SERJEANT. 



SERJEANT. 



consequence of which the term utter-barrister has also given place to 

 that of barrister, and the student who is admitted to that degree is 

 said to be " called to the bar." This call however consists merely 

 in the presiding bencher's saying, " I publish you a barrister of this 

 Society." 



The mere students, formerly called inner-barristers, confine them- 

 selves to study, or, when they consider themselves qualified, practise 

 as conveyancers, special pleaders, or equity draftsmen, in which capacity 

 they are recognised by the legislature, being required to take out 

 annual certificates from the stamp-office. For nearly the last forty 

 years students practising as certificated special pleaders have been 

 allowed to practise as advocates before judges sitting in their private 

 chambers at Serjeants' Inn, for the summary despatch of matters of 

 pleading and practice, &c. 



Shortly after the permission given to barristers to practice as advo- 

 cates, we lose sight of the order of apprentices. Though usual, it was 

 never perhaps absolutely necessary that a student should become an 

 apprentice in order to qualify him for being called to the degree of the 

 coif ; and when it ceased to be required as a title to practise as an 

 advocate, there was no longer any motive for taking the degree of an 

 apprentice. 



The result of these inquiries seems to be, that from the Conquest to 

 the 20 Edw. I. (1292), serjeant-countors were the only advocates; that 

 from 1292 to the latter end of the 16th century, apprentices were 

 allowed to practise in certain courts ; that towards the close of the 

 16th century, the apprentices were supplanted by a more numerous 

 class of junior students called utter-barristers and afterwards barristers ; 

 and that from the middle of the 18th century, mere students were at 

 any time after their admission, and immediately upon their admission, 

 allowed to practise as certificated conveyancers or certificated special 

 pleaders ; and that such special pleaders have latterly been allowed to 

 practise as advocates before judges when administering justice in their 

 private chambers ; which latter practice may be thus explained : The 

 business to be disposed of by the courts at Westminster having far 

 outgrown the machinery provided fur its despatch, many acts of par- 

 liament have directed that certain judicial acts shall be done by the 

 court ' or any judge thereof." The consequence of these provisions, 

 and of a practice existing before, of referring minor questions and cases 

 of a pressing nature to be disposed of by a single judge, has been that 

 a moat important part of the judicial business of the country, instead 

 of being discussed as formerly in open court before a full bench, and 

 with the assistance or in the presence of an intelligent bar, is commonly 

 disposed of by a single judge in a private room, without any assistance 

 except that which he can derive from the attorney's clerks on each 

 side who attend the summons. It not unfrequently happens that a 

 most abstruse point of special pleading, involving the fate, and some- 

 time* the real merits of the cause, and which in the reign of Edward VI. 

 would have been argued by learned Serjeants and tail apprentices at 

 the bar, and afterwards debated publicly on the bench, is disposed of | 

 in five minutes, and without appeal, at chambers by a judge who has ! 

 never practised thU branch of the law, and who would when at the 

 bar have shrunk from the responsibility of expressing an opinion on 

 the most ordinary question connected with the science of special 

 pleading. It waa therefore quite natural that judges should be glad to 

 avail themselves at chambers of the assistance of special pleaders ; and 

 in order to prevent the abuse of the indiscriminate invitation given by 

 the legislature to all persons, though students only of a day's standing, 

 who are members of an inn of court, to take out licences to practise as 

 special pleaders, &c., the benchers or governing members of some of 

 the inns of court now require that upon the admission of a student, 

 he shall engage not to practise aa- a special pleader, Ac., till he be of 

 sufficient standing to be called to the bar. 



The Serjeants remained however, till 9 & 10 Viet. c. 54, the only 

 advocates recognise* I in the court of Common Pleas. In that court 

 they retained their right of exclusive audience, which privilege extended 

 to trials at bar, but not to trials at nisi prius, either at the assizes or at 

 the sittings in London and Middlesex. 



Attempt* hod been made previously to place the court of Common 

 Pleas upon the same footing in this respect as the other courts at 

 Westminster. A tuggestion to that effect was made by Sir Matthew 

 Hale, in his ' Considerations touching the Amendments of the Law.' 

 In 1755 it was proposed by Sir John Willes, then chief-justice of the 

 Common Pleas, that the court should be opened to all barristers. The 

 judges met, and, after much discussion, expressed their opinion against 

 the plan, which was strongly opposed by Lord Hardwicke. It was 

 nearly a century before effect was given to the enlightened views of 

 Sir Matthew Hale and Sir John Willes. 



In 1834, while the Central Criminal Court bill was hi the House of 

 Lords, a clause was introduced for opening the court of Common Pleaa. 

 This clause was withdrawn before the bill was sent to the Commons. 

 But on 24th April, in that year, a royal warrant issued, ordering and 

 directing that the right of practising, pleading, and audience in the 

 court of Common Pleas should cease to be exercised exclusively by the 

 nerjeanU-at-law, and that barristers-at-law should have and exercise 

 equal right and privilege with them of practising, &c., in that court. 

 The warrant professed to give to such of the Serjeants then in practice 

 as were not king's Serjeants, and had not patents of precedence, at an 

 tipeeial mark of royal favour, precedence over any king's counsel who 



ARTS AND BCT. DIV. VOL. VII. 



might be thereafter appointed. This warrant was filed in the court of 

 Common Pleas on 25th April, from which time until January, 1840, it 

 was acted upon by the court. During this period no persons applied 

 for the coif, except those who had received an intimation that they 

 were to be made judges. 



In 1837, a petition was addressed to her majesty by the queen's 

 Serjeants and two other Serjeants who had not availed themselves of 

 the clause of precedence contained in the warrant of April 24, 1834, 

 suggesting that the warrant was illegal, and praying that the legality 

 of that document and the expediency of the alteration might be duly 

 investigated. The illegality of the warrant was asserted chiefly upon 

 the prescriptive rights of the Serjeants, coeval with the existence of 

 the courts themselves ; but also on some merely technical grounds. 

 A memorial was at the same time presented to the chancellor, in which 

 it was submitted that such an alteration could only be made by act of 

 parliament. 



The petition being referred to the privy council, the question was 

 argued on 10th January, 1839, and again on 2nd February. A strong 

 opinion was expressed as to the illegality of the warrant, but the court 

 separated without coming to any conclusion. 



In November, 1839, a motion was made in the Common Pleas by 

 Wilde, as the senior practising Serjeant, that the exclusive right of 

 audience of the serjeants-at-law, which had been suspended in obedience 

 to the warrant of 1834, should be restored; and at the close of Hilary 

 term, 1840, the right of being heard as counsel and of signing pleadings 

 in causes depending in the Common Pleas, was declared by the court 

 to belong exclusively to the serjeants-at-law. The legislature then took 

 up the question seriously, and the monopoly of the Serjeants was 

 abolished by 9 4 10 Viet. c. 54. 



Serjeants had formerly not only exclusive audience in the Common 

 Pleas, but had also in all other courts pre-audience over all other 

 advocates. They are still addressed by the judges as brothers, by 

 which title they speak to and of one another. 



Though the king was represented in each of his courts at West- 

 minster by one or more persons as his attorney and solicitor general in 

 one or all of those courts, no one formerly pleaded as counstl for the 

 crown except Serjeants. In the patent of a king's Serjeant, he was 

 appointed by the king " Serviens Noster ad legem, et Narrator pro 

 Nobis in curiis Nostris, in quibuscunque negotiis Nos tangcutibus." 

 Afterwards when the king's attorney, as it usually happened, was an 

 apprentice, he was allowed not only to appear as attorney, but to plead 

 as advocate for the crown in those courts in which apprentices were 

 permitted to practise, and when so employed he claimed and exercised, 

 for the benefit of the crown, a right of pre-audience over Serjeants 

 pleading for ordinary clients in those courts. Afterwards the attorney- 

 general exercised a right of pre-audience even when not engaged for 

 the crown. 



Other king's counsel appear to have obtained pre-audience over the 

 Berjeants by a similar course of proceeding ; but the queen's Serjeants 

 still retain pre-audience over all other counsel except the attorney- 

 general and solicitor-general ; and even over the attorney-general, 

 the senior of the king's Serjeants, distinguished by the appellation 

 of " the king's ancient Serjeant," retained his precedence until 1814, 

 when Sir Samuel Shepherd, the king's ancient Serjeant, being 

 appointed solicitor-general, instead of vacating his office of Serjeant, as 

 had always before been done in such cases, obtained a warrant from the 

 Prince-Regent giving to the attorney-general and solicitor-general per- 

 petual pre-audience of the whole bar. In the reigns of Mary, Elizabeth, 

 and James I., several persons were degraded, or discharged, from the 

 degree of serjeant-at-law in order to capacitate them for accepting the 

 office of solicitor-general, as it is not unusual now for barristers to 

 apply to be disbarred for the purpose of enabling them to practise as 

 solicitors or attorneys to private suitors. 



The pre-audience acquired, in comparatively modern times, by the 

 attorney -general and solicitor-general and the other king's counsel over 

 the Serjeants in the courts of Westminster Hall, has not otherwise 

 affected the rank or position of the latter. At the coronation of Queen 

 Elizabeth it appears to have been finally settled that in the royal pro- 

 cession (in which those of inferior rank walk first) " the attorney and 

 solicitor-general walk immediately before the barons of the Exchequer, 

 and immediately after the serjeants-at-law, who follow the knights- 

 bannerets, bachelor-knights, masters of the chancery, clerks of the 

 court, &c." (Egerton ' Papers,' 60.) 



The Serjeants formerly occupied three inns, or collegiate buildings, 

 for practice, and for occasional residence, situate in Chancery Lane, 

 Fleet Street, and Holborn. The last, called Scroop's Inn, has long been 

 abandoned, and since the burning down of Serjeants' Inn, Fleet Street, 

 in the middle of the last century, that site has also been deserted 

 by the Serjeants, who have now no other building than Serjeants' Inn, 

 Chancery Lane. Here all the common-law judges have chambers, in 

 which they dispose in a summary way, and with closed doors, of such 

 matters as the legislature has expressly entrusted to a single judge, 

 and of all business which is not thought of sufficient magnitude to 

 be brought before more than one judge, or which is supposed to 

 be of a nature too urgent to admit of postponement. 



The inn contains, besides accommodations for the judges, chambers 

 for fourteen Serjeants, the junior Serjeants while waiting for a vacancy 

 being dispersed in the different inns of courts. 



