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Exorcising Professional Demons: Charles Rann Kennedy and the Transition to the Modern Bar

Published online by Cambridge University Press:  28 October 2011

W. Wesley Pue
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Extract

History abounds with debates which turn on the seemingly innocuous question as to whether fundamental change did or did not occur in any particular period. Many such controversies are well-known: Was there or was there not a ‘Tudor revolution’? Was there or was there not an ‘agricultural revolution’? What about a ‘great transformation’? A revolutionary change in Canadian government in 1982? A ‘making’ of the English working class? A ‘transformation’ or ‘Americanization’ of American law? Are we or are we not at the present conjuncture in the process of a fundamental—and globe spanning—transformation to a dominant corporatist ideology? The examples of this sort of debate can be multiplied almost endlessly.

Type
Symposium on the History of the Legal Profession and the Judiciary
Information
Law and History Review , Volume 5 , Issue 1 , Spring 1987 , pp. 135 - 174
Copyright
Copyright © the American Society for Legal History, Inc. 1987

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References

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17. In Rubin, G.R. and Sugarman, David, eds., Law, Economy and Society (Abingdon, 1984) 300–20Google Scholar.

18. Ibid, at 313.

19. Ibid, at 314.

20. Ibid, at 315. Although Prest does not develop this theme it would seem that such claims legitimated the rule of courts through successive periods of divine right of kings, natural law and democracy as well as the professional project of lawyers qua occupational group.

21. Ibid, at 304.

22. Ibid.

23. Following Larson I use this term to refer both to economic and technical conditions, and ideological conditions. Magala Sarfetti Larson, The Rise of Professionalism, supra note 9 at 6.

24. The approach here is in many respects similar to that adopted by Cocks, Raymond in Foundations of the Modern Bar (supra note 10)Google Scholar which appeared two years after Prest had written his ‘Why the History of the Professions is not Written’ (supra note 17) but one year before that piece appeared in print. Consequently Prest does not appear to have directed his mind to the historiographical value of such approaches.

25. Compare Cohen, Stanley, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (Oxford, 1980)Google Scholar. Doug Hay has emphasized the relationship between punishment, ritual and the construction of widely-shared values in his ‘Property, Authority and the Criminal Law’ in Hay, Linebaugh & Thompson, , eds., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London, 1975)Google Scholar. Cf. discussion of ‘degradation ceremonies’ in Bankowski, Zenon and Mungham, Geoff, Images of Law (London, 1976) 87–93Google Scholar.

26. Stanley Cohen, supra note 25 at 10.

27. Ibid, at 61. Profoundly important examples of such a process are documented in Boyer, Paul and Nissenbaum, Stephen, Salem Possessed: The Social Origins of Witchcraft (Cambridge, Mass., 1974Google Scholar) and Miller, Arthur, The Crucible (1953).Google Scholar A similar process is documented in relation to the United States legal profession in Chapter 4, ‘Cleansing the Bar’ of Auerbach's, Jerold, Unequal Justice (London, 1976)Google Scholar. For a recent example of the process see Thomas, P.A., Power, Helen and East, Robert, ‘The British Miners’ Strike’ Windsor Yearbook of Access to Justice 5 (1985) 181–229Google Scholar. In the history of crime, Daniel Pick has said ‘the designation of the criminal is bound up, in complex ways, with the opposing but reciprocal process of defining the good citizen, or the good subject, in specific, in particular periods’, in ‘The Faces of Anarchy: Lombroso and the Politics of Criminal Science in Post-Unification Italy’ History Workshop 21 (1986) 61Google Scholar.

28. See Gill, Conrad, History of Birmingham, 2 vols. (London, 1952) i: 375Google Scholar; Boase, Frederic, Modern English Biography, 6 vols. (London, 1897) ii: 195Google Scholar.

29. Stephen, Sir Leslie and Lee, Sir Sidney, eds., The Dictionary of National Biography, 22 vols. (Oxford, 1973)Google Scholar.

30. Ibid.

31. Venn, J.A., Alumni Cantabrigienses (Cambridge, 1951)Google Scholar.

32. Dictionary of National Biography, supra note 29.

33. See ‘Mr. Kennedy's Testimonials for the vacant chair of Greek at the University of Edinborough’, B.L. 8366, 6633.

34. The Times, Wednesday, April 2, 1862.

35. The Jurist, new ser., ii (1863) 20Google Scholar.

36. Lord Chief Justice of England, in Kennedy, Charles Rann, The Great Swinfen Case: Report of the Extraordinary Trial at Warwick in the Matter of Kennedy v. Brown and Wife (London, 1862) 44Google Scholar [hereinafter cited as Kennedy, The Great Swinfen Case].

37. See The Times for the following dates: 9 March 1849 at p.6; 3 October, 1849 at p. 5; 3 January 1850 at p.6.

38. Kennedy may not, in fact have wanted the position particularly strongly. Less than two years later he applied for the chair of Greek in Edinborough. See ‘Mr. Kennedy's Testimonials for the vacant chair of Greek at the University of Edinborough’, B.L. 8366, 6633. By this time, however, it would have been clear that the Queen's College programme in law was floundering. See ‘Mr. Kennedy's Manifesto’ Law Times 20 (October 30, 1852) 58Google Scholar.

39. Dicey himself was a failed barrister. See Cosgrove, Richard A., The Rule of Law. Albert Venn Dicey, Victorian Jurist (London, 1980)CrossRefGoogle Scholar.

40. Kennedy, Charles Rann, A Letter to the Lord Chancellor on the Subject of Circuit Leagues (Birmingham, 1850) 4Google Scholar [hereinafter cited as Kennedy, Circuit Leagues].

41. See ‘The Roses’ Address on her Ninth Birthday’ in Kennedy, C.R., Poems (London, 1857), 31–32Google Scholar. Note also the juxtaposition of ‘My Cottage in Hertfordshire’ with ‘View of a Manufacturing Town’ at 90–91 of the same collection.

42. E.g. Yeatman, John Pym, The Professorship of Law of the Queen's College, (Birmingham, 1869) at 5Google Scholar: ‘… when he came to compete with the heterogeneous mass of trained and untrained, of skilled and stupid, of clever and impudent, of weak and strong, of good and bad, which makes up the body of men called “the Bar”, he found himself out-distanced and absolutely over-looked’.

43. The 1846 passage of the County Court Act probably hurt him financially. See Abel-Smith, Brian and Stevens, Robert, Lawyers and the Courts (London, 1967) 53–62Google Scholar; Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 86–7Google Scholar. Kennedy may have been insufficiently well connected to survive this shock.

44. In Broun v. Kennedy, 33 Beav. 133, 152, 55 E.R. 317, 325.

45. In Kennedy, The Great Swinfen Case, supra note 36 at 44.

46. The Birmingham Daily Post, Thursday, April 3, 1862, p.2.

47. Aris's Birmingham Gazette, Nov. 26, 1849, p.1 col. 3, ‘Testimonial to the Rev. Rann Kennedy, M.A.’.

48. Aris's Birmingham Gazette, Dec. 21, 1857 p.6 col. 7, ‘The Death of Mr. Kennedy’.

49. 45 Legal Observer (Nov. 6, 1852) p. 12 ‘The Bar and the Attorneys. Mr. Rann Kennedy's Birmingham Speech’.

50. Kennedy, Circuit Leagues, supra note 40.

51. See generally Ibid. Daniel Duman, however, offers evidence suggesting that such a rule came to be generally enforced by Circuit Messes during the 1850s. Duman, Daniel, The English and Colonial Bars in the Nineteenth Century. (London, 1983) 47Google Scholar. The status of such a rule cannot be known with certainty until the histories of each Mess is written. Cocks argues that such restrictions did not appear in the Home Circuit until 1856 or in the Norfolk Circuit until 1872. See Cocks, Raymond, ‘The Bar at Assizes: Barristers on Three Nineteenth Century Circuits’, Kingston Law Review 6 (1976) 36, 45Google Scholar.

52. He in fact applies this word to the situation of the Mess. Ibid, at 12.

53. Ibid, at 15.

54. Ibid at 11.

55. Ibid, at 8–12.

56. Ibid, at 14–15.

57. The evidence on this is ambiguous. On the one hand, Kennedy received testimonials from the following prior to his election as Professor of Law at Queen's College: Sir Frederick Thesiger, M.D. Hill, R.B. Crowder, W.H. Watson, W. Shateley, W.Shee, C. Whitehurst, S. Martin, M. Chambers, A.E. Cockburn, J. Manning, T.S. Murphy. Aris's Birmingham Gazette, Nov. 12, 1849 p. 3, Col. 2. On the other hand a correspondent writing to the Legal Observer clearly implies that Kennedy had run afoul of London legal practitioners before his move to Birmingham. ‘The Bar and the Attorneys. Mr. Rann Kennedy's Birmingham Speech’ 45 Legal Observer 12.

58. Social incompatibility cannot be ruled out entirely as a reason for excluding Kennedy since, as late as the 1870s, the Home Circuit had debated ‘whether or not social incompatibility was sufficient grounds for blighting a man's career’. See Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 147–48.Google Scholar

59. Ibid, at 16–17.

60. See, for example, Polson, Archer, Law and Lawyers, 2 vols. (London, 1840) i: 136Google Scholar, cited in Cocks, Raymond, Foundations at the Modern Bar, supra note 10 at 31.Google Scholar In (1844) 3 Law Times 501 the Bar Mess is presumed to serve a useful disciplinary role. Ibid, at 80. See ibid, at 147ff for a discussion of the Bar Mess in the 1870s.

61. Kennedy, Circuit Leagues, supra note 40 at 4.

62. See generally Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 15Google Scholar, who finds the first evidence of Mess organization in 1836. In Kennedy, Circuit Leagues, supra note 40 at 6, Kennedy describes the Bar Mess as ‘an association. … the proper character of which, as its name imports, is that of a private club, for convivial and social purposes; and which, if entrance to it were purely voluntary, and if it were confined to legitimate objects, would be a pleasant and harmless thing enough’.

63. Kennedy, Circuit Leagues, supra note 40 at 15.

64. Reverand Rann Kennedy, his father, was a benefactor of Queen's College. See The Times, 3 January, 1850. His brother, Benjamin Hall Kennedy was at the time headmaster of Shrewsbury School. Both were well connected in Birmingham. See Edwards, E., Personal Recollections of Birmingham and Birmingham Men (Birmingham, 1877)Google Scholar.

65. Report from the Select Committee on Legal Education House of Commons Proceedings, 25 August 1846. See discussions in Cocks, Raymond, Foundations of the Modern Bar, supra note 10Google Scholar; Stein, Peter ‘Legal Theory and the Reform of Legal Education in Mid Nineteenth Century England’ in L'Educazione Giuridica (Perugia, 1979) at 185–206Google Scholar. On the objectives of the Council of Queen's College generally and with regard to the Department of Law in particular see: ‘The Queen's College, Birmingham’, Aris's Birmingham Gazette, Mon., May 12, 1851, p.1 col. 3; Morrison, J.T.J.William Sands Cox and the Birmingham Medical School (Birmingham, 1926)Google Scholar; Cox, William Sands, ed., Annals of the Queen's College, Birmingham 4 vols. (Birmingham, 1873) i–ivGoogle Scholar.

66. Conrad Gill, History of Birmingham supra note 28 at 397.

67. Select Committee on Legal Education (no. 686) (1846).

68. See Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 69ff.Google Scholar

69. Ibid, at 8, 88ff.

70. Abel-Smith and Stevens, Lawyers and the Courts, supra note 43 at 65–6; Manchester, A.H., Modern Legal History (London, 1980) 58Google Scholar.

71. (1843) 1 L.T. 42, quoted in Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 69.Google Scholar

72. Ibid, at 38.

73. Ibid at 177.

74. Kennedy himself clearly saw the two branches of the profession as, to some extent, in competition. See Kennedy, Circuit Leagues, supra note 40 at 10. Competitive pressures resulting in part at least from court reorganization, were clearly hurting the bar in the 1840s-50s. See Abel-Smith and Stevens, Lawyers and the Courts, supra note 43 at 53–62; Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 86–7.Google Scholar

75. (1852) 20 Law Times 85, as quoted in Forbes, J.R.S., The Divided Legal Profession in Australia (Sydney, 1979) 16Google Scholar.

76. Abel-Smith and Stevens, Lawyers and the Courts, supra note 43 at 69.

77. The Times, 3 January, 1850, 6. Aris's Birmingham Gazette, February 25, 1850, p. 2, col 2–3, under the heading ‘Queen's College, Birmingham’ carries a report which indicates that the founders of the law department hope to educate both aspiring barristers and aspiring soliciters in one program.

78. Kennedy, Circuit Leagues, supra note 40 at 15, (emphasis in original).

79. Ibid, at 16. One possible reason for this may have been the fear of competition by a barrister who was well-connected with attorneys and solicitors. Duman, Daniel, The English and Colonial Bars in the Nineteenth Century (London, 1983)Google Scholar, supra note 51 at 46.

80. Kennedy, Circuit Leagues, supra note 40 at 15 (emphasis in original).

81. Ibid, at 7.

82. Ibid.

83. Ibid.

84. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 2, 22, 128.Google Scholar

85. Ibid at 128.

86. Dicey, Albert V., ‘Legal Etiquette’, Fortnightly Review 8 (1 August, 1867) 173Google Scholar.

87. The attorneys' and solicitors' branches of the legal profession were largely fused by an Act of 1751 though the use of a common title—‘solicitor’ was not formally sanctioned until the Judicature Act of 1873, s. 87. See Abel-Smith & Stevens, Lawyers and the Courts, supra note 43 at 15, 53n.

88. See generally Cocks, Raymond, Foundations of the Modern Bar, supra note 10Google Scholar; Daniel Duman, The English and Colonial Bars in the Nineteenth Century, supra note 51; Dicey, ‘Legal Eitquette’, supra note 86.

89. Kennedy, Circuit Leagues, supra note 40 at 11. Daniel Duman's The English and Colonial Bars in the Nineteenth Century, supra note 51; 4–9; 143–68, is generally supportive of Kennedy's assertion, indicating that a large number of ‘barristers’ did not in fact earn their living in English legal practice. In ‘The New Era’, Law Times, 20 July 3, 1852, 10–10, the Law Times estimated that nine-tenths of the Bar ‘will be unable to live by it’.

90. At a later time, and when it very much served his interests to appear as something other than a renegade barrister, Kennedy vehemently denied the allegation of having done the work of an attorney. See Kennedy, The Great Swinfen Case, supra note 36 at 43. See, however, see ‘The Bar and the Attorney’, Law Times 20 (Nov. 6, 1852) 74Google Scholar; ‘The Junior Bar and the Attorney’, Law Times 20 (27 Nov. 1852) 110Google Scholar.

91. Abel-Smith and Stevens, Lawyers and the Courts, supra note 43 at 57.

92. ‘The Attack on the Attorneys’, Law Times 20 (October 9, 1852) 25Google Scholar; ‘Mr. Kennedy's Manifesto’, Law Times 20 (Oct. 30, 1852) 58Google Scholar.

93. Kennedy, Circuit Leagues, supra note 40, 5, 7.

94. As to which see generally Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 86–88Google Scholar; Abel-Smith and Stevens, Lawyers and the Courts, supra note 43 at 32–37.

95. ‘Etiquette of the Bar’, Law Times 17 (Saturday, August 30, 1851) 209Google Scholar. It is noteworthy that the very distinctiveness of the barristers’ branch was threatened by the previous self-denying rule of etiquette. The Law Times continued with the observation that specialist county court advocates had been appearing: ‘the abolition of the old restriction may also be objected to by that small section of the other branch of the Profession whose practice consists, not in acting within the honourable and comprehensive province which legitimately belongs to the Solicitor and Attorney, but in devoting their whole attention to the conduct of such small debt cases as the existing system prevents Barristers being engaged in’.

96. See generally ‘The Attack on the Attorneys’, Law Times 20 (October 9, 1852) 25Google Scholar.

97. See ibid, at 26 and ‘The Profession in the County Courts’ Law Times (26 June, 1982) 101–102Google Scholar, where the Law Times expressed disapproval of ‘local Barristers’.

98. ‘The Attack on the Attorneys’, Law Times 20 (October 9, 1852) 25Google Scholar.

99. Pamphlet of C.R. Kennedy, quoted in Ibid.

100. Ibid, (emphasis in original).

101. Ibid.

102. Ibid, (emphasis in original). Many junior barristers apparently held a similar view. See ‘The Profession in the County Courts’, Law Times (26 June, 1852) 101–102.

103. ‘The Attack on the Attorneys’, Law Times 20 (October 9, 1852) 25–26Google Scholar (emphasis added). In ‘The Bar and the Attorneys’, Law Times 20 (6 Nov., 1852) 74Google Scholar, the fear of a unified profession arising from Kennedy's practices is expressed.

104. Ibid, at 26.

105. See Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 64ff.Google Scholar for a discussion of the readership and editorial policies of the Law Times in this period.

106. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 87Google Scholar, however reports that young barristers generally sought direct access to clients and that in one case ‘a Mess actually encouraged them to break the traditional rules of etiquette and approach clients directly’. See Law Times 17 (1851) 209.Google Scholar

107. Bench Table Orders, Inner Temple, Bench Table, Friday, 5 November, 1852 (recording letter from Thomas S. James).

108. Kennedy, The Great Swinfen Case, supra note 36 at 10.

109. Daniel Duman, The English and Colonial Bars in the Nineteenth Century, supra note 51 at 144. Duman observes also that ‘the figure of £500 probably referred to men who had established permanent practices…’ and that this may be a generous estimate. Ibid, at 146. See Thomson, H. Byerley, The Choice of a Profession (London, 1857) 94, 97–98Google Scholar.

110. The account which follows is largely based on material to be found in Kennedy, The Great Swinfen Case, supra note 36. Other accounts of these events are to be found in published law reports, newspaper accounts, other publications of C.R. Kennedy and in the following documents held in the Staffordshire County Record Office: Broun v. Kennedy, Bill of Complaint; Answer; Affidavits D858/2/2. General accounts of the litigation are to be found in ‘Mrs. Patience Swinfen versus Barristers’, April 1974, The Queensland Lawyer (1974) ii: 40–45, and in Lewis, J.R., The Victorian Bar (London: 1982) 95–101Google Scholar.

111. Kennedy, , Swinfen v. Swinfen, Report of the Argument in the Common Pleas, in Michaelmas Term 1856 (London, 1857) 3Google Scholar [hereinafter cited as Kennedy, Swinfen v. Swinfen].

112. Regarding whom see the Dictionary of National Biography entry.

113. Kennedy, Swinfen v. Swinfen, supra note 111 at 4, 29.

114. Ibid, at 29.

115. Kennedy, The Great Swinfen Case, supra note 36 at 13.

116. Cf. Bankowski, Zenon and Mungham, Geoff, Images of Law (London, 1976) 88Google Scholar: ‘The defendant, although formally the focus of the [courtroom] bargaining is, in practice, excluded from participating. He is “represented” and must wait patiently for the outcome of the deliberations of others. … [H]e has no status (bar that of object), no history and no understanding. His humanness is removed: he becomes transmogrified into Goffman's “non-person”.’

117. Swinfen v. Lord Chelmsford (1860) 5 Hurlstone and Normans’ Reports, 890, 897; Times, July 6, 1859, 11.

118. Illegal conspiracy was specifically alleged by Kennedy: The Times, July 5, 1859, II; Swinfen v. Lord Chelmsford (1860) 5 Hur. & Nor. Reps., 890, 893.

119. Kennedy in Kennedy, Swinfen v. Swinfen, supra note 111 at 30.

120. Ibid, at 21.

121. Quoted in Kennedy, Swinfen v. Swinfen, supra note 111 at 44.

122. Kennedy, quoted in ibid, at 19.

123. Ibid.

124. Kennedy, The Great Swinfen Case, supra note 36 at 37.

125. For a treatment of modern court room ordering compare ‘Order in Court’ in Ericson, Richard and Baranek, Patricia, The Ordering of Justice (Toronto, 1982) 179–215Google Scholar.

126. Other barristers involved included W.J. Alexander, Q.C. and Attorney General to H.R.H. the Prince of Wales, Whitmore, and John Gray, Treasury Solicitor for Patience Swinfen. On the other side Sir Alexander Cockburn, Q.C, Attorney General and subsequently Chief Justice for England was leading counsel.

127. See generally Kennedy, Swinfen v. Swinfen, supra note 111 at 35–36.

128. Ibid, at 36, Kennedy expresses a longing for ‘the fearless, the trustworthy, the independant advocate’ of ‘half a century ago’.

129. See Dimes v. Grand Junction Canal [1853] 3 H.L.C. 759 (H.L.).

130. Kennedy, The Great Swinfen Case, supra note 36 at 5–6.

131. Kennedy, , Mr. Kennedy's Argument in the Common Pleas Against the Rule Obtained by the Defendants in Kennedy v. Broun & Wife (Birmingham, 1862) at 56Google Scholar [hereinafter cited as: Kennedy, Mr. Kennedy's Argument].

132. Kennedy, The Great Swinfen Case, supra note 36 at 7.

133. Kennedy, Mr. Kennedy's Argument, supra note 131 at 59.

134. Macaulay in Kennedy, The Great Swinfen Case, supra note 36 at 25. Kennedy defended himself against this charge on the grounds that he did not in fact ‘act as an attorney’ and that even if he did this was a matter of etiquette not enforceable by the courts. Raymond Cocks argues that there was no firm rule requiring a solicitor intermediary in barristers’ dealings with lay clients until 1888. See Cocks, , ‘The Bar at Assizes: Barristers on Three Nineteenth Century Circuits’ Kingston Law Review 6 (1976) 36Google Scholar and 46. See Kennedy, The Great Swinfen Case, supra note 36 at 43; Kennedy, Mr. Kennedy's Argument, supra note 131 at 56.

Two elite barristers of the day agreed there was no universal rule on this matter: ‘County Courts Extension Bill’, Law Times 20 (26 June, 1852) 102–103Google Scholar (Lord Brougham); ‘Lord Denman's Letter’, Law Times 20 (6 Nov., 1852) 73Google Scholar. In any event powerful interests held sway over the logic he was able to muster. See Kennedy v. Broun 13 C.B. (N.S.) 677 at 736 ff.; 143 E.R. 268 at 291 ff. per Erle, C.J.; see also Cockburn C.J., quoted in Kennedy, Mr. Kennedy's Argument supra note 131 at 7 (the excerpt here is somewhat different from that of the same passage in Kennedy, The Great Swinfen Case supra note 36 at 44–45).

135. Kennedy, The Great Swinfen Case, supra note 36 at 43.

136. Ibid, at 7.

137. Ibid, at 7, 14, 23; Kennedy, Mr. Kennedy's Argument, supra note 131 at 14.

138. Kennedy, The Great Swinfen Case, supra note 36 at 7.

139. Ibid, at 10.

140. Ibid, at 39.

141. Ibid, at 6, 13, 14; Kennedy, Mr. Kennedy's Argument, supra note 131 at 3.

142. Kennedy, The Great Swinfen Case, supra note 36 at 14.

143. Ibid, at 9, 11; Kennedy, Mr. Kennedy's Argument, supra note 131 at 3.

144. Kennedy, The Great Swinfen Case, supra note 36 at 9, 10; Kennedy, Mr. Kennedy's Argument, supra note 131 at 26.

145. Kennedy, Mr. Kennedy's Argument, supra note 131 at 55.

146. Mr. Whateley, quoted in Kennedy, Swinfen v. Swinfen, supra note 111 at 37.

147. Ibid, at 40.

148. Ibid, at 7.

149. Ibid, at 30.

150. Ibid, at 35.

151. Ibid, at 36.

152. Ibid.

153. Ibid, at 18, 19.

154. Keating, quoted in ibid, at 46.

155. E. James, quoted in ibid, at 51.

156. Ibid, at 53.

157. Ibid, at 60.

158. Kennedy, The Great Swinfen Case, supra note 36 at 8.

Thine was a courage singly to exclaim 'Gainst Might perverting justice.

…

The canting tones of dull servility

In halls of themis shall be heard no more;

And tricksters shall unlearn their crafty lore:

So potent is thy spell! At sight of thee

Behold where treason skulks with conscious dread,

And base corruption hangs her guilty head.

159. Ibid, at 16.

160. The Times, Saturday, November 26, 1859, 11, reported the following developments in Swinfen v. Lord Chelmsford:

Mr. Kennedy commenced his arguments in this case… and had not concluded when the Court rose. The further hearing of the case was adjourned till the sitting of the Court on the first day of the next term. We therefore reserve our report of Mr. Kennedy's argument, as it would be unfair to that learned gentleman to publish it in an unfinished state.

Whatever barbs Kenndy may have cast at that time are unfortunately lost to us. The Times never carried through on its committment to report his argument.

161. Kennedy, C.R., Poems (London, 1857) 107–12Google Scholar.

162. See Kennedy, The Great Swinfen Case, supra note 36 at 22. At a later date Kennedy apparently ‘repudiated any intention to charge either Mr. Justice Cresswell or Sir F. Thesiger with corrupt motives…’, and ‘regretted the attack he had made’. The Times, March 31, 1862, 11,12.

163. Kennedy, Swinfen v. Swinfen, supra note 111 at 2. Kennedy had the temerity to republish this in Poems, supra note 161 at 88, where it was introduced with the following statement:

For an explanation of this sonnet, I must refer to my Report of the case of Swinfen v. Swinfen, argued in the Court of Common Pleas in November, 1856. A perusal of the affidavits, which are annexed, will enable my readers to appreciate the calumnious attack made upon me, and the motives of those who made it. I trust that neither calumnies nor menaces (even from High Quarters) will ever deter me from doing my duty.

164. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 2, 22, 128Google Scholar; Daniel Duman, The English and Colonial Bars in the Nineteenth Century, supra note 51 at 34–40.

165. See Kennedy, Circuit Leagues, supra note 40; Kennedy, Mr. Kennedy's Argument, supra note 131 at 45, 56.

166. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 121Google Scholar; Abel-Smith and Stevens, Lawyers & The Courts, supra note 43 at 53ff.; Daniel Duman, The English and Colonial Bars in the Nineteenth Century, supra note 79 at 55, 62.

167. Kennedy, The Great Swinfen Case, supra note 36 at 38.

168. Swinfen vs. Swinfen (June 11, 1856) 18 C.B. 485; 139 E.R. 1459 (show-cause for attachment to enforce compromise entered into by Thesiger). Swinfen vs. Swinfen (Jan. 12, 1857) 1 C.B. (N.S.) 364; 140 E.R. 150 (motion for attachment against Patience Swinfen for contempt of court in refusing to abide the compromise); Swinfen vs. Swinfen (Nov. 7–10, 1857) 24 Beav. 549; 53 E.R. 470 (ordering a trial on the issue of the competency of the testator and declining to specifically enforce the compromise entered into by Thesiger); Swinfen vs. Swinfen (April 22, 1858) 2 DE G. & J. 381; 44 E.R. 1037 (judgment of 24 Beav. 549 affirmed on appeal); Swinfen vs. Swinfen (Stafford Summer Assizes, 1858) 1 F. & F. 584; 175 E.R. (trial of issue of the testamentary capacity of Samuel Swinfen. Verdict in favour of Will whereby Patience Swinfen inherited estate). Swinfen vs. Swinfen (No. 1) (Jan. 12, 1859) 27 Beav. 148; 54 E.R. 57 (motion in Chancery by heir-at-law seeking a re-trial of the issue of testamentary capacity refused); Swinfen v. Swinfen (March 28, 30, 1859); 1 SW & TR. 283; 164 E.R. 730 (on the question of costs to Captain Frederick Swinfen. No order as to costs made); Swinfen v. Lord Chelmsford (Trinity Term, 1859) 1 F. & F. 619; 175 E.R. (trial of action against Sir Frederick Thesiger for ‘improperly, fraudulently and without authority’ entering into a compromise directed verdict for defendant). Swinfen v. Lord Chelmsford (June 8, 1860) 5 Hurlstone & Norman's Reports, 890 (directed verdict for defendant… )’ upheld on appeal, establishing the rule that barristers are immune from suit for incompetence or neglect); Swinfen v. Bacon (Nov. 21, 1860) 6 H. & N. 184; 158 E.R. 76 (on a subsidiary issue of debt owing to Patience Swinfen from an overholding tenant on the Swinfen estate); Swinfen v. Swinfen (No. 3) (Dec. 5, 1860) 29 Beav. 199, 54 E.R. 603; Swinfen v. Swinfen (No. 4) (Dec. 5, 1860) 29 Beav. 207, 54 E.R. 606, Swinfen v. Swinfen (No. 5) (Dec. 5, 1860) 29 Beav. 211, 54 E.R. 608 (on subsidiary estate issues); Swinfen v. Bacon (May 15, 1861) 6 H. & N. 846; 158 E.R. 349 (proceeding in error from Nov. 21, 1860 judgment of the Court of Exchequer).

169. Kennedy, Mr. Kennedy's Argument, supra note 131 at 60, side-note.

170. Ibid, at 60–61.

171. See Kennedy, The Great Swinfen Case, supra note 36 at 18, 26, 34; Kennedy, Mr. Kennedy's Argument, supra note 131 at 5, 12.

172. Kennedy, The Great Swinfen Case, supra note 36 at 9ff., 18; Kennedy, Mr. Kennedy's Argument, supra note 131 at 11ff., 13, 14, 15, 50, 56.

173. Kennedy, Mr. Kennedy's Argument, supra note 131 at 44, 59.

174. Kennedy, The Great Swinfen Case, supra note 36 at 16–17, 20–22, 25, 27, 28.

175. Ibid, at 26–35.

176. Ibid, at 18.

177. Kennedy, Mr. Kennedy's Argument, supra note 131 at 11–18.

178. Kennedy, The Great Swinfen Case, supra note 36 at 43; Kennedy, Mr. Kennedy's Argument, supra note 131 at 9.

179. Kennedy, The Great Swinfen Case, supra note 36 at 25.

180. Ibid.

181. Ibid, at 44.

182. Ibid, at 25.

183. Ibid, at 45.

184. Ibid, at 44.

185. Ibid, at 45 per Cockburn, L.C.J.

186. The Times, April 2, 1862, 9.

187. Ibid.

188. See The Birmingham Daily Post, April 3, 1862, 2.

189. See Sessional Papers 1862.II.383, printed 18 March, 1862. The Chronological development here was as follows:

Autumn 1861. Kennedy decides to sue Mrs. Broun.

March 19, 1862. 1st reading of Bowyer's Bill; 2nd. reading set for April 2, 1862.

March 29–30, 1862 Kennedy v. Brown trial and verdict.

April 2, 1862. Times editorial attacking Kennedy; Bowyer's bill second reading deferred.

April 24, 1862. Motion to set aside judgment in favour of Kennedy granted in form of rule nisi.

April 25, 1862. Special Council of Benchers of Lincoln's Inn strikes committee to discuss Bowyer's Bill with other Inns (source: Black books of Lincoln's Inn).

May 13, 1862. Lincoln's Inn Council reads resolution of the four Inns attacking

Bowyer's Bill (source: Black books of Lincoln's Inn).

June 13, 1862. Shew-cause commenced to set aside rule Nisi in favour of Patience Broun.

November 11–12, 1862 Kennedy v. Brown argued in Common Pleas.

November 25, 1862 Bench of Common Pleas announces delay in giving judgment in Kennedy v. Brown.

January 17, 1863 Judgment of Common Pleas in Kennedy v. Brown.

Bowyer's Bill is discussed in Daniel Duman, The English and Colonial Bars of the Nineteenth Century, supra note 51 at 56–57.

190. The Times, March 31, 1862, 11, 12.

191. Kennedy, The Great Swinfen Case, supra note 36.

192. The Times, April 2, 1862, 9.

193. The Birmingham Daily Post, April 3, 1862, 2.

194. Ibid.

195. Ibid.

196. Ibid. The Post was not however under any delusions as to Mrs. Swinfen's ‘helplessness’. Previously in the same article it had observed that she was one of those ‘women who, whatever their character, are evidently possessed of acute and energy far out of proportion to the ordinary members of their sex’, and who had ‘extraordinary self-possession, unbounded fertility of resource, and unshakable determination…’.

197. The Times, April 2, 1862, 9.

198. Ibid.

199. Ibid.; The Times, April 24, 1862, II (reporting Kennedy v. Broun per Macaulay, Q.C.).

200. Ibid.

201. Kennedy v. Broun (1863) 13 C.B. (N.S.) 677 at 727; 143 E.R. 268 at 287, per Erle, C.J. giving judgment for the court.

202. Swinfen v. Lord Chemlsford, 5 Hurl. & Norm., 919, 921. Quoted by Kennedy, Mr. Kennedy's Argument, supra note 131 at 46.

203. A rule nisi was granted to the defendants in April 1862 (The Times, April 24, 1862, 11) and Kennedy began his show cause nearly two months later (The Times, June 13, 1862, 11). Further hearings took place as reported in The Times June 17, 1862, 13; November 11, 1862, 9, November 12, 1862, 11; and November 14, 1862, 8–9. Over two weeks later, The Times reported (November 25, 1862, 11) that’ [t]he Chief Justice announced that in this case the Court would not be ready to give judgment this term, as they wished to look into the authorities’. The written judgment of the court was ultimately read by the Chief Justice only in January, 1863. (The Times, January 17, 1863, 11).

204. See generally Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford, 1979)Google Scholar.

205. Mill, John Stuart, ‘On Liberty’ in Warnock, Mary, ed., Utilitarianism and Other Writings (New York, 1974) 135Google Scholar.

206. Kennedy v. Broun (1863) 13C.B. (N.S.) 677, 736; 143 E.R. 268, 291, per Erle, C.J.

207. Ibid, at 731; 143 E.R. 268 at 289.

208. Ibid, at 738; E.R. 268 at 292.

209. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 86–89Google Scholar; Abel-Smith & Stevens, Lawyers and the Courts supra note 43 at 55–57.

210. See discussion at 147–50, supra.

211. Kennedy v. Broun (1863) 13 C.B. (N.S.) 677, 737, 143 E.R. 268, 291.

212. Ibid.

213. Ibid.

214. Kennedy prepared a pamphlet entitled ‘The Serpent of Swinfen’. See Kennedy, The Great Swinfen Case, supra note 36 at 20.

215. Kennedy v. Broun (1863) 13 C.B, (N.S.) 677, 737–38, 143 E.R. 268, 291.

216. Ibid, at 738, 143 E.R. 268, 291–92.

217. The Staffordshire Sessions Bar Mess minute book begins on April 6, 1863. The Midland Circuit Mess Minutes and the Staffordshire Sessions Bar Mess Minutes are held by the Department of Western Manuscripts, Bodleian Library, Oxford.

218. Bench Table Orders, Inner Temple.

219. The Chronology of this Bill suggests strongly that it was motivated in part by Kennedys’ activities. See note 189 supra.

220. Sessional Papers 1862.II.383.

221. §8.

222. Cocks, Raymond, Foundations of the Modern Bar, supra note 10 at 121.Google Scholar

223. A sense of moral panic is generally conveyed in The Solicitor's Journal, April 12, 1862, 427 and the Daily News, April 1, 1862, 4, col. 5–6.

224. Quoted in Law Times 20 (October 9, 1852) at 26Google Scholar.

225. See the evidence discussed in note 89, supra. For a U.S.A. comparison see Jerold Auerbach, Unequal Justice, supra note 27.

226. To some extent I part company here with the view of professions advanced in Cain, Maureen, ‘The General Practice Lawyer and the Client: Towards a Radical Conception’, international Journal of the Sociology of Law 7 (1979) 331Google Scholar. In this respect however it would seem that the barristers’ function is quite distinct from the general practice lawyers’.