Henry Fielding – Tom Jones

A Barristers, Attorneys, and Petty-foggers

Popular perception in the 17^th and early to mid 18^th centuries saw an attorney as “a man with only a smattering of learning which he used badly while trying to make as much money as possible.”²⁶¹ A petty-fogger²⁶² (“pettifogger”) was (is) an attorney who supports (his) practice by fomenting and extending litigation for (his) own benefit. Pettifogging was an “inevitable” consequence of the rapid expansion in numbers of attorneys in the 16^th and 17^th centuries; there were “too many lawyers for them all to make an honest living.”²⁶³ Attorneys and pettifoggers were also looked down on because they were in every respect considered to the social and professional inferiors of barristers.

Attorneys were attracted to the profession as a means of improving their social status. In the 17^th and early 18^th centuries almost anyone could hang up (his) shingle and commence practice.²⁶⁴ It was not until 1729 that legislation was passed prohibiting practice as an attorney without proper admission to the Roll.²⁶⁵ However, attorneys’ training, such as it was, remained a form of apprenticeship. with clerks of the court, or (more commonly) attorneys “previously sworn and admitted.” Attorneys were wholly dependent on the diligence (or lack thereof) of their masters for the quality of their training, unencumbered, as it was, by the “more useless frills of education.”²⁶⁶

²⁶¹ Christopher W Brooks Pettyfoggers and the Vipers of the Commonwealth – The ‘Lower Branch’ of the Legal Profession in Early Modern England (Cambridge University Press, Cambridge, 1986) 178–79.

²⁶² “A little dirty attorney, ready to undertake any litigious or bad cause: it is derived from the French words petit vogue, of small credit, or little reputation.” See Francis Grose The 1811 Dictionary of the Vulgar Tongue available at accessed 25 July 2007.
²⁶³ Robert Robson The Attorney in Eighteenth Century England (Cambridge University Press, Cambridge, 1959) 139. Animadversions on the Present Laws of England etc, a pamphlet published in 1749 (as was Tom Jones) illustrates contemporary attitudes which saw law, in the hands of lawyers, as a source of oppression rather than relief says (quoted by Robson at p 138):
“Some … inferior practitioners not only instigate the unwary to unjust and unreasonable litigations, but whilst their money lasts, dissuade them from amicable and equitable accommodations; and instead of being peace-makers, are promoting the breach thereof, even among the best united friends.”
²⁶⁴ Robson, above n 263, 10–11.
²⁶⁵ An Act for the Better Regulation of Attornies and Solicitors 1729 (Eng), 2 Geo II, c 23, ss v–vi.
²⁶⁶ Robson, above n 263, 53.
“Gentleman barristers”, however, were typically drawn from the landed gentry and nobility (as Fielding was), enjoyed a liberal education, usually in the classics or science, before being admitted to one of the Inns of Court where they received in depth training in the law. ²⁶⁷ Attorneys’ lower social status, and particularly the prejudice against their “mechanical learning”, compared with the “scientific learning” of barristers, is revealed in the classification of law at the time as “… consisting of two parts, practice and judgment. The former was the preserve of attorneys; that latter, that of barristers.”²⁶⁸ Dowling belongs to the former group as Fielding’s subtle mocking of his lack of knowledge of Latin and the classics reveals. At the alehouse on the road to Coventry, Tom quotes a lengthy passage from Horace’s Ode 1.22, assuming that Dowling will recognise passage and understand the allusion he is making (“dear Lalage” is Sophia).²⁶⁹ And it is to “counsel” that Dowling turns to when Allworthy asks for advice on prosecuting of Black George for the theft of Tom’s £500.²⁷⁰