Advocate

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A painting by John Helier Lander shows advocates renewing their oath of office at an Assize d'Heritage in Jersey's Royal Court

The name used, wherever a legal system is based on the Roman Code, for the lawyer who in England is called a Barrister. He was known in the Old Coutumier as a Conteur. Advocates have been attached to the courts of Alderney, Guernsey and Jersey from early times. (Nicolas Galicien, Plaidator, is mentioned in 1299.) The Ordinances of 1323 lay down the oath they must swear.

History

Howard in his Dictionnaire Analytique, Historique, Étymologique, Critique et Interprétatif de la Coutume de Normandie of 1780, himself an Advocate in Rouen, says that in Normandy and in England:

"… sous le regne des Ducs Normands, les Avocats s’appelloient Conteurs, soit parce que leurs plaidoyers se réduisoient à l’exposition du fait, soit parce qu’ils devoient pour exercer leurs fonctions être approuvés par les Juges des Contés ou Comtés." (Under the reign of the Norman Dukes, the Advocates were called Conteurs , whether because their pleadings amounted to expositions of fact, or because, in order to practise, they had to be approved by the Judges of the Contés or Comtés.)

Howard further records that when William the Conqueror became King of England he ordered that those who intended to defend the causes of his subjects should be instructed in schools neighbouring his palace. These Advocates were said to enjoy "great distinctions", including the privilege to speak before him with their heads covered.

The Charte aux Normands granted by Louis X le Hutin (the Quarrelsome) in 1315 to the disgruntled people of the Duchy assumed the existence of a body of Advocates given its reference to the earnings of Advocates and their (annual) oath, albeit the form of oath is not set out.

Julien Havet in his Les Cours Royales des Iles Normandes of 1878 states that:

"Les avocats existent dans les îles au moins depuis le commencement du XIVe siècle. Les ordonnances faites pour Guernesey par les justiciers itinérants de 1323 contiennent un article spécial sur les devoirs des avocats et sur leur serment: il leur est prescrit de jurer qu’ils ne plaideront que des causes justes, qu’ils serviront fidèlement leurs clients et qu’ils ne traîneront point les procès en longueur par des chicanes vaines, le tous sous les peines que la cour jugera à d’infliger aux contrevenants et ce serment doit être renouvelé tous les ans à la cour qui suit la Saint-Michel. (Advocates existed in the Isles at least from the beginning of the 14th century. Ordinances made for Guernsey by the itinerant justices of 1323 contain a special article on the duties of advocates and their oath: they are required to swear that they will plead only just causes, that they will serve their clients faithfully and will not draw out the process through futile chicanery all subject to such penalties as the court resolves to impose upon those who contravene and this oath must be renewed every year to the court following {the feast of} St Michael.)"

The spirit of this oath has remained unchanged in Guernsey ever since, and in Jersey a similar oath is still renewed by the Advocates annually during the sitting of the Assize d'Heritage.

Guernsey

Le Patourel cites two Assize Rolls and the example of a Nicholas Choffin, placitator in Guernsey, accused of delaying actions in the King’s court by making frivolous exceptions in 1299. There is reference in the same year to a Nicholas Galicien placitator in Jersey. He refers also to Havet and concluded that: 'There is … clear evidence of a body of advocates or professional pleaders in the medi royal courts of the Islands'.

By the time that William Terrien’s Commentaires du Droict Civil tant public que privé, observé au pays et Duché de Normandie appeared in 1574 there was a clearly established body of Advocates both in Normandy and in Guernsey which was the subject of various regulations and obligations. Indeed many of the provisions set out in Terrien have much earlier origins. For example a requirement that Advocates be brief in their pleading given the profession’s tendency to subtilité et invention, which otherwise led to unacceptable delay, dates back to the time of Charles VII, who reigned between 1422 and 1461.

The Advocate’s articles which are recited by the Greffier to this day before the oath is administered to a new Advocate of the Royal Court of Guernsey are to be found word for word in Terrien’s 430-year-old text. The extent of regulation as long ago as 1574 was surprising, requiring Advocates to live in towns, to wear decent clothing, a long robe, a round hat (presumably the precursor of the toque) and not to wear beards!

In 1682 Warburton noted the power of the Court to limit the numbers of Advocates as well as their obligation to take an oath before the Court. In particular he comments on the positive requirement of the time that no cause could be brought before the Court without the parties being legally represented. The requirement that a cause at least be signed by an Advocate survived until very recently.

Roman origins

Laurent Carey, a Jurat between 1765 and 1769, in his Essai sur les Institutions, Lois et Coûtumes de L’Île de Guernesey wrote at some length on the subject of Advocates. He traces the origins of the office back to Roman times, citing Cato and Quintilian in the context of the need for probity as the essential foundation of an Advocate’s eloquence. He wrote in considerable detail concerning the moral, intellectual and linguistic qualities required of an Advocate. Continuing in a Roman theme Laurent Carey also observed that:

"On ne doit pas plus s’attendre que nos Avocats aient une connaissance parfaite des principes du Droit Romain, qui est la source de toutes les bonnes lois. (One can no longer expect that our Advocates should have a perfect knowledge of the principles of Roman Law, which is the source of all good laws.)"

Having evoked the highest qualities imaginable as the standard to be achieved by the Guernsey Advocate he does make some concession to local circumstances by drawing an unfavourable comparison with France:

"En France, surtout dans les Courts Souveraines, il faut pour être un habile Avocat, joindre aux qualités et aux talents don’t j’ai parlé, une grande pureté de langage, une éloquence de style, une richesse d’expressions, brillantes et fleuries, une belle et noble élévation de pensées, une sage vivacité d’imagination et ce qui en est une suite, un art merveilleux de peindre les objets jusques à les rendre sensibles, et pour ainsi dire palpables par le secours des figures qui, ménagées avec adresse, animent le discours, le soutiennent et lui donnent de l’élévation. C’est là, je l’avoue, des talents qu’il serait tres difficile, pour ne pas dire absolument impossible de trouver parmi nous dans des personnes disposées à embrasser la profession d’Avocat. Mais on y peut rencontre une éloquence suffisante pour exprimer clairement les pensées judicieuses de l’esprit, pour éclaircir dans une cause les points les plus difficiles, pour représenter aux Juges les matières de fait dans leur véritables jour, pour développer les intrigues de la chicane, et une imagination assez vive pour n’omettre aucun argument en faveur de la partie qu’elle veut défendre.”
Which translates as: "In France, especially in the Royal Courts, in order to be a useful Advocate it is necessary to join to the qualities of which I have spoken, a great purity of language, an elegant style, an ability to express oneself richly, brilliantly (even) floridly, with rarefied thoughts, a wise and lively imagination, and what follows from that, a marvellous ability to depict matters in such a way as to make them comprehensible, in other words by the help of figures of speech, which, managed adroitly, animate speech, sustaining and elevating it. These, I avow, are talents which it would be very difficult, if not absolutely impossible to find amongst us in those persons disposed to embrace the profession of Advocate. But one can encounter a sufficient degree of eloquence to express clearly judicious thoughts, to clarify in a cause the most difficult points, so as to present to Judges matters of fact in their true light, to expose the intricacies of bad arguments, and an imagination lively enough not to omit any argument in favour of the party they wish to defend.”

Numbers limited

In 1777 the number of Advocates was limited by ordinance to six although Julien Havet wrote in 1878 that the provision was of little practical effect, the maximum number of Advocates rarely being achieved. It is noteworthy that the limitation on the number of Advocates coincided with the rise of the Écrivain, a form of lesser qualified lawyer restricted in the services that they could provide. As their name suggests, they specialised in areas such as conveyancing and the drafting of wills. The office of Écrivain was abolished by ordinance in 1932, although not so as to effect existing Écrivains, who were allowed to continue in practice until retirement.

It was only during this period that the legal profession was in any sense split in Guernsey. The Advocate combines the rôles of the English barrister and solicitor in a single profession. The limit of six endured until it was finally abolished in 1896. The qualification requirements for the Guernsey Bar, introduced by the 1896 ordinance, are not dissimilar to the current day requirements.

The changes of 1896 led to some dispute. One Wyndham Peel, an Englishman, in particular, took exception to what he perceived to be an infringement of the rights of his countrymen, although he himself was already a member of the Guernsey Bar. Peel wrote articles which offended the sensibilities of the Royal Court. He was summonsed by the Bailiff, T Godfrey Carey, and suspended from practice for four months. The Jurats included one General de Vic Carey who declared that Mr Peel "had forgotten not only that he was a member of the Royal Court, but also that he was an English gentleman".

Other activities

The Guernsey Bar has always been an enterprising body. Duncan in 1841 noted that:

“The profession of an advocate in Guernsey differs from that of an English barrister, as the former may act both as an attorney and a notary, nor is it considered derogatory for them to hold agencies quite foreign to forensic pursuits, such as agencies to fire and life insurances in England. Indeed, the same may be said of the jurats, and both classes may be, and are frequently, officers in the militia.”

The Advocates’ profession changed little during the first two-thirds of the twentieth century however, change was rapid from the 1970s onwards as the Channel Islands became an increasingly important and busy international financial centre. There are now in excess of 100 Advocates in Guernsey practising within increasingly specialised areas of law. However, the office still very much survives in a form recognisable to their predecessors. Nowhere is this clearer than in the oath and articles of a Guernsey Advocate, the continuing requirement to have a French law qualification and to be examined in Guernsey law to the satisfaction of the Royal Court. The Advocate continues to be an officer of the Royal Court and subject to its authority. Another surviving tradition is the requirement for all Advocates to present themselves at Michaelmas Chief Pleas when the roll of Advocates is called, albeit not to renew their oaths.

Jersey

Until 1860 their number was limited to six, and they were chosen without any test by the Bailiff; but in that year the Bar was thrown open to any British subject who had lived ten years in the island and possessed the necessary English or French diplomas, or had passed a local law examination.

The legal profession is fused in that advocates may appear in all Courts and may perform all the work of a solicitor. A solicitor (ecrivain) performs all the usual work of a solicitor but may appear only in the Petty Debts Court. To qualify as an advocate it is necessary to have passed the English or French bar exams, or the English solicitors' final exams, and in either case a set of Jersey exams which may include exams at Caen University.

Alternatively solicitors may qualify by only taking Jersey exams. Many of the locally qualified advocates and solicitors have worked outside Jersey. There are presently approximately 92 practising advocates and 42 practising solicitors. In addition, many offices have English qualified assistants. There are also about 26 English qualified solicitors practising as English solicitors in Jersey.

Lists of Jersey Advocates

References

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