The War of the Motions: Silk Precedence in the Court of Exchequer, 1834-39

From the Dublin Morning Register, 24 February 1836:

“By some strange combination amongst the clients, almost all the law business of the country is brought into the Court of Exchequer, the Common Pleas being perfectly idle, the judges absolute masters of their own time, and being frequently met with at one o’clock in the day during the middle of term at Kingstown or Howth, enjoying a little country air ‘after the fatigues of business.’ Unfortunately it does not appear to be the policy of this court either to accommodate the public or the junior bar; the rights of the latter it has attempted to crush altogether.

I allude more particularly to Baron Pennefather’s decision the other day, when he sat to hear the arrear of motions. On the last of the eight motion days this term the juniors had precedence, but that day was altogether consumed by a motion which stood over from some days before, and which was argued by King’s Counsel. A junior counsel got up to move as soon as Baron Pennefather got on the bench, but that learned, self-sufficient and infallible baron at once stopped him by saying that he thought the inner bar had not had sufficient opportunity of moving and that he should call on them.

It was in vain that the junior replied that the junior bar had no opportunity of moving on any other day. The learned baron was inflexible, and he called on his brother, Mr Pennefather, to move, and next on his brother-in-law, Mr Bennett. Both had their bags well filled and the court to themselves for many hours, while the junior bar, whose right to precedence was never before questioned, was for several days deprived of the exercise of that right, to the serious loss and inconvenience of themselves and their clients.

A JUNIOR BARRISTER.”

At the time, eight days were set aside for motions in the Court of Exchequer each term, with no advance listing of motions and with Seniors having precedence in relation to moving same save on the last of the eight days, when Juniors had precedence (at least once the choir of Christchurch had finished singing).

Complaints about senior motion privileges had already been aired in the Inquirer in May 1834, when it had been stated that the effect of the precedence given to KCs in that court in relation to the moving of motions, each having the right to move three, had had the effect of almost creating a monopoly for ‘that portion of the bar who want it least, having surmounted the difficulties of an arduous profession.’

The same article also pointed out that because of the weight of business in the Court at the time, ‘an entire term will often elapse before the junior who may have been entrusted with some motion can get an opportunity to move it.’

The February 1836 letter provoked a reply from another barrister (gown material unstated) which described the profession as having more confidence in the Court of Exchequer, and as more satisfied with the manner in which business was carried on there, than in any other court (the fees were also higher!) and saying that the charge of self-sufficiency and want of courtesy against Baron Pennefather was one with which very few members of the bar would concur, and that the good baron had in fact subsequently gone to the trouble of sitting on additional motion days to ensure all junior bar motions were dealt with before vacation.

In November 1837, when junior bar motions were again not dealt with in full during the eight motion days, and had to be assigned an additional motion day, the junior bar did not attend at all on this additional day. Whether intended as a statement or not, this non-appearance failed to make any impression at all on Baron Pennefather, who merely remarked that he hoped that there would be no more complaints about motions not being heard.

Of course, the junior bar’s objection to seniors taking precedence at Exchequer motions was not really about motions not getting on, but more about discouraging senior practice in motion lists, it being thought that if the senior bar had to wait around in line they would not be interested in engaging in this sort of work at all, thereby leaving the field free for their junior colleagues.

In January 1839 junior bar agitators took the further step of calling a general meeting of the bar to vote on a resolution that motions in the Court of Exchequer be listed according to their dates and called in the order of the list. Although the resolution was carried, it all came to nothing when the then father of the bar, Mr Dickson QC, insisted on having it engrossed and left in the library for signature, thereby giving members a second chance to decide as to whether to vote for call in order of the list or in order of seniority. Possibly as a result of pressure from the senior bar, a number of juniors then changed their mind, with the majority of signatures ultimately favouring call in order of seniority.

Their covert attempt to discourage the senior bar from appearing in motion lists having failed, the agitators fell back on the more extreme tactic of having QCs excluded from motions altogether – something which met with surprising judicial support. In June 1842, the Dublin Register gleefully reported that

“The Lord Chief Justice [of the Queen’s Bench] refused the other day to hear Mr Brewster make a motion of course, which should, by right, have been made by a member of the outer bar.  His lordship observed that he could not sanction silk gownsmen making those motions which properly belonged to the junior branch of the profession.  Mr Hatchell came on the following day to make a similar motion, and Mr Justice Crampton, acting upon the preceded given by the Chief Justice refused to hear him.  We trust that the other two courts, particularly the Exchequer, where so much junior business is done by Queen’s Counsel, will following the example set by the Queen’s Bench.”

Before long, the Courts of Exchequer and Common Pleas had followed suit in barring seniors from moving any but the most complex and involved motions. Perhaps, if Mr Dickson QC had not acted to frustrate the resolution of 1839, the senior bar might not have lost their motion practice so definitively.

The Lord Chief Justice so instrumental in excluding QCs from motion work was the very same Edward Pennefather previously accused by the junior bar of having unfairly taken up motion time which should have gone to junior counsel. Shocking though the letter at the start of the piece may have seemed at the time, it certainly seems to have achieved its objective – and then some!

The 19th century junior bar was a formidable group unafraid to argue its case against silks and solicitors alike! More to come!

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