History of the Bar
A barrister is a lawyer who has been 'called to the bar' – that is, admitted to plead as an advocate in the superior courts of England and Wales. Historically in the four Inns of Court a partition separated senior members of the profession from students, which barrier the students crossed when they qualified.
The history of the Bar begins in the 13th Century, when the first lawyers were appointed to plead on behalf of the plaintiff in the King's Courts (barristers and sergeants).
In the 14th Century, the four great Inns of Court – Lincoln's Inn, Gray's Inn, Inner and Middle Temple – were established, with barristers taking over the Temple from the Knights Templar. A gradual separation of functions began between barristers – advocacy and advisory specialists for whom the higher courts were reserved – and other lawyers, such as 'attorneys' and 'proctors'.
By the 19th Century, the development of the common law led to the appearance of other types of lawyers. Solicitors concerned themselves with property work in the Chancery Courts, employed to 'solicit' cases through the long and cumbersome process made infamous by Charles Dickens in Jarndyce v Jarndyce (Bleak House). Proctors operated in the ecclesiastical and admiralty courts.
In 1875 the functions of solicitor, proctor and attorney were merged and the title of solicitor adopted. Sergeants were also abolished leaving barristers as the advocacy specialists for the Higher Courts of England & Wales.
Trial by jury
In the 12th Century, Henry II established a jury system of 12 free men, mainly to try land disputes. Unlike our own jury system, this jury was investigative, and assigned to uncover the facts of the case, as well as arbitrate upon them.
Criminals were given a 'trial by ordeal', in which the guilt or innocence of the accused was determined by subjecting them to a dangerous experience of some kind. In some cases, the accused was considered innocent if they survived the test, or if their injuries healed; in others, only death was considered proof of innocence. If the accused died, they were often presumed to have gone to a suitable reward or punishment in the afterlife, which was considered to make trial by ordeal entirely fair.
However Article 39 of the Magna Carta can be regarded as the foundation of the modern concept of the right to a trial by jury:
"No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land."
However it took many centuries before a defendant in a criminal trial would have the right to representation, or indeed even the right to give evidence in his own defence.
Perhaps the most famous historical example of jury trial before representation by counsel was allowed was the trial of Penn & Mead at the Old Bailey (1670), where jurors refused to convict William Penn of tumultuous assembly, despite the judge's refusal to accept a not guilty verdict, and his stern direction that they must return "a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco....We will have a verdict by the help of God or you will starve for it." The imprisoned jurors were eventually freed by a writ of habeas corpus, and William Penn went on to found Pennsylvania.
The Criminal Bar
In the late 18th Century the English criminal trial was revolutionised from a private dispute between victim and accused into a public contest with advocates on each side.
The increasing role of rewards and of Crown witness protection in aiding 18th Century policing led to the danger, as several notorious cases made clear, of perjury on the part of unsavoury bounty-hunters, known as 'thief-takers', employed to deal with highwaymen and bandits.
Judges were the crucial factor behind the shifting balance between defence and prosecution. They came to accept a wider scope for the activities of lawyers, first in prosecution, and then, in reaction, in defence.
Judicial tolerance of the presence of defence counsel, and his increasing (and often unruly) involvement in the criminal trial, appeared to be in recognition of the fact that counsel, through cross-examination, were much more likely than an unrepresented layman to expose the perjured testimony and deliberate perversions of the truth that plagued the eighteenth-century justice system.
This finally led up to the Prisoners' Counsel Act of 1836 which cemented in statute the right of a defendant to be represented by counsel, and became the cornerstone of the modern adversarial system, developed in England and now one of our proudest and most influential international exports.