Much uncertainty prevails with respect to many of them, and the highest authorities differ on points of daily occurrence.

Of the most important rules of etiquette are those which affect the relation of the barrister to the attorney. These cannot be better illustrated than by the judgment of Lord Campbell, in the well-known case of Bennett v. Hale (15 Q. B. 171), where a judge, having ruled at nisi prius that a counsel appearing for one of the parties, and not instructed by an attorney, could not cross-examine witnesses or address the jury; the whole question was discussed, and a new trial was granted, on the ground, "that though there was an understanding in the profession that a barrister ought not to accept a brief in a civil suit, except from an attorney, and the Court believed that it was for the benefit of the suitors, and for the satisfactory administration of justice, that this understanding should be generally acted upon, yet there was no rule of law by which it could be enforced; that it being a matter of procedure, the judges, of their own authority, might, according to their view of what was fit, have laid down a general rule, determining under what conditions and restrictions barristers should be permitted to plead before them and have pre-audience, but that no such rule was to be found; that in Criminal Courts it was conceded that the practice for a barrister not to plead, unless instructed by an attorney, did not prevail; and that instances were well known in which, with the sanction and at the suggestion of judges, barristers had defended prisoners without the intervention of an attorney."

With regard to the ancient practice, Lord Campbell pointed out that a change had been taking place in the relation of barrister and attorney: "That the advantage to be derived from subdividing the business of conducting a suit, and having two orders in the profession of the law between whom it should be distributed, became more and more felt; but for a long time the attorney only sued out process, and did what

VOL. XV.NO. XXIX.

C

was necessary in the offices of the Court for bringing the cause to trial, and for having execution on the judgment. That he highly approved of the demarcation finally drawn between the functions of the attorney and those of the counsel, and believed that the intervention of the attorney between the counsel and the party had greatly contributed not only to the dignity of the Bar, but to the improvement of English jurisprudence. He earnestly trusted that the almost uniform usage which had prevailed upon the subject for more than a century would not be altered, and that the interference of the judges to rectify any abuse of it would not be necessary. Exceptional cases might again occur, though very rarely, when it might be fit for barristers to plead in civil suits, instructed only by the parties; but he hoped that they would continue generally to adhere to what had been considered the etiquette of the Bar. Although conscientiously bound, and ever ready to render their best assistance for the discovery of the truth and the vindication of right, they were at liberty, under the control of the Courts, to lay down conditions upon which, for the public good, their services were to be obtained."

From this judgment it seems that, in Lord Campbell's opinion, though there was no rule of law to prevent barristers appearing in civil cases uninstructed by attorneys, yet it was against the etiquette of the profession. The judgment, however, does not touch upon the question of chamber practice, and it is difficult to say whether, even in civil suits, the etiquette is still as pointed out by Lord Campbell, for it will be recollected that when the County Courts were first established in 1846, a clause was inserted (9 & 10 Vict. c. 95, 8. 91) preventing counsel from appearing in these Courts unless instructed by an attorney; but, subsequently, in consequence of an agitation among some members of the Bar, and very much owing to the exertions of this Society, and the support of Lords Brougham, Lyndhurst, and Denman,

when the jurisdiction of the County Courts was extended from £20 to £50, this clause was repealed. This would seem to indicate that, in the opinion of the Legislature and of the noble lords just named, it is not expedient that in the County Courts, the etiquette of being instructed by am attorney should be maintained, and it is not easy to draw a distinction with regard to the Superior Courts, and much less so with respect to chamber-work. Notwithstanding this, it is certainly the opinion of a large number of the profession that it is contrary to etiquette, and, indeed, in the opinion of many, dishonourable to take briefs from, or to advise, or to receive fees from others than attorneys.

The practice, such as it is, is comparatively modern; for up to quite a late period of our legal history even the minutest part of the duties connected with it were performed by barristers, and it was not till the year 1557 that we find the rule, already quoted, forbidding barristers to act as attorneys, and it is about that time that we must look for the complete divergence of the two professions; but even much later than this the attorney was a mere ministerial officer performing the less important duties of conducting the suit through the forms of the Courts, and all the more important duties were undertaken by counsel, who advised personally with their clients. It is quite of late years that the attorneys and solicitors have assumed the important position which they now hold, and that they have become, in fact, the dispensers of all the business which comes to the Bar. There is, no doubt, much to be said in favour of cutting off the barrister from direct personal communication with the client; it tends to make the barrister more independent of personal questions, enables him to give a more impartial and unbiassed opinion, free from the prejudices which might, perhaps, be instilled into him by more direct intercourse with the client. To men in heavy business, the work comes already half-performed, in being divested of all immaterial matter which

the client is certain to impart to it. It would, indeed, be impossible for a leading barrister to receive his instructions from clients uninstructed in the law; the waste of time in explaining would be too great. There are, however, consequences of an opposite character arising from this rule, which have an important influence on the counsel. I mean that it tends to make the professional prospects of the barrister too much dependent on attorneys' connexion. Of course there are exceptional cases of remarkable talents, which command success, in spite of every difficulty; but, on the average, an early introduction to easy business and familiarity with its forms are almost indispensable, and the opportunities which give rise to these advantages rest mainly with the attorneys, and not with the public; and it is neither unnatural, nor can it be said to be unjust on their part, if these opportunities are given in the first place to relations or connexions of their own whom they know, in preference to strangers whom they do not know. There are not a few great firms of attorneys in the present day who have of themselves sufficient business to support a barrister with work, and it sometimes happens in such cases that a close connexion exists between the firm and the barrister, having its origin in family ties, which has all the appearance and some of the effect of a partnership, the reality of which would be opposed to the principle on which the Bar rests, and contrary to every rule of etiquette in the profession; so true is the old saying, "Naturam expellas furca tamen usque recurrit." There are others, however, whose boast it is to pick out the best men they can find at the Bar, regardless of other considerations, and by so doing to contribute in raising them to the bench and even to the woolsack.

Then, again, the attorneys are not themselves restricted from performing the duties of counsel, except before the Superior Courts. In many other Courts, and in many other ways, they practise side by side with barristers, and have

obtained almost the whole of certain branches of work. Almost all the County Court work, which now embraces a considerable quantity of important litigatory work, almost all the Bankruptcy work, a vast proportion of conveyancing, of work before Judges in Chambers, before the Clerks of Chancery Judges, before Masters of the Courts, in references, and at petty sessions-most of it strictly the work of advocates -is performed by attorneys, and without the aid of barristers. It would be a folly in these latter to abdicate any further their proper functions, unless it can be distinctly shown that it is for the interest of the public that such work should be taken from them and entrusted to others. It has been feared by some that if it were proper for the counsel to advise his clients without the intervention of an attorney, and for the latter to be called in when litigation was commenced, it would lead to the counsel naming the attorney instead of the attorney naming the counsel. This is so to some extent in France, where the advocates invariably see their lay clients and where the local Bar in the provinces derive much of their emoluments, by giving advice to their neighbours without the intervention of the avoué. It does not appear that any evil consequences follow, or that the Bar is at all lowered in the estimation of the public, or in any of its qualities as compared with our own.

The subject is one of great interest and importance, but cannot now be treated in all its bearings. I have only introduced it to show how important it is that it should be discussed by the Bar generally, and that some rule should be adopted, founded on what is thought to be the interest of the Bar and the public, which I conceive will ultimately be found to be the same. Far from any certain rule at present being laid down, I venture to say that no two benchers, taken at random, will agree as to what are the rules of etiquette regulating their relations with attorneys, and I cannot find that the Inns of Court have ever taken pains to lay down what