Imágenes de páginas



place would have been occupied by that distin- social, political, and moral sentiments of the comguished judge, Lord Justice Lindley, who, as munity. chairman of the council for some five years, has, To-day we stand, as were, on the banks of a with the loyal co-operation of his colleagues, acting mighty volume, which, swollen by many tributary under difficult conditions, done much to improve streams, taking their rise from many different our system of legal education. For myself, I have sources, spreads fertility in its stately and beneficent no such services to point to. It is one of the many

Our law has for its foundations equity and drawbacks of a busy, professional life that, however utility the only foundations on which, as Edmund great one's interest in such a subject may be, and

Burke well says, law can fitly rest. however strong one's views, the time necessary In the historical portion of my address I avail manifest usefully the one, or to give practical effect myself of the evidence given before the Gresham to the other, is not available.

Commission of 1892, and particularly of that of my I propose to myself to-night but one object, and friend, Mr. Montague Crackanthorpe, who has been that is to endeavor to give, what I conceive to be, a

so earnest and steadfast an advocate of improvement much-needed stimulus to the cause of legal educa- in our legal educational system, but whose voice tion. With that object in view, I shall ask you to

has so often been as the voice of one crying in the

wilderness, follow me whilst, with needful brevity, I consider

I do not approach the subject exclu- . 1, the past history of legal education in England; sively from the stand point of the professional lawyer. 2, its present state; 3, its state in other countries; Some training in law ought to be part of a liberal

education, and, finally, 4, the shortcomings in our present

* Every man is supposed to know the system, and how those shortcomings may best be law,” expresses a legal presumption, and is one of remedied and a system of legal education established those legal fictions which Sir Henry Maine says plays on a broad and enlightened basis.

so important a part in our legal history. The wisdom One word I must premise. I speak here in no

of the councilors of the Stuart times prompted the representative character. I have no mandate from passing of a law compelling the eldest sons of nothe benchers of my own Inn of Court — Lincoln's

bles and of great land owners to go through a Inn — nor from any other body of men. I speak

course of legal training to fit them for the due diswith no other weight or authority than may properly charge of the duties appertaining to their station. belong to the merits of what I say. But I would To-day all classes and all grades of society have the fain hope that in this hall, and in a wider circle

same need. The wisdom of Parliament has widened outside it, I shall find responsive echoes, and that,

the area, not only of the rights but also of the duas the result, the effort may once more be made, and

ties of citizenship. It is hardly exaggeration to this time successfully made, to establish what West- say that every citizen, from the humblest to the bury and Selborne hoped and worked for, namely,

highest, has his share in the government of his a great school of law fit to interpret and to teach,

country. to this and to future generations, the noblest system It is, therefore, not alone professional lawyers, of law which, take it for all in all, the world has nor legislators, nor justices of the peace, nor sons of known.

nobles, who take part in the actual government of In speaking of our law I would avoid, on the one

the country, and therefore consequently require to hand, the undiscriminating praise of Blackstone, know something of its laws. The need extends to and, on the other, the uncompromising censure of all classes. It includes the unambitious, but neverBentham. Our law is no doubt unsystematic in its theless important, rôle of municipal councilors, character; it is labyrinthine; it is disfigured by county councilors, school board members, parish crudities, which it is gradually rejecting; it is insu- councillors, and the rest. It extends also to our lar, and therein lie at once its weakness and its diplomatic and consular services. strength. But its faults are faults of form and Bentham described the state of our law in his method rather than of substance. It bears the day as chaotic, and although his teaching (with that marks of its native origin. It is not a system of others) has done something towards its improvefashioned by the great minds of one day or genera- ment, much is still needed to simplify and systion. Its growth, like that of our Constitution, has tematize it. The value of his teaching, as is so been slow. It is instinct with the genius and often the case, was bui tardily recognized, and it is peculiarities of the mixed race from which it has somewhat curious that many of his works were first sprung. It is elastic in its character, and it follows, published in a foreign tongue and in a foreign slowly indeed, but surely, the needs of society, country. . always changing and always progressive – bringing I for one am strongly convinced that there is no itself more and more closely in accord with the factor which will prove so potent for the simplifica


tion and the systematization of our law, as its scien A brief glance at the character of the legal tific teiching in a great school of law, which shall instruction given in the Inns will suffice. Originbe open to all who desire to avail themselves of it, ally, “inns,” in the literal sense of lodging but whose curriculum shall be framed mainly with and boarding their students, they imparted lea view to those who propose to follow the law as a gul instruction in lectures and in « moots” and profession in one or other of its branches.

like exercises; the greater part of study, however,

being done, as must always be the case, by the Past IIistorY OF LEGAL EDUCATION.

student in his own chamber. Fortescue, in the I recur to the points on which I desire to dwell, forty-ninth chapter of “De Laudibus” (which chapand first a few words about the past history of legal | ter has, however, been attacked as apocryphal), is education. Need I say that that history means in represented as writing thus: “There is both in the effect the history of the Inus of Court ? I propose Inns of Court and the Inns of Chancery a sort of an to speak on this point with marked brevity of the academy or gymnasium fit for persons of station, period up to 1816, when the report of a committee, where they learn singing and all kinds of music, of the House of Commons did much to rouse the dancing, and such other accomplishments and diInns of Court and the profession from the lethargy versions (which are called revels) as are suitable to in which they had long lain. It is impossible to their quality, and such as are usually practised at speak of the Inns of Court without emotion. They court. At other times, out of term, the greater are unique in the history of the world. They

part apply themselves to the study of the law. are private, unincorporate associations, and, except Upon festival days, and after the offices of the for such difference as the confirmatory charter of church are over, they employ themselves in the James I. may have made in the case of the Temple study of sacred and profane history. Here everyInns, they hold their property on no express trust, thing which is good and virtuous is to be learnt. and probably on no enforceable implied trust. Yet, All vice is discouraged, and banished, so that during their venerable history, they have now with knights, barons, and the greatest nobility of the greater, now with less zeal, fostered legal education; kingdom often place their children in those Inns of and further, they have, by their discliplinary au Court, not so much to make the laws their study, thority, uniformly upheld a high standard of pro- much less to live by the profession (having large fessional conduct. If they had done nothing but patrimonies of their own), but to form their manthis last, the world would be largely their debtors. ners and to preserve them from the contagion of What a suggestive history is theirs !

What an

vice." illustrious roll of men they have sent forth to add I will not stop to inquire how far this pleasing to the wisdom and to the literary and scientific picture can be historically justified. One thing is wealth of the world--statesmen, poets, philosophers, clear, that again and again earnest men in the projurists, advocates and judges! Their history sends fession of the law lamented the deficiencies of the us back to the thirteenth century, when our Consti Inns of Court as legal seminaries. Bacon, Lord tution was still crude and unformed. They were, Verulam, is loud in his lamentation at the absence when the new worlds were not within our kin. of what he calls a “legal university” in London. They have seen the advent of those new worlds and “which shall impart legal knowledge and befit men the social and political transformation of the old. for public life.” Meanwhile, in the universities, They have witnessed the long struggle for, and the the study of law, except the canon law, was Degfinal attainment of, constitutional freedom which lected. Chroniclers agree that the period from the the labors of their children did much to secure. sixteenth to the eighteenth century was marked by But if it be charged against the Inns of Court that apathy in the Inns of Court; that legal instruction they have in great measure been stationary, while and legal learning were on the whole at a low ebb; society in its progression has been giving birth to and, co-incident with that apathy, and in part, fresh needs—that they have been slow to follow in probably, because of it, arose that system of special paths along which they ought to bave led—that in pleading, the painful record of whose subtleties fill the matter of legal education they have uot acted many volumes of laborious law reports. I do not up to the full measure of their opportunity and their wish to be misunderstood. In its original concep responsibility, I think that by no candid judge can tion, special plearling was sound. It radically they be assoilized from these charges. I speak not meant nothing more than this — that the essentali of the calling and disbarring powers of the Inns of conditions, on which a claim was based, or the Court; that would be foreign to the subject in answer to that claim rested, should be clearly stated hand.

It is enough to say that these weighty without redundancy. But that object was soon powers have been exercised with a single view to overlaid by a mass of technicality in which, as has the interests of the public and the profession. been well said, the science of statement was made

to appear more important than the substance of the sities, in which jurisprudence often forms the chief right. In our civil suits this system has gone by faculty, and that, through the legal faculty, supthe board, but its spirit still survives in our criminal plied with numerous courses and tested by efficient procedure.

examinations, not only the future lawyer, jurist, In our civil procedure, the enemy against which civilian, and solicitor, but the future diplomatist we have now to guard is not over-technicality, but and official must necessarily pass. It declared that redundancy and prolix statement, often of imma a system of legal education ought to comprehend terial matter.

and to meet the wants, not only of the professional,

but also of the unprofessional student, and that, for PRESENT STATE OF LEGAL EDUCATION.

the purposes of a comprehensive system, the four I pass to the consideration of the present state of Inus of Court should be constituted an aggregate legal education. I start from the report of the of colleges, or law university. The final resolution Commons Committee, 1846, already referred to. of the committee contains a covert threat that if One of the principal witnesses examined by it was the Inns failed voluntarily to take the initiative in Mr. Richard Bethell, afterwards Lord Westbury, the suggested direction, recourse should be had to and it is significant of the conservative spirit of the a royal commission with a view to compelling them. age, and of the profession (I am speaking in no po- | The report besides contains much valuable matter litical sense) that although that report is now nearly as to what ought to be the scope and character of half a century old, we have to-day to deplore a the system of legal education to be pursued. state of things as existing now which in large meas The single net result of this report was the forure existed then.

mation in 1852 of it standing council of eight The action of the other branch of the profession benchers, representing all the Inns, to frame a of the law had done something to quicken the pub. scheme of lectures open to the members of each of lic conscience. In 1832 the charter of the Incorpo- the Inns. This standing counsel was the germ of rated Law Society had been obtained and the body the council of legal education. Subsequently, five of solicitors bad aimed at insuring adequate legal readerships were instituted, viz., in jurisprudence education for those who desired to be enrolled as and roman law, real property, common law, equity, solicitors. Since 1836, a satisfactory public exam

and in constitutional law and legal history. This ination has been a condition precedent to admission was undoubtedly a step in the right direction. It as a solicitor, but it was not until 1872 that a simi was in this state of things that I made my way to lar rule came into existence for aspirants to the bar. the Bar, and I recall with gratitude the benefit I In 1833 some of the Inns appointed Readers or Lec- derived, especially from the lectures in jurisprudence turers in Law, but the students of Lincoln's Inn and Roman law of the late Sir Henry Maine, and in could not attend the lectures at the Temple, nor equity of the late Mr. Birkbeck. But still there Temple students the lectures at Lincoln's Inn was no guarantee of competent legal learning as a There was no concert between the Inns, and, there- preliminary to call. The student had his choice fore, no system of education for the profession as a either (1) to pass an examination, or (2) to attend whole.

for one year two sets of the lectures, or (3) attend The report of the committee of 1846 is a scathing for a like period in a barrister's, pleader's, or concondemnation of the then state of things. The veyancer's chambers. committee arrived at several important conclusions.

I will not stop to point out how slight the eviIt resolved that no legal education worthy of the dence of competent knowledge which any of these name, of a public nature, was then to be had. It

tests afforded, and how illusory were the last two. called attention to the striking contrast in this re It was the taunt levelled at the Bar that, while in gard between England and the more civilized States other professions and in handicrafts long service and of Europe and America. It pointed out that, special preparation were considered necessary as a amongst other consequences of the want of scien- guarantee of fitness, there was no such safeguard in tific legal education, this country was deprived of a the case of the Bar. The taunt was the harder to most important class, “the legists or jurists of the bear because it was based on truth. It was said continent, men who, unembarrassed by the small that a man had only to “eat his way" to the Bar, practical interests of the profession, are enabled to which was a contemptuous mode of condemning apply themselves exclusively to law, as to a science, the requirement of keeping term by dining in hall. and to claim by their writings and decisions the I do not join in that condemnation. I maintain reverence of their profession, not in one country that the requirement is wise and useful, but it must only, but in all where such laws are administered.” not stand alone. Just as much of the advantage of It pointed out that the legal education of the con- university life springs from the association of tinent is conducted in connection with the univer- | students in their studies and sports, so the meeting

[ocr errors]

in Hall, for even the common place purpose of They had, however, ultimately some definite and
dining, has its direct advantages. Friendships are important results. Time does not permit, por is it
formed, schemes of mutual encouragement in study necessary, that I should trace chronologically and
are set on foot, a spirit of emulation is cultivated, in detail the gradual evolution of the consolidated
a feeling of good fellowship springs up, the rough regulations until finally they attained their present
edges are smoothed off, and a standard of manners character, However much we may think that we
aud of conduct attained, which, fashioned by the are still far off a system of legal training worthy of
students in the aggregate, will generally be found the name, we should indeed be ungrateful if we did
to be higher than in the average individual. A not recognize the progress made in face of difficul-
disciplinary force is also thus brought into action ties and opposition almost incomprehensible.
which lasts during professional life. I do not hesi It will suffice to summarize the results. They
tate to say that to the association which so largely were these: 1. An official examination before call
prevails amongst us are in great measure to be is made compulsory. 2. The council of legal educa-
attributed in the first place the honorable character tion is increased to twenty members. 3. Its powers
which the Bar as a whole has always maintained, are enlarged. 4. A board of studies formed by it
and in the second place, the fact that, although our devotes mueh pains to the character of the lectures
profession is one in which men are brought into and of the examinations. 5. The public are in
close and severe personal competition, there is a future to be admitted to the lectures; and 6. In
marked absence of jealousy and ill-will amongst us, addition to the ordinary lecturers and assistant
and a generous appreciation of men according to lecturers, the council may arrange for special lectures
their deserts.

by special lecturers.
In 1855, a royal commission was appointed “to The enlargement of the powers of the council and
inquire into the arrangements of the Inus of Court, the securing admission of the public to the lectures
for promoting the study of the law and jurisprud- are important recent gains, and are due to the
ence, the revenues properly applicable, and the strenuous efforts of the present members of the
means most likely to secure systematic and sound council of legal education.
education for students of law, and to provide satis I am glad to know that, at the instance of the
factory tests of fitness for admission to the Bar.” council, Mr. William Willis, Q. C., has undertaken
Amongst the commissioners were Sir William Page to deliver six lectures on the “Law of Negotiable
Wood, afterwards Lord Hatherley, Mr. Justice

Instruments." I hope other distinguished' memColeridge, Sir Alexander Cockburn (then attorney bers of the profession will follow this example. I general), and Sir Richard Bethell (then solicitor- hope also that the judges will not forget tbat Story general).

and Kent found it possible to instruct the world by The character of their inquiry and their report is their learning even wbile discharging the onerous like that of the committee of 1846, already dealt duties of the judicial office. with. It condemos the existing state of things, and

Before I pass from this subject I desire to state recommends the formation of the four Inns of what is the actual instruction now offered, and what Court into a legal university, with power of con

is the actual test of fitness before call to the Bar unferring degrees in law, and that the necessary funds der the existing system. I reserve till a later for carrying out the scheme of education shall be moment some criticism on both these points. provided by the Inns of Court. It lays down the According to the existing regulations, the currinecessity for a preliminary examination of candi- culum embraces Roman Law and Jurisprudence, dates before admission as students at the Inns, and International Law, Constitutional Law and Legal of an examination before call to the Bar. The Inns History, and English Law (including Equity) in all of Court acted promptly upon the suggestion as to its branches. There is a staff of readers and assisthe preliminary examination, but the final or test tant readers, the readers being appointed for three examination was not adopted, as I have already years, and the assistant readers on terms left to the said, till 1872.

discretion of the council. The lectures and classes The movement inaugurated by the late Mr. Jevons are carried on throughout the year, except during solicitor of Liverpool, in 1868, taken up by Sir vacations. There are four examinations for call to Roundell Palmer, and followed by a resolution de the Bar in each year, and each person must pass a bateil in the Commons in 1872, affirming the neces satisfactory examination in Roman Law and Constisity for the establishment of a law school, followed tutional Law and Legal History, and in English in turn by Sir Roundell Palmer's (then Lord Sel-Law, including Equity; but the council may accept bornej bill of 1877 with that object, which obtained an equivalent for tlie examination in Roman a second reading in the House of Lorils all these Law certain university degrees and testamurs. events passed lightly over the heads of the benchers. I think that the curriculum here shadowed forth

[ocr errors]
[ocr errors]

The range

is sufficiently comprehensive, and that if really applying himself to the actual practical work of the studied and mastered it would adequately equip the profession in solicitors' chambers. That period is law student for the grave responsibilities of profes- passed in the learning of law, historically and sciensional life. But is there any guarantee that it is tifically considered. studied and mastered ? I shall later recur to this Professor Elliott, of Harvard university, writing matter; but, first, I turn to the third head of my in the American Law Review, speaks of the revolusubject, viz., the state of legal education in other tion in legal education effected in recent years; how countries.

the old system of sending students to chambers, be

fore they knew anthing of the history and principles STATE OF LEGAL EDUCATION IN OTIIER COUNTRIES.

of law, had been completely discarded, and with Time compels me to make the briefest reference the best results, and previous systematic teaching in to European systems. In the collegiate and univer

the law schools had taken its place. According to sity system of Europe, law holds a much more im

the report of the American Bar Association for 1894 portant place than with us, and the professor of these annual reports afford much instructive readlaw, who is also generally the text-writer and jurist,

ing), there were then existing in the United States holds — and rightly — a much higher position. In

seventy-two law schools, attended by 7,600 law France there are eleven seats of faculties of law,

students. In such schools there were engaged aland before joining the law school each student

together some 500 professors whose business is the must obtain the degree of bachelier-ès-lettres. To

teaching of law. The schools are for the most part become qualified as an avocat he must be : licentiate

in connection with universities, but it is to be noted of law, and this involves an attendance at law lec

that, altlıough this is so, the majority of students tures for two years or more, and the passing, dur- do not in fact obtain university degrees. The pering this course, of several examinations.

centage students who have such a degree varies of subjects is wide, and includes the study of law

from seventy-six per cent in the case of Harvard scientifically and historically treated, as well as law

students, to seventeen per cent in the case of stufor practical professional uses. In Germany the law

dents of the Columbian university. student requires, as a preliminary to admission as a

The range of subjects is comprehensive, and peristudent, a certificate of proficiency in classical and

odical examinations take place in class throughout modern literature, and in mathematics. In general,

the course. The system of teaching itself is largely attendance at the law lectures of university profes

catechetical. There are constant moots or exercises. sors is obligatory. In Berlin the curriculum extends the professor is always at hand to give advice and over some three years, and applies to as many as

assistance. ('ases are argued by the students, the sixteen legal subjects, or subjects cognate to law. In a word, these foreign systems show that the professor acting as judge, and care is taken that the

student shall really appreciate the matters discussed, teaching of law on a comprehensive and scientific

by having brought before him and placed in his system is regarded as a matter that concerns the

hands, in class, specimens of actual instruments, State. It is, therefore, carried on under public re

leases, contracts, policies of insurance, pleadings and sponsible authority, principally in comection with

the like, so that he reaches, in a way in which he is the universities. Cogent proof also is required that the man who proposes to practise the law as a pro- deduced from the concrete illustration given.

likely to keep hold of it, the principle sought to be fession shall be adequately equipped for the duty.

I observe also, as a matter of interest, that the I turn to the state of things in the great Western Republic, where our own system of law largely pre

Bar Association, which annually ineets in one or

other of the States to discuss matters affecting the vails, expanded and modified to meet the existing conditions of society. Sir Frederick Pollock, writ- | Bar, the Judiciary, and the legislation of the couning in the Low Quarterly Revier of 1892, speaking try, has appointed a section called the “ Legal Edu

cation Section,” which charges itself with the disof the improvements then contemplated by the Inns

cussion of all matters affecting that important of Court, and now carried out by the Council of Legal Education, says that, "if worked with zeal subject. With all this care and zeal, I note that

the need of further improvement is still urgently and intelligence, the Inns of Court may, possibly,

pressed. within a few years be not much inferior as a center

Enough has, I think, now been said by me to of legal instruction to an average second-rate Ameri.

show that we must bestir ourselves if we are, in can law school.” He is no mean authority upon the

this country, to keep our proper place in the march subject. The general system in the United States

of educational progress. may be described briefly thus: The law student is required to spend froin eighteen months to two DEFECTS IN OUR SYSTEM OF LEGAL TRAINING. years — sometimes more – in a law school before I now come to the concluding head of my sub

« AnteriorContinuar »