THE BARRISTERS' ROLL.

T is probably well worth while to put on record the history of

the Barristers' Roll, while that history can still be recovered and stated with certainty. To get at its origin we must go back to the first year of Queen Elizabeth. At the commencement of her reign the struggle between the Churches of England and Rome for supremacy in this country was acute, and disloyalty to the Crown on the part of the Crown's servants was a possibility against which it seemed well for the Sovereign to guard herself. With this purpose in view, an Act was passed-the first Act of the reign, I Eliz. cap. I -ordering that the holders of certain great offices of State, bishops, judges, and 'every other person having your Highness Fee or Wages within this Realm,' should take corporal oath of allegiance; and the words of the oath to be taken are set out in the statute. Barristers were not included in this Act, but four years later another statute (5 Eliz. cap. 1) was passed, extending the provisions of Eliz. cap. I to, amongst others, 'all manner of Person or Persons that have taken or hereafter shall take any Degree of Learning in or at the Common Laws of this Realm, as well Utter Barristers as Benchers, Readers, Ancients, in any House or Houses of Court' ... who shall take a corporal oath upon the Evangelists before he or they shall be admitted... to use, exercise, supply, or occupy such Vocation, Office, &c.'; and it is ordered that the oath to be so taken shall be the oath set out in 1 Eliz. cap. 1, s. 19.

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Early in the next reign we find the Benchers of Gray's Inn reminding the members of the Bar of their statutory obligations, by ordering at a Pension held June 7, 1605, that All suche as have bene called to the barre by penčon at any tyme before the next Readinge shall take the oathe of Supremacy accordinge to the Statute of Eliz: els ipso facto their call is to bee voyd and the like is ordered for all calls by penčon hereafter.' The Act 3 Jac. I, cap. 4 had ordered that the oath should be tendered to all persons suspected of being Recusants, but the subsequent Act 1 Jac. I, cap. 6, was much more comprehensive, and directed the oath to be taken by, inter alios, All your Highness subjects in the Inns of Court or that thereafter shall be admitted thereto. . . in Their open Halls.' This would include students as well as barristers. Presumably in consequence of and in obedience to this Act we find that at a Council at Lincoln's Inn held June 10, 1610, 'It is ordered that the oath of

allegiance shall be tendered unto all the gentlemen of the House, and the same to be taken openly in the Hall, with a note of all their names to be set down by the second Butler, who shall so take it.' And so things seem to have gone on till the troublous days of the Rebellion, when king and oath of allegiance went down together. At the restoration of Charles II to the throne, the statutory obligation to take the oath revived again as a condition precedent to a barrister's right to practise; and at a Pension at Gray's Inn held on June 1, 1660, it was ordered that 'on Munday next in yo afternoone the Readers, Benchers, and other Members of this Society in Grayes Inn Hall appeare to take ye Oaths of Supremacy and Allegiance.' At a Council held at Lincoln's Inn, June 28, 1660, it was ordered that 'for the future none shall be admitted to or be Associates at the Bench or Bar till they have taken the Oaths of Allegiance and Supremacy in such manner as hath been formerly accustomed in this Society before the late wars.' And that this order was strictly enforced we may gather from the record of a later Council held October 27, 1683, when it was ordered that the order made previously for the call to the Bar of Mr. Joseph Newton be vacated, because he presumed to wear a Bar gown and to practise as a Barrister, although he had not taken the Oaths of Allegiance and Supremacy.'

The Act 1 Wm. and Mary, Sess. 1, cap. 8 made important changes. It altered both the oath to be taken and the manner and place of taking it, though the persons and classes of persons under obligation to take it remained the same. The old Elizabethan oath was abolished, and a new one prescribed in its place, and set out in the statute. It was no longer to be sufficient that barristers should take the oath in the semi-privacy of their own halls; they must henceforth take it publicly in the Court of King's Bench (or, apparently, if they lived in the country, at the Quarter Sessions). The names of all who took the oath were to be enrolled, with the day and time of their taking the same, in rolls made and kept only for that intent or purpose, and no other. This enrolling enrolling' seems practically to have been construed into subscribing, and the rolls contain the signatures and not merely the names of those who took the statutory oath. These rolls became known as Swearing Rolls, and were sent from time to time to the Record Office, where they are preserved. As a somewhat recent instance of their subscription by barristers in common with others who were under statutory obligation to take the oath the roll dated Michaelmas Term, 1866, may be mentioned, on which the signatures of twenty-two barristers are sandwiched in between those of members of Lord Derby's administration 'on taking office.'

In 1868 the Promissory Oaths Act (31 & 32 Vict. c. 72) was passed, which not only repealed the Act of William and Mary so far as it affected barristers, but went even a step further. It practically forbade them to be sworn. 'No person,' runs the Act, 'shall be required or authorized to take the oath of Allegiance except the persons required to take the oath of Allegiance by this Act, and certain other recited Acts, 'any Act of Parliament, charter, or custom to the contrary notwithstanding.' The judges, however, held a consultation to consider the point, and formally decided that barristers were no longer to take the oath of allegiance upon call. As they were no longer to take the oath, it followed, of course, that they could no longer sign the Swearing Roll. Lord Chief Justice Cockburn, however, thought it highly desirable that there should still be some official roll on which barristers should be recorded, and it was consequently ordered by the judges that all barristers upon being called should sign a plain roll to be kept by the Master of the Crown Office. The first skin of this Barristers' Roll pure and simple, the Barristers' Roll as we have it to-day, calls for a word or two of description. The first signature on it is Thomas William Brogden.' The Law List gives the date of his call as November 17, 1868, and consequently he should not have taken the oath. One gathers, however, that he did so, and then subscribed an ordinary general Swearing Roll, as barristers had hitherto been wont to do, and that then the mistake in the procedure was discovered; for the original heading of this Swearing Roll has been cut off, and a new one stitched on, inscribed thus: In the Queen's Bench: Roll of Barristers. Michaelmas Term, 32nd Vict. 1868.' Immediately after Mr. Brogden's signature comes the following note: The following persons merely signed this Roll: the Court considering that the oath should not be taken by them.' It is neither signed nor initialed. Then come the signatures of other barristers of the same call as Mr. Brogden, the first signature being 'James Crawford.' On the back of this first skin is endorsed: 'Roll of Barristers signed Hilary Term, 1868. No oath was administered, it having been decided by the Judges that by 31 and 32 Vict. cap. 72, such oath was unnecessary. Thomas Norton.' Hilary Term,' of course, is a mistake for Michaelmas Term. The Bill only received the Royal Assent on the last day of July, 1868. Mr. Thomas Norton was Master of the Crown Office in 1868.

The special importance of this Barristers' Roll, beyond its primary purpose of officially recording the members of the Bar, is that a certificate under the hand of the Master of the Crown Office that a barrister has signed it alone provides such formal evidence of a call to the bar as will satisfy the rules of Indian and Colonial

Courts. I make this statement on the authority of the present Master of the Crown Office himself (Master Mellor), for whose kindly courtesy in responding to my request for information concerning the Barristers' Roll I am glad to find here an opportunity of expressing my thanks. The filled skins of the Barristers' Roll are sent about every twenty years from the Crown Office to the Record Office, where they are preserved.

I shall fitly conclude this paper by adding the text of the two oaths as set out respectively in (1) 1 Eliz. cap. 1, (2) 1 Wm. and Mary, Sess. I, cap. 8:

(1) 'I A. B. do utterly testify and declare in my Conscience, That the Queen's Highness is the only Supreme Governor of this Realm, and of all other her Highness Dominions and Countries, as well in all Spiritual or Ecclesiastical Things or Causes, as Temporal; and that no foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, Ecclesiastical or Spiritual, within this Realm; and therefore I do utterly renounce and forsake all foreign Jurisdictions, Powers, Superiorities and Authorities, and do promise, that from henceforth I shall bear Faith and true Allegiance to the Queen's Highness, her Heirs and lawful Successors, and to my Power shall assist and defend all Jurisdictions, Pre-eminences, Privileges and Authorities granted or belonging to the Queen's Highness, her Heirs and Successors, or united and annexed to the Imperial Crown of this Realm. So help me God, and by the Contents of this Book. (2) I A. B. do sincerely promise and swear, That I will be faithful, and bear true Allegiance, to their Majesties King William and Queen Mary:

'So help me God, &c.

'I A. B. do swear, That I do from my Heart abhor, detest, and abjure, as impious and heretical, that damnable Doctrine and Position, That Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be deposed or murdered by their Subjects, or any other whatsoever.

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And I do declare, that no foreign Prince, Person, Prelate, State, or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence or Authority, Ecclesiastical or Spiritual, within this Realm:

'So help me God, &c.'

G g

VOL. XXIII.

W. C. BOLLAND.

THE TRIAL OF PEERS1.

THE memory of King Henry VII appears to be under a cloud

just now. Sir Clements Markham makes him, instead of Richard III, responsible for the murder of the young princes in the Tower. Mr. Vernon Harcourt assures us that the modern practice with regard to the Court of the Lord High Steward is largely founded upon a gross fraud, une impudente supercherie, committed apparently by or on behalf of' him. A report in the Year Books, we are told, was forged by him, or his minions, in order to create a precedent for the trial of the Earl of Warwick.

Mr. Harcourt leads up to the discussion of this 'absolute forgery' by a 'history of the office' of Steward,' from its origin to the period when it ceased to exist as an hereditary dignity,' and, in so doing, seems to belittle the office as much as possible in the earlier stages of its existence. He traces the evolution of the Steward from the dapifer of the Norman Court, whom he describes as being not an officer of State, but one who discharged some household functions. One Osbern, a dapifer, he says, was nothing more than head nurse of the palace, and sewer in the ducal household; still, 'to give him his due, he was nothing less than the protagonist (sic) of His Grace the Lord High Steward of England.'

...

A dapifership, he tells us, became hereditary in the family of Beaumont, Earls of Leicester, in the reign of Henry II. On the accession of Richard I the style dapifer . . . began to drop out of use, the style seneschal [or steward] taking its place.' On his return to England, after a visit to France in 1253, Simon de Montfort, Earl of Leicester, 'assumed in his charters the style of Steward of England (Senescallus Angliae). Now this style had never been assumed by his predecessors in title, and its adoption undoubtedly signified on the part of Simon de Montfort a deliberate policy of self-aggrandisement.'

Passing over the intermediate stages we find the stewardship in the House of Lancaster, and at length in the hands of Henry, son of John of Gaunt Duke of Lancaster, afterwards King Henry IV, as in right of his Earldom of Leicester. With the deposition of

1 His Grace the Steward and Trial of Peers: A novel Inquiry into a Special Branch of Constitutional Government. By L. W. Vernon Harcourt. London: Longmans, Green, & Co. 1907. 8vo. xii and 500 pp. (16s. net.)