no one will contend that such knowledge is now taught in "chambers," nor is it possible that it should ever be taught there. Lord Westbury has spoken of the "rubbish called reports" of judicial decisions; Mr. Galton speaks as if it were certain that our judges had degenerated. But surely our modern judges are put to "make bricks without straw." They are set to make laws of principle, and they are not taught principle. I confess I doubt if the old judges were any better. They were not "found out," as the moderns are. The old judges could take their precedents from "Sederfin and Keble;" could decide a present case by a fancied likeness to an irrelevant old case. But no one watched them; only forgotten term reports contain the annals of them. But the strained analogies and the antagonistic judgments of modern judges fall upon an educated world. They do not harmonise with the floating rationality which is in the air of the age. The litigant even is ashamed of them. He thinks, even if he does not say-"What is this jargon? what are these metaphysics? Why are four judges for me, and five against me? Why should my money be voted away like this? Surely I ought to be able to understand why it goes from me, if it is to go." The state of the English law at present aggravates the bad consequences to us of these defects in our lawyers. If ever there was a country in which good legal mechanics were wanted, England just now is that country. Our law is unquestionably better in substance than it was fifty years ago, but it is also worse in form. In the time of Lord Eldon it had some kind of unity and consistency about it; it was, in a certain sense, all of a piece. But now, the reforms which have swept away most of the worst abuses have made it of a piece no longer. Side by side with the dull colouring of the old law there are bright patches of new statutes. An Act of Parliament has destroyed this and that singular growth of history, and has erected instead this and that useful contrivance. But exactly how much was destroyed and how much was left depended on the caprice of Parliament. Very likely the reforming Act was changed in "Committee " in the Commons; some important clause was maimed, or some dubious words inserted; or perhaps some old but still vigorous law Lord fell upon the measure, and twisted it to suit ancient opinion. The tide of law reform has been like the tide of the sea; it has advanced most powerfully, but it has also stopped most curiously. The line between the old English law and the new is as accidental a line as any sea-beach; it was caused by the momentary magnitude of shifting forces, and bears hardly a trace of settled design. But as an involved country taxes the map-maker, so an involved law taxes the jurist; the more complex the law the more difficult to see it or to mend it. But we in England want both things of our lawyers. We want to have a difficult law made as certain as it can be made; we want to know, as well as we can, which of our lawsuits are good and which bad before we spend money on them. We want also to have the ancient complex and patched aggregate of law shortened and simplified into a consistent and compact code. For this purpose we want a school of lawyers trained with singular care, and in the most fit way; whereas our barristers are trained with no care from the legislature, and in a most unfit way. But, it will be said, how are these evils to be remedied? I do not think I am exactly bound to suggest cures-I only undertook to show the existence of an evil; and only persons infinitely more learned than myself can frame a scheme in detail. I can only sketch briefly a coarse outline. The first and most plain thing to do is to establish an examination for the Bar. On the surface of the matter our policy is now ridiculous. We give barristers, as such, a monopoly of many important offices on the ground that they are supposed to know law, but we take no care that they do know law. In fact, many barristers have never learnt law; and many could not learn. Many have not the industry, and many have not the mind. And some of these unlearned persons are certainly appointed to posts requiring learning. Mr. Lowe tells us that he has seen a judge in the colonies appear ignorant of the common "forms of action," and of the shape of the "declaration "-things which a man who had studied common law could not help knowing if he knew anything. The absurdity of confining offices to a class because it is supposed to be competent, and yet taking no care that this class is in truth competent, an examination would remove immediately. But a good examination would do far more also. A real examination would compel men to study law as a whole, and to study it in its connections. There is no other way of preparing for an examination; a person in that sort of reading has carefully to consider not only what he knows, but what he does not know. He must make some sort of classification of the subject-some rough kind of map of it in his head. He cannot otherwise tell at all whether he is fit to stand the test or unfit. A successful student is for ever improving this mental map; day after day, and month after month, he comes to see new spaces to be known, and he fills the old spaces with new knowledge. A mere student in chambers may work hard at the "papers," but he may, after all, know and feel that he only knows a series of isolated points. He scarcely knows how much there is between the points, or what else there is in the subject round about them. A high-class examination, too, necessarily deals with matters of principle. Indeed, an examiner can hardly avoid them if he would. In chambers a student learns to consider, as the active practitioner— his master-considers, what is the minimum of law necessary to determine in a particular state of facts-the minimum then and there necessary to give sound advice. And this is a very good kind of knowledge. A safe practitioner is made by it, and cannot be made without it. But it will not of itself train a great lawyer; and reading for an examination exactly supplies its defects. An examiner, wanting to test pupils, gets hold of the "problems" of his subject— those points which are not yet worked out in any book, but which, by fair application of admitted principle, can be worked out. The abler students, in consequence, are constantly thinking of such "problems." They search the examination papers for years past; they search every likely book for hints of what they may be. And, when found, they prepare in their minds an apparatus for solving them. So, in law, a good examiner would ask many questions on the margin of his subject. He would state points analogous to those in the books, but not identical with those in the books. And to prepare for such an examination a student must consider legal doctrines, not in their narrowest aspect, but in their most general aspect. He must get rid of the notion that "principle does not pay." It is exactly principle and only principle that will pay in such an examination. And exactly on that account you cannot cram for it. The "book-work "-the instances already decided-you might perhaps get up by sheer industry; but the application of admitted doctrine to out-of-the-way facts, or undecided things, you cannot cram, since by its nature you cannot anywhere find it on paper. If the examination were like the Oxford class list, it would be easy to arrange that for the higher classes Roman law and foreign law might be made to tell. For the pass examination, of course, a sound knowledge of only the elements of English law would be enough. You do not want all sessions barristers to be accomplished jurists; all you can do is to give a premium to the more valuable kinds of knowledge; and if you put men in the first class who know certain things, you give them a very valuable premium. Cæteris paribus, the man in the first class will be employed before the man in the second class. The mark, even in the beginning, will tell for something; and in the end will tell for much, since the examination will itself improve; and the average of class No. 1 will, in fact, be very much better-be both more able and more industrious than the average of class No. 2. Lectures are the second obvious mode of improving our legal training some reformers prize them very highly, and would even make them compulsory; and only experience can settle points like these. But I own I do not like absolutely prescribing to any man how he is to learn this subject. The only ground for State intervention is that it is necessary for certain purposes that a man should know certain things. But if he does know them, why should the State care how he learnt them? What is the State the better for that knowledge? Some persons are, indeed, dubious of examination; they fear that the examiner may be deceived, that false or imperfect knowledge may be palmed upon him; and they fancy that by requiring an attendance at lectures they gain an additional security. But I think our experience, which in Civil Service and other examinations now goes over many years, ought to give us great confidence in examiners. They are certainly very skilled "intellectual detectives," much better than we should have thought possible years ago; undoubtedly the men they pass are, as a rule, altogether better than the men they reject, and really know with decent fairness all which the examiner certifies they know; and even if it were not so, I do not see that lectures would improve the matter or keep out cram students. The " cram" student is a sedulous man, and would attend lectures very carefully. But though I would not enjoin lectures, though I would only require the possession of knowledge, and let each man get it where he can, no one values lectures for certain purposes more than I do; no one can believe that anything will be more useful. I have had occasion to say in this Review before: "There is no falser notion than Carlyle's, that the true University of the present day is a 'great collection of books.' No University can be perfect which does not set a young man face to face with great teachers. Mathematics in part may teach themselves, may be learned at least by a person of great aptitude and at great cost of toil from written treatises; but true literature is still largely a tradition; it does not go straight on like mathematics, and if a learner is to find it for himself in a big library, he will be grey-headed before his work is nearly over. And besides, 'character forms itself in the stream of the world' by the impact of mind on mind. There are few impacts so effectual as that of ardent student upon ardent student, or as that of mature teacher upon immature student." I suppose this is as applicable to law as it is to anything. And for the special evil of the English Bar lectures would perhaps be peculiarly useful. More or less, a lecturer must deal with connected principle, for a mere disquisition on law without principles would be so dull that no one would listen to it. But the greatest reform of all, I think, would be the abolition of the present arbitrary division between the two halves of the legal profession. This would bring the distributer of law more under the control of the consumer, and so make him better. At present "counsel" is at so remote a distance, and on so sequestered an eminence, that the client cannot get at him. He is subject to no cross-questions, and is not obliged to explain law plainly to a plain A mystic charm is spread about him, as if his words were man. somehow higher than other words, and as if he were not paid like other people. A great many persons I know will say this is impossible. We are so accustomed to the strict link between solicitor and barrister, that we forget how arbitrary it is. We forget that it is insular, and that on the Continent and in America it does not exist. Indeed, why should it exist? On what ground can we be justified? The State can require of certain persons, who want to live by certain skilled trades, that they shall show that they are fit for those trades. But if a man can show that he is fit for any trade, on what principle can you forbid him, only because he is fit for another trade? Why should you split a trade into compulsory bits? Why should there not be a "general practitioner " in law as there is in physic? Why should not the same lawyer practise all law if he is fit for it, and can get clients in it? The abolition of the compulsory demarcation would probably benefit the client, just as all approaches to free trade benefit the consumer. It would give him the choice of more mixed and various ability. The division of labour would be allowed more liberty to adapt itself to special wants and individual characters. This is the way it works in America: 1059. That is after the materials of the case, the facts, have been previously investigated and laid before him in the Brief, is it not ?-No; it is in the outset. That is a privilege which the Client claims, of seeing the Counsel, and conferring with him, whether he is to go to Law, or not. 1060. How is the evidence hunted up?-That is done by the Attorney and Client, but Counsel sees personally the leading witnesses. 1061. Who is the Attorney, as distinct from the Counsel ?-The offices are divided according to the nature of the business. A man begins to practise Law in New York, for instance, and he has one or two cases. He then does all the business himself; but his business increases, and he has more than he can do himself, and he then employs a clerk, who takes a part of it off his hands; then he employs an Attorney, and the cases that require no investigation, such as bringing a Common Action, would be commenced by the Attorney, without seeing the Counsellor, unless there was a special request made in the matter. 1062. So that the Attorney is nominated and employed by the Counsel ?— Yes; he generally belongs to his office. 1063. And generally speaking, there is a partnership, is there not ?—Yes. The moment the business becomes sufficiently important to justify the taking in a partner, the Counsel takes in this man whom he has employed as Attorney, or some one else, as his partner, and he does the ordinary business of the office, while the other goes into Court. 1064. Are there men of considerable eminence, such as the late Mr. Webster, who never act in any other way than as Counsel ?—Yes. 1065. Practically, in all important cases, there is the same division of labour between the Counsel and the Attorney in the United States as exists in this country?-Exactly so; but it is rendered so by circumstances. If you go into States which are new, where the population is spare, there are few Lawsuits, and the Counsel will sit in his office half the day, and talk with a Client, for he has nothing else to do; of course, in that case, he needs no Attorney. |