(p.355) Appendix D A Junior Barrister’s Complaints about the Selection and Advantages of King’s Counsel, 1750.1
I take the liberty to trouble your Lordship in a matter which appears to me very highly to concern the honour of the Law, if not the very Being of it. It will not I hope be thought impertinent to address your Lordship upon this occasion; for to whom more naturally can the Law and Lawyers fly for redress than to your Lordship, who have [sic] for so many years and with such a [MS faded] of Character, presided in the Supreme Court of Judicature, and who [illegible] long to continue in that high station which you at present enjoy.
What I would humbly complain of, My Lord, is the Practice of giving Pre-audience and precedence to some Gentlemen at the Bar before others, under the name and notion of King’s Council. Of what Antiquity this Practice may be I cannot pretend to say. I have been told that Sir Francis Bacon was the first that ever received that Honour. At other times I have heard that it began in the reign of King Charles IId though I suppose it has largely increased since that time. But whatever be the date of it, I would beseech your Lordship to consider whether it be not a thing very injurious to the Professors of the Law, and as such to all the People of England, whose Interest I take it to be, in a very high degree, that this Profession should preserve its Chastity, and the Study and Practice of it remain not cloy’d with any unnecessary difficulties or discouragements.
I would not choose to be peremptory, even in a plain case, especially when I am speaking to such a person. Yet it can be no offence (I dare say you will not think it any) to intreat your Lordship to turn your thoughts a little upon this subject. Your merit, My Lord, called you so early within the Bar, that perhaps you have hardly had opportunity to consider what Reflexions must arise in the minds of those who are left on the outside of it. But, when you consider it, I am apt to think it will appear a very hard case upon any Gentleman who has spent a great deal of time and money in a liberal Education, and has qualified himself for the Conduct of his Clients causes, to be told that it [sic] must be taken out of his hands, by interposition of the Crown, in favour of younger Gentlemen; to be told that if he has any thing to move in the Courts at Westminster, he must wait till late in the day, or perhaps till the next day, that his Juniors may be served before him; which must necessarily in a great measure retard his Clients Affairs, and consequently lessen their resort to him. This, My Lord, I take it (with great deference) is contrary to all the rules of Justice. It is a Maxim in the Court of Chancery, that Equality is Equity. And it is a Maxim both there and at Law, Qui prior in tempore potior sit (p.356) in jure.2 When Gentlemen hear these Maxims inculcated every day in their clients cases, it cannot but be a little grateing to find them neglected only in their own.
The consequences of this are, I am afraid, no ways honourable either to the Law or to the Professors of it. Not to those who obtain this degree, if it may be called such, by an undue preference. Not to those who are left behind; for they, to lessen their grievance, and to make themselves amends for this loss of precedence, begin likewise to copy the example that is set them, and to wish for the like strain of favour to themselves. They are then apt to fly to a Secretary of State, a Lord of the Bedchamber, or any body that they think has an Interest at court, though a stranger to the merit of the Practiser in Westminster Hall. Is this, My Lord, for the Honour of the Law? Is this a fair and equitable Proceeding? Or is this a Method likely to produce honest and painfull labourers in the vineyard? I beseech your Lordship be not displeased with me for these Questions: rather give me leave to lament that there should be any occasion for them.
To confirm these Observations I cannot but take notice to your Lordship that it happens a little unluckily at this very time that every one of the Gentlemen who appear in their silk gowns (ex one) are Members of the House of Commons: Which the world will hardly be persuaded could have fallen out merely by accident, or would have fallen out if they had not been promoted by other Judges and other Rules than those of Westminster Hall.
Not that even this Power (of giving pre audience to some in derogation of others) were [it] lodged only in the Great Seal, would it then become a reasonable Power. It would still be liable to the objections first mentioned. It would still be an act ariseing from Partiality and Favour. This I am persuaded your Lordship is sensible of, or soon will be, when you recollect that the reason why many apply for this Honour is because they think it will lift them into a flow of Business which their own Abilities, unassisted by this borrowed preeminence would not entitle them to. Your Lordship knows there have been [some] who have courted and have obtained this preferment, without any view in the world of assisting his Majesty in his just Rights, or of contributing their Advice towards the maintenance of them, but solely with a view to be looked upon by common Clients, and to get the start of their Contemporaries and Seniors precluded from the same advantages.
Perhaps it may be insinuated to your Lordship that in all this I speak not like a good subject, but rather like one disaffected to the Prerogative. My Lord, there is not in England a Man who bears more dutifull reverence towards his Majesty than my self: And (if this were a place for it) I could produce some proofs, which I should not be ashamed of, of my zeal and attachment to his Person and Government. But I must own, my Lord, that in my poor judgement, which I should not mention but in order to submit it to your Lordship’s, the crown cannot properly have any Prerogative in this case—Actus Legis Nemini facit injuriam.3 And I think the reading were as true if it were Actus Regis.4 His Majesty may no doubt retain any number of council that he pleases, and so may every Nobleman, and every private subject. But I must beg leave to doubt whether he can invest them with powers and Prerogatives that shall be derogatory to their companions. Or, what if this practice has obtained, as I said at first, for a number of years? We are taught that Malus usus est abrogatius,5 and I humbly (p.357) submit it to your Lordships Reflections whether that rule could ever be more properly applied than in the present case? Many Prerogatives of the Crown, of a Dangerous and improper tendency, have been abridged and even quite abolished by Act of Parliament; And I doubt not but his Majesty would himself be desirous to part with this, if he were apprised that it fell under that description, or was in any degree injurious to the subject.
If it be said, that his Majesty never dispenses these favours but according to merit and upon the account of merit, I am sure I shall be very far from offering to contravert the merit of the Gentlemen within the Bar. I ought not to open my Mouth upon this Occasion, because I am very free to own that I don’t know one of them whose Abilities are not much superior to my own. But that they do in the same manner excell the other Gentlemen without the Bar is a point not so easily to be admitted. And if it were, yet their Promotion would be still unnecessary; for their own merit would recommend them to Business and would procure them clients, without the Assistance of the Royal Favour. Clients will always find out, without the direction of a court, who those councellors are that attend with most diligence, who that give the best Advice, and are most assistant to them in their suits, and therefore it seems totally unnecessary to have the stamp of merit put upon any particular Gentlemen, and not quite reconcileable to Justice to cast those behind whom perhaps clients would willingly employ, if they should not be sufferers by so doing.
I can think but of one thing more that can be urged in favour of this Method; and that is, that it is for the service of his Majesty, that his Majesty’s causes should be first heard, and his business first dispatched. But this your Lordship knows is not the case. If in your Lordship’s paper, or in any of the other courts, there be a cause in which the Crown is interested, that cause is seldom or never called on preferably to others. So that it is plain that this pretence (if it should be urged) of serving his Majesty’s Interests, is but a pretence, which the Law knows nothing of, and which is calculated for the private benefit of the Gentlemen so promoted.
These Allegations would certainly appear to your Lordship with greater strength, if they had been consider’d by a great number of Gentlemen, and recommended to your Lordship as their concurrent Opinion. I could indeed have taken that Method, and have no doubt but that most of the Profession would have joyned in the same opinion, except perhaps two or three whose fingers are already stretch’d out to pluck the Golden fruit. But I thought it more decent and more dutyfull rather humbly to lay before your Lordship my private thoughts, and submit them to your Lordship’s examination, than first to canvas the sentiments of the Barristers, and endeavour to recommend that to your Ldship by a large subscription, which, if reasonable, will not fail of having it’s due weight with your Lordship, though coming from a very private hand.
Some may imagine that to this Application I have been moved by self Interest. But if there could have been any colour for that suggestion, your Lordship should never have been troubled with this paper. I am apt to think it will not be twenty shillings in a year difference to me to let the matter go which way it will. And if it were, yet my concern in this case, being only in common with that of so many other Gentlemen, is a manner of no moment, and vanishes as it were into nothing, and therefore, I can fairly say, has not at all moved me to make this application to your Lordship. It is the common good of the subject which I aim at, and the Honour of that Profession which from my Childhood I have been taught to look upon with Esteem and Reverence.
(p.358) Nor do I think it can be attributed to any Envy against the Gentlemen so promoted; some of them are my particular friends, nor have I ever received any discourtesy from any of them; and I had thoughts of laying this matter before your Lordship two or three years ago, but that I was afraid it might have been taken as an endeavor to retard the promotion of one for whom I have a high regard.
I am in pain that this address should draw upon me any displeasure from your Lordship. I know your candour too well to suppose that you can be offended where no offence is designed, and where no self interest has led the way. On the other hand, I beg leave to hope that I do a pleasure to your Lordship, in performing a dutyfull part, for such I take it to be for inferiors to offer & suggest matters, and to submit them to the Examination and Determination of their Superiors. And though I know that your Lordship’s time is almost wholly dedicated to the Interests of the Publick, yet I persuade myself that I do not greatly deviate from that view when I endeavour to draw your Lordship’s attention a little towards this particular.
Upon the whole, my Lord, I cannot but think (and I beg leave to offer it as my humble opinion) that it would be a noble monument of his Majesty’s just and equal affection to his subjects, and of that confidence which He is known to repose in your Lordship’s Councils, if you could procure some order or Declaration from his Majesty (in such a way as his Majesty in his wisdom shall think proper) that may put a stop to this practice for the future. For I never entertain’d a thought of disturbing those who are already in possession.
If in any of the facts or reasonings above express’d, I am in any degree mistaken, or have been guilty of any misrepresentation, I heartily ask your Lordship’s pardon, and do assure you it was without any design, and should be very glad to understand where it is that I have committed any Error. I should be very much obliged to any Gentleman, to whom your Lordship should delegate that trouble, if he would be so kind to shew me either that the matters of fact are not as I have represented them, or, if they are, that they are for the Honour and Benefit of the Law and it’s Professors; that this method is an Encouragement to Industry, and tends to render the Barristers more studious and painfull than they formerly were; or that since it has obtained, the Law has been looked upon with greater Esteem and veneration by the People.
And now, My Lord, I should most willingly be excused from setting my name to this Letter; for I know your Lordship will consider what is said, and not who it is that says it. But that, I think, would be treating your Lordship with indecency, which I would avoid to the utmost of my power. Your Lordship’s station and character, both publick and private, demand the utmost deference and regard from mine; and to act otherwise towards your Lordship than with the highest Respect would be not only a great violation of my Duty, but still more so of my Inclinations, as I am persuaded your Lordship has no where a greater admirer than
your Lordship’s most obedt
26 January 1750
(1) Source: BL, Add. MSS 35,591 (Hardwicke Papers, vol. ccxliii, ff. 6–17, Henry Hatsell [to Lord Chancellor Hardwicke], Chancery Lane, 26 Jan. 1750). Hatsell was called at the Middle Temple, 1725, became bencher, 1755, treasurer, 1768–70, and died, 1772. In 1740 he had a very slight practice in King’s Bench and Chancery I am grateful to my colleague Terry Ryan for help with some of the Latin translations.
(2) ‘He who takes precedence in time should take precedence in law’.
(3) ‘An act of law renders harm to no one’.
(4) A royal act.
(5) ‘An evil custom is repealed’.