(p.264) Appendix II. The practising bar: sources and methodology of quantification
(p.264) Appendix II. The practising bar: sources and methodology of quantification
In order to understand the nature and significance of the quantitative analysis of practising counsel for the sample years of 1680 and 1720, it is necessary here to describe the sources used and the methodology applied. The primary sources from which the information was derived were the records of the central courts as they are preserved in the Public Record Office, together with rough minutes of proceedings in the House of Lords during these years.1 For the King's Bench and Exchequer, the documents used were the rule or order books and minute books: these consist in the main of interlocutory orders made upon the motion of named counsel appearing before the court, although the minute books also include applications to the court which were unsuccessful, in that they led to no order.2 In the case of the Common Pleas, recourse was had to the remembrance rolls of the prothonotaries, or chief clerks, from which the bills of pleas provided records of interlocutory orders, together with the names of the Serjeants who moved them.3 The sources used for the analysis of the Chancery and House of Lords were of a slightly different nature; because of the sheer bulk of the entry book of decrees and orders it was necessary to utilize the registers' minute books, which are rough records of day to day proceedings in the equity side of the chancellor's court, including the name of counsel who participated.4 The manuscript minute books of the House of Lords provided similar information with regard to the appearances of counsel in appeals and writs of error to the peers.5
The surnames of counsel found in the records signify the motions or speeches they made on behalf of litigants. Bearing this in mind, the records which have been specified were examined for all proceedings which took place between 1 January and 31 December for both 1680 and 1720, and for each court the surnames of counsel were extracted, together with the number of (p.265) times each occurred. Repeated motions or speeches made by counsel at the same hearing were not counted separately. The cumulative totals of nominations therefore represent an aggregate of distinct appearances made by individual counsel at each bar. Of course they do not represent the number of cases for which each barrister was retained, because many cases would have involved separate motions or arguments over many weeks and months of the year. However, advocacy was remunerated on the basis of individual appearances, and it seems reasonable to suggest that data of this nature do crudely reflect the work-load of each barrister, in terms of court work only, during each of the sample years. Moreover, although the correlation between the frequency of appearances in court and professional success was not exact, the work-load of a barrister was naturally a concomitant of his eminence at the bar. Indeed, comparison between the lists of the most active barristers in 1680 and 1720 and the published law reports for those years shows that the great counsel of the day were indeed those most frequently named in the original records, and these men have therefore been designated as the leaders of the bar.6
For the individual courts, it may be assumed that a surname which occurs several times represents the same barrister, because the clerks generally entered an initial when two or more men of the same surname appeared at the bar. Thus the data collected are adequate to fulfil at least one of the aims of the exercise: to estimate the number of barristers appearing at each individual bar and to assess the distribution of business among them during the two years in question. The other objective of the exercise was to gauge the size of the total Westminster bar for each sample, and to adumbrate some of the characteristics of the collective body of practitioners. For this purpose the surnames extracted were checked against the admissions registers and benchers' minutes of the four inns, in order to identify them and to establish the vital facts with regard to background and career.7 It should be said that twenty-one names were found for 1680, and twenty-four for 1720, which could not be traced among the records of persons who had been called to the bar during the relevant period. These represent 4.7 per cent and 6.6 per cent respectively of the total number of names found for each sample year. There are various possible explanations for the anomaly: on the one hand, the names may have been original errors made by the clerks, who cannot have been infallible, or they may be slips on the part of the researcher, who is no less subject to human error. More interestingly, it may be that records of calls to the bar were not complete during the period covered by this study, or it is even possible that some judges deviated from the convention that only barristers might appear as (p.266) advocates before them. It should be remembered that the monopoly of advocacy in the central courts which barristers of the inns of court enjoyed was a comparatively recent innovation, and it is certainly true that mere attorneys were heard at the side bars of the common law courts.8
In the absence of any proof as to the authenticity of the attributed names, they have been excluded from the entire analysis, along with Dr Henchman, the civilian, who was heard in Chancery in 1720, and two Scots advocates who appeared in the House of Lords during the same year. This leaves 424 names for 1680 and 338 for 1720 which have been traced among the lists of men called to the bar at the inns. Unfortunately, these can be regarded only as minimum figures for the size of the total bar in each case. Since the records of the courts invariably give only the surnames of counsel, it has not been possible to identify all the names, and a ‘Mr Smith’ which occurs several times in the records of different courts might represent more than one barrister.9 However, it is doubtful if the underestimate is a serious one, and the figures remain useful for the purposes of assessing changes in the size of the bar between 1680 and 1720, because it can be assumed that the multiplication factor for common names remained a constant. More seriously, the large proportion of unidentified names does devalue some of the statistics which relate to social origins and the other characteristics of practising barristers, because the sample of men which has been identified is not strictly random. On the other hand, there is no reason to believe that these men were not representative of the bar in general, for they have been identified only because their names were not common among the lists of men called to the bar during the period. Like most exercises in historical quantification, there are problems in the processing and interpretation of this data, because it involves using ancient records for a purpose quite different from their original function, but, if used critically, they may make a useful contribution to our understanding of the early modern bar.
(1) I am most grateful to Professor J. H. Baker for his kind advice on the subject of the legal records in the PRO.
(2) PRO, KB21 (KB crown side rule or order books), supplemented with PRO, KB36 (rough drafts of KB crown side rule or order books); PRO, KB125 (KB plea side entry books of rules); PRO, E11 (Exchequer of pleas minute books), checked against PRO, E12 (Exchequer of pleas order books); PRO, E161 (Exchequer king's remembrancer common minute books), supplemented with PRO, E127 (Exchequer king's remembrancer order books).
(3) PRO, CP45 (Common Pleas remembrance rolls).
(4) PRO, C37 (Chancery registers' minute books). The entry books of decrees and orders are at PRO, C33.
(5) HLRO, MS Minutes, HL.
(7) GIPB i, ii; GI Adm. Reg.; CITY ii, iii, iv; IT Adm. Reg., i, ii; LIBB ii, iii; LI Adm. Reg., i; MTR ii, iii; MT Adm. Reg., i. Serjeants and future judges were identified via Baker, Serjeants, Foss, Judges, vii, viii.
(8) See above, p. 5, BL, Add. MSS 32510, fos. 85–6; Lives of the Norths, i. 132–3, iii. 104–5.
(9) First names or first initials are only given for barristers of the same surname appearing in the same court, together with the law officers, the recorder/common serjeant of London, and knights or baronets.