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Decisions of the Superior Courts of New South Wales, 1788-1899

Division of the Legal Profession [1834] NSWSupC 113

legal practitioners, division of profession - republicanism - America, legal influence of - Forbes C.J., complaint against - legal practitioners, satire of

Supreme Court of New South Wales

Source: Sydney Herald, 6 November 1834 [1 ]

SUPREME COURT.

THE BAR.

A strong sensation having been created amongst the Professional gentlemen practising in the Supreme Court, by the recent notice from the Bench, that His Majesty had approved of a rule made by the Judges some years since, for separating the Profession in like manner with that of the Courts in the Mother Country, we have endeavoured to obtain a correct account of the state of the question, and the following is the result of our inquiry.

In the first term of the year 1829, it having been represented to his Honour the Chief Justice, his Honour Mr. Justice Stephen, and his Honour Mr. Justice Dowling, by several of the Barristers then practising in the Court, that it would be highly expedient and desirable for the interests of all the practitioners, as well as for the public advantage, that the Profession should be separated, the Judges took the matter into grave deliberation, and under the then new authority, given to them by the statute 9, Geo. 4, c. 83, s. 16, which came into operation on the 1st of March, 1829, drew up the heads of a series of rules upon the subject, and on the 11th March, 1829, these rules were promulgated in open Court, with an invitation on the part of the Judges to the Profession, to take the rules into their consideration, together with an expression of the readiness of the Court to listen to and adopt any suggestion that might be made for their improvement, before final confirmation. - Shortly afterwards a petition of remonstrance, signed by most of the attornies, was presented to the Judges, and the subject being represented as deeply affecting the most ample discussion, the Judges, anxious that the question should be fully debated and considered, gave a day for hearing in open Court, all that could be said on the one side and on the other.  Accordingly, on Monday the 1st day of June, 1829, the matter came on Monday the 1st day of June, 1829, the matter came on for argument in open Court, before all the Judges.  Eight barristers, including the Attorney and Solicitor Generals, for the time being, and twelve attornies then on the roll, were heard at great length, and the question fully discussed in all its bearings.  After the argument, the Court took time to advise upon the matter, and considering the importance of the subject, post poned their decision until Saturday the 5th day of September, 1829.  On that day the Judges promulgated the following rule:-

``It is ordered that the business of the profession of the Law be divided in this Court, in like manner as the same is divided in England, provided that this rule shall not take effect until his Majesty's pleasure shall first be made known."

Pending the discussion of this subject, it had been represented to the Judges, that it would be advantageous to all the practitioners, if a little time were given, to enable them to arrange the business of their offices, and determine, without prejudice to the interests of the then suitors of the Court, which branch of the profession they would elect to take and adhere to.  Accordingly, in furtherance of the wish thus expressed, the Judges made and published the following additional rule upon the subject, viz. :-

``That the several Practitioners admitted in the Supreme Court, at the date of this rule, be allowed to elect to which branch of the profession they will adhere; such election to be made and signified to the Court within the time limited for the proceeding rule to take effect."

After the promulgation of these rules, the Court caused them to be forwarded to the local Government for transmission to England, in order that His Majesty might exercise the power of disallowance, if he thought fit, given him, by the 16th section of the statute 9 Geo. IV. c. 83.  Some time afterwards notice was published, by the authority of the local Government, that these rules had been transmitted to His Majesty's Principal Secretary of State for the Colonies, for the consideration of His Majesty.  On the last day of the term just expired, His Honor the Chief Justice notified to the profession, in open Court, that he had received the day before, an official communication from the Colonial Secretary, by command of His Excellency the Governor, informing him that by a despatch, received by the last vessel from England, His Majesty had signified his royal pleasure, that the said rules were approved of by His Majesty.  This communication was then published in open Court, and now remains in record in the Supreme Court Office.  The allowance, therefore, of the rules by His Majesty, renders them as effectual and binding, as if they had been incorporated into the Act of Parliament, under which the jurisdiction of the Law of the Colony on this subject.

Upon the publication of the allowance of the rules on the last day of the term just expired, three or four gentlemen, not Barristers of the English Bar, but who had been practising as Attornies and Barristers of this Court, ever since the first promulgation of the rule in September, 1829, claimed the privilege of then electing to practise in future as Barristers only.  The whole Court, after full consideration of the arguments then addressed to it, was unanimous in holding, agreeably to the plain words of the second rule, that the time for making such election was gone by, and that the election should have been made in due form, within the time limited for the suspension of the first rule, and declined receiving their claims, in contravention of the express words of the rules, which, by the approbation of His Majesty, had become the Law for the guidance of the Judges in this matter, leaving it however open to the Gentlemen thus supposed to be aggrieved, to take such other steps for relief as they should be advised to take.

On the next day, namely Saturday last, two of the Judges, happening to be sitting to hear equity causes, had their attention again called to the subject by another gentleman, who was not present in Court on the previous day.  The Chief Justice communicated to that Gentleman what had fallen from the Judges the day before, and that the Judges must abide by their decision upon the plain words of the rule.  The same gentleman, at the rising of the Court, sought an interview with the Judges, and was again informed that the Court had no alternative, and were bound to adhere to the determination of excluding all gentlemen, not Barristers of England or Ireland, Advocates of the Scotch Bar, or entitled to practice as Barristers or Advocates in the Courts of Record in the United Kingdom, from practising as Barristers of the Supreme Court of New South Wales, who had not made their election in due form, and been admitted as Barristers within the time limited by the rules.  On both occasions, the Judges decided that a mere verbal declaration of intending to elect, was not a compliance with the words of the rule which are, ``such election to be made and signified to the Court within the time limited for the preceding rule."  The admissions of Barristers and Attornies they said, were matters of record, and were formally entered on a Roll, called the Barristers and Attornies Roll.  The Judges called for the Barristers and Attornies Roll, and ascertained that this gentleman's name was still on the Roll of Attornies, and not on the Roll of Barristers. -  It might be, they said, that the rule was silent as to the precise mode in which the election was to be made; but it must be obvious to the plainest understanding, especially to the mind of a professional man, that the Court must have the election signified to them in due form, in order that it might become of record, which was the only legal evidence of the election, which, as a Court of Record, they could take notice.  The Court could not be bound by a mere verbal statement, in a matter of so much importance; the party surely must go on to do some Act as evidence of his intention to elect; the Court was never, and could never be bound by so loose a mode of proceeding.  It was urged that this gentleman had made his election at once, by open verbal declaration in Court, at the time the rules were first promulgated, that he intended in future to practise as a Barrister only, and that, as he was not called upon to signify his election by writing, and as the rules were silent upon that     

point, the Court was now bound to give him the benefit of his election. - Admitting, for the sake of argument, that the Court could take notice of such a mode of election, the Court had been constrained to inquire whether, in this particular instance, after such declaration, the Gentleman alluded to did bona fide give up the practice of an Attorney, and continued to practice only as a Barrister; and they had ascertained that in very numerous instances, that gentleman had since continued to practice as an Attorney as well as a Barrister.  Under such circumstances, the hardship of which complaint was now made, did not rest with the Court.

On Saturday, when the gentleman alluded to, desired to know the decision of the Court on the previous day, the Chief Justice expressed himself to the following effect:-

``This is an application to the Court to answer a question, namely, as to what passed in Court yesterday, in commuuicating to the profession the decision of the King in Council, upon the rules promulgated on a former occasion, relating to the division of the business of the Court between Barristers and Attorneys respectively.  That communication was made to the profession as a dry matter of duty, in the discharge of which, the Court could not take into consideration the embarrassments into which it might throw particular Practitioners and their Clients.  This is not a matter to be mooted with heated feelings and undue agitation.  It is a naked question of decision on a rule of Court, which had been duly considered and cautiously notified long since, to those who might be effected by its operation - and therefore I trust, that what I shall now state, will not expose me to a reply.  The rule in question was not framed and promulgated without due deliberation.  It was made with full cognizance of the whole profession, and upon the notification of its approval by His Majesty, as signified by the Secretary of State, the Judges, without loss of time, promulgated it for immediate adoption yesterday; thereupon, the operation of the rule became a subject of discussion between some of the Practitioners and the Court, and the Judges sitting in full Bench gave their opinion, but not without due consideration.  There are but two Judges now sitting, who have, this day, met specially to hear cases in Equity.  We are not sitting in Banco.  It would therefore, not become us to express an opinion upon this rule, in any degree deviating from the opinion expressed by the whole Court yesterday, which was, simply, that after His Majesty had signified his Royal Pleasure, approving of the rule made in 1829, for the division of the profession, and after that approbation had been communicated to the Judges, and by them to the profession, it made the enforcing of the rule imperative on the Court, and became as binding upon them as an Act of Parliament.  The rule being thus sanctioned, it became matter of simple exposition as to its effect.  The rule is in these words:- `It is ordered, that the business of the profession of the Law be divided in England.'  It is well known, without descending to minute particulars, how the professional business is divided in the Courts of England.  In the Courts of Civil Law, the division of the Practitioners is into Advocates and Proctors - and in the Courts of Record at Westminster, into Barristers, Attorneys, and Solicitors.  The object of the rule is to establish the same division as is adopted in England.  It fixed, however, a time as to when it should take effect, namely, not until His Majesty's Pleasure should first be made known.  If the King disapproved of the rule, there was an end of it, it became a discharged rule; but if he approved of it, then it became absolute from the day of its date.  The King's pleasure was made known to me, as Chief Justice of the Colony, by His Excellency the Governor, and by me promulgated in open Court, at the first practicable opportunity, for the information of all concerned.  The King having signified his gracious approbation of the rule, from that moment the rule became imperative upon the Court, and upon all parties concerned.  The rule originally was not to take effect immediately; the time of its taking effect was indefinite; the principal reason for introducing that clause of suspension, was to prevent the confusion and embarrassment which might arise, should it be acted upon immediately.  The Court, undoubtedly, had power to order the rule to take effect immediately, subject, no doubt, to His Majesty's disallowance, under the 16th section of the New South Wales Act; but, for the convenience of all parties, the Judges thought it most prudent to give timely notice of the intended operation of the rule, to enable the Practitioners to make their personal arrangements respecting the business of their Clients then in hand; and in the spirit of that notice, which had regard also to the interests of the Public, we further ordered, `that the several Practitioners admitted in the Supreme Court, at the date of this rule, be allowed to elect to which branch of the profession they will adhere; such election to be made and signified to the Court within the time limited for the preceding rule to take effect.'  From the plain reading of this rule, the election when made, is to be signified to the Court, before the rule shall be approved of by His Majesty.  I am not called upon now to express any individual opinion as to the mode in which the election was to have been made and signified - but it appears to me, that the election and signification should have been a formal tangible act upon which the Court could exercise its judgment, even to the fitness of the individual to be admitted to act as Barrister, though he might have been previously on the Roll of Attorneys.  It appears to me, that the election, at all events, should have been made by formally applying to the Court to be admitted and enrolled as Barrister.  An Attorney is no more a Barrister, than he is a Physician, or a Doctor of Laws.  The Charter of the Supreme Court, it is true, allowed the Court to admit persons who were not Barristers at Law, or Advocates in Great Britain or Ireland, to act as well in the character of Barristers and Advocates, as of Proctors, Attorneys, and Solicitors in the Court - but still it kept up the distinction between the Barrister and the Attorney, in anticipation, that although at the time of opening the Court, there might not be any more than one or two Barristers at Law in New South Wales, yet a time might come (as it has now arrived,) that on grounds of public expediency it might be fit and proper to keep up the distinction and separation in the branches of the profession in this Court, which has time immemorially existed in England.  I say that in anticipation of this state of things, the King's charter draws the distinction between the Barristers and the Attorneys, but says it shall be in the power of the Court to admit the latter to practice as Barristers.  That charter was issued subject to any alteration which might be made in the Law for governing the conduct of the Judges in this most important duty imposed upon them.  This provision in the Charter was accordingly afterwards altered by the Statute 9, Geo. 4, c. 83, s. 16, by which the Judges may lawfully made and prescribe such rules and orders touching and concerning (amongst other things) the admission of Attorneys, Solicitors, and Barristers, as may be adapted to the circumstances and condition of the Colony, and such rules and orders from time to time, to alter, amend or revoke, as to His Majesty, his heirs and successors shall seem requisite.  ``The Statute then declares, that all rules and orders so to be made and prescribed as aforesaid, shall be of such and the like force and effect, as if the same had been inserted in this present Act:  Provided always, that all such rules and orders shall be subject and liable to be disallowed by His Majesty, and upon such disallowance being signified through the Governor or acting Governor of the Colony, the same shall become void and of no effect."  As I said before, an Attorney is no more a Barrister than he is a Doctor of Medicine.  If the election be not signified, and the party regularly admitted by this Court, as a Barrister, how can it be said that the division in fact has taken place, when the claim was never made or admitted by allowing an Attorney to be a Barrister at Law in this Court?  The Attornies may have hitherto been permitted to practice as Barristers, but that does not give the party the degree of a Barrister at Law, so as to enable him to stand on the same footing with Barristers at Law in England.  A permission to practice, under peculiar circumstances as a Barrister, will not make an Attorney a Barrister for ever after, unless he had been duly admitted and enrolled as a Barrister; even if an Attorney made his election in due form, within the meaning of this rule, by applying to be admitted as a Barrister, still, I apprehend, his admission might not be as of course - the Court would still be bound to exercise its judgment as to the fitness of the party to be so admitted.  It is contended by Mr. Rowe, that, as he signified in open Court, when this rule was first promulgated, his willingness, expressed by word of mouth, to elect to be a Barrister, that was a sufficient election and signification thereof, within the meaning of the rule.  I do not feel myself called upon now to determine that point; but answering the general proposition, whether an Attorney is entitled as of course to be considered a Barrister of this Court under this rule, I have no hesitation in saying, that, until duly admitted as a Barrister, on special application, the mere fact of his being an Attorney does not make him a Barrister - without formal admission, he is still an Attorney, and no more."

In order to prevent any hardship in the cases of prisoners for trial during the present Criminal Session who might have retained Attorneys to act as Counsel for them, in ignorance of the new state of things, the Judges notified that, if necessary, they would allow any Attorney to act for this Session, as Counsel in any case in which - affidavit could be produced, setting forth that the Attorney was retained before the 1st November - that there had not been sufficient time to prepare and deliver a brief to a Barrister since that day - or that, having prepared a brief, it had been refused.

 

Source: Australian, 18 November 1834[2 ]

 

ADJOURNED MEETING OF THE BAR.

(By a Reporter.)

I had been engaged on Wednesday night last till a late hour in getting up my budget of copy for the following morning, when finding my brains completely conglomerated, I sallied forth into the open air to try if the charms of moonlight and the cool night breeze might dispose me for sleep, little anticipating that a job would present itself.  Attracted however by the uprorious sounds of merriment proceeding from the ---------, a low pot-house in the immediate vicinity of the Court, I was induced to call for admission, under pretence of discussing a pint of half and half.  On entering the tap, I discovered the worthy landlord and five waiters stretched behind the bar, and found that the noise which I have mentioned was perpetrated in an adjoining room separated from the well stocked tap by a green baize partition.  Mine hostess now informed me that the ``gentlemen of the bar" had adjourned to her house for the purpose of celebrating the division of the profession, and were then engaged in holding what they called a ``grand symposium," by which she supposed they meant getting royally drunk.  A shout for ``waiters," landlord," ``hostess," was now heard amidst the crash of bottles, to which the ``rocking of the battlements" is paltry comparison.  Landlord and waiters, however, were ``deaf to the call," and mine hostess said, she knew her guests too well to venture among them, but entreated me to robe myself in the apron and sleeves which appertained to the calling of a writer, alleging that the Company were too far gone to recognise me.  Impelled by curiosity, and consideration for the very reasonable apprehension of the pretty hostess, I called to mind that the Prince and Poins had condescended to a similar disguise to be present at the scene between Falstaff and Doll Tearsheet; so gulping down the indignity I lifted the baize, and are thus enabled to send you a report of the scene I witnessed.

The table was laid for ten, but nine gentlemen only in their wigs and gowns surrounded it, -- the tenth chair on the left hand of the Vice was occupied by a tub full of uncorked bottles, while a wig made of black sheep's wool was hung on the back.  Before each of the company stood a number of empty bottles, according to the quantity he had drank none had less than three, while before the President stood six indisputable marines.  After procuring a fresh supply of glasses, fragments of former ones being strewed in every direction over the table and floor, and providing divers other accommodations, the Chairman rose, and taking a bell with a large clapper in both hands, which had been borrowed from Mr. Lyons, the auctioneer, for the occasion, continued to ring it for about five minutes, until the six gentlemen who had been all talking together, from pure inability to hear whether they were speaking or not, gradually ceased, and an unnatural silence at length prevailed.  He then spoke as follows:-

Mr. Vice and Brethren. - I need not repeat the occasion of our meeting, for the bottles you have emptied cannot have washed that from your memory, thought they seem to have impaired your understandings.  Look at me, the father of the Australian Bar, yet here I stand, with six bottles under my belt, and none the worse.  I feel for your degeneracy, my sons, but trust that practice will soon make you perfect, and that by punctual attendance at bar dinners, under my tuition, you will emulate the British Barrister in all his habits.  Next to wine, my brethren, devotion to the fair sex is the characteristic and pride of the English Barrister - but in this respect you are not wanting - so I have good hopes of you.  For myself I had thought to pass the rest of my days in growing cabbages and pruning my vines, but the glorious era which has at length dawned upon the profession, calls me like a second Cincinnatus from my retirement to assume the station which my seniority gives.  Whether I shall hold briefs or not is a question on which I have not yet decided, but I shall always be ready to preside at your convivial meetings.  Before we now separate, let each gentleman present give a bumper toast, according to his seniority, and I hope that only one person will speak at a time on pain of not being listened to in his turn.  The occasion which we are now met to celebrate, will probably suggest to you the nature of the toast which I ought to propose.  You are mistaken, however, for it is a fundamental principle at all Bar Meetings that there shall be no force upon any man's inclinations.  Let every one present therefore fill a bumper, and drink for the first toast, That which he likes best.  (Great applause followed this speech.)

The gentleman on the right then suddenly started up, and said, --

``Arrah!  now but that's well said, and long life to you, Mr. Chairman!  By the powers, and if there's one thing I like better than another, sure it's a fee - by the shoul [sic] of St. Patrick when I see the little yellow boys shining before me, `tis then I'll remimber [sic] the toast - I've a sung little berth of it, just now, friends - twelve hundred a year is no bad thing (grins of envy were seated on every countenance at this remark).  Oh! when would I have seen such a sum in the country Kilkenny.  Jintlemen [sic], ever since I came to the Colony, I have upheld the honor and interest of the profession, and if you doubt it, read Dr. Lang's book, for I never could find time to give him an opinion about his College till he sent me £5, and he says he was sorry the sum was so small.  By Jasus [sic], and so was I; but now there's a division, and sorrow but we'll get large fees and plenty of `em too.  And sure now, if the public has to pay them, what's that to us? and what did we come here for but for our own benefit?  And so here's my toast, `Good fees, and plenty of them.'"

(This toast was received with loud and long continued cheering, and silence was not restored until the Chairman again had recourse to the bell.)

The gentleman opposite was now called on for his toast.  After several attempts he got upon his legs, and placing his hands on the table, contrived to steady himself tolerably well during the delivery of the following Address: -- Mr. Chairman, and learned friends, I rise with some difficulty (a laugh) diffidence I mean (`tis the failing of my countrymen) (cries of oh, oh!) to propose a sentiment (hiccup).  It is well known that the noble Earl Grey, late Premier of England, has obtained for his administration the nickname of the ``Grab Cabinet," and that my Noble Patron in Ireland had followed the excellent example of his friend and superior, in taking and keeping for himself and friends all that he could get.  I honor them for it, and in my more humble sphere, I will tread in their steps to the best of my ability.  The division of the Professions affords a good occasion of profit, let us take advantage of it to the utmost (great applause).  We have ousted the Attornies - they cannot help themselves; now then let us sweat `em well,  I see you are with me, and I will therefore propose two or three regulations for our guidance, for though I am the youngest among you, I am the most interested in the subject (oh, oh!) - present, (no, no, no, from various parts of the table, they are too small already); that to make up we, 2ndly, take no briefs without the cash; 3rdly, that there shall be two counsel in every case on both sides; and lastly, that by every means in our power we endeavour to reconcile the public here to the division, and to deter any Barristers at home from coming here to disturb our monopoly (Here, hear!) I could have pointed out at an earlier hour, how curiously contrived these propositions are for the general, and my own particular benefit; but my head somehow is not so clear, nor do I feel quite so steady on my legs as the well seasoned gentlemen who have preceded me, -- so without more blarney, here's my sentiment--

``That those should take who have the power,

And those should keep who can."  (Applause).

(The learned gentleman in lifting his hand to do honour to his toast, lost his balance, and pitched into the President's lap, who however replaced him in his seat, giving him a hearty slap on the shoulders, and telling him, he would soon improve.)

The second right hand man now took his wine, and said, ``Mr. Chairman and Gentlemen, you all know I don't pique myself upon oratory, though I'll draw a bill or a bottle of Claret with any of you.  If I can't talk, however, I can sing, and God bless the Judges, I've got a new song (bravo, a song, a song).  Fill a bumper to `the Judges' (three times three, each gentleman holding his wig in his hand).

SONG.

A good jolly song, brothers, give, give to me,

Let those who prefer it, lads, spout, --

And whate'er be the theme we right merry may be,

Should we ne'er have another such bout.

Now, now that the `Torneys have wished us good bye,

And the Bench we alone may address `em,

And monopoly smiles in each Barrister's eye,

Here's a health to the Judges, God bless `em.

The Romans threw pearls in their cups - I'm afraid,

Great riches were lost in their wine -

And pray may not giving us briefs, boys be said

To be casting rich pearls before swine?

I boast not of briefs, but I'll now have my whack,

Since the `Torneys no longer possess `em -

Upstanding, unwigged, boys, come echo it back,

Here's a health to the Judges, God bless `em.

When the cheering had subsided, from all parts of the table there was a vociferous shout for Mr. ---, who at length rose, and after looking round the room, while an involuntary curl of scorn gathered upon his upper lip, made a very brief address.  ``Sir," (he commenced) ``and gentlemen, you all seem right merry at the prospects before you, but have a care, there's many a slip `twixt the cup and the lip.  As for the division of the Bar, I approve of the principle, but when I look round me (here the speaker leisurely surveyed each individual, and a long pause ensued), I cannot but feel, that it is at least premature, nor can I heard without disgust the hatred you have manifested for the ill-used Attornies, many of whom are almost as talented and honest as some of you, my learned friends.  For my part, I am going to visit my flocks, and perhaps I may not in future often attend the Court, but if, while I am collecting my fleeces, you take to fleecing the public, then for the good of my country, (hear, hear) I will return to practice, in which case some of you who look for wool will find yourselves shorn.  However, I have not resolved upon retiring, though certainly I have talked about it these five years.  There is something after all so touching in the receipt of a fee, and, unlike all other things, their repetition is so little tiresome, that I almost think I will bring philosophy to my aid, and for a few years longer bear the cares and labour of a public life.  In the mean time, I will give you as a toast ``the deluded Attornies."

(This speech and toast were received in solemn silence, while each of the Company looked upon his neighbour at if he'd been stung by a rattle snake.)

After a heavy pause, another gentleman jumped up and began ``When I was in the Est Indies," (several of the company now seemed very fidgetty, while others appeared to compose themselves for a nap) ``there was no division of the Bar, but we all made as much as we could in all possible ways.  I remember on a particular occasion (here the learned gentleman repeated several interesting aneedotes [sic] regarding his own practice, in which I found it impossible to follow him).  From all this I arrive at a conclusion, that there is nothing absolutely necessary in the ``Division," though if it brings grist to the mill (here the learned gentleman gave the history of the formation, progress, and prospects of the Bread Company) I can have no objection.  Monopoly is a very bad thing, a very bad thing, I say, and I disapprove of it in the main, but then there's a sound distinction between Bread and Law - I buy one, but I sell the other, and that makes a wide difference.  Now, in the Court of Claims there are no doubt good fees, but I always feel that the principle of division in practice is very bad, whatever it may be in theory.  Again, the Steam Conveyance Company, and the Benefit Society, are founded upon principles of unity.  (Here the learned gentleman read through the laws of these associations, making comments as he proceeded, and shewing their application to the Division of the Bar).  To be brief, I arrive at the conclusion that monopoly in law is not like any other monopoly, and I therefore proper to drink ``Success to the Bar Monopoly."

(At the conclusion of this most elegant Address, which from its length and rapidity of delivery we could not follow, the Chairman, who had been dosing, started up, and abruptly asked what was the matter, but hearing that a universal snoring prevailed, he applied himself to the bell again, and after a vigorous effort, roused the sleepers).

Another gentleman who had been peculiarly fast asleep, now said, ``I have very little to say in the master, only I hope it will turn out well.  No doubt, it is more agreeable to have it all to ourselves, but will it pay?"  (Aye, there's the rub, from Mr. T.)  Despite the drudgery and degradation of Attorney's business, yet I have ever found some consolatory moments, which have reconciled me to it - and I hope, in the words of the sentiment which I beg to propose, that we may all enjoy ``Division without Substraction [sic]."

A gentleman now rose with a sort of Donnybrook air, and raising his right arm, exclaimed,

``Se quaeras monumentum, circumspice."

(The orator here threw on the table, divers parchments, papers, and pamphlets, amongst which, I observed, a commission of the peace, a letter to Sire E. Parry, Court of Request Act, the Hole and Corner petition by an unpaid, Claims to Grants, Treasury Warrants, Life and Speeches of Canning, &c. &c.)

And his is a mean and narrow soul who would deny to the labourer his hire.  I have found life, a flowery path, -- roses have sprung spontaneously to my grasp, and would I be the fool to let them fade unplucked?

Happy the man whom this bright courts approves,

His sovereign favours, and his country loves;

Happy next him who to these shades retires,

Whom nature charms, and whom the muse inspires.

Let others retire to the humble enjoyments of a country life, -- mine be the fate to bask in the sunshine of court favour, with a proper share of its more substantial rewards.

What though the great sagacious Huskisson; morning and evening my political horizon, thundered forth the bitterest anathemas against monopoly?  It was no doubt a patriotic principle,  but never could have an individual application?  No, he had not lived to see the Bar of New South Wales divided.

Long have we thought to instruct and please man-kind,

With studies pale, with midnight vigils blind -

But thank'd by few, rewarded yet by none,

We here appeal to thy superior throne;

On wit and learning the just prize bestow,

For fame is all we must expect below.

But gone is Huskisson, - and gone too is the immortal Canning!  Yet his fame will live to a remote posterity eternalized by a faithful biographer.  This is a day of triumph to the profession, to the Colony and to my Country.  (The learned gentleman here repeated about three hundred lines of poetry which I found it impossible to report, and finished by singing ,`the Jolly Pluralist."

Mr. Vice was now called upon who without rising, said ``the last time I dined with my friend the President of the Temperance Society, I could not get a drop of brandy, although I stopped till daylight waiting for it.  To pass away the time I was obliged to drink wine, which being indifferent, made me feel very unwell.  (Laughter.)  Upon that occasion I demonstrated the truth of the Newtonian system, for I found out that all bodied gravitate towards their centre, and I have no desire to go through the same course of reasoning again.  Under these circumstances I beg to keep my chair, and as it is a situation to which I am used, and I have a great facility of talking any where, I assure you, gentlemen, you shall not lose a speech. - (A great uproar was excited, several present insisting that there was no difficulty in speaking, but they found it aard to stand as he did - the matter was eventually compromised by the Chair being lifted on the table, with the Vice in ii, by the Chairman and myself.)  The learned gentleman proceeded, ``I have a great deal to say, and first let me observe that I consider the regulation for small fees levelled at me personally. - (Cries of no, no - yes, yes - order, Chair.)

In the midst of the noise an empty claret bottle flew from the upper corner of the table, an dsmashed [sic] in a thousand pieces against the frontispiece of Mr. Vice.  This was the signal for a regular fight, and bottles and glasses flew in every direction.  The President took up the bell, and rang it with might and main, while oaths, screams, groans, and all sorts of discordant sounds almost deafened me.  In the confusion the candles were extinguished, and I made my escape, -- while the words, ``assault, pistols, -- d--n, -- criminal information, -- Quarter Sessions, -- constables, -- battery, -- Judges, -- Jury, -- bail, -- Court," - mingled with the clanging of the bell, and wafted a sound to the outer regions to which Babel itself was a place of peace.

I made my way as fast as possible through the bar to the street, where I found mine hostess with a posse of watchmen, and the landlord as I passed him, lifted his head, and said, ``give the gentlemen some more wine."

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, pp 65-111 (and loose pages filed there).  Most of this is in Dowling's shorthand, but it appears to be further separate judgments by the three judges, delivered on 14 February 1835.

Rice, the new Secretary of State for the Colonies, wrote to Governor Bourke on 6 June 1834 to inform him that the King had allowed the rule providing for separation of the profession (Historical Records of Australia, Series 1, Vol. 17, p. 453).  The Colonial Secretary, McLeay, informed the judges of this on 29 October 1834: Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 388.  The same letter book contains a copy of a letter to Forbes C.J. from Edward Keith (3 December 1834, p. 390) complaining of his treatment at the hands of Dowling J. during Bucknell v. Moran, 1829.  Then, and later to Forbes C.J., he said he wished to elect at once to be a barrister.  He claimed that on the second occasion Forbes had predicted that division would not take place, and said that members of the profession would have time to elect between the two branches if it did.  It is clear that he felt tricked by the sudden announcement of division.  Forbes replied on 17 January 1835 (p. 391), saying that he did not recall the conversation which must have taken place four years earlier.  He gave the history of the matter: on 1 June 1829, Keith and other attorneys were heard in opposition to division; then on 5 September 1829, the court announced its decision in favour of it.  In 1831, Wentworth asked whether the decision had been transmitted to London, and was assured that if not, it would be done quickly.  On the same day, 15 January 1831, Keith applied to have the decision in Bucknell set aside, partly because of the alleged threatening language of Dowling J.  Forbes C.J. and Stephen J. requested him to withdraw that ground, and in that context asked him not to apply then to be a barrister.  Finally, on 6 April 1831 the governor transmitted the rule to London for approval, and this was known to all lawyers.  The implication was that Keith had plenty of time to elect.

The division of the profession was subject to powerful criticism by the Australian, 4 November 1834.  The newspaper argued that the division of the bar, which only existed in one other colony, Jamaica, would lead to monopoly, an increase in unjustified class division, legal costs and mediocrity.  Those born in the colony would be unable to join the bar, due to the cost of travelling to England and training there; only one had ever done so [Wentworth].  Only three barristers in New South Wales (Carter, Wentworth and Kerr) were in private practice out of 40 lawyers in the colony, and they would be the only ones to gain.  The other seven barristers in the colony were either officers of the Crown (five) or not in practice (the other two).  (Wardell had just been murdered: see R. v. Jenkins and Tattersdale, 1834.) 

In a separate item, the Australian of the same date, 4 November 1834, reported that Mr Rowe had said that he would give up practice at the bar, and Forbes C.J. advised those who might feel aggrieved to present a petition to His Majesty's Council.  The Australian returned to the subject on 7 November 1834, in reply to an editorial by the Sydney Herald of 6 November.  On 7 November, the Australian also noted that a hoax advertisement appeared in its columns for that day, advertising 12 lawyers' gowns, the property of disbarred members of the legal profession.  The advertisement continued that they ``are particularly recommended to Briefless Barristers who wish to hide a worn coat and second hand expressibles."  The Australian thought that Dowling J. should purchase them, as the attorneys first obtained them at his instigation, and now he gave his voice to deprive them of the gowns. 

The satire continued in the Australian's issue of 18 November 1834, which is reproduced below.  See also Australian, 14 December 1832, announcing that it now opposed the division of the profession

The Sydney Herald, 24 November 1834, was very critical of lawyers generally, arguing that with the arrival of each new attorney, ``another drone has to be supported - another caterpillar is introduced to revel on the produce of our green fields."  However, said the Sydney Herald, ``we prefer taking our institutions from British models, without an imitation of the American ones.  The manners of the practitioners in our Supreme Court have already approximated somewhat closely to republican ones. - Some of our learned friends are not unworthy of Alabama or Kentucky."  However the Herald favoured the division of the bar, and went on to argue for the separation of powers, under which the judges would play no legislative role.  There should be no analogy between lawyers and the monopolistic practices of tradesmen.  For a reply, see Australian, 28 November 1834; and see Australian, 5 December 1834, confessing that its proprietors were lawyers.  (The Australian was founded by two barristers, Wentworth and Wardell, but was now in the hands of attorneys.)  In the latter issue, they argued that the division was illegal under the Third Charter of Justice and the Act (presumably (1828) 9 Geo. 4 c. 83); not only the judges and a few well paid barrister-officials had British feelings.  In a separate item on 5 December 1834, the Australian criticised the Bathurst magistrates for denying attorneys the right to practise in the Quarter Sessions there.  The Australian returned to the subject on 9 and 19 December 1834.  See also Australian, 11 and 14 November 1834.  The barristers met on 13 November 1834,and decided to follow the same rules on separation as in England: Australian, 14 November 1834.

The controversy caused by this decision was evident during trials: see R. v. Dawley, 1834; and even the sensational R. v. Jenkins and Tattersdale, 1834.

The division had practical consequences for lawyers.  In Brown v. Mackaness, Australian, 8 July 1834, one party unsuccessfully claimed that as an attorney, the defendant was entitled to be sued by bill and not summons: the argument was that he was a barrister and entitled to act as attorney, and so get the privilege.

For commentary on the division of the profession, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, c. 44.

[2 ] It should be noted that Forbes C.J. was the president of the Temperance Society: see, for example, Australian, 21 November 1834.

Published by the Division of Law, Macquarie University