Pagina-afbeeldingen
PDF
ePub

law shall have some knowledge of the they understand their profession ; but law.

there is nothing to be said in favour of We have already shown that as re first giving men a degree which marks gards barristers the present system them out as lawyers, and then taking no utterly fails to give any security that a precautions to secure that the persons so barrister is, in any proper sense of the marked out shall have the least know. words, a lawyer; and the arguments ledge of the law. Add to this that all in favour of the principle of the Asso the other countries of Europe think it ciation, that a man who is given cer necessary to exact from every advocate tain privileges because he is supposed before he commences advocacy a more to possess a certain kind of knowledge or less strict study of law and jurispruis bound to show that he really is dence. This consideration would at one master of his craft, are in themselves time have had little weight in England, very strong, if not absolutely unanswer for certainly there was a period when a able. There is, in the first place, the feeling prevailed which is traceable in patent fact that in every other profession the works of writers, even of such emito the practice of which a man is ad nence as Blackstone, that Englishmen mitted in virtue of a degree or diploma, had much to teach foreigners, and, as he is expected to give some proof, how- regarded law or politics, had nothing to ever slight it may be, of his competency; learn from them. This sentiment has, and it is at any rate somewhat difficult however, all but vanished, and the exto see why a doctor should be required ample of France and Germany is certo undergo a real examination before he tain to have fully as much weight undertakes to cure his patients, whilst a on popular opinion as it deserves. Inbarrister may undertake to guide his deed, it is hardly possible for any clients in the most intricate questions of man of common sense to observe the law, without having given any sign that care bestowed by Frenchmen and Gerhe has ever opened a law book. It may mans on the due education of their lawbe added, and with considerable force, yers, and to note also that the English that if the status of a barrister is to be bar, whatever its merits, has never attainable without study of the law, it produced a lawyer or jurist of European would be better to abolish the status reputation, without entertaining the conaltogether, and let any man who pleased viction that our peculiar a rangements style himself barrister-at-law, and get are open to some serious objections. such practice as his abilities or supposed The strongest point, however, in favour abilities miglit command. No doubt,

of the compulsory examination of perunder such a state of things, the public sons wishing to be called to the bar is, might often employ legal quacks; but so that the principle of this innovation has the public may do, and do at the present already been admitted by all the Inns of moment; and the evil of the existing Court. As it is, the Inns will take 110 state of affairs is that laymen who one who has not attended lectures, read think they have a guarantee that a in chambers, or undergone an examinabarrister shall know his business, find tion. They, moreover, impose a certain in his title what seems a guarantee, preliminary examination on all persons but is, in reality, a mere snare.

There who have not been educated at the uniis, in short, much to be said for treating versities. Now, this necessity for attendthe trade of the law as an ordinary trade ance at lectures, reading in chambers, or governed simply by the maxim caveat undergoing examination, is simply an emptor. There is also much to be said admission that in the judgment of the in favour of restricting the practice of Inns of Court themselves, no one ought the law to men who have shown them to be a barrister who has not some selves qualified to be lawyers, and who general education and some slight achave, therefore, been admitted to a de quaintance with law. The detect of gree or status which is the sign that the present arrangement is that lectures,

a

" reading," and examinations, are cum long and tedious study. Everyone, again, bersome and expensive shams; but it is except an English lawyer, admits that impossible for the Inns, who maintain law can be taught as a system ; and these shams, either to deny the principle that the true mode of learning it, as for which the Association contends, or in of mastering every other province of the face of patent facts to assert that the knowledge, is to master first the elepresent arrangements are really in ac ments or principles of the system, and cordance with that principle. As regards then study it in detail as practically the Inns of Court, the position of the applied. No inhabitant of any other Association is therefore unassailable. If country but England (unless possibly he men are to be called to the bar simply be an inhabitant of America) mainbecause they have eaten so many dinners tains that the true way to learn law and paid a certain amount of fees, then is to learn it on no scheme whatthe modern system of the Inns of Court ever, to pick up one bit of information should be given up. If, on the other from books, another fragment from hand, no student is to become barrister cases heard in court, and a third piece until he has attained some knowledge of from practice as seen in chambers; and law, then the present system should be so by degrees, haphazard as it were, made in reality what it is in form. The piece together the legal scheme which readers should give much more instruc one desired to understand. Yet this is tion, and more systematic instruction ; exactly the course pursued, and necesthe whole scheme of teaching should be sarily pursuell, by students of English revised, and the pa-sing through an law.

A young man goes into pleaders' examination should be rendered com chambers; he copies precedents, reads pulsory. There

are,

it must be added, cases, studies text-books on different signs that the Inns of Court themselves isolated parts of the law, reading now a perceive how matters stand, and it is, little of “Stephen's Commentaries,” we believe, understood that the Inner now a book on pleading, next day Temple is already taking steps for the a chapter or two of “Chitty’s Conimprovement and extension of the tracts," and the next a mass of cases teaching which it gives to students. elucidating or darkening some trifling In pursuing this course, the Inner exception to some rule of the existenco Temple is making a step towards the of which the student has never heard. attainment of the second, and, in our Meanwhile, if he is intelligent, he carejudgment, the main object sought to be fully notices all the business that goes gained by the formation of a school of on under his eyes, and generally leaves law.

chambers and becomes a barrister just This second object of the Association as he is beginning to have some very is to insure that all persons who wish to

faint notion of what the business which study the law systematically shall have he saw in chambers really meant. Now, an opportunity for going through a re this plan of learning, eccentric as it gular course of careful iustruction. seems, has real merits of its own to

The principle that a man who intends which it is quite essential to do full justo practise a liberal profession should, tice; but it is not, and never can be, a before he embarks in it, have at least real substitute for, though it is an excelthe opportunity for systematically study lent addition to, the instruction which ing the pursuit to the practice of which could be given by a really competent he intends to devote himself, commends teacher. Let us, at any rate, fairly itself so directly to everyone's common

master what are the main evils which sense, that it is a little difficult to invent this scheme of haphazard learning-or elaburate arguments in its favour. Every rather, the absence of systematic learnone admits that the knowledge of law is

ing-involves. not acquired by intuition, but is attained, The first defect of the mode in which when it is attained at all, only by very the law is now studied, is the immense

sees.

amount of useless, and even injurious, he could have learnt clearly, and with labour which it imposes on a student. not half as much toil, from an intelThe cases which he sees in chambers are ligent teacher. all illustrations of the application of But reading in chambers," it will rules of law to the actual facts of life. be urged, is invaluable, and gives a kind The question generally involved, often of instruction not to be gained from an extreniely difficult one to decide, is lectures. This we fully and amply under which of two or more rules a grant, and should much regret any given case comes. Nothing can be a change which merely substituted attenbetter and more instructive proceeding dance at lectures for attendance in than to see what the rules of law really chambers. What we do maintain is, mean when applied to facts, and the not that “reading in chambers is mode by which these rules are to be useless, but that to "read in chambers" elicited or inferred from statutes or cases. before

you have mastered the first Unhappily, a young man when he begins elements of legal science is a perverse “reading in chambers," is hardly in a method of study, which is strictly position really to profit by the advan speaking, preposterous, and entails tages of his situation ; he does not an untold amount of wasted labour. know the meaning of the most ordinary The defects, however, of this method technical terms, still less has he mastered do not end here. If its first defect is the commonest legal canons; he there its laboriousness, its second and even fore has extreme difficulty in even un greater fault is that it deprives “ reading derstanding the points of the cases he in chambers” of half its use. The

To comprehend, for example, a great use of seeing actual practice is to quite simple case about bills of exchange; realize what the rules of law really he may have to learn, for the first time, mean when applied to actual facts; to what is meant by a chose in action ; to gain the power of readily applying get somehow hold of the rule that choses them oneself. Now,

man who does in action cannot be assigned; and at last, not know the rules of law can gain after infinite labour, to discover that bills little or nothing from seeing them of exchange form an exception to this applied ; and the fact is, as everyone rule. If he is an energetic person, he who has studied law will admit, that at throws himself for two or three days least half a pupil's time in chambers is into the subject of negotiable instru- distinctly wasted from his having there ments ; reads a host of matter which has to read and learn the contents of legal nothing to do with the question in hand; treatises which he ought to have mastered peruses piles of cases, some of which before he drew a declaration, or copied have been over-ruled, others of which down a precedent in conveyancing. only constitute repeated illustrations of The particular pupil is not to blame, sone well-known principle; and at last, as he really had no means of instrucwhen through perplexity and muddle he tion till his reading in chambers began; begins to have some glimmering under- but the system is gravely to blame standing of his case, finds that it must which turns a set of young men leave chambers, and that he must turn into a barrister's rooms, without prohis attention to some totally different viding them with the instruction which question, say, the warranty of a horse's makes study in chambers worth having. soundness, or the meaning of certain One may venture confidently to assert terms in a contract of sale. Thus, day that a pupil who came to a pleader by day the young man goes on blunder after having heard a set of firsting and to blunder, sometimes learning rate lectures, such for example as a law, more often mislearning it, and ulti young lawyer may attend in some mately, if he is fortunate and able, gra towns in America, or such as were dually and with great labour gaining a given by Blackstone himself on the doubtful knowledge of those rules which principles of common law, would in one

year's reading derive far more benefit sion by the rule of thumb, being forced from his studies, and be a far more to practise it before he understands its accomplished pleader than the student principles, is extremely likely, when who, on the present plan, has laboured habit has made him expert within on for the space of two years copying certain very close limits, to disbelieve the precedents in Bullen, and mastering that the art in which he has become an isolated law points without any general adept rests on any principles at all. knowledge of law.

The dictum of a judge,

one ounce of “But," it may be said, “law is learnt precedent is worth a pound of principle," under the present system and learnt expresses the idea of a hundred lawyers well; though perhaps the same amount who have not vigour enough to give of knowledge might be acquired with such a terse rendering of their secret less labour and in a more intelligent thoughts. One may add to this that manner.” Unfortunately, the evils of the original narrowness of a barrister's the present fashion of study must not leyal education received, a century ago, be supposed to end with entailing a a certain amount of correction from the vast amount of useless toil on hapless nature of his practice, which it does not young men ; it produces a

most receive at the present day. The English injurous effect on the minds of the law is itself a limited field when comlawyers submitted to its influence. pared with the whole province of Almost every lawyer will admit that jurisprudence, but an eminent lawyer width of mind, a faculty for compre of the last century, such for example as hending general principles, the power Eldon, could hardly avoid possessing at of grouping the rules of law in a clear least some knowledge of the whole and lucid manner so as to show what scheme of English law. This is are the grounds on which they rest and notoriously not now the case. Very their relation to one another, are not few men have mastered both equity the qualities in which even the most and common law; and within the nareminent members of the English bar row boundaries of the common law mostly shine. Yet no one can dispute itself, persons who wish to secure that it would be hard to find an abler business are more and more compelled body of men than our twenty or thirty to devote themselves to special branches leading lawyers. As it certainly is not of study. Hence the knowledge of a want of ability which makes a certain barrister in full employment becomes kind of narrowness,

not indeed · a daily more minute ; possibly, more and universal, but certainly a very usual more accurate, but also more and more characteristic of men who have attained limited; and to speak the truth more and forensic success, it is scarcely rash to

No one can therefore attribute this fault, at least in part, to wonder that a certain limitation of the peculiarity of their education. Nor intellect is apt to be the defect of is it hard to trace the connection lawyers; and few persons will hesitate between cause and effect. A man who to attribute it, in part, to the character learns law by practising law, inevitably of an education which most unfortu-, tends to learn only just as much law, nately stimulates the very fault which and just that kind of law, which he it ought to correct. has had occasion to use ; thus his know It

may

further be remarked that ledge becomes, or tends to become, a there never was a time when the want minute acquaintance with one special of cultivated lawyers who could grasp department, possibly a very narrow one, not only all the bearings of English of the whole legal system. He is never law but the leading outline of general educated to be a lawyer; all his learning jurisprudence was more felt.

Every consists in familiarity with the law of day there is a demand for careful, patents, or the law of bills of exchange. systematic, and comprehensive legislaA person, again, who learns his profes- tion; and a slight inspection of Acts of

a

more narrow.

Parliament shows how very inadequately tion, though there are many arguments this demand is met. The truth is that in their favour, may be opposed on some there are several reforms, such as the strong grounds either of reason or of codification of the law and the fusion prejudice. In this conclusion he will of law and equity, which can scarcely be completely in the right. All that be carried out, simply because tho mnen we have urged, and much more, may do not exist who have been duly trained be pressed with full truth in favour of to execute these great measures of legal the reforms advocated by the Society; improvement. The very fact that it but they may also be opposed, and will, would be the idlest slander to say without doubt, be opposed on grounds that the native ability to effect which demand careful consideration in these things was wanting, is almost the interests of the very cause which a proof that the real cause why we lack the Society supports; for there is no lawyers who can properly mould our greater practical mistake than that legislation is, that the bar has not had made by reformers when convinced, the advantage of sound legal edu and with reason, of the substantial cation.

soundness of their views—they neglect A layman who considers merely the to weigh the fair or even the unfair arguments in favour of founding a legal arguments by which these may be university, will not wonder at the sup- opposed. port which the Legal Education Associa The first argument against any subtion has received; he will understand stantial alteration in the existing system why chancellors, judges, and counsel

of legal

education is emboilied in have hastened to enrol themselves in the well-worn formula “the present its ranks; he will anticipate for it a system works well." Of this kind of speedy and certain success, and sympa reasoning radicals are naturally imthise with the ardent reformers who are patient; for they have heard it emalready discussing with some heat the ployed to justify every abuse, from all-important question whether the new slavery down to the purchase of cominstitution shall be called a school or a missions; but it is a plea which, though university. His surprise, if he is sur constantly used when false in fact, prised at all, will be, not that the Asso deserves, when true, careful consideraciation has achieved some success, but tion. In the present case it contains, that it has not long ago accomplished to say the least, a large amount of truth. all its objects. If these objects can be No institutions are perfect, but it would shown to be desirable by the most be difficult to point to any English incogent argiiments; if the earnest wish stitution which on the whole fultils its of the most influential members of the objects better than do our legal arrangebar, whether on the bench or off it, is ments. Our lawyers are not jurists; but that these objects should be speedily then it must be remembered that it matattained, -why is it, he may ask, that ters not one pin to a client whether his the Law University is still a counsel is a jurist or not, provided that he scheme instead of a powerful reality? can draw the right pleas and address a Such a layman will, if a person of a jury in a persuasive manner. It is again questioning turn of mind, soon begin extremely difficult for men such as Sir to suspect that the apparently unassail Roundell Palmer, the chairman of the able position of the Society, contrasted Association, and many of their supwith the very little practical progress

porters, to convince the world that the made by the cause which it advocates, Euglish system of legal education is is the sign that there is something utterly rotten; since these gentlemen which may be said, or, what is of are persons of whom any bar might be much more importance, may be felt proud, and afford, it may be said with on the other side of the question ; and, some truth, a living confutation of the in short, that the views of the Associa doctrine which they preach. It should

mere

« VorigeDoorgaan »