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The Jersey Law Review - February 2005

SHORTER ARTICLES AND NOTES

THE GUERNSEY ADVOCATE - A SHORT HISTORY

Gordon Dawes

1       The office of advocate of the Royal Court of Guernsey has a long history; that is perhaps unsurprising given the ancient origins of the Royal Court itself.  More noteworthy is how early those origins are, and, in particular, certain distinctive features which have survived over the centuries to this day.  Hoüard 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.

This may be translated as follows –

“… under the reign of the Norman Dukes, the Advocates were called Conteurs,[1] either 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.”[2]

2       Hoüard further tells us 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 in 1315 to the disgruntled people of the duchy[3] 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.[4]

3       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.”

This may be translated as follows –

“Advocates existed in the Isles at least from the beginning of the 14^th 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.”[5]

4       The spirit of this oath has remained unchanged in Guernsey ever since, and indeed in Jersey a similar oath is still renewed by the advocates annually.[6]  Le Patourel cites two Assize Rolls and the example of a Nicholas Choffin, placitator[7] 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 medieval royal courts of the Islands.”[8]

5       By the time that Terrien’s Commentaires du Droict Civil tant public que privé, observé au pays & Duché de Normandie appeared in 1574 there was plainly 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 & invention” which otherwise led to unacceptable delay dates back to the time of Charles VII of France who reigned between 1422 and 1461.[9]  William Le Marchant enthusiastically endorsed Terrien as follows -

“… il n’y a rien de plus juste et nécessaire à observer en la Court de la ditte Isle que la deffense qui est faite aux Advocats … D’estre prolixes en leurs procès, et de les grossir de raisons inutiles ou impertinentes, et de proposer usages, styles, coustumes, ou faits non véritables … De trouble la Court, vexer les parties, et tirer les procès en longueur par requestes inciviles, impertinents, ou mal fondées …”

This may be translated as follows -

“… there is nothing more just and necessary to observe in the Court of the said Island than the prohibition against advocates being prolix in their cases and inflating themselves with useless or ridiculous reasoning or proposing non-verifiable usages, procedures, customs or facts … troubling the Court, vexing the parties, and drawing out cases by uncivil, extravagant or misconceived claims …”.[10]

6       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[11].  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![12]

7       A little over a century later in 1682 Warburton noted the power of the Court to limit the number 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.  Warburton thought this was a good idea leading to causes being defended with “equity and decency”.[13]  Again the requirement that a cause be at least signed by an advocate survived until very recently.[14]

8       Laurent Carey, a Jurat between 1765 and 1769, in his Essai sur les Institutions, Lois et Coûtumes de L’Île Guernesey wrote at some length on the subject of advocates, devoting 11 pages to the topic.[15]  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 …”

This may be translated as follows -

“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 …”[16]

9       The statement is itself an interesting aside as to how Roman law was regarded by an 18^th century Jurat.  However, 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 (which is again of interest, in that he does not refer to the English Bar)-

“En France, surtout dans les Cours 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 trės 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.”

This may be translated as follows -

“In France, especially in the Royal Courts, in order to be a successful advocate it is necessary to combine with 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.”[17]

10     Quite what the Guernsey Bar of the time would have made of this somewhat faint praise is not related by history.  Meanwhile, in 1777 the number of advocates was limited by ordinance to just six; although Havet[18] 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[19], although not so as to affect 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.

11     There was a similar limit on the number of advocates in Jersey, abolished in 1860.  In Guernsey the limit endured until it was finally abolished in 1896.[20]  This work is interesting also for noting the qualification requirements for the Guernsey Bar introduced by the 1896 ordinance, which are not dissimilar to the current day requirements.  By contrast, the Law Officers were still permitted to act for individuals in civil proceedings, notwithstanding their office.  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.[21]  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”.[22]

12     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.”[23]

13     The advocates’ profession changed little during the first two-thirds of the twentieth century; but 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.  There is also a Chief Pleas dinner, another institution with a very ancient history.

14     In summary, the profession of Guernsey advocate dates back to medieval times and continues in a form easily recognisable today.  The Guernsey advocate is bound by an oath which is as important and relevant now as when first recorded many centuries ago.  The advocate remains answerable to the Royal Court as an officer of that ancient institution and bears a heavy responsibility both to the Court and to his or her clients.  There is a certain irony that recent procedural law reforms in England take as their theme matters which have been the subject of an advocate’s oath since the 14^th century.

Gordon Dawes is an advocate of the Royal Court of Guernsey and a partner of Ozannes, Advocates and Notaries Public.  He is the author of The Laws of Guernsey, published by Hart Publishing of Oxford.

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