do Derby." (' Calend. Inquia. 

 post mortem/ 136, b.) 



But the serjeanU of counties were neither the only nor the most 

 numerous das* of serjeants-at-law. The main branch of tluit body 

 in attendance upon the king. Their duty was to assist in 

 of the Aula Kegia, the great court of justice of the 

 realm, as assessors to the chief justiciar, and as advocates for Uic 

 suitors, who being generally unacquainted with the language in which 

 the proceedings of the court were carried on, were seldom able, and 

 were nerer permitted, to plead their own causes. (1 ' Rot. Par!.,' 4 a ; 

 9 ' Rot Part,' 140.) Upon the breaking-up of the Aula Regia into the 

 several courts which now occupy Westminster Hall, the serjeants-at- 

 law became the justices of the courts of King's Bench and Common 

 Pleas, and acted as advocates for the suitors, when not appointed to 

 those offices, and when removed from them. While not employed in 

 judicial stations, they were called serjeant-countors, servientcs-narra- 

 tores, and banci narratores, counter (narrator) being a term derived 

 from the Norman " contours," persons whose office it was to conduct 

 the causes of litigants in court, the verb " con tor " being applied 

 indifferently to the pleadings on the part of the plaintiff and those on 

 the part of the defendant. 



It does not distinctly appear whether any granU of land were 

 annexed to the office of serjeant-countor ; if not, it is probable that the 

 Conqueror, or some of his early successor*, considered the fees 

 receivable by the serjeant-justices and the serjeant-countors as 

 equivalent to a grant of lands, and as constituting a serjeanty not 

 attached to a tenure of land, or a serjeanty in gross. However this 

 may be, the kings exercised the right of creating both Serjeant-justices 

 and serjeant-countors. The appointment of serjeant-countor lias, from 

 the earliest period, been effected by the royal mandate under the great 

 seal ; by writ, where the party to whom it was addressed was required 

 to serve the king and his people in the Aula Regis, and afterwards in 

 the courts of Westminster Hall ; by letters-patent, with respect to 

 Serjeants in Ireland. Under this appointment, the sergeants were the 

 sole public pleaders. They were the only persons in the state entrusted 

 with the exercise of the ordinary judicial functions, and even now no 

 person can be appointed a justice of the Queen's Bench or Common 

 I'leas, who is not of the degree of the coif, that expression being 

 derived from the peculiar species of cap which was, and still is, the 

 distinguishing dress of serjeants-at-law. The barons of the Exchequer 

 who were formerly merely officers of revenue, are not required to be 

 taken from amongst the Serjeants ; but unless they were of the degree 

 of the coif, they were not qualified to act as justices of assize. 

 Although the serjeanU on the circuit, and the queen's counsel, and 

 occasionally other barristers, are included in the commissions of oyer 

 and terminer, and jail delivery, and assist in the trying of prisoners 

 when the judges are pressed for time, or if it is thought desirable to 

 relieve the county from the expense arising from the detention of 

 prosecutors and witnesses, the name of no person who is not a 

 strjeant or queen's counsel, or possesses a patent of precedence, can be 

 inserted in the commission of assize. Formerly no one but a Serjeant 

 was so qualified. (18 Edw. I. st. i., c 30 ; 13*14 Viet. c. 25.) 



Much obscurity however still hangs over the origin of the con- 

 nection between the terms Serjeant and counter. It has been suggested 

 that upon the introduction of the Norman contours in England, they 

 were formed into a lay brotherhood, somewhat analogous in form to 

 the religious communities by which they were surrounded ; that the 

 members of this brotherhood were admitted by royal authority, and 

 employed in different capacities as judges and advocates about the 

 Aula Regia; and that they probably derived their adjunct title of 

 aervientes from the nature of their employment, and from the circum- 

 stance of their appointment being conferred by the crown, and of its 

 being considered that the services which they rendered were of equal 

 dignity and importance with services reserved upon those tenures by 

 grand serjeanty to which administration of justice was attached, and 

 the tenants of which were in strict propriety denominated Serjeants. 



Upon the calling of every parliament, the judges and Serjeants are 

 summoned by writ to give their attendanw. Their principal duty 

 appears to have been to assist the lords in the trials of petition*. 

 (' Rot. Parl.' paaim.) The writ of summons issues to the judges, not 

 as judges, but as serjeanU ; and if a baron of the Exchequer be not a 

 serjeant, as was formerly often, and still may be, the case, he is not 

 luinoinned. X" wJrjeaiiU have been required to attend of late years, 

 except judge* and queen's serjcauU, but formerly other serjeanU were 

 also summoned. 



Wliil.it the Aula Regis constituted one court, a second class of 



advocates was little needed; and upon that court being afterwards 

 divided iiit-> different sections or branches, no incom unience appeara to 

 have been felt, as all the different sections of the court equally followed 

 the person of the king. Hut \\li.n.in tin- reign of Bdwvd 1., the 

 regulation for holding common pleas, that is, all ciril actions, in some 

 certain place to be appointed by the crown, was put in force, parties 

 who had business in the court of King's Bench, the ju 

 which, except occasionally as a court of appeal, waa then almost con- 

 fined to criminal matters, or in the court of Exchequer, the j in i>> Union 

 of which related to matters of revenue, or in . the court of Chancery, 

 were put to inconvenience for want of advocates, as often as the king, 

 whose progresses these courts still followed, happened to be distant 

 from the place (usually Westminster .Hall, and seldom elsewhere, 

 after the reign of Edward III.) at which the court of Common Pleas 

 sat. To remedy this inconvenience, and at the eame time to i 

 parties from the burdensome duty of appearing in person in tin- 

 court of Common Pleas, an ordinance was made in Parliament, in 

 by Edward I., by which the king directed the selection of a number 

 (fixed provisionally at 140) from the higher class of legal students to 

 act both as attorneys in the stationary court of Common I'leas, and as 

 advocates in the comparatively few cases which then required their 

 assistance in the ambulatory courts of the King's Bench, Chancery, and 

 Exchequer. No distinction is made in the ordinance between attor- 

 neys and apprentices, and the 140 appear to have acted indiscriminately 

 (2 ' Hot. Parl.', 96) as attorneys and as advocates, as their services 

 happened to be required. ComplainU were however still made in 

 Parliament^ 1 364-5) of the prejudice arising to parties irnplic. 

 proceedings in the two latter courts, from being unable to procure the 

 assistance of serjeanU; and it was prayed, though unsuccessfully, that 

 on this ground these courts might also be made stationary. 



A petition of the Commons in 1 343, that parties to suits in the Marshal- 

 sea might be allowed to plead their own causes in that court, ii ; 

 that they might not be delayed for want of serjeanU, had met v. it li a 

 more favourable reception, and the permission was granted by an ;ict 

 of parliament (2 'Rot. Parl.,' 140), which act was not in print till the 

 parliament rolls were published at the commencement of the present 

 century. It was a punishable contempt of the court for a person to 

 interfere as advocate without possessing a legal title to the office. 

 (' Abb. Placit. in Dom. Cap. Westm.,' 137.) 



It is stated in the article BAHHISTKH, that Serjeants and appi> 

 at law were supposed by Dugdale to be the same person 

 relies upon the circumstance that in the second year of Henry 

 apprentice was heard in the court of Common I'leas, where serjeanU 

 alone practised. But Dugdale was mistaken in supposing that the 

 apprentice acted as an advocate in that court ; for upon reference to 

 the 'Year-Book' (M. 2 H. 6, fol. 5, pi. 3), it will be seen that this 

 apprentice was merely sent by the Exchequer into the Common 1'lru-i 

 to aak tho opinion of the judges and serjeanU in the hitter court upon 

 a point of law then depending in the Exchequer; upon which tin 1 

 judges of the Common Pleas consulted the serjeanU, and the point w;is 

 debated by judges and Serjeants indiscriminately. The app. 

 took no part in the discussion, but carried back the result to tho 

 [tier, upon which that court acted. It has also been supposed 

 that Plowden and Carrel, who are spoken of as apprentices in i 

 (1562), were at that time serjeanU. With respect to the former, the 

 mistake arose from the circumstance that a writ issued to I'l 

 and eleven others, in October, 155S, calling upon them to be made 

 serjeanU in Easter following. Mary dying in November, 16.'' 

 wriU abated. In 1559 fresh wriU were issued by Elizabeth to seven 

 of the eleven, but the names of Plowden and four others, as i . 

 seen in Dugdale, were omitted. Plowden therefore remain 

 apprentice as before, and he is properly so designated in 4 Eliz. i 

 With respect to Carrel also, we have no distinct proof that he evi 

 the degree of Serjeant, though it seems not improbable that he was 

 often commanded so to do. John Carrel received a writ requiring him 

 to take the degree of a Serjeant in 1540, and again in 1552 and 1 .V- 1. 

 In what manner he was excused on these occasions, and whether ho 

 paid more attention to Mary's commands than he had done to those of 

 in] tuther and brother, or whether indeed the Carrel ap]>n>ntifi> in 

 1562 was the same person with John Carrel, the serjeant tin it < 

 does not appear. 



The ordinance of Edward I. authorised only students who li.nl 

 reached the rank of " apprentices at law " to practise as advocates in 

 those courts in which the assistance of serjeanU could not constantly 

 be obtained ; but as the practice of these courU increased, it was found 

 necessary, in the reign of Elizabeth, to allow persons of less standing 

 than apprentices to act both as advocates and as attorneys. 



StudenU who, though not yet apprentices at law, had been admitted 

 to argue fictitious coses at the mootings in then- respective inns of 

 court, were allowed to practise as advocates in the ambulatory courts 

 of common law and equity. Advocates of this third class were < 

 utter-barristers, because in arguing their moot cases by way of pre- 

 paration for real forensic debates they were placed at the outer or 

 uttermost end of the form on which they sat, and which was called the 

 " barr." (Stow ; Watorhous ; Dugdale ; Herbert, ' Antiq. Inns of 

 Court," 176.) The junior students, who sat in silence on the inside, 

 were called inner-barristers. But tho latter term has long been 

 abandoned, and is sunk in the more general designation o{ student; in 



