LAWYERS, for the great and

good service of the Commonwealth,' says Sir Edward Coke, 'have been eligible for members of Parliament.' And although English Parliamentary history shows that some of the members of the long robe became the unscrupulous defenders of unconstitutional sovereigns, it also shows that others distinguished themselves as the able and patriotic advocates of the liberties of the people, and, for the great and good service of the Commonwealth,' led to successful issues those great contests between the House of Commons and the Crown, which resulted in the establishment of Parliamentary government, and of those constitutional rules by which the boundaries of Parliamentary privilege and Prerogative right are clearly defined and limited.

The training of the lawyer and his mastery of the principles of the Common Law, which are the foundations of our jurisprudence, fitted him for the

legislative work of Parliament; and therefore we can well understand how the presence of lawyers in Parliament was recognised from early times. In 1300, when Edward I. summoned a Parliament to consider of his right to Scotland, the writs issued for the election of members recited the King's desire to have conference and treaty with men learned in the law (jurisperitis), and others, upon his ancient right and dominion over Scotland (a). The University of Oxford was direct. ed to elect four or five, and the University of Cambridge to elect two or three of their most discreet and learned lawyers' (b) (de discretioribus et in jure scripto magis expertis). And though it is alleged that the rule and intention of the early constitution of Parliament was that the constituencies should elect members from amongst their re

(a) Luder's Parliaments, 63. (b) Ibid. 266.

sidents, who should be acquainted with their necessities and grievances, yet in practice the electors swerved from this strictness, and elected outsiders (a).

The number of practising lawyers who sat in Parliament, says Hallam, seems to afford the inference that this election of non-residents had begun in the reign of Edward III. It is not to be doubted that many practising lawyers were men of landed estate in their own counties (b).

But the lawyers of that time did not use their privileges wisely, for, says Hallam, these lawyers put forward many petitions in the name of the Commons which only concerned their clients, as we may guess from the number of proposals for changing the course of legal process which fill the rolls during this reign' (c).

In an unwise attempt to remedy this abuse, the House of Lords adopted an ordinance (not having the force of an Act of Parliament), in 46th Edward III. (1372)—and made, as stated in a note to Ruff head's edition of the Statutes, after the dismission of the Knights of the Shire, which irregularity might perhaps be the reason why it was not entered upon the statute roll or printed in the Statute Book 'by which it was declared that no gentlemen of the law (gentz de ley) who conducted various businesses for other persons in the Courts of the King, and who brought before Parliament various petitions in the name of the Commons,

(a) By 1st Henry V. c. 1 (1413), it was enacted that the Knights of the Shire to be chosen shall not be chosen unless they be resident when they be chosen the day of the date of the writ of the summons to Parliament, and that the Knights and Esquires and others who shall be chosen of those Knights of the Shires be also resident within the same Shires in manner and form aforesaid; and that the citizens and burgesses of the cities and boroughs be chosen of citizens and burgesses resident, dwelling, and free in the same cities and boroughs, and not otherwise. The provision as to residence was repealed by 14 George III. c. 58 (1774) as unnecessary and obsolete.'

(b) Hallam's Middle Ages, 528. (c) Ibid.

which in no wise related to them, but only to the private persons for whom they were engaged, should be returned or accepted as members of Parliament, and that the gentz de ley then returned 'should not have any wages' (a).

Thirty-two years afterwards a Parliament was elected in accordance with this ordinance, to which historians have given the soubriquet of Parliamentum indoctum, or, The unlearned Parliament' (b). Sir William Blackstone, referring to it, says that by an unconstitutional prohibition, grounded upon an ordinance of the House of Lords, there was inserted in the King's writs for the Parliament holden 6th Henry IV. (1404), that no apprentice or other man of the law-qui in jure regni docti fuissent-should be elected a Knight of the Shire (c). And Sir Edward Coke, the great master of Parliamentary and Common Law, gives this testimony: At a Parliament holden at Coventry, anno 6, Henry IV., the Parliament was summoned by writ, and by colour of the said ordinance it was forbidden that no lawyer should be chosen knight, citizen, or burgess; by reason whereof this Parliament was fruitless, and never a good law made thereat, and, therefore, called Indoctum Parliamentum, or lack-learning Parliament.' And so it was, for only one Act, relating to first fruits, sheriffs, escheators, &c. (repealed in 1863), was passed in that Parliament. And seeing these writs were against law,' says Sir Edward Coke, 'lawyers ever since, for the great and good service of the Commonwealth, have been eligible; for as it hath been said the writs of Parliament cannot be altered without an Act of Parliament, and albeit the prohibiting clause had been inserted in

(a) 10 Ruffhead's Statutes (Appendix), 43; 1 Revised Statutes (Imp.) 217.

(b) If you were not assisted by the Judges, and the House of Commons by other gentlemen of the long robe, experience tells us you might run the hazard of being styled Parliamentum Indoctum.'-Mr. Waller's Speech before the House of Lords.-Barr. Anc. Stat. 338. (c) 1 Bl. Com. 202.

the writ, yet, being against law, lawyers were of right eligible, and might have been elected knight, citizen, or burgess in that Parliament (a),'

James I., after dissolving the Parliament, which, on Sir Edward Coke's motion, had adopted the famous

Protestation concerning the liberties of the House' ('), and with the intention, doubtless, of indicating his desire that Sir Edward Coke and the other leaders of the Parliamentary opposition should not be elected, issued a Proclamation in which voters for members of Parliament were warned 'not to choose curious and wrangling lawyers, who may seek reputation by stirring needless questions' (c).

Some further reasons, in addition to those above stated, have been suggested for the exclusion of lawyers from Parliament. Whitelocke says, they were excluded by the Crown, who apprehended opposition from them. Barrington, in his work on Ancient Statutes' (p. 373), supposes that the exclusion arose, not from contempt of the law, but of the professors of it, who at this time being auditors (stewards) to, and dependent upon men of property, received an annual stipend, pro concilio impenso et impendendo, and were treated as retainers. And Carte, the historian, thinks the reason why so many lawyers sought to become members of Parliament, arose from their desire to receive the wages then paid to members by their constituents, whilst from their profession they were obliged to be resident in London (d).

But in ancient law-making, as in modern legislative work, lawyers were found to be such valuable members of Parliament, that the rash and unconstitutional experiment of 1404 was never repeated, except in the abortive attempt of James I. to exclude 'curi

(a) 4 Coke's Inst. 47.

(b) King James in Council, with his own hand, rent out this Protestation.'-1 Commons Journal, 668.

(c) Barrington's 'Ancient Statutes,' 337. (d) Ibid.

ous and wrangling lawyers' referred to above. From the frequent reference made to them in the earlier Journals of the House of Commons, their presence appears to have been so needed that they were more frequently called upon for committee and legislative. work than other members. For instance, we find orders like the following: The Serjeants of the Law to be warned for their attendance at the Committee for matters of the Union [with Scotland] this afternoon' (a). All the Serjeants at Law, and other lawyers to be sent for by the Sergeant of this House with his Mace, out of Westminster Hall' (b). A special order moved and made, that no lawyer of the House depart the town without license of the House' (c)-meaning that they should not leave the House to attend to their briefs on circuit. That the lawyers and serjeants be sent for a collection of them' (d)— without indicating anything of their politics, or whether the collection was to be made in the Common Law or Equity Courts, or out of the 'senior' or 'junior' bar. Again, 'That the deficients of lawyers, if they come not by this day se'n-night be sent for by warrant '(e). And, as if to make it certain that the House was in earnest, it ordered the Sergeant to warn the lawyers to attend," and directed 'the lawyers of the House to be put in writing, and to be noted if they be absent,' which was subsequently done, as appears by the entry, 'The names of the lawyers read that were absent '(f), but no punishment appears to have been awarded against these 'deficients.' And in the matter of 'impositions' or 'grievances,' the House desired 'that the King's Counsel may attend this afternoon, and all other lawyers of the House(); and when the report of the Committee on grievances was brought

(a) 1 Commons Journal, 184.
(b) Ibid. 188. (c) Ibid. 326.
(d) Ibid. 412. (e) Ibid.
(f) Ibid, 441. (g) Ibid, 421.

in, an order was made that the lawyers prepare themselves, and the report be disputed on Friday peremptorily' (a). Some time afterwards, however, an order was made imposing a fine upon those who came in after prayers. In the debate, it was urged that lawyers cannot attend in term time,' to which the Solicitor General replied, that lawyers spend their time ill in Westminster Hall, if they, for their late coming, cannot afford to pay sixpence' (b).

But the House would allow lawyers

of only one religious persuasion to practice, for later on we find an order

There was a time when there were no Queen's Counsel, with the right of pre-audience in the Courts. And as the House had so earnestly desired the attendance of lawyers at its sittings, it acted consistently in sending its Sergeant-at-Arms to the Courts with the following message :-' Ordered, that the Sergeant go to all the Courts to move them, from this House, to hear those of this House before any other, that so they may attend their service in this House, and yet not lose their practice' (d).

Young lawyers got into Parliament in those days, and one of them, designated as one of the busy young lawyers in the Proclamation [of James I.] that ought not to have been elected,' was, on the 16th of February, 1620, expelled from the House, after being called to the Bar upon his knees and informed by the Speaker, that his offence great, exorbitant, never the

like, but that the House was very merciful, and might have imprisoned and further punished him.' His offence appears to have been that in a debate on a Bill respecting the Sabbath, which he desired should be called Sunday, he indulged in certain alleged atheistical sentiments, and called the laws against Papists' gynnes and barracadoes,' and those against Puritans' mousetraps," and charged that the Bill was a mousetrap to catch a Puritan,' and he paralleled David's dancing to dancing at a May pole, which was a general scandal' (a).

The House occasionally usurped the the powers of our modern Benchers, and the prerogatives of the Courts in dealing with junior barristers and attorneys; for about the time of the expulsion of the young lawyer just referred to, the House appointed three separate committees to deal with the following offences :-'Against young. lawyers making unfitting speeches against men in their pleadings;' 'to prevent the excessive fees of lawyers ;" 'to provide against any lawyer taking fees in any one term, on both sides ;' and 'against judges suffering their sons or favourites to practise before them, to prevent this, and against favourites in all Courts' (). And later on (10th of March, 1605), a Bill was brought in and passed, to reform the multitudes and misdemeanours of attorneys and solicitors-at law, and to avoid certain unnecessary suits and charges in law' (c) -a measure which had subsequently to be supplemented by a Bill for abridging the number of unskilful attorneys, and for reducing them to an orderly practice.'

But attorneys were not looked upon with much favour by the House. They appear to have been occasionally thorns in the path of impecunious members; and for their daring in issuing and serving the ordinary legal

(a) Ibid. 521-5.

(b) Ibid. 595.

(c) Ibid. 837. 3rd James I., c. 7.

process against these impecunious. members and their servants, they were declared 'guilty of a breach of the privileges of the House,' and sent to the Tower, or to Newgate, or to the easier custody of the Sergeant-at-Arms, to atone for their offences.

The jurisdiction of the High Court of Parliament over attorneys' Bills of Costs was asserted only once, as we believe. On the 4th of April, 1700, the indignation of the House of Commons was aroused against an attorney named Rogers, for sending to some clients of his-and who, as appears by the motion, were not members of Parliament an exorbitant bill of costs, with a letter threatening to sue for the same; nd as a terror to grasping and evil-minded attorneys, Rogers was made an example of, as appears by the following entry in the journals of the House, under the head of exorbitant charge by a solicitor, respecting a petition :'

A complaint having been made to the House of an exorbitant and scandalous bill of charges, delivered by one Thomas Rogers, a solicitor, to the gunners of Portsmouth, in respect of a petition of theirs presented to the House the last session of Parliament, highly reflecting in divers articles thereof, upon the honour of the House and proceedings thereof, and the House being further informed that the said Rogers threatens to sue the Petitioners at law for the said demands; ordered, that the said Thomas Rogers be, for the said offence, sent for in custody of the Sergeant-at-Arms' (a).

After having thus asserted its summary jurisdiction over the members of the legal profession, it was proper that the House should enforce those duties which relate to the discharge of the judicial and legislative functions of Parliament. All members of Parlia ment are called upon to legislate in respect of private and public rights. for the public, or for those who may

(a) 13 Commons Journal, 313.

be suppliants or petitioners for special legislation. And in that capacity they are bound to act as judges rather than as lawyers or politicians. And in the performance of their legislative as well as their professional duties, the members of the Bar should ever remember that they belong to a profession which has always claimed and insisted that the highest honour and the highest character should be maintained by its members; a profession which, while it acknowledgesand upholds the absolute purity of the Bench, claims that the reflex of that purity is, and always should be, shed around the members of an honourable and learned Bar. They should remember, too, that their profession, because of its ability and trained power of argument, stands in the full light of a keen and searching public opinion, and that the reputation of high honour and integrity which is claimed for it should ever be maintained unsullied.

We have referred to the statements of Barrington and Hallam that many of the lawyers at the time of their exclusion from Parliament, in 1404, held retainers and received annual stipends from the great lords and men of property, and put forward petitions in the name of the Commons which only concerned their clients; and it was doubtless from the fact that, subsequently, many of the lawyers elected to Parliament, were in the habit of appearing as counsel in respect of private legislation' before the House of Lords, that induced the House of Commons to discountenance such practice as inconsistent with the independence and duty of a member of Parliament. The earliest case which illustrates the action of the House occurred in 1558, and is thus reported: 'It was declared to the House by one of the burgesses that Mr. Story had not well used himself, being a member of this House, to go before the Lords, and be of counsel with the Bishop of Wynchester against the patentee [of his lands]; which by the House was taken to be