Within the Bar

Hawera Star, Volume L, 26 April 1930, Page 9

Within the Bar

Tj 0 be “called within the bar” is an honour coveted by all who practice Jaw, carries with it the office of King s Counsel. It is not uncommon for those entering a court for the first time to ask where is the bar at which lawyers are said to practice. In reality there is none, the term being a survival of the days when the modern court system was being evolved in England. The origins of King’s Counsel are intimately bound up Avith the rise during the sixteenth century of the law officers of the Crown. Just as they had taken the place occupied in the Middle Ages by the King’s Sergeants, so, during the seventeenth and . eighteenth centuries -this, new order' of-, King ? s- counsel- gradually assumed the position in the legal profession formerly occupied by the order of thp .Sergeants. In the latter half of the sixteenth century it was becoming clear that the King’s attorney and solicitor could not by themselves perform all the duties which their offices imposed on them. For this reason there arose a body of “King’s learned counsel,” the ancestors of our modern king’s counsel. It seems that such a body Avas known at the very beginning of Elizabeth’s reign. Francis Bacon Avas constantly employed by Elizabeth in legal work of the kind which fell to those learned counsel, but Bacon admitted the office was “without patent or fee,” and vague in character. In 1604 James I. appointed Bacon “our councillor at law or one of our counsel learned in the law.” He was given place and precedence “ in the courts or elsewhere,” and a fee of £4O a year for life, which apparently was never paid. It is probable that at least one other patent was granted by James, and it is certain that similar patents were granted by Charles I. Thus the King’s Counsel became an established order in the legal profession, comparable to that of the sergeants appointed by Royal writ. At the present day the declaration they make and the ceremony of being called within the bar are strongly reminiscent of the sergeant’s oath. They were first appointed to give assistance and advice to the law officers of the Crown.

Rise of King’s Counsel

Page of Legal History

Tlie rule which exists to-day that a King’s counsel cannot appear against the Crown without a license from the Crown, is a survival from the days when these counsel were really King’s counsel and the assistants of the law officeis of the Crown. In the Middle Ages the King’s Sergeants were at the head of the bar, then came the sergeants and then the other barristers. Though the Attorney and Solicitor-General had long been in fact the leaders of the bar, it was not until 1814 that they were given precedence to ' the King’s Sergeants by Royal warrant, It is clear, however, that by the end of the seventeenth century the general body ; of . sergeants had ceased to -be at'the head of-/the bar, and that the precedence of the various members of j... tiie bar was ' becoming settled in its modern form. The old solidarity of the order of Sergeants had gone, although there still remained the Sergeants’ Inn where they occasionally consulted together on pending cases. There, perhaps, resides the ghost of Sergeant Buz Fuz, best known of all the order, still pondering over the niceties of the immortal trial of Bardie v. Pickwick. In New Zealand the order of sergeants is unknown, although it is still retained in a modified form in the English legal system. The appointment of a barrister to the office of King’s Counsel is regarded as a high honour if only for the fact that the Crown recognises that the person appointed is worthy to be retained on its behalf. To-day the term “within the bar” is merely symbolic of the precedence accorded to a King’s counsel, and, although he is summoned within the bar, there is no such piece of furniture. In the old days, however, there were recognised places for those engaged in the practice of the law, the senior members of the profession not deigning to sit- with the juniors. Naturally New Zealand’s legal profession has not the traditions which the centuries have conferred on that of England. But in many ways it has taken unto itself the customs of the svstern from which it sprang.