The surviving image of the Elizabethan and Jacobean solicitor was created for us by the pamphleteers and playmongers, who could be sure of immediate applause or popular sympathy by introducing into their work a few caricatures drawn from the seamier recesses of the legal world. We are encouraged by these writers to imagine a London plagued by these vermin of the law, scurrying in and around the Temple and lurking in the shadows of Westminster Hall, waiting to pounce on the unsuspecting bumpkin who had the misfortune to wander near their reach. Whether and to what extent these portraits bear any relation to reality are questions which social historians have yet to answer. Legal historians have made but a slight contribution to the history of solicitors during the period which, for them, was the most critical of all. To this period may be assigned the beginning of a process of demarcation between the functions of barristers and solicitors, and when we understand how this came about we shall have traced for the first time the origin of the solicitors' branch of the profession.

It has been obvious to nearly everyone who has attempted an analysis of the judicial process that one cannot produce an adequate explanation of how legal decisions are taken by an examination only of the statutes and decided cases themselves. The richness of output cannot be explained with such poverty of input. This feature of richness in the process of legal decision can be explained by the addition to the above of judicial discretion. (We are not here referring to situations in which the law invests a judge with a particular discretion, e.g., to decide which of two parents should have custody of a child.) This gives an “adequate” explanation of the actual output, but at great other costs. In effect, such a hypothesis leaves us with an impenetrable black box mechanism as the key to the process of legal decision.