Encyclopedia | Library | Reference | Teaching | General | Links | About ORB | HOME
|CRIME AND JUSTICE|
|Subject:||The legal profession|
|Original source:||Corporation of London Records Office, Liber Custumarum, ff.205-06|
|Transcription in:||Henry Thomas Riley, ed. Liber Custumarum, Rolls Series, no.12, vol.2 (1860), 280-282.|
In the time of Gregory [de Rokesle], mayor of London, in the eighth year of the reign of King Edward, [this ordinance was made] because often there have been some men who took the role of countors who did not have know-how about that craft and did not bother to learn it. Through the ignorance of which men, as the reputable men of the city fully recognized, defendants and plaintiffs have lost their pleas and their suits in the husting or the sheriff's hall, and some have been disinherited through the amateurish conduct [of these countors]. Anyone might put himself forward as a countor, at will, sometimes without knowing how to speak the correct language [of the courts], to the great disrepute of those courts which indulged this, and [also as?] pleaders, attornies and essoiners, and sometimes assessors in the sheriff's court each [thus becoming] the judge of others, privately or openly; with the result that they have undermined justice [being done].
[Consequently] the mayor and his aldermen and other reputable men of the city, at the request of the sergeants and countors who are knowledgable in their craft and who felt greatly aggrieved by this [situation], have established that henceforth [the courts] shall not give an ear to those who do not have a reasonable knowledge of their craft, nor understand how to manage satisfactorily the [legal] business and suits of reputable men. And that such persons shall henceforth be admitted [to practice in the courts only] by the mayor and the aforesaid reputable men, except that each reputable man may nonetheless have such counsel as he wishes, whether citizen or outsider, to look after his business. However, this ordinance and decision is to hold good regarding our sergeants, attornies, and essoiners who are full-time residents and are in regular attendance on our courts. It is also their [i.e. the mayor's and aldermen's] wish that everyone restrict himself to his own role; that is, that a countor not act as attorney or essoiner, nor an essoiner [be a] countor or attorney.
The duties of a countor are thus: acting as a pleader and presenting cases, and making arguments at the bar, without any knavery, without casting blame or using foul language, and without slandering any man, throughout the duration of the court session. Neither sergeants nor attornies should advance [towards the judge] further than the bar or beyond the seat assigned to them. Nor is anyone to act as assessor, or sit close to the bailiff, for delivering pleas or judgements, unless the chief bailiff presiding in the court calls him forward in which case he is to take an oath not to favour either party [to the suit].
Neither countor nor any other person is to object to or dispute the [court] records or the judgements. If it appears to them that there has been an error, the law and custom of the city allows them to make a complaint or representation to the mayor, who will rectify the error (if there is one). No countor is to take a case in order to be partner in the plea, nor to accept a fee from both parties to a suit; rather, he is to carry out his craft in a proper and ethical fashion. No countor, nor anyone else, is to dispute the judgements of the husting, nor attempt procurement [of outside support or authority?] to overturn the decisions and sentences of the community. The countors are to swear an oath that they shall not do this.
Whoever comes near the judge without being invited, or objects to the records and the judgements, or slanders another, if [done] in the sheriff's court, is to be suspended for 8 days so that he cannot present cases for anyone, or to be amerced 6s.8d by the sheriff. If [done] in the husting, he is to be suspended for 3 or more sessions, depending on [the gravity of] the offence. Anyone who is convicted of taking [a fee] from both parties is to be suspended for 3 years; where, after taking it, he abandons his client and allies himself with the other party, or takes it and defaults [in representing] his client, he is to reimburse double [the amount] and may not argue against that client in the plea. Anyone convicted of seeking to procure [support] to overturn the sentences and judgements of the community is to be perpetually disbarred, and forever considered a perjurer. A countor convicted of taking a case for a share in the [compensation] demanded is to be perpetually disbarred. The same penalty applies to attornies, if they are convicted of contravening this ordinance. If attornies, due to default or negligence, lose the cases of those they represent, the king's statute requires that they be imprisoned. No one who is an attorney shall act as essoiner, nor any essoiner is to be an attorney, under the penalty already mentioned.
It will be noted that this document refers to the practice of law as a craft (mestier) rather than a profession, placing it on a par with other trades and crafts in contrast to the predominant twentieth century view of lawyers as members of a profession, with a superior social standing to those who using manual skills. Even this recognition of the craft of attornies probably not intended to imply any organized gild was a step in the direction of professionalization, however. Yet, while this document indicates awareness that the practice of law required special training, this does not in itself imply professionalism in the fullest sense that we use the term today. In essence, the document's concerns could be reduced to the concern seen repeatedly in borough ordinances regulating craft gilds that unskilled practitioners would bring disrepute to the craft as a whole, and offered unfair competition to the skilled, established practitioners.
London's courts, because of their number and the early development of a fairly elaborate bureaucracy, attracted specialized lawyers from a relatively early date, but (as the document suggests) without blocking the activity of men whom we might describe today as "para-legals". Doubtless influenced by the nearby royal courts, London increasingly passed ordinances defining the practice of law in its courts, and specifying who was qualified to practice it.
The overall image from the reform document translated here is that the courts had become something of a circus, with unqualified men hanging around the courthouses to sell their services to parties in lawsuits, then acting outside of established court procedures, trying to exert undue influence over judges by having private words with them in court, and raising objections to recorded evidence or to judgements that went against their clients. Some were also capitalizing on the tendency to use litigation as a pressure tactic in business dealings or even as a means of speculation introducing a volume of pleas in the anticipation that the income from victories or out-of-court settlements would exceed the costs of losses by partnering with such plaintiffs (perhaps even inciting men to introduce such frivolous suits). Another abuse revealed by the document seems to have been a countor acting for both sides in the same plea, or accepting a bribe from the opposing party to sabotage his client's case, or even taking one party's case (and fee) and, having familiarized himself with the arguments for that party, switching sides to give the other party an advantage and himself a second fee; these of course being serious perversions of justice, and punished accordingly.
This could not have done much to enhance the reputation of lawyers, who were already the subject of distrust. In certain cases, notably that governed by the law merchant, lawyers were not normally allowed to take part, it being felt that the facts should speak for themselves and not be subject to the convoluted arguments of lawyers. And there were several largely unsuccessful attempts to prohibit the election of lawyers as parliamentary representatives.
A countor was a certain category of those whom are today called barristers or lawyers, i.e. they pleaded court cases on behalf of clients pursuing or defending a legal suit. The name, which was the one most commonly used in the thirteenth century for representatives of litigants, originates from the fact that they counted (argued) counts, i.e. accounts although whether in the sense of a narration of the events (as the Latin equivalent, narrator suggests), or the sense of a demand that one person account to another for some alleged injury (there being some indication of a link of the term to the Latin computarium), is not clear.
Several categories of men engaging in legal practice, at some level, are seen in the document: sergeants, attornies, countors, pleaders, essoiners, and assessors. Whether or to what extent these categories may have overlapped is uncertain, although the document itself envisages distinctions. Certainly at a later date sergeants represented the highest level (the pool from which professional justices were chosen), years of service as an attorney prepared one to be a sergeant, and countors appear to have been a level lower than attornies; pleaders were perhaps men of even lesser experience (Riley suspected they were at the apprenticeship level). Essoiners provided a specialized service (see notes below). Assessors were apparently individuals present in the court whom the presiding officer might invite to advise him on an appropriate sentence hence perhaps the notion that sentences were passed by the community. It would still be a few years before London had its first known public prosecutor, the Common Sergeant, and its first expert legal advisor, the Recorder.
"to the mayor"
|Created: August 18, 2001. Last update: November 23, 2002||© Stephen Alsford, 2001-2003|