In the Anglosphere, the transformation from feudalism to capitalism was a process of evolution, not revolution. This brief article will examine how English law evolved in order to facilitate this evolution and will argue that the similarities between the regulation of barristers and the feudal guild demonstrates that the Independent Bar is perhaps, sadly, a vestigial memory of our feudal past.
The regulation of the guild
English law as it stood under feudalism had the functional impact of prohibiting capitalism. This was not for ideological or political reasons, as capitalism is inherently a creature of industrialisation and therefore had not yet been conceived of as a cogent economic or political system, but merely arose because feudal law was designed, consciously or otherwise, to support the feudal system. To the extent that capitalism is incompatible with feudalism it was accordingly implicitly precluded under English law.[2] The Statute of Artificers governed ‘skilled labour’ in the late-feudal era.[3] Section 31 of the Statute provides that it was unlawful to ‘set up, occupy, use, or exercise any craft, mystery, or occupation, now used or occupied within the realm of England or Wales; except he shall have been brought up therein seven years at the least as an apprentice’.[4] Therefore, it was expressly unlawful for a merchant to open a factory and employ apprentices to manufacture goods. Apprentices could only be employed by guild-masters to protect the mystery of the guild, and indeed such apprentices were legally obligated to serve seven-year terms. Under section 31, any aspiring proto-capitalists were to pay a fine of ‘forty shillings’ (two pounds) per month for the operation of such an unlawful enterprise. For ease of comparison, it is estimated that the average wage of (admittedly, an agricultural) labourer between 1541 and 1582 was six and one-half pence per day (under the pre-decimal system of librae, solidi and denarii, one shilling equalled 12 pence).[5]
As early industrialisation began to take hold, budding entrepreneurs sought to test the limits of the Statute. In 1689, an Ottoman Turk merchant was prosecuted under this section for having ‘employed clothiers that had served apprenticeships to work the clothes in his own house, at his own charge, and with his own materials, which he sent into Turkey as merchandize, but that the defendant [merchant] never served an apprenticeship’.[6] Before the King’s Bench, the learned prosecutor argued that to allow this practice would demystify the guild and that a ‘merchant cannot brew for transportation… though the poor men have wages, yet they have not the benefit of the trade as if they did it themselves’.[7] The Court upheld the prosecution, by majority. Eyres J (with whom Gregory J agreed) observed that it was a relation of employment where the merchant ‘provided them materials, and tools, and paid them wages… the whole managery was to be for his profit, and the workmen were to have no advantage but their wages’.[8] As Holt CJ held in a separate concurring judgment, ‘the defendant hath the same profit as if he worked himself; he receives a benefit and allowance from the party to whom he sells the commodity; he doth receive the gain belonging to another trade’.[9] In dissent, Dolbin J held that the statute was only intended to regulate guilds, and that it was in the common good to allow other enterprises to operate.[10]
Judicial intervention would water down the operation of section 31. In the 1756 case of Raynard v Chase, a merchant formed a partnership with a qualified journeyman (who was paid a separate management wage on top of partnership drawings) and employed apprentices.[11] The court unanimously ruled for the defendant, with the separate concurring judgment of Denison J succinctly encapsulating the logic that in distinguishing it from ‘the case of Hobbs v Young, the defendant was the superintender of the work, and did exercise the trade, without having any skill in it… here the defendant… leaves all the management to a partner who had skill; he himself never acted in carrying on the trade’, despite the submission of the learned prosecutor that ‘the scheme of a partnership with a qualified trader, would entirely frustrate the intention, and is directly contrary to the words of the Act’.[12] In the 1812 case of Keen v Dormay, a merchant employed a qualified foreman to supervise apprentices in the management of a mill wholly owned by the merchant.[13] Lord Ellenborough CJ held that Hobbs and Raynard were irreconcilable, that the section could not be said to apply to ‘gentlemen of great substance’, and that in any case, the ‘statute having been considered as against the general policy of the realm, has always received a restrictive construction in Westminster Hall’.[14] In making judgment, Lord Ellenborough CJ heavily relied on the economic reality of emergent capitalism and that ‘the Legislature [could not] have contemplated… an extensive concern of this kind’ requiring ‘the investment of capital by others’.[15] Yet it seems perverse for even an eminent jurist to overturn clear statutory language, especially on making a flippant statement that the statute was misguided to begin with. To extract Grose J’s concise discordant opinion in full:
I do not know how to say that this defendant was not a miller. He set up a mill, and conducted it himself upon the spot, and derived all the profits of a miller. It seems to me that he was more to be considered as the actual employer and master of the servants working in the mill than any other person.[16]
Ultimately, the court was evenly split so no order was made. Whatever one can say about the legal logic of Lord Ellenborough’s reasoning, it was obviously with hindsight economically prescient, and the provision would be repealed the next year as the inevitable logic of capitalism prevailed.[17]
The feudal nature of the Independent Bar
The notion that the legal profession operates akin to a feudal guild is not new.[18] However, those authors are American, from a jurisdiction without an independent Bar, and focus on protectionist elements of bar admissions across different US states and the internal structure of law firms with partners, who are, of course practising lawyers, functioning as guild-masters, and associates and graduates as apprentices. Henning argues that the ‘guild’ of the law firm has been recently eroded by law firm consolidation and the proliferation of in-house counsel, noting that in such cases the shareholders of publicly listed companies profit from the labour of erstwhile-apprentice employee lawyers. To that end, I would also observe the demutualisation of law firms in Australia, for instance, the public listing of Slater & Gordon (which was subsequently acquired by private equity), and the aborted attempt to list HWL Ebsworth.[19] However, while the law firm is increasingly demystified, the Independent Bar still adopts a feudal logic.
While the legal profession in some Australian states including Western Australia is fused, Queensland, New South Wales and Victoria maintain an Independent Bar. It is common across all three jurisdictions that barristers be sole practitioners, and not practice in partnership, or as an employer of a legal practitioner, or be employed as a legal practitioner by a law firm or other enterprise.[20] Therefore, the rule maintains the Statute’s prohibition on barristers being employed by a business, but is more extensive in the respect that if one adopts the analogy of senior counsel as guild-masters, they cannot employ junior counsel as apprentices. However, a barrister may ‘devil’ work to another barrister provided that the barrister who was originally briefed takes full personal responsibility for the work, delivers it under their name, the devilling arrangement does not go beyond an ordinary devilling arrangement towards a standing retainer or employment, and that the briefed barrister does not make a profit from the devil barrister’s work.[21] In this respect, the rule on devilling is consistent with the logic of the Statute as expressed by the Court in Hobbs v Young, as to adopt the language of the learned prosecutor before the King’s Bench three hundred and forty years hence, the poor devil retains the benefit of the trade as if they did it themselves.
Henning argued that ‘[u]ntil a quarter-century or so ago, the American legal profession was organized very much like a medieval guild. But like virtually every other medieval guild, ours also has disintegrated – though only recently’.[22] The question arises whether this forebodes the demystification of our own Independent Bar. For as much as the London Bar remains strong, there has been a sizeable influx of solicitor-advocates, including solicitor silks in recent decades, though this has slowed recently.[23] And indeed, from time to time, silks have been recruited by law firms as partners or employed consultants.[24] It is also trite to say that firms increasingly keep work in-house which would have once been the province of the junior Bar.
Perhaps one day we will have to resort to mythologising our own Ned Ludd and stamp our pleadings and submissions with a certificate of authenticity, settled by artisan barristers. If the artificial intelligence evangelists and millenarians alike are right, we might even succumb to the same fate as the weavers of old, our mystery encoded into the large language model just as the weavers’ mystery was into the mechanised loom.
[2] Simon Deakin, ‘The Return of the Guild?’ Network Relations in Historical Perspective’ (Working Paper No 322, Centre for Business Research, University of Cambridge, March 2006) 6.
[3] Artificers and Apprentices Act 1562 5 Eliz 1, c 4 (the Statute of Artificers).
[4] Statute of Artificers s 31.
[5] See W.H.R. Curtler, A Short History of English Agriculture (Clarendon Press, 1909) 355; James E. Thorold Rogers, A History of Agriculture and Prices in England (Cambridge University Press, 1902).
[6] Hobbs v Young (1689) 91 Eng Rep 517; 2 Salkeld 610.
[7] Hobbs v Young (1689) 89 Eng Rep 547; 1 Show KB 241.
[8] Hobbs v Young (1689) 89 Eng Rep 564, 565; 1 Show KB 266, 267.
[9] Ibid.
[10] Ibid; see also Deakin (n 2) 6.
[11] Raynard v Chase (1756) 97 Eng Rep 155; 1 Burr 2.
[12] Raynard v Chase (1756) 97 Eng Rep 155, 159; 1 Burr 2, 8.
[13] Keen v Dormay (1812) 104 Eng Rep 805; 15 East 161.
[14] Keen v Dormay (1812) 104 Eng Rep 805, 808; 15 East 161, 168.
[15] Ibid.
[16] Ibid.
[17] Wages, etc., of Artificers Act 1813 53 Geo 3 c 40; see Deakin (n 2) 9.
[18] See Michael Bard and Barbara A. Bamford, ‘The Bar: Professional Association or Medieval Guild?’ (1970)19 Catholic University Law Review 393; Joel Henning, ‘Bar Associations, Law Firms, and Other Medieval Guilds’(2005) 32(1) Litigation 17.
[19] Jerome Doraisamy, ‘Allegro passes 90% ownership of Slater & Gordon, names 2 new board directors’ Lawyers Weekly (online, 4 April 2023) <https://www.lawyersweekly.com.au/biglaw/37046-allegro-passes-90-ownership-of-slater-gordon-names-2-new-board-directors>; Sarah Thompson, Anthony Macdonald and Tim Boyd, ‘Back to work! HWL Ebsworth float called off’ (online, 26 November 2020) Australian Financial Review < https://www.afr.com/street-talk/back-to-work-hwl-ebsworth-float-called-off-20201125-p56hrs>.
[20] Barristers Rules 2011 (Qld) r 16; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 12.
[21] Barristers Rules 2011 (Qld) r 107; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 113.
[22] Joel Henning, ‘Bar Associations, Law Firms, and Other Medieval Guilds’(2005) 32(1) Litigation 17, 17.
[23] Ben Rigby, ‘Silk numbers fall as just one solicitor-advocate appointed in 2023 round’ (online, 23 December 2022) The Global Legal Post < https://www.globallegalpost.com/news/silk-numbers-fall-as-just-one-solicitor-advocate-appointed-in-2023-round-597485326>.
[24] Michael Pelly, ‘Top QC moves to “the other side”’ (online, 25 June 2021) Australian Financial Review < https://www.afr.com/companies/professional-services/top-qc-moves-to-the-other-side-20210621-p582y0>.
