In Pride and Prejudice, one of Darcy’s and the Bingley sisters’ big concerns with the Bennet family is the terribly middle-class status of Mrs Bennet’s family. Her brother is a merchant, living in Cheapside. The horror. Her father was a country attorney, and her sister married his clerk. These are deemed to be most inappropriate connections, enough to overcome anything but the most ardent of loves.
These days, being related to a lawyer of some sort is seen as a good thing, “My son, the lawyer,” falls rather tripping off the lips. True, lawyers can get bad reputations, but in general, the career is respected and admired.
So why, then, was it seen as something so looked-down on by the Bingleys and Darcy in the early 19th century?
One thing that is obvious to folks from the UK and South Africa, but not so much to many North Americans, Australians, and New Zealanders, is that there are different sorts of lawyers. There are the ones who advocate and appear before the courts, and the ones who handle the paperwork. These are very rough and broad distinctions, but they defined very separate aspects of the machinery of the law.
Even in countries where a lawyer is a lawyer, they take on different functions. A trial lawyer is almost never going to write up a will. And a real estate lawyer is never going to plead a case in court. But they can, and write exams to qualify as both barristers and solicitors.
But, back to Elizabeth Bennet’s unfortunate relations. Here is a very general introduction to why, exactly, a country attorney was not a relative to be proud of.
In the early 19th century, the esteemed type of lawyer was a barrister. These were the high-ranking trial lawyers, who advocated for clients on behalf of the solicitor or attorney. They did not take payment for their services, but rather were afforded an honorarium by the solicitor and didn’t deal with the client.
This was one of the few options for second sons of the upper classes, a means to make a living without resorting to accepting payment for service, a very middle-class phenomenon.
Barristers were almost always of the highest classes, those who could afford the expensive education at a university and the Inns of Court. There, they were introduced to others in the field, of a similar social status. This is what was offered to George Wickham, and what he turned down.
It was, in fact, expected that a barrister be from the gentry or aristocracy, and by about 1600s, the Inns of Court began to insist upon the gentility of their members.
The Institution of a Gentleman from 1555 stated, “Lawyers of no great fortune may reasonablye take monye for their counsel, travail, in paines, having alwais with respect to the sayinge of Plato, that is, Homines hominis causa esse generatos…”
Similarly, in 1623, Hobart, Chief Justice, addressed his new Serjeans saying, “Lett not your ends be to inrich yourself and wast and consume the clyent.”
This was all deemed most proper and acceptable for a class that did not earn money by means of labour.
Attorneys and Solicitors
In 1614, the Benchers of the Inns of Court asserted, “There ought always to be preserved a difference between a councellor at law, which is the principal person next to the serjeants and judges in the administration of justice, and attorneys and solicitors, which are but ministerial persons of an inferior nature.”
In other words, they insist on a distinction between the thinkers and the doers.
This was the same distinction in medical fields between the physician, who had a university-level knowledge of medic and physik, and the surgeon, who did the dirty work.
Rather than making high-flown speeches before a judge, the solicitors and attorneys were the functionaries who wrote up wills and writs—matters with legal implications but that did not involve advocacy—and who dealt directly with the clients. And, more to the point, who took payment for their time and labour. The distinction between the two titles was made by the types of law they learned. Attorneys worked with Common Law, and solicitors with Chancery. A third, equivalent position, proctors, dealt with the ecclesiastical courts.
The term Attorney is first seen in English by around 1300, as “one appointed by another to act in his place,” according to Etymology.com. This was a similar position to a trusted servant, who had the ability to act for his master, at his master’s behest.
But attorneys have always had a bad name, for some reason. In the 14th century, anybody could call himself an attorney, offering terrible advice for exorbitant fees, until the courts had to act. In 1402 or 3, a statute was passed (4 Hen.4, c.18) making attorneys officers of the court, saying they “shall be examined by the Justices and by the Discretion their Names put on the Roll… and all other Attorneys shall be put out,” this done in an attempt to exclude people acting randomly, “ignorant and not learned in the Law.”
This attempt at rehabilitating the name of the attorney was not entirely successful. In the 18th century, Samuel Johnson was reported as saying, “he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney.”
It did not help that by the 17th century, attorneys and solicitors were excluded from the Inns of Court, a move designed to preserve the inferiority of these positions. Now, rather than receiving the equivalence of a university or professional school education, attorneys and solicitors learned their trade only by apprenticeship.
We now have, in contrast to the pure intellectual realm of the barristers, who accepted honoraria and who didn’t get their hands dirty with the nitty-gritty of paperwork, this second class of legal workers, who were essentially servants to their upper-class masters, who dealt directly with clients and who were directly paid, and whose ability to manipulate people and money lead to a reputation, likely frequently justified, of being money-grubbing and dishonest.
By the end of the 19th century, matters had become so bad that the title of attorney was eliminated from the record.
The Judicature Act of 1873 merged the courts of Common Law and Equity, and combined the functions of solicitor, attorney, and proctor, all under the title of solicitor.
“By the Supreme Court of Judicature Act 1873, all solicitors, attorneys and proctors became solicitors of the Supreme Court and, as such, officers of the court. The Act created the term ‘solicitor of the Supreme Court’. The Supreme Court was renamed the Senior Courts and for the purposes of the Solicitors Act 1974, the Courts and Legal Services Act 1990 and the Legal Services Act 2007 ‘solicitor’ means a solicitor of the Senior Courts.” (Lexis Nexis)
For any Gilbert and Sullivan lovers, this puts an extra layer of meaning to the song from HMS Pinafore, “When I was a Lad,” for the Ruler of the Queen’s Navy started off polishing door handles for attorneys. The horror!
In my Miss Mary Investigates series, Alexander Lyons is a lawyer, but he’s the acceptable kind. He had the advantage of being sent to university by his late father’s patron, where he studied the law, and began his career in London clerking in one of the Inns of Court. He no longer practices in that field, but does use his legal training as an investigator.
Here’s an excerpt from his most recent adventure with Mary Bennet, Death in Sensible Circumstances, where he confers with Colonel Brandon about a new case.
Alexander rose and moved to a shelf of books that sat against the far wall. He selected a tome and brought it to his desk, where he proceeded to open it and turn the pages until he found the one he wanted. Without looking at the words before him, he continued. “But there is no evidence of a marriage, and even if there were, the rule from Lugg v Lugg from 1696 is that it requires marriage and the birth of children to effect a revocation of a will.”
Here Brandon interrupted him. “On what grounds would the extant will be revoked? Does the state of marriage annul a previous legal document? Yes, I know from Fitzwilliam that you are a lawyer by training. This is one of the considerations that brought me here today.”
Alexander gave a nod and hoped he looked sufficiently scholarly. Not many men took him seriously, what with his strong brogue (that became stronger or weaker, depending on how annoying he found his company) and his mop of coppery-red hair. He knew he appeared and sounded like a kilt-wearing heathen from the braes, and this was an image he rather cultivated, no matter that it might cost him some business. Now, however, he preferred to project the image of a learned and capable man of letters.
“Just so. I read law at Glasgow, where I did my degree. I do not practise that profession, but I follow the latest judgments. My qualifications remain valid.”
Brandon looked satisfied.
“Marriage,” Alexander returned to the colonel’s question, “is a fundamental change in circumstance. It is assumed that upon taking a wife and having children, a man necessarily wishes to provide for his family. Therefore, the court should take notice of what is—or ought to be—a clear and obvious intent.”
“But that requires marriage and children…”
“And as you have told me, Lucy Steele, or Lucy Ferrars, should her tale be true, claims to be enceinte.”
“Mmmm.” Brandon was a man not given to unnecessary speech.
“And the question arises as to whether an unborn child has the status of a living child. This has been much about the courts these last ten or fifteen years. In Doe v Lancashire, it was ruled that a posthumous child does indeed hold the same status as a living child, on the condition that the father knew of that expectation. It is understood that he would wish to provide for the child, hence the material change in circumstance. But if he did not know…”
“Then the previous will stands.”
“Just so. Just so.”
You can read more about this tricky case in Death in Sensible Circumstances: A Sense and Sensibility Mystery, starring none other than Mary Bennet.
Leave a Reply