The serjeants remained however, till 9 & 10 Vict. c. 54, the only advocates recognised in the court of Common Pleas. In that court they retained their right of exclusive audience, which privilege extended to trials at bar, but not to trials at nisi prim), either at the assizes or at the sittings in London and Middlesex.
Attempts hiul been made previously to place the court of Common Pleas upon the same footing in this respect as the other courts at Westminster. A suggestion to that effect was made by Sir Matthew Hale, in his `Considerations touching the Amendments of the Law.' In 1755 it was proposed by Sir John Willea, then chief-justice of the Common Pleas, that the court should be opened to all barristers. The judges met, and, after much discussion, expressed their opinion against the plan, which was strongly opposed by Lord Hardwicke. It was nearly a century before effect was given to the enlightened views of Sir Matthew Hale and Sir John Willes.
In 1834, while the Central Criminal Court bill was in the House of Lords, a clause was introduced for opening the court of Common Pleas.
This clause was withdrawn before the bill was sent to the Commons.
But on 24th April, in that year, a royal warrant issued, ordering and directing that the right of practising, pleading, and audience in the court of Common Pleas should cease to be exercised exclusively by the serjeants-at-law, and that barristers-at-law should have and exercise equal right and privilege with them of practising, &c., in that court.
The warrant professed to give to such of the serjeants then in practice as were not king's serjeanta, and had not patents of precedence, as an especial mark of royal favour, precedence over any king's counsel who might be thereafter appointed. This warrant was filed in the court of Common Pleas on 25th April, from which time until January, 1840, it was acted upon by the court. During this period no persons applied for the coif, except those who had received an intimation that they were to be made judges.
In 1837, a petition was addressed to her majesty by the queen's serjeants and two other serjeants who had not availed themselves of the clause of precedence contained in the warrant of April 24, 1834, suggesting that the warrant was illegal, and praying that the legality of that document and the expediency of the alteration might be duly investigated. The illegality of the warrant was asserted chiefly upon
the prescriptive rights of the serjeants, coeval with the existence of the courts themselves ; but also on some merely technical grounds. A memorial was at the same time presented to the chancellor, in which it was submitted that such an alteration could only be made by act of parliament.
The petition being referred to the privy council, the question was argued on 10th January, 1839, and again on 2nd February. A strong opinion was expressed as to the illegality of the warrant, but the court separated without coming to any conclusion.
In November, 1839, a motion was made in the Common Pleas by Wilde, as the senior practising serjeant, that the exclusive right of audience of the serjeants-at-law, which had been suspended in obedience to the warrant of 1834, should be restored; and at the close of Hilary term, 1840, the right of being heard as counsel and of signing pleadings in causes depending in the Common Pleas, was declared by the court to belong exclusively to the serjeants-at-law. The legislature then took up the question seriously, and the monopoly of the serjeants was abolished by 9 & 10 Vict. c. 54.
Serjeants had formerly not only exclusive audience in the Common Pleas, but had also in all other courts pre-audience over all other advocates. They are still addressed by the judges as brothers, by which title they speak to and of one another.
Though the king was represented in each of his courts at West minster by one or more persons as his attorney and solicitor-general in one or all of those courts, no one formerly pleaded as counsel for the crown except serjeants. In the patent of a king's serjeant, he was appointed by the king " Serviens Nester ad legem, et Narrator pro Nobis in curiis Nostris, in quibuscunque negotiis Nos tangcntibus." Afterwards when the king's attorney, as it usually happened, was an apprentice, he was allowed not only to appear as attorney, but to plead as advocate for the crown in those courts in which apprentices were permitted to practise, and when so employed he claimed and exercised, for the benefit of the crown, a right of pre-audience over serjeants pleading for ordinary clients in those courts. Afterwards the attorney general exercised a right of pre-audience even when not engaged for the crown.