Simple Images and Complex Realities: English Lawyers and Their Relationship to Business and Politics, 1750–1950
Published online by Cambridge University Press: 28 October 2011
Are lawyers professionals, constrained by public-service limitations on their work, or free-wheeling business people? So the current debate surrounding professionalism versus commercialism is articulated. All too often this controversy is grounded in overdrawn dualisms, a sort of Gemeinschaft-Gesellschaft: a golden age of the lawyer as public servant that has given way to the ethics of the marketplace. The starting point of this essay is that this way of thinking about the work of lawyers is unhelpful, as it encourages a belief in stark divisions between a pure realm of “lawyering” and the grubby world of “business,” and between the “public” and the “private” dimensions of lawyers' work. In practice, both lawyering and business and the public and private fields of lawyering are, and probably always have been, imbricated within each other. This article seeks to demonstrate this coalescence from historical materials.
- Copyright © the American Society for Legal History, Inc. 1993
1. American Bar Association, In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism (Chicago, 1986).Google Scholar
2. Recent exemplary work which illuminates these inter-connections include: Gordon, R. W., “Legal Thought and Legal Practice in the Age of the American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, Geison, G., ed. (Chapel Hill, 1983)Google Scholar; Brooks, C. W.Pettyfoggers and Vipers of the Commonwealth: The Lower Branch of the Legal Profession in Early Modem England (Cambridge, 1986)CrossRefGoogle Scholar; Prest, W. R.The Rise of the Barristers: A Social History of the English Bar 1590–1640 (Oxford, 1986)Google Scholar; Lemmings, D., Gentlemen and Barristers: The Inns of Court and the English Bar 1680–1730 (Oxford, 1990)CrossRefGoogle Scholar; and Nelson, R. L., Trubek, D. M., and Solomon, R. L., eds., Lawyers' Ideals and Lawyers' Practices: Transformations in the American Legal Profession (Ithaca, 1992).Google Scholar
4. Sarat, A., “Ideologies of Professionalism,” in Nelson, , Trubek, , and Solomon, , Lawyers' Ideals and Lawyers' Practices.Google Scholar
5. On the historiography of the English legal profession, see two excellent essays by Prest, Wilfrid R.: “Why the History of the Professions Is Not Written,” in Law, Economy and Society: Essays in the History of English Law, 1750–1914, ed. Rubin, G. R. and Sugarman, D. (Abingdon, 1984), 300Google Scholar; and Prest, W., “Introduction: The Professions and Society in Early Modern England,” in The Professions in Early Modem England (London, 1987), 1.Google Scholar For a valuable comment on the latter, see Pue, W. W., “Rethinking ‘Professionalism,’” Canadian Journal of Law and Society 4 (1989): 175.CrossRefGoogle Scholar
6. See Prest, “Introduction”; Ignatieff, M., “State, Civil Society and Total Institution: A Critique of Recent Social Histories of Punishment,” in Legality, Ideology and the State, ed. Sugarman, D. (London, 1983), 183Google Scholar; Horwitz, M. J., “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History 7 (1973): 275CrossRefGoogle Scholar; Gordon, R. W., “J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9Google Scholar; Hay, D., “The Criminal Prosecution in England and Its Historians,” Modern Law Review 47 (1984): 1CrossRefGoogle Scholar; Sugarman, D., “Theory and Practice in Law and History,” in Law, Stale and Society, ed. Fryer, B. et al. (London, 1981), 70Google Scholar, and idem, “Writing ‘Law and Society’ Histories”; D. Sugarman and G. R. Rubin, “Towards a New History of Law and Material Society in England, 1750–1914,” in Sugarman and Rubin, Law, Economy and Society, 1.
7. Prest, “Why the History of the Professions Is Not Written,” 300.
8. Robson, R., The Attorney in Eighteenth-Century England (Cambridge, 1959)CrossRefGoogle Scholar; Birks, M., Gentlemen of the Law (London, 1960)Google Scholar; Kirk, H., Portrait of a Profession (London, 1976)Google Scholar; Baker, J. H., “Counsellors and Barristers: An Historical Study,” Cambridge Law Journal (1969): 205CrossRefGoogle Scholar; idem, “Solicitors and the Law of Maintenance 1590–1640,” Cambridge Law Journal (1973): 56; Prest, W. R., The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (London, 1972)Google Scholar; Richardson, W. C., A History of the Inns of Court (Baton Rouge, 1978)Google Scholar; Levack, B. P., The Civil Lawyers in England 1603–1641 (Oxford, 1973)Google Scholar; Squibb, G. D., Doctors' Commons (Oxford, 1977)Google Scholar; Yale, D. E. C., “A View of the Admiral Jurisdiction,” in English Legal History Studies 1972, ed. Jenkins, D. (Cardiff, 1975).Google Scholar
9. See, for example, Johnson, T. J., Professions and Power (London, 1972)Google Scholar; Larson, M. S., The Rise of Professionalism (London, 1977).Google Scholar Since this work, sociological scholarship on the professions generally, and on lawyers specifically, has done much to enrich both our empirical knowledge of the legal profession and the ways it might be theorized. See further, the material collected in note 99 below.
10. See Sugarman, “Theory and Practice,” 70; Ignatieff, “State, Civil Society and Total Institution,” 183.
12. Also significant was the rise of a new Social history of crime, punishment, and policing; and sociolegal histories of private law. For reviews of the former, see Philips, D., “A Just Measure of Crime, Authority, Hunters and Blue Locusts,” in Social Control and the State, ed. Cohen, S. and Scull, A. (Oxford, 1983), 50Google Scholar; Innes, J. and Styles, J., “The Crime Wave,” Journal of British Studies (1986)CrossRefGoogle Scholar; and Ignatieff, “State, Civil Society and Total Institution,” 183. For examples of the latter, see Atiyah's, P. S. seminal study, The Rise and Fall of Freedom of Contract (Oxford, 1979)Google Scholar; Arthurs, H. W., Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto, 1985)Google Scholar; and Rubin and Sugarman, Law, Economy and Society.
13. Some of the leading works include, Offer, A., Property and Politics 1870–1914 (Cambridge, 1981)Google Scholar; Holmes, G., Augustan England: Professions, State and Society 1680–1730 (London, 1982)Google Scholar; Prest, W., ed., Lawyers in Early Modem Europe and America (London, 1981)Google Scholar; Cocks, R., Foundations of the Modem Bar (London, 1983)Google Scholar; Duman, D., The Judicial Bench in England, 1727–1875 (London, 1982)Google Scholar; idem, The English and Colonial Bars in the Nineteenth Century (London, 1983); Ives, E. W., The Common Lawyers of Pre-Reformation England (Cambridge, 1983)CrossRefGoogle Scholar; Brooks, C. W., Pettyfoggers and Vipers of the Commonwealth: The Lower Branch of the Legal Profession in Early Modem England (Cambridge, 1986)CrossRefGoogle Scholar; Baker, J. H., The Order of Serjeants at Law (London, 1984)Google Scholar; Prest, W. R., The Rise of the Barristers: A Social History of the English Bar 1590–1640 (Oxford, 1986)Google Scholar; Baker, J. H., The Legal Profession and the Common Law: Historical Essays (London, 1986)Google Scholar; Prest, The Professions in Early Modem England; Lemmings, D., Gentlemen and Barristers: The Inns of Court and the English Bar 1680–1730 (Oxford: 1990)CrossRefGoogle Scholar; Rowley, A. S., “Professions, Class and Society: Solicitors in Nineteenth-Century Birmingham” (Ph.D. diss., University of Aston, 1988)Google Scholar; Pue, W. W., “The Making of the English Bar: Metasomatism in the Nineteenth Century” (Ph.D. diss., Osgoode Hall Law School, 1988)Google Scholar; Aylett, P., “A Profession in the Market-place: The Distribution of Attorneys in England and Wales 1730–1800,” Law and History Review 5 (1987): 1CrossRefGoogle Scholar; Kostal, R. W., “Common Law, Common Lawyers and the English Railway Industry, 1830–1880” (Ph.D. diss., University of Oxford, 1989)Google Scholar, to be published as Law and English Railway Capitalism, 1825–75 (forthcoming); Miles, M., “Eminent Attorneys: Some Aspects of West Riding Attorneyship c. 1750–1800” (Ph.D. diss., University of Birmingham, 1982)Google Scholar; Mathias, P., “The Lawyer as Businessman in Eighteenth Century England,” in Enterprise and History, ed. Coleman, D. G. and Mathias, P. (London, 1984)Google Scholar; Beattie, J. M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991)CrossRefGoogle Scholar; Brand, P., The Origins of the English Legal Profession (Oxford, 1992).Google Scholar
14. See, for example, Morris, R. J., “Middle-Class Culture 1700–1914,” in A History of Leeds, ed. Fraser, D. (Leeds, 1981)Google Scholar; Seed, J., “Unitarianism, Political Economy and the Antinomies of Liberal Culture in Manchester 1830–50,” Social History 7 (1982)CrossRefGoogle Scholar; Crossick, G., ed., The Lower Middle Class in Britain 1870–1914 (London, 1977)Google Scholar; David, L. of Hall, Fand C., Family Fortunes: Men and Women of the English Middle Class 1780–1850 (London, 1987).Google Scholar See generally D. Sugarman,” Writing ‘Law and Society’ Histories,” 299–301.
15. See Brooks, Pettyfoggers and Vipers; idem, “Servicing Legal Institutions: Professionalization and other Issues” (unpublished manuscript); and Lemmings, Gentlemen and Barristers. The profession of the 1880s also resembles the legal profession of the thirteenth century, when the professional lawyer emerged in England. Indeed, one of the important traits of professionalization, professional education, was in some ways more rigorous in 1280 than 1880! See Brand, Origins of the English Legal Profession.
16. See, for example, Slinn, J., A History of Freshfields (London 1984)Google Scholar, and idem, Linklaters and Paines: The First 150 Years (London, 1987)Google Scholar; Belcher, V., Boodle, Hatfield and Co. (London, 1985)Google Scholar; Dennett, L., Slaughter and May (London, 1989)Google Scholar; Cobb, W., A History of Grays of York (York, 1989)Google Scholar; Davis, P., Number 1 (London, 1984)Google Scholar; Scott, J., Legibus: King, Thorne and Stace (London, 1980)Google Scholar; Thirlwell, A., A Century of Practice: Isadore Goldman and Son (London, 1985)Google Scholar; Jackson, C., A Cambridge Bicentenary: The History of a Legal Practice, 1789–1989 (Bungay, 1990).Google Scholar
For a useful overview of this new field see Slinn, J., “The Histories and Records of Firms of Solicitors,” Business Archives 58 (1989): 22.Google Scholar I am grateful to Judy Slinn for providing me with a copy of her paper prior to its publication.
19. Prest, “Introduction,” 4.
20. See further, Sugarman and Rubin, “Towards a New History,” 89–90.
21. See generally Slinn, “The Histories and Records of Firms of Solicitors,” 22. Also important is the lack of any basic guide to solicitors records.
22. Duman, English and Colonial Bars, 8 and table 1.30. Figures for the early modem period are even more difficult to estimate. See Prest, The Rise of the Barristers, appendices A and C and his valiant effort to construct a group portrait of the bar for the period 1590–1640 in his chapter 4. See also Lemmings, Gentlemen and Barristers, 60–62.
23. Duman, English and Colonial Bars, 9. The best account of the relationship between lawyers and the railways in nineteenth-century England is R. W. Kostal's excellent dissertation, “Common Law, Common Lawyers.”
24. Duman, English and Colonial Bars.
25. Aylett, “A Profession in the Market-place,” 1, 20. For the size of the attorney's profession in the period 1560–1640, see Brooks Pettyfoggers and Vipers, 28–29, 100, 112–14, 118, 137–265. Brooks's pathbreaking work is especially valuable on the considerable growth of legal work and lawyers connected with London, the relative cheapness of litigation and the disparate Social groups who litigated.
26. Aylett, “A Profession in the Market-place,” 17. Aylett's figures for 1800 are similar to those of Robson, who estimated that at this time there were about 1800 practicing attorneys in London and 3500 in the provinces: See Robson, R., The Attomey in Eighteenth-Century England (Cambridge, 1959), Appendix 4.Google Scholar
29. Slinn, Freshfields, and idem, Linklaters. The growth that overtook the City firms in the 1960s started after World War II. By 1961, the number of partners at Slaughter and May was twenty, the legal limit for partnerships: see Dennett, Slaughter and May, 67.
30. Duman, English and Colonial Bars, 10; see also Lemmings, Gentlemen and Barristers, 169–74. If Duman is correct, the modern bar was more heavily concentrated in southern England in the period 1680 to 1730. See Prest, Rise of the Barristers, 95–106.
31. Aylett, “A Profession in the Market-place,” 9.
32. See Offer, Property and Politics, 12. Offer usefully describes how cycles in the price of property affected the prosperity of solicitors, and the institutional and individual stresses that this engendered. Ibid., 49–67.
33. See Duman, English and Colonial Bars, 22.
34. See Abel, R. L., The Legal Profession in Englandand Wales (Oxford, 1988)Google Scholar, tables 2.2, 2.3.
35. See Duman, English and Colonial Bars, 16; Prest, “Introduction,” 8–9 and the references cited there; idem, Rise of the Barristers, 87–95. Cf. Lemmings, Gentlemen and Barristers, 29–30, 70–74.
36. See Levack, B. P., “The English Civilians, 1500–1750,” in Prest, , Lawyers in Early Modem Europe and America, 117–19.Google Scholar
38. See Sugarman, D., In the Spirit of Weber: Law, Modernity and “the Peculiarities of the English” (Wisconsin, 1987), 32Google Scholar; and Brooks, Pettyfoggers and Vipers.
41. Ibid., 200–201.
42. See Prest, “Introduction,” 9.
43. See Miles, “A Haven for the Privileged,” 197, and idem, “Eminent Practitioners,” in Rubin, and Sugarman, , Law, Economy and Society, 334.Google Scholar
44. See Rubin, G. R., “The County Courts and the Tally Trade, 1846–1914,” in Rubin, and Sugarman, , Law, Economy and Society, 321.Google Scholar
45. See Miles, “Eminent Practitioners,” 470.
46. Cited in Offer, Propeny and Politics, 13 n. 13.
47. See ibid., 11.
48. See ibid., 14–15.
49. Ibid. On the Social background of litigants, we still know too little. See, however, the recent work of Prest and Lemmings on barristers and Brooks on attorneys and civil litigation in the early modem period: Prest, , The Rise of the Barristers, 296–312Google Scholar; Lemmings, , Gentlemen and Barristers, 124–26, 166–75Google Scholar; Brooks, , Pettyfoggers and Vipers, 57–74Google Scholar; and idem, “Interpersonal Conflict and Social Tension: Civil Litigation in England 1640–1830,” in The First Modem Society, ed. Beier, A. L., Cannadine, D., and Rosenheim, J. (Cambridge, 1989).Google Scholar The long-term trend seems to indicate that the work of the civil courts was increasingly concerned with commercial and industrial matters.
51. Reader, W. J., Professional Men: The Rise of the Professional Classes in Nineteenth-Century England (London, 1966), 43.Google Scholar On the ways in which the expansion of trade and industry generated new work for the bar, see Lemmings, , Gentlemen and Barristers, 166– 77Google Scholar, and Duman, English and Colonial Bars, chap. 5.
52. See Anderson, B. L., “Provincial Aspects of the Financial Revolution of the Eighteenth Century,” Business History 11 (1969): 12CrossRefGoogle Scholar, and idem, “The Attomey and the Early Capital Market in Lancashire,” in Capital Formation in the Industrial Revolution, ed. Crouzet, F. (London, 1972), 223Google Scholar; Holderness, B. A., “Credit in a Rural Community 1660–1800,” Midland History (1975): 109Google Scholar; and idem, “Elizabeth Parkin and Her Investments, 1733–66: Aspects of the Sheffield Money Market in the Eighteenth Century” Transactions of the Hunter Archaeological Society 10 (1973): 86Google Scholar; Mathias, P., “Credit, Capital and Enterprise in the Industrial Revolution,” Journal of European Economic History 2 (1973): 175Google Scholar, and idem, “The Lawyer as Businessman”; Miles, M., “The Money Market in the Early Industrial Revolution,” Business History (1982): 351Google Scholar; and idem “Eminent Practitioners,” 470; Neale, R. S., A History of Bath (London, 1962)Google Scholar; Schmidt, A. J., “The Country Attorney in Late Eighteenth Century England: Benjamin Smith of Horbling,” Law and History Review (1990).CrossRefGoogle Scholar
53. See Brewer, J., “Commercialization and Politics,” in The Birth of a Consumer Society: The Commercialization of Eighteenth-Century England, ed. McKendrick, N., Brewer, J., and Plumb, J. H. (London, 1982), 197.Google Scholar
54. The essays of Baker, Bloomfield, Gunn, Hornsburger, Klassen, Michildon, Knafla, Swainger, and Willie in Wilton, Beyond the Law, provide much valuable information on the important role of Canadian lawyers as lenders, investors and financial intermediaries.
55. See generally, Kostal, “Common Law, Common Lawyers.”
56. See Slinn, Freshfields, 84.
57. Slinn, Linklaters, 60 and see generally 60–66; Belcher, Boodle, Hatfield, 99. To the partners of Boodle and Partington, this behaviour “…seemed little short of treasonable in view of the interests of their traditional clients,” the landed aristocracy. Ibid., 99.
58. Slinn, Linklaters, 66.
59. Ibid., 64.
60. D. Sugarman, Company Law and the Rise of Capitalism (forthcoming).
61. See Slinn, Freshfields, 109–10 The principle arguments against reform used by lawyers here—and more generally—parallels an influential tradition of conservative rhetoric, analyzed with great humor and insight in Hirschman, A. O., The Rhetoric of Reaction (Cambridge, Mass., 1991).Google Scholar
62. Sugarman, Company Law.
63. Slinn, Linklaters, 47.
64. See ibid., 44–45.
65. Sugarman and Rubin, “Towards a New History of Law and Material Society,” 10–11.
66. Slinn, Linklaters, 139. Recent American scholarship (notably that undertaken by Hurst, Chandler, Gordon et al.) on the numerous examples of legal innovations involving forms of corporate organization and corporate financing is illustrative of the kinds of research that might be undertaken by legal and business historians in England. Albeit in a more anecdotal fashion, the recent histories of firms of solicitors indicate that in England too we find examples of company lawyers playing a leading role in changing the form and substance of the law for their corporate clients and thereby acquiring increasing importance in the eyes of business.
70. Belcher, Boodle, Hatfield, 146–47.
71. Slinn, Linklaters, 180.
72. Ibid., 181.
73. Miles, “Eminent Practitioners,” 501–2.
75. Cited in Kirk, Portrait of a Profession, 97.
76. For the ways this was also true in Canada, see the essays by Klassen and Willie in Wilton, Beyond the Law.
77. See, for example, Rowley, “Professions, Class and Society”; also Aylett, P., The Distribution and Function of Attorneys in the Eighteenth Century, with Special Reference to North-West England (M.Phil. thesis, University of Manchester, 1984)Google Scholar; and Miles, “Eminent Attorneys.” Lawyers also performed many other jobs including the drafting of patents, commercial and employment contracts, maritime work, criminal matters, and litigation, to list but a few.
78. Unfortunately, the extent of such conflicts and the ways they were perceived and possibly reconciled is not something which the historiography of the English legal profession has addressed in any detailed fashion. However, it is unlikely that the tolerant approach of Canadian lawyers was significantly different from that of their English counterparts. See the papers of Bloomfield, Klassen, Regehr, and Wright in Wilton, Beyond the Law.
79. On the role of barristers as company directors, see Duman, English and Colonial Bars, 155–64. Duman concludes that: “while most barristers were content with … [a] rather passive economic role, a minority—less than 10%—took a more direct part in business by sitting on the board of directors of at least one company. Some of these men were full-time businessmen but others combined directorships with careers in the law, in other professions, in government service or as landowners. These men, despite their small numbers, were at the centre of the economic life of late-19th and early-20th century Britain, her colonies and certain foreign nations as well…. [There] was no contradiction between advocacy and participation in commerce and industry.” Ibid., 17. 164. Cf. the papers by Baker, Bloomfield, Gunn, Honsberger, and Marchildon in Wilton, Beyond the Law, which illutninate the ways Canadian lawyers were employed as managere and company directors.
80. See Kirk, Portrait of a Profession, 98–99.
81. The Porcupine, August 23 1862, cited in Williams, P. H., A Gentleman's Calling (Liverpool, 1980), 162–63.Google Scholar While criticisms of attorneys and solicitors was common-place, the reputation of modern lawyers and the extent to which they actually exploited their clients has not received the detailed attention afforded to early modern lawyers. See, for example, Brooks, Pettyfoggers and Vipers of the Commonwealth, who concludes that in the Late sixteenth and early seventeenth centuries the lower branch was regularly supervised by the judges and that they rarely exceeded the fees prescribed by the law. On the reputation of the bar in the early modern period, see Prest, The Rise of the Barristers, chap. 9, and Lemmings, Gentlemen and Barristers, chap. 6. Cf. Ives, E. W., “The Reputation of Common Lawyers in English Society, 1450–1550,” University of Birmingham Historical Journal 1 (1959–1960): 380.Google Scholar
82. Sugarman, and Rubin, , “Towards a New History” 4–12Google Scholar; Sugarman, In the Spirit of Weber, Arthurs, Without the Law.
83. Atiyah, Rise and Fall, pts. 1 and 2; Sugarman, In the Spirit of Weber.
85. On the public role of English lawyers see Robson, The Attorney in Eighteenth-Century England, chaps. 6, 7, 10; Birks, Gentlemen of the Law, chap. 6; Duman, English and Colonial Bars, chaps. 4–6; Brooks, Pettyfoggers and Vipers, chap. 10; Holmes, Augustan England, chaps. 5 and 8; Prest, Rise of the Barristers, chap. 8; Lemmings, Gentlemen and Barristers, chaps. 7, 8. On the important role played by The Law Society in the emergence of legislation, as a major lobbyist, and as the constitutor of an important political discourse concerning the legitimate scope of State activity, see Sugarman, D., “‘The Best Organized and Most Intelligent Trade Union in the Country’: The Private and Public Life of The Law Society, 1825–1914,” in Social Change and the Solicitors' Profession, ed. Skordaki, E. (Oxford, 1994).Google Scholar
88. See Slinn, “The Histories and Records and Firms of Solicitors,” 29.
89. On the profession, Parliament, and the State see: Duman, , Judicial Bench, chaps. 4–5Google Scholar; Laski, H., Studies in Law and Politics (London, 1932)Google Scholar, chap. 7; Duman, English and Colonial Bars, chap. 6; and Lemmings, Gentlemen and Barristers, chap. 7; Holmes, Augustan England, chaps. 5, 8; Prest, Rise of the Barristers, chap. 8; Brooks, Pettyfoggers and Vipers, chap. 10.
90. Sugarman, “‘The Best Organized and Most Intelligent Trade Union.’”
91. Thus, in one of their roles, lawyers undertook certain tasks for specific interests; and in another of their roles, they sought to negate their previous work and, therefore, the interests they were supposed to serve. This capacity to do one thing with their right hand (as it were), which they undid with their left hands, is well illustrated in Gordon's, R. W. seminal essay, “The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870–1910,” in The New High Priests: Lawyers in Post-Civil War America, ed. Gawalt, G. W. (Westport, 1984).Google Scholar
92. Slinn, Freshfields.
93. The paper by Marchildon in Wilton, Beyond the Law, illustrates this phenomenon.
95. See Rowley, “Professions, Class and Society,” 187–88.
96. See ibid., passim. I am most grateful to Andrew Rowley for allowing me to draw upon his findings. Barristers by contrast tended to be less involved in public works. The importance of cricket stemmed from the fact that it was the sport that symbolized being a gentleman.
While it is clear that some lawyers sought to fulfil their political (and literary) ambitions through their legal work, the diverse ways and means through which this has occurred has attracted little attention. For example, to what extent did barristers use the courtroom to champion abstract notions of the “public” and “justice”?; how were the arguments of barristers and solicitors transmitted and mediated through the popular and professional press? Recent work on French barristers, on how their opinions circulated and how legal forms were used by ordinary people, is instructive: see Karpik, L., “Lawyers and Politics in France, 1814–1950: The State, the Market, and the Public,” Law and Social Inquiry 13 (1988): 707CrossRefGoogle Scholar; Maza, S., “Le tribunal de la nation: lesmemoiresjudiciaires et l'opinion publique a la fin de l'ancien regime,” Annales E.S.C. 42 (1987): 73Google Scholar; idem, “Domestic Melodrama as Political Ideology: The Case of the Comte de Sanois,” American Historical Review 94 (1989): 1249CrossRefGoogle Scholar; Davis, N. Z., Fictions in the Archives (Princeton, 1989).Google Scholar
97. See Abel, , Legal Profession in England and Wales, 216Google Scholar; Cornish, W. R. and Clark, G. de N., Law and Society in England 1750–1950 (London, 1989), 99–100.Google Scholar On the extensive role of lawyers as State servants, see Holmes, Augustan England, chaps. 5 and 8; and on the role of the bar in central and colonial government, see Duman, English and Colonial Bars, chaps. 4, 6, and 7.
99. Recent work on the sociology of the professions and on lawyers is especially suggestive here: see, for example, Heinz, J. and Laumann, E., Chicago Lawyers (New York, 1982)Google Scholar; Mann, K., Defending White Collar Crime (New Haven, 1985)Google Scholar; Friedson, E., Professional Powers (Chicago, 1986)Google Scholar; Spangler, E., Lawyers for Hire (New Haven, 1986)Google Scholar; Halliday, T., Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago, 1987)Google Scholar; Genn, H., Hard Bargaining: Out of Court Settlement in Personal Injury Actions (Oxford, 1987)Google Scholar; Abbott, A., The Syste of Professions (Chicago, 1988)Google Scholar; Abel, R. and Lewis, P., eds., Lawyers and Society 3 vols. (Berkeley, 1988–1989)Google Scholar; Nelson, R., Partners Without Power: The Transformation of the Large Law Firm, (Berkeley, 1988)Google Scholar; Abel, Legal Profession in England and Wales,; idem, American Lawyers (New York, 1989)Google Scholar; Landon, D. D., Country Lawyers, (New York, 1990)Google Scholar; Galanter, M. and Paley, T., Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, 1991)Google Scholar; Nelson, , Trubek, , and Solomon, , Lawyers' Ideals and Lawyers' PracticesGoogle Scholar; Dezalay, Y., Marchands de Droit (Paris, 1992).Google Scholar See also Comaroff, J. and Roberts, S., Rules and Processes (Chicago, 1981)Google Scholar; Starr, J. and Collier, J. F., eds., History and Power in the Study of Law (Ithaca, 1989)Google Scholar; Engle, S. M., Getting Justice and Getting Even (Chicago, 1990)Google Scholar; Goodrich, P., Languages of Law (London, 1990)Google Scholar; Fitzpatrick, P., The Mythology of Modem Law (London, 1992)Google Scholar; Bourdieu, P., “The Force of Law: Toward a Sociology of the Juridical Field,” Hastings Law Journal 38 (1987): 805Google Scholar; Rosen, L., The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge, 1989)Google Scholar; Above all, perhaps, historians concerned with the interface between what lawyers do, their ideas and culture, and their larger cultural and political importance, could learn a great deal from the work produced over the last fifteen years by historians and sociologists of science. This work has yielded rich, detailed, and nuanced work, which is an invaluable resource for broadening our understanding of how lawyers interrogate and constitute their worlds, how legal knowledge and legal work is made, how lawyers engage with one another, and how the claims of the profession are made credible and authoritative. See, for example, Barnes, B. and Shapin, S., eds., Natural Order: Historical Studies of Scientific Culture (Beverly Hills, 1979)Google Scholar; Collins, H. M., Changing Order: Replication and Induction in Scientific Practice (London, 1985)Google Scholar; Latour, B., Science in Action (Milton Keynes, 1987)Google Scholar; Latour, B. and Woolgar, S., Laboratory Life (Princeton, 1986)Google Scholar; Shapin, S. and Shaffer, S., Leviathan and the Air-Pump (Princeton, 1985).Google Scholar The relevance of these works is discussed in D. Sugarman, “Taking Law and Lawyers Seriously” (in preparation). Finally, Hurst's, Willard classic study, The Growth of American Law (Boston, 1950)Google Scholar remains highly instructive.
100. This feature has been handled in an exemplary fashion by Paul Starr in his Social history of the medical profession in America, The Social Transformation of American Medicine (New York, 1982) especially 17–29Google Scholar. Bob Gordon's work, Lawyers as the American Aristocracy, (forthcoming) will add much to our knowledge of this facet of lawyers' work. See also Newmyer, R. K., Supreme Court Justice Joseph Story (Chapel Hill, 1985)Google Scholar; and Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill, 1981).Google Scholar
101. Ferguson, R. A., Law and Letters in American Culture (Cambridge, 1984), 9.Google Scholar I am grateful to Bob Gordon for drawing this work to my attention. On the relationship between law and letters in early modem England, see Prest, Rise of the Barristers, chap. 6. With respect to France, see L. Karpik's important study, “Lawyers and Politics in France.”
102. On what lawyers historically have meant by professional autonomy and how they have pursued their ideal of independence in practice, see Gordon, R. W., “The Independence of Lawyers,” Boston University Law Review 68 (1988): 1.Google Scholar
103. See, for example, Arthurs, Without the Law.
104. See Sugarman, D., “The Legal Boundaries of Liberty: Dicey Liberalism and Legal Science,” Modern Law Review 46 (1968): 102.Google Scholar
106. See ibid., 21–22. This work is a valuable study of the ways in which the middle classes sought moral and cultural authority.
107. See Duman, English and Colonial Bars, chap. 4; and Slinn, Linklaters, 86–92.
108. J. F. Dulles, foreword to Dean, A. H., William Nelson Cromwell: An American Pioneer in Corporation, Comparative and International Law (New York, 1957), iv.Google Scholar
109. See Sugarman and Rubin, “Towards a New History” 96. The classic study here is that of de Tocqueville, A., Democracy in America (London, 1835)Google Scholar, chap. 16. For a valuable discussion of this work see Gordon, R. W., “The Independence of Lawyers,” Boston University Law Review 68 (1988): 14–19Google Scholar; idem, “Lawyers as the American Aristocracy”; and idem, “The Devil and Daniel Webster,” 459–60. See generally Durkheim, E., The Division of Labor in Society (New York, 1964)Google Scholar; Bledstein, B. J., The Culture of Professionalism (New York, 1976)Google Scholar; Wiebe, R., The Search for Order, 1877–1920 (New York, 1967)Google Scholar; Luhmann, N., Trust and Power (Chichester, 1979).Google Scholar
111. Hobbes, T., Leviathan (London, 1651; reprint Baltimore, 1968)Google Scholar; see also idem, A Dialogue between a Philosopher and a Student of the Common Laws (Chicago, 1971)Google Scholar. For a useful comparison, see Yale, D. E. C., “Hobbes and Hale on Law, Legislation, and the Sovereign,” Cambridge Law Journal (1971): 32.Google Scholar Other key works in this tradition—a tradition that illustrates the close relationship between legal and political thought—include Coke, E., Institutes, 4 vols. (London, 1628–1644)Google Scholar; Locke, J., Two Treaties of Government (London, 1690)Google Scholar; Blackstone, W., Commentaries on the Laws of England, 4 vols. (Oxford, 1765–1770)Google Scholar; Paley, W., Principles of Moral and Political Philosophy, 4 vols. (London, 1785)Google Scholar; Dicey, A. V., Introduction to the Study of the Law of the Constitution (London, 1896)Google Scholar; Berlin, I., Two Concepts of Liberty (Oxford, 1958).Google Scholar
112. Gough, J., Fundamental Law in the English Constitution (Oxford, 1955)Google Scholar; Ogilvie, C., The King's Government and the Common Law, 1471–1641 (Oxford, 1958)Google Scholar; Nenner, H., By Color of Law: Legal Culture and Constitutional Politics in England, 1660–1689 (Chicago, 1975)Google Scholar; Hill, C., Intellectual Origins of the English Revolution (Oxford, 1980)Google Scholar; Postema, G. J., Bentham and the Common Law Tradition (Oxford, 1986)Google Scholar; Pocock, J. G. A., The Ancient Constitution and the Feudal Law, rev. ed. (Cambridge, 1987)CrossRefGoogle Scholar; Lieberman, D., The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989)CrossRefGoogle Scholar; Lobban, M., The Common Law and English Jurisprudence, 1760–1850 (Oxford, 1991)Google Scholar; D. Sugarman, “‘The Legal Boundaries of Liberty’: Dicey, Liberalism, and Legal Science”; Loughlin, M., Public Law and Political Theory (Oxford, 1983).Google Scholar
The natural law tradition and its centrality within the conceptual history of the common law, society, and citizenship are increasingly recognized: see, for example, Hont, I. and Ignatieff, M., eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge, 1983)CrossRefGoogle Scholar; Pocock, J. G. A., Virtue, Commerce, and History (Cambridge, 1985)CrossRefGoogle Scholar; Pagden, A., ed., The Languages of Political Theory in Early Modem Europe (Cambridge, 1978)Google Scholar; Lieberman, Province of Legislation.
See, generally, Habermas's valuable history of the idea of the public sphere in Britain, France, and Germany, and the specific institutions through which it was to be realized. Habermas, J., The Structural Transformation of the Public Sphere (Cambridge, 1989).Google Scholar
114. See Sugarman, and Rubin, , Law, Economy and Society, 96Google Scholar. For a brilliant, classic exemplification, see Bloch, M., Feudal Society (London, 1961).CrossRefGoogle Scholar Recent case studies of this phenomenon in early modem Italy, Germany, and France have problematized the traditional divide separating elite from popular culture, illuminating the ways in which ordinary people were involved in defining the law. See Ginzberg, C., The Cheese and the Worms (London, 1982)Google Scholar; Sabean, D. W., Power in the Blood: Popular Culture and Village Discourse in Early Modem Germany (Cambridge, 1984)Google Scholar; idem, Property, Production, and Family in Neckarhausen, 1700–1870 (Cambridge, 1990)Google Scholar; Sonenscher, M., The Hatters of Eighteenth-Century France (Berkeley, 1987)Google Scholar; idem, Work and Wages: Natural Law, Politics, and the Eighteenth-Century French Trades (Cambridge, 1989)Google Scholar. Also important in this context is the new history of labor and the law in the United States and England: see Attleson, J. B., Values and Assumptions in American Labor Law (Amherst, 1983)Google Scholar; Tomlins, C. L., The State and the Unions (Cambridge, 1985)Google Scholar; Forbath, W. E., Law and the Shaping of the American Labor Movement (Cambridge, 1991)Google Scholar; Steinfeld, R. J., The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill, 1991)Google Scholar; Orren, K., Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge, 1992).Google Scholar
116. Cain, M., “The General Practice Lawyer and the Client,” in The Sociology of the Professions, ed. Digwall, R. and Lewis, P. (London, 1983), 111–12.Google Scholar Compare Szelenyi, I. and Martin, B., “The Legal Profession and the Rise and Fall of the New Class,” in Abel, and Lewis, , Lawyers in Society, 279–82.Google Scholar
117. Sugarman, “‘The Best Organized and Most Intelligent Trade Union.’”
118. Pue, W. W., “Exorcising Professional Demons,” Law and History Review 5 (1987): 135CrossRefGoogle Scholar; idem, “Guild Training vs Professional Education,” American Journal of Legal History 33 (1989)Google Scholar: 241; idem, “Moral Panic at the Bar,” Law and Social Inquiry 15 (1990): 49Google Scholar; Challinor, R., A Radical Lawyer in Victorian England: W. P. Roberts and the Struggle for Workers' Rights (London, 1990)Google Scholar; Sugarman, “‘The Best Organized and Most Intelligent Trade Union.’”
119. See Kammen, M., A Machine That Would Go of Itself: The Constitution in American Culture (New York, 1986).Google Scholar
120. The new cultural histories, and their counterparts on the history of intellectual and political thought, are especially suggestive here: see Chartier, R., Cultural History (Cambridge, 1988)Google Scholar; Hunt, L., ed., The New Cultural History (Berkeley, 1989)CrossRefGoogle Scholar; Pocock, , Virtue, Commerce and HistoryCrossRefGoogle Scholar; Tully, J., ed., Meaning and Context: Quentin Skinner and His Critics (Cambridge, 1988)Google Scholar; Collini, S., Winch, D., and Burrow, J., That Noble Science of Politics (Cambridge, 1983)CrossRefGoogle Scholar; and Collini, S., Public Moralists (Oxford, 1991).Google Scholar
121. Dawson, Oracles of the Law; Clanchy, M. T., From Memory to Written Record (London, 1979)Google Scholar; Ong, W. J., Orality and Literacy (London, 1982)CrossRefGoogle Scholar; Goody, J., The Logic of Writing and the Organization of Society (Cambridge, 1986)CrossRefGoogle Scholar, especially chap. 4. For an interesting study of barristers' work, which stresses the oral, nontextual, and rhetorical facets of legal practice, see Morison, J. and Leith, P., The Barristers' World (Milton Keynes, 1992).Google Scholar This work suggests some ways in which a broader history of lawyers could enhance our understanding of the role and significance of narrative form within legal thought and legal work.
123. See Brooks, , “The Common Lawyers in England c. 1558–1642,” in Prest, , Lawyers in Early Modem Europe and America, 58.Google Scholar
125. Cocks, Foundations of the Modem Bar, Abel, Legal Profession in England and Wales; Sugarman, “‘The Best Organized and Most Intelligent Trade Union in the Country.’”
126. Frequently, one competing image was dependent upon the other competing image. For example, legal practice was in part grounded upon legal science, etc.
127. Prest, “Introduction,” 12.
128. See Ellis, R. E., The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York, 1971)Google Scholar; Gawalt, J. W., The Promise of Power: The Emergence of the Legal Professional in Massachusetts 1760–1840 (Cambridge, 1979)Google Scholar; Gawalt, G. W., The New High Priests.Google Scholar For the best study to date of intraprofessional conflict within the English bar in the nineteenth century see Pue, “The Making of the English Bar,” part of which has been published as “Exorcising Professional Demons.” Ibid., 135; Pue, “Guild Training vs. Professional Education,” 241; and idem, “Moral Panic at the Bar,” 49. As for intraprofessional tensions among nineteenth-century solicitors, see the important study of Rowley, “Professions, Class and Society,” and also Parrott, V., “A Difference of Opinion,” Occasional Paper in Politics and Contemporary History (Salford, 1991)Google Scholar, which deals with a disagreement amongst Manchester solicitors concerning the post of borough coroner. I am grateful to Vivienne Parrott for providing me with a copy of her paper prior to its publication.
129. Sarat, “Ideologies of Professionalism”; Sugarman, “‘The Best and Most Intelligent Trade Union.’”
130. For a contemporary investigation, see Dezalay, Y. and Sugarman, D., eds., Professional Competition and Professional Power: Lawyers, Accountants, and the Emergence of a Transnational State (London, 1994).Google Scholar
131. Some barristers did not. See Pue, “Exorcising Professional Demons.”
132. For example, why have English solicitors tended to resist becoming in-house lawyers? In-house lawyers were employed by some firms of insurance from the late eighteenth to the late nineteenth centuries, when legal work was handed over to private firms: see for example, Dickson, P. G. M., The Sun Insurance Office 1710–1960 (London, 1960), 55.Google Scholar The railway industry also employed a large number of in-house lawyers but this had also begun to peter out by the 1880s: see Kostal, “Common Law, Common Lawyers.”
134. This paragraph, and the preceding paragraph, draw on D. Sugarman, “Who Colonized Whom? Historical Reflections on the Intersection between Law, Lawyers, and Accountants in England,” in Dezalay and Sugarman, Professional Competition.
135. Morris, R. J., “The Middle-Class and the Property Cycle During the Industrial Revolution,” in The Search for Wealth and Stability, ed. Smout, T. C. (London, 1979)Google Scholar cited in Davidoff and Hall, Family Fortunes, 32.
136. Davidoff and Hall, Family Fortunes, 32.
137. See, generally, Scott's, J. W. outstanding study, Gender and the Politics of History (New York, 1988).Google Scholar Also pertinent are Coombs, R. J., “‘The Most Disgusting, Disgraceful and Inequitous Proceeding in Our Law’: The Action for Breach of Promise for Marriage in Nineteenth-Century Ontario,” University of Toronto Law Journal 38 (1988): 81Google Scholar; Riley, D., “Am I That Name?” Feminism and the Category of “Woman” in History (Basingstoke, 1988)Google Scholar; Staves, S., Married Women's Separate Property in England, 1660–1833 (Cambridge, 1990)CrossRefGoogle Scholar; Minow, M., Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, 1990)Google Scholar; Backhouse, C., Petticoats and Prejudice: Women and the Law in Nineteenth-Century Canada (Toronto, 1991)Google Scholar; Hall, C., White, Male, and Middle Class: Explorations in Feminism and History (Cambridge, 1992).Google Scholar
138. For pioneering exemplars of the sort of work that I have in mind, see Rueschemeyer, D., Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and the United States (Cambridge, 1973)CrossRefGoogle Scholar; and idem, “The Legal Profession in Comparative Prospective,” in Social Systems and Legal Process, ed. Johnson, H. M. (San Francisco, 1978)Google Scholar; and Abel and Lewis, Lawyers in Society. The latter is surveyed in a stimulating and comparative fashion by Osiel, M. J., “Lawyers as Monopoliste, Aristocrats and Entrepreneurs,” Harvard Law Review 103 (1989): 2009.CrossRefGoogle Scholar As will be clear from this article, Osiel's distinction between American lawyers as capitalist entrepreneurs and English lawyers as aristocrats is perhaps overdrawn.
139. Joyce, P., “The Historical Meanings of Work: An Introduction,” in The Historical Meanings of Work, ed. Joyce, P. (Cambridge, 1987), 6Google Scholar, and see generally, 1–14.
140. See further, Gordon, R. W. and Simon, W. H., “The Redemption of Professionalism?” in Nelson, , Trubek, , and Solomon, , Lawyers' Ideals and Lawyers' PracticesGoogle Scholar; R. L. Nelson and D. M. Trubek, “Legal Professionalism and Its Discontents,” in ibid.