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The Rise of the BarristersA Social History of the English Bar 1590-1640$

Wilfrid R. Prest

Print publication date: 1991

Print ISBN-13: 9780198202585

Published to Oxford Scholarship Online: October 2011

DOI: 10.1093/acprof:oso/9780198202585.001.0001

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(p.329) Appendix B Favourites and the Hearing of Suits

(p.329) Appendix B Favourites and the Hearing of Suits

The Rise of the Barristers
Oxford University Press

Favourites may have been attractive to litigants for various reasons, not least the prospect of greater expedition in the progress of their suits. An early Jacobean tract claims that Chancery's Six Clerks, who ‘ought to rank their client's causes for hearing according to their dependencies in court, do now sell their hearings at excessive rates’; in the Court of Requests, however, hearings are said to be granted on the mere motion of counsel, suggesting that no docket or order of business at all was kept. (Leadam, ed., Requests, xc.) Among the Coventry Papers in the Birmingham Reference Library is a cause list (MS 660743/9) from the Court of Wards, covering a portion of Michaelmas term 1617, which lists motions in serial order set down for hearing between October 10 and November 12 on Mondays and Fridays, these being the days set aside, as the court's historian tells us, ‘for the more routine business of motions’. (Bell, Court of Wards, 98.) In 1621 it was proposed that at least twenty days' notice be given to defendants in Chancery and Star Chamber before their causes were heard; sixteen days' notice was given to a party in an Exchequer Chamber suit in 1626. (HMC, Rutland, iv. 215; Northants RO, Montagu (Buccleuch), vol. 14, p. 311.) However, it seems likely that even in courts where hearings and procedural motions were usually set down to be dealt with in order, the intervention of favourites could upset such arrangements, if only by preventing other counsel from moving until the favourites had exhausted their motions for the day. Cf. the proposals of Interregnum law-reformers for a register of causes and motions in Chancery and other English-bill courts in order to eliminate this abuse by favourites. (T. Faldoe, Reformation of Proceedings at Law (1649), 3, 22; Philodemus, Seasonable Observations, 17; ‘Draught of an Act to Prevent Solicitations of Judges, Bribery, Extortion, Charge of Motions and for Restrictions of Pleaders’ (1653), in Somers Tracts, vi. 189.)

How suits were ordered for hearing in the common-law courts during our period is not much clearer. However from at least the late seventeenth century, and possibly before, the practice in King's Bench was ‘to begin every day with the senior counsel within the bar, and then to call upon the next senior, in order, and so on, as long as it was convenient for the Court to sit; and to proceed again in the same manner upon a next and every subsequent day; although the bar had not been half, or perhaps a quarter gone through, upon any of the former days’. Counsel ‘within the bar’ included Crown law officers, king's counsel, and possibly, in our period, (p.330) favourites (A. Pulling, The Order of the Coif (1897), 214–15; English Reports, xcvii. 189). A similar seniority system for motions operated in Star Chamber (Haward, Reports, 46).

(I am grateful to Professor C. M. Gray for his helpful discussion of these and related points.)