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ject, namely, What are the shortcomings of our the questions put ? Questions which, through a system of legal training, and bow can these short- long series of years, bear a strong family recomings be remedied ?
semblance one to another. Do, we quite realize But here it will be said, Why should we what ought to be implied in the possessor of trouble ourselves ? You admit that our system is the status of barrister ? “ Barrister learned in better to-day than in former times, yet in the worst the law.” Can we truly say that a tithe of the stutimes we have had at least a good bar and a dents who attain pass certificates deserve that honreasonably good jucliciary." I would say in answer orable description ? From inquiry I have made, I that the same objection could be made, and indeed | have reluctautly come to the conclusion that, with has been made, when in the past history of reform all the care taken, the examinations are such as can and progress any change was advocated. It is true be satisfactorily passed without any prolonged we have had a good bar and a good judiciary, but study, and without any real learning, under the we have had these, not because, but in spite of, our guidance, for a comparatively short period, of the system of legal education. A better system will skilled crammer. not make our bar less able or our bench less learned.
I will give two illustrations of cases, the facts and Considered as a profession merely to deal with the circumstances of which I have taken the trouble litigation of the country, the bar has always been carefully to verify. One relates to the state of competent for that task. As the bar is, so is the things prior to December, 1894, when certain alterabench, which is recruited from the bar. But tions were made with a view to greater stringency surely we should aim at a higher ideal than this for in the examinations. The student in question was the bar and bench of England Have we ever con an Oxford mau. He took his degree in law, but sidered how small a part that bar and bench play only in the fourth class. His knowledge of Roman in the field of jurisprudence and legal literature ? law, however, was so deficient that he could not Except in the United States, there are few of our pass in that subject. He therefore required to pass text writers known, and even in the United States in Roman law under the auspices of the Inus of the number is becoming less and less, as authors of Court. He came from the university in the sumnative growth spring up; and few even of the mer of 1894. Later in that year, learning of the greatest judgments of most distinguished | contemplated change, he wished to try to pass unjudges are to-day cited in any legal forum but our der the easier system. He went to a coach in the
I know that this, in part, is accounted for beginning of November, and after one month's by what I have already «escribed as the insular coaching, he passed a so-called “ satisfactory "ex character of our law; but this is not an explanation amination in the subjects in the curriculum, includof the whole case. What are our treatises and ing Roman law. Need I stop to point out how text-books? What are the arguments of counsel ? | absurd it is to suppose that this gentleman had acAnd, indeed, what are the judgments of our judges? quired any real grasp of the subjects in which he Are they much more than a nice discrimination of was examined. decided cases? I am speaking, I need not say, of The other case relates to a student under the later the rule to which there are exceptions. I firmly be- and more stringent regulations. He obtained his lieve that much of this is attributable to the ab- degree at Oxford in Science in the summer of 1994. sence, through succeeding generations of lawyers, while at the University he had never attended any of a comprehensive and scientific system for the lectures upon Law, and his first reading for the Bar teaching of law. Nor do the effects of our want of began in October, 1894. In December, 1894, be systematic teaching end with the bench, bar and passed his examination in Roman Law. In April text writer; their effects are also, I firmly believe, to of 1895 he passed his examination in Constitutional be traced in the unmethodical, unsystematic char- Law and Legal History, and, having passed such acter of our legislation.
examinations, he began, for the first time, to read But can it ever be safely predicated of our pres- with a view to the examination in English Law (in. ent system that the test examinations, under the cluding Equity) of which he had no previous improved regulations, supply any guarantee of com- knowledge.
kuowledge. He obtained the services of an intellipetent knowledge? I have admitted that mastery yent coach, and, after two months' coaching, he, of the subjects in the curriculum would be ade- in June, 1895, passed a "satisfactory "examinaquate equipment for the bar. But are the subjects tion in Englislı Law, including Equity. What did mastered ? Are they digested and understood by that examination cover ? It covered (1) Elements the students, or, is it not the fact that students of Real and Personal Property and Conveyancing, with but slight and superficial knowledge of the including Leases, Settlements and Mortgages ; (3) subjects dealt with, are able, with the cram Contracts and Torts, Sale of Goods and Agency ; mer's assistance, to answer it fair proportion of (3) Trusts, Principles of Equity, Administration of
Assets on Death, and Partnership ; (4) Criminal curriculum, I desire to mention that students have Law anıl Criminal Procedure, and Civil Procedure complained to me that the lectures, whether in the and Evidence. Thus, after a period of altogether lecture-room or in the class-room, are sometimes eight months' study, this gentleman was supposed essays merely, and frequently above their heads. to have acquired some substantial knowledge of They say, that, when the lecturer is speaking of Roman Law and Jurisprudence, Constitutional Law legal documents, examples of the actual things are and Legal History, English Law (including Equity), not put before them, and they fail to realize them. Civil Procedure (including Evidence) and Criminal They say the classes are not sufficiently catechetical, Law and Procedure. And in two short months of and that when the lecturer has delivered himself he these eight months he was supposed to have acquired disappears, and is not available for advice and asa knowledge of the English Law sufficient to en sistance from day to day in moments of doubt and title him to practice it as a profession.
difficulty. It is certain, if these complaints are well These gentlemen were both gentlemen of intelli- founded, that they point to serious defects in our gence, and gifted with remarkable powers of methods of instruction. memory. They bad not mastered the Law, but On the whole, therefore, is their not reason to what they had done was, under the skillful direc- think that our system of education is not satisfaction of the coach, to learn the answer to a large tory, that it is not thorough, that it does not supply proportion of the questions which the previous ex any real test of adequate knowledge, that we are in perience of the coach enabled him to say would too great a hurry to manufacture barristers, and that probably be put in the various papers. In the lat- by this course we are neither recognizing our reter of the two cases, the student was assured that sponsibilities to the public nor the true interests and he bad answered properly more than three-fourths dignity of the profession of the law ? of the questions put; but he candidly confessed I do not profess to be competent to lay down the that he could not answer them now, that they had lines of a proper and adequate system, but I am faded from his memory, and probably the most that satisfied that we shall never have such a system this so-called legal training has done for him is to until legal education is placed under the control of familiarize him with the books in which he may an authority dillerently constituted from that which find the information useful to him, when he comes now exists, and I shall only make such further deto the actual practice of his profession. It may, of mands upon your patients as will enable me to course, be urged that the crammer is a difficulty in justify this view, and to suggest for your consideraany system where examination is made the test. tion the constitution of such an authority as might That is so, and hence the suggestion arises whether | fitly be entrusted with this great work. a better or some additional guarantee of learning What are the objections to the Council of Legal may not be secured by some other method.
Education? To begin, it is the creation of the conCompare our legal system with the elaborate care certed action of the four Inps of Court, and, thereand training in the medical and surgical schools. | fore, the dissentient action of any one of them might As has recently been well said by Sir Edwin Ar- updo it, though I admit this is not a probable connold, the labors of educational preparation for tingency. Its powers are limited. It has not a these professions grow, year by year, harder and free hand. Although it has now powers of initiative, harder — and so they ought. To be up to the that initiative may at any moment be checked by any high-water mark of proficiency, a young doctor one of the lons of Court. It is composed solely of must to-day be a chemist, physiologist, botanist benchers of the Inns. This I conceive to be a grave mechanician, and many things besides.
defect. It is composed of men of advanced age-of Indeed, the history of medical education in recent men already fully burthened with the weight of proyears, from the time when the College of Physicians fessional and judicial work. Why should not the zeal and the College of Surgeons commanded the princi- and energy of younger men be utilized ?
Aye, and pal avenues to the profession to the changes wrought of men outside the profession of the law, if they are by the legislation of 1858 and 1886, affords an in- able to brivg useful experience with them? Again, structive example of the improvements that may be why are solicitors and students in that branch of the effected under a body such as the General Medical profession excluded: Down to the middle of the Council clothed with public responsibility, and sixteenth century all members of, and students for, broadly representative in its character. It shows either branch of our common profession were alike also how university teaching may be utilized, even part and parcel of the Inns of Court.
I have never in a profession in which a large part of the needful understood how the solicitors were then properly training is highly teclinical, practical and experi excluded. The lines of study of the two branches mental.
must be, to a large extent, similar. Why should Before leaving the subject of the existing legal | they be kept apart? Their separation is a waste of
power and a loss of advantage to both. This was so England and the Clements of Ireland, and in our time
which shall be in close touch and sympathy with See the enormous gain to the cause of legal educa- the Inps of Court, but shall not be governed by tion from the junction of the two branches. With then—a body with public responsibility, which increase of numbers comes increase of emulation shall be free to call to its aid, from any quarter inamongst the students, and consequent incitement to side or outside the profession, men whose experience the teachers to put out their best efforts, which the and attainments best fit them for the work of legal chilling influence of sparse attendance at lecture or
education. in class will not bring forth. Have the Inns' lec. INNS OF COURT School OF LAW SUGGESTED. tures, even under the improved system, been a suc How such a body to be brought into existence! cess? Look at the attendance, In 1892, only 582, Two schemes have been suggested. One is that in whilst in 1893 the number had fallen to 460, and in connection with a teaching university in London 1894, to 384. But since the Council of Legal Educa- there should be founded a Faculty of Law to be en tional has secured freedom of admission to the pub- dowed by the Inns of Court. In reference to this lic to all the lectures (all credit to them for it) it scheme, it is, perhaps, at this time enough to say would seem to be impossible even if it were desir- that there is not at present any teaching university able — which, in my opinion, it is not — to keep up in London in connection with which such a faculty the separation.
could be founded, and the scheme which I proA word as to the teaching staff. say nothing to
pound would not prevent such a connection being their disparagement. Far from it. I have no doubt established should that course hereafter appear dethey are able
but many of them are men with sirable. whom teaching is not the business of, but only an My proposition is that a royal charter should be incident in, their professional lives. For a large obtained to establish a school of law, to be called, class of subjects which must be taught, for example, say, “The Inus of Court School of Law.” The Jurisprudence, Roman and Constitutional Law and senate, or governing body should consist of, say, Legal History, International Law and Comparative thirty members, ten to be nominated by the Inns of Law, we want a professional class of teachers; and Court, ten by the crown, one each by the lord chanwe must make it worth the while of able men to cellor, the lord chief justice, and master of the rolls, devote themselves to such teaching as a calıing. one each by the four universities of Oxford, CamThis class we cannot hope to have, without being bridge, London, and Victoria, and three by the Inin a position to ofler adequate reward and security corporated Law Society. These figures are merely of tenure, and these in turn we cannot give unless suggestions. Personally, I should desire to have and until the system of legal education is under a
some of the governing body elected by the free voice body of men permanently constituted, so as to com
of the profession as a whole. I should not limit the mand the confidence of the public and the profes- representatives of the Inns of Court or of the Incorsion, a body invested with adequate powers clothed porated Law Society to members of their own bodies with public responsibility and amply endowed.
respectively. In this way, coupled with the nomiOne other word as to the teaching staff. If we nating power of the crown and of the universities, cannot at once get here all the right men we want security would be had against that narrowness which, for the work, we must look for them elsewhere, even in spite of ourselves, has a tendency to creep into if we have to go far afield for them. No narrow purely professional associations. I attach importinsular spirit should interfere with the selection of ance to the universities being directly represented the best men. Athens did not repel the master of on the governing body, because (amongst other reaSocrates because he hailed from the coast of Ionia, sons) it would render it easier, and with safety, to nor Aristotle, because Stagira was his birth-place. determine what degrees and what testamurs might The most famous schools of the European continent properly be accepted in the case of university studerived their fame from the genius of the Alcuins of dents and graduates, and it would tend towards es
tablishing that connection of legal education with and which, probably, may usefully occupy those university training which, with advantage, largely earlier years of professional life when professional prevails in other countries, but is almost wholly work is insufficient for full oceupation. wanting in our own. I should confer on such a I have now done. I feel how perfunctory my body the power of granting academic distinctions, treatment of this great subject has been, for a great and I should commit to it in fullest confidence the subject it undoubtedly is. settling of a scheme of peliminary examination, of I shall be content, if to earnest minds inside the systematic instruction, and of final tests of fitness profession and outside it (for it is not merely a profor the profession of the law. A difference would, fessional question), I have saist enough to inspire no doubt, have to be made between Bar students the conviction that the effort ought now to be and others. But that is a matter of detail. I think made to end a state of things certainly not credisuch a scheme, well considered in all its parts, ought table to the profession of the law, and surely disto receive the sanction of the Inns of Court, and advantageous to the community. would receive the warm support of the profession Never at any time, in any State, has there existed generally. It continues the name of the Inns of such a conjunction of circumstances as marks LonCourt—as it ought to be continued—in connection don pre-eminently to-day as the seat of a great with the cause of legal education. The new creation school of law. We are here at the very heart of would be, in effect, their child. On the governing things, where the pulse of dominion beats strongbody their voice would be powerful, and to the Inns est, with a population larger than that of many of Court, I need hardly say, we must mainly look kingdoms-a great center of commerce, of art and for the funds to carry on the work in worthy fashion. of literature, with countless libraries, the rich deThe Inns of Court to their credit, be it said-have pository of ancient records, and the seat at once of never shown a spirit of parsimony. On the existing the higher judiciary, of Parliament and of the sovsystem the annual expenditure amounts to some ereign. From this point is governed the greatest £7,000. If the lectures and classes are made attrac-empire the world has known. From our midst go tive, I doubt whether any larger sum, or, at all
forth to the uttermost ends of the earth, not merely events, any substantially larger sum, would be re
those who symbolize the majesty of power, but hapquired to work the scheme which I advocate.
pily with them, those who represent the majesty of I have said that to this body I would confidently
Law — Law, without which power is but tyranny. entrust the work of education. To the Inns of
It has been well and truly said that there is Court I should still leave untouched, in all their hardly any system of civilized law which does not fulness, those functions of discipline, those powers in some portion of the empire. In parts of Can
govern the legal relations of the queen's subjects of calling or refusing to call, and of disbarring, ada, French law, older than the first empire, modiwhich they have hitherto exercised with honor to themselves and with advantage to the public and to
fied by modern codification, prevails – in other the profession. To the incorporated Law Society, parts, the English system; in Australia, English
law modified by home legislation in those self-govin like manner, I should leave untouched such analogous authority as they now possess. The pith and erning communities; in parts of Africa, Roman law
with Dutch modifications; in the West Indian colsubstance, then, of what I have to urge is the necessity for establishing a school of law. To the onies, Spanish law modified by local customs; in governing body of that school of law will fall the India, now the Hindoo, now the Mahommedan law, working out of a wise and comprehensive system.
tempered by local custom and by local and imperial
legislation. A word of warning is perhaps hardly needed, but
If the empire of our arms is wide, so, happily, is I will utter it. However perfect the system, its
the empire of our law. For this wide and varied fruition must mainly depend upon the energy and field, the ultimate legal court of appeal is the judiintelligence of the student. After all, the main cial committee of the privy council. Before that function of teaching is to teach men how to think, tribunal the bar of England aspire to practice, and to give them a grasp of principle, to put them on on its benches aspire to sit. the right track, to give them a clue to the laby
Surely these facts suggest great possibilities and rinth, to inspire them with enthusiasm for the pro
great responsibilities. Is it an idle dream to hope fession, that they may work with a will, inspired that, even in our day and generation, there may
here arise a great school of law worthy of our time by a lofty idea of the dignity of the profession of the law, of its duties and of its responsibilities. sciences, to which, attracted by the fame of its
worthy of one of the first and noblest of human Nor will any system dispense with the need of teaching, students from all parts of the world may practical study in the chambers of a working law-flock, and from which shall go forth men to pracyer, which, however, may well in the case of stu tice, to teach, and to administer the law with a dents for the bar), be postponed to a later stage, I true and high ideal of the dignity of their mission?
SOME NOTABLE SCOTCH LAWYERS through life, and more than once got him into difi-
culties. So early as 1822, while still an advocate
depute, he came into collision with the House of N the legal annals of Scotland the families of Commons. Mr. Abercromby (afterwards speaker)
Hope and Dundas have a remarkable record in had brought under the notice of the House the the number of judges they have given to the bench relations of the lord advocate and certain of his of the Court of Session. of the Dundases five at- subordinates with two newspapers in Scotlandtained the judicial dignity; this, however, is out the Beacon and the Sentinel — which, in a very done by the Hopes, who can claim six representa- short time, achieved an unenviable notoriety by tives as senators of the College of Justice, and of the number and virulence of their attacks on this number three were brothers. These three were
political opponent; and, in the course of his the sons of Sir Thomas Hope, of Craigliall, the speech, Abercromby animadverted in severe terms founder of the legal dynasty, who for many years on Hope's conduct as advocate-depute in conheld the office of lord advocate in the reign of nection with a prosecution relating to the affairs Charles I. With Sir Thomas was initiated the cus of these newspapers-conduct which, it was altom which long prevailed for the lord advocate to . leged, was intended to prejudice the trial of Stuart plead in court with his hat on, this privilege being of Duncan, who, in a duel arising out of libellous granted to him, as it appeared unfitting that a man productions in the Sentinel, had killed Sir Alershould plead uncovered before his sons.
ander Boswell. Part of the attack on Hope was nection with our present sketch we are concerned based on a misapprehension, but Hope was naturally only with Sir Thomas' third son, Sir James Hope, indignant, and, in a letter which he addressed to of Hopetoun. This Sir James was the grandfather Abercromby, he gave vent to his indignation in of the first Earl of Hopetoun, from whom was de strong terms. This letter, being brought before the scended Charles Hope, of Granton, for many years House, was voted a breach of privilege, for which lord president of the Court of Session; he married its author was ordered to attend at the bar, and his cousin, a daughter of the second Earl of Hope- give an explanation of his conduct. In obedience toun, and of that union John was the eldest son, to this order Hope attended, and, in a speech marked
John Hope was born on the 26th May, 1794, and by a good deal of spirit, he explained that, while was educated at the High School and University of he regretted having been guilty of a breach of the Edinburgh. Following in the footsteps of his dis House's privileges, he had felt compelled to adopt tinguished father, he entered the Faculty of Ad- the course he had, to vindicate his honor as a provocates on the 232 Nov., 1816.
lord fessional man and as a gentleman. The House was president for his father, closely comected with the favorably impressed with his speech, and, accordnoble family of Hopetoun, with opinions on politi- | ing to Hansard, le withdrew “amidst loud and cal affairs in harmony with those of the govern- continued cheers.” Some discussion followed, and ment of the day, and with powers of no mean or- eventually it was resolved that no further steps der, Hope might be classed among those who have should be taken in the matter, in view of the exgreatness thrust upon them. His rise was extra-planation which had been offered. ordinarily rapid. Three years after his admission Mention has been made, in the sketch of Sir James to the faculty he became an advocate-depute under Moncrriff in this series, of Hope's protest that he, Sir William Rae; and when only of seven years' as solicitor-general, was entitled to take precedence standing he obtained the office of solicitor-general. of Moncreiff as dean of faculty, and of Moncreif's From the first he appears to have been somewhat answer to the protest. Both on this occasion and impetuous. Scott, writing in his - Journal,” thus in 1829, when Jeffrey was elected dean, Hope berefers to him: * Walked home with the solicitor- haved with much magnanimity. At that time it decidedly the most hopeful young man of his time; was not unusual for the offices of lord-advocate or high connections, great talent, spirited ambition, solicitor-general and dean of faculty to be combined a ready elocution, with a good voice and dignified in one person; the rule securing a fair distribution manners, prompt and steady courage, vigilant and of honors being of a much later date. In those circonstant assiduity, popularity with the young men cumstances, and considering that the conservatives and the good opinion of the old, will, if I mistake were still in the ascendant in the faculty, Hope, had not, carry him as high as any man who has arisen he chosen to push his claim, might easily have got bere since the days of old Hal Dundas. He is hot, the deanship for himself. Some had put him forthough, and rather hasty; this should be amended. ward in 1829 to oppose Jeffrey, but he waived his They who play at single-stick must bear with claims in deference to his opponent's seniority and pleasure a rap over the knuckles.” An inability high standing at the bar; not only so, but he moved to beat raps over the knuckles accompanied him | Jeffrey's election. He lost little by waiting; for, in