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city, for instance, whose population is his talents fit him for. Every English about 50,000, there are, one is told, some lawyer's experience, as it furnishes him sixty or seventy practising lawyers, of with cases where a man was obliged to whom not more than ten or twelve ever remain an attorney who would liave conduct a case in court, the remainder shone as a counsel, so it certainly sugdoing what we should call attorney's gests cases of persons who were believed, and conveyancer's work.
and with reason believed, by their Whatever disadvantages this system friends to possess the highest forensic of one undivided legal profession has, abilities, but literally never had the and it will appear that they are not chance of displaying them, and laninconsiderable, it has one conspicuous guished on in obscurity, while others merit, on which any one who is accus- every way inferior to them became, by tomed to watch the career of the swarm mere dint of practice, fitter for ultimate of young men who annually press into success. Quite otherwise in America. the Temple or Lincoln's Inn full of There, according to the universal witness bright hopes, may be pardoned for of laymen and lawyers, no man who is dwelling. It affords a far better pros- worth his salt, no man who combines pect of speedy employment and an fair talents with reasonable industry, active professional life, than the beginner fails to earn a competence and to have, who is not “ backed,” as we say, can within the first six or seven years of look forward to in England. Private his career, an opportunity of showing friends can do much more than with us whether he has in him the makings to help a young man, since he gets of something great. This is not simply business direct from the client instead due, as might easily be supposed, to of from an attorney; he may pick up the greater opportunities which everylittle bits of work which his prosperous body has in a new country, and which seniors do not care to have, may thereby make America the working man's paralearn those details of practice of which dise, for, in the eastern States at least, in England, a barrister often remains the professions are pretty nearly as ignorant, may gain experience and con- much crowded as they are in England; fidence in his own powers, may teach it is owing to the greater variety of himself how to speak and how to deal practice which lies open to a young with men, may gradually form a connec- man, and to the fact that his patrons tion among those for whom he has are the general public, and not, as in managed trifling matters, may commend England, a limited class who have their himself to the good opinion of older own friends and connections to push. lawyers, who will be glad to retain him Certain it is that American lawyers as their junior when they have a brief profess themselves unable to understand to give away. So far he is better off how it can happen that deserving men than the young barrister in England. remain briefless for the best years of He is also, in another way, more favour- their life, and are at last obliged to quit ably placed than the young English the profession in disgust. In fact, it attorney. He is not taught to rely in seems to require an effort of politeness all cases of legal difficulty upon the on their part to believe that such a opinion of another person. He is not state of things can exist in England compelled to seek his acquaintances and Scotland as that which we have among the less cultivated members of grown so familiar with that we accept the profession, to the great majority of it as natural and legitimate. A further whom law is not much of an art and result of the unity of the whole profesnothing of a science. He does not see sion may be seen in the absence of the path of an honourable ambition, many of those rules of etiquette which the opportunities of forensic oratory, are, in theory at least, strictly observed the access to the judicial bench, irre- by the English lawyer. It is not thought vocably closed against him, but has the , undignified, except in the great cities fullest freedom to choose whatever line of the eastern States, for a counsel to
advertise himself in the newspapers :
undertake the work more for the love in Canada, as well as in the States, one of it than for the inadequate salaries frequently sees respectable firms solicit offered, and worthily sustain the tradiing patronage in this way. A counsel tions of Judge Story, some of whose great is allowed to make whatever bargain he works were delivered as lectures to a pleases with his client: he may do work Harvard class.' In New York, the instifor nothing, or may stipulate for a com tution called Columbia College is fortumission on the result of the suit, or nate in possessing a professor of great even for a certain share in whatever the legal ability and an extraordinary gift of verdict produces a practice which is exposition, whose class-rooms, like those open to grave objections, and which, in at Harvard, are crowded by large and the opinion of more than one eminent highly intelligent audiences. Better American lawyer, has produced a good law-teaching than Mr. Dwight's it is deal of the mischief which caused it to hardly possible to imagine ; it would be be seventeen centuries ago prohibited worth an English student's while to at Rome. The sentiment of the Boston cross the Atlantic to attend his course. bar seems to be on the whole opposed Many of the lesser Universities and to the practice, but, so far as one can Colleges have attached to them lawlearn, there is no rule against it there schools of greater or less fame, but or elsewhere. A counsel can bring an sufficient to bring some sort of instrucaction for the recovery of his fees, and, tion within the reach of any one who pari ratione, can be sued for negligence cares to have it. The teaching given in the conduct of a cause.
1 “The course of study in the Harvard Law Respecting the condition of legal edu
School will comprise the following subjects, of cation, a subject on which so much has which some are required and others elective: been said and written in England these
REQUIRED STUDIES. last few months, it is hard to say any “1. Real Property. 2. Personal Property. thing general which shall also be true. 3. Contracts. 4. Torts. 5. Criminal Law
and Criminal Procedure. 6. Civil Procedure (Most of our errors about the United
at Common Law. 7. Evidence. States arise from our habit of taking what is true of some one place to be
“ Commercial Law.-1. Sales of Personal true generally. New York, for instance,
Property. 2. Bailments. 3. Agency.
4. is supposed by most English visitors Negotiable Paper. 5. Partnership. 6. Shipto be typical, which is a good deal ping, including jurisdiction and procedure in more absurd than for a stranger to
Admiralty. 7. Insurance.
“Equity, Real Property and kindred subjects. take Liverpool as typical of England.)
-8. Real Property. 9. Evidence. 10. JurisLike ourselves, the Americans have diction and Procedure in Equity. 11. Principal great feeling for die Wissen and Surety, including guarantee. 12. Domestic relations.
14. schaft, and law is with them, as in
13. Marriage and Divorce.
Wills and Administration. 15. Corporations. England, much more an art than a
16. Conflict of Laws. 17. Constitutional Law. science. One hears very little said 18. Debtor and Creditor, including Bankruptcy. about the value of studying it theoreti “All the required subjects, and as many as cally, nor is any proof of such study possible of the elective subjects (eleven in required from candidates for admission 1870-71), will be taught every year.”——(Pros
pectus of the Harvard University Law School, to the profession. But as a matter of
Cambridge, Mass.) fact the provision for instruction in law
? For instance, the State University of is as good, or better, all things con Michigan, at Ann Arbor (a University which sidered, than in England, and is cer has just signalized itself by admitting women tainly more generally turned to account. to its classes on equal terms with men), has Harvard, which stands in the front rank
a law-school with four professors, who lecture
on the following subjects :of American Universities, has a most “(a.) On Equity and Equitable Remedies, efficient law-school, with three perma Criminal Law, United States' Jurisprudence, nent professors, and several (at present
and International Law.
“(6.) On Contracts, Bills and Notes, Partner. four)occasional lecturers, among them men
ships, and the Law of Corporations and Agency, of the highest professional reputation, who "(c.) On Constitutional Law, Estates in Real
No. 147.- VOL. XXV.
is of a definitely practical character, and practitioners. In this, as in other bears only on our English and American matters, the principle of laissez faire is Common Law and Equity. Jurispru- trusted to, and the creditably high level dence, using the term to mean the of legal knowledge and skill in the best science of law in general, is not recog.
States is due rather to a sense of the nized as a subject at all; nor is the Civil value of systematic instruction among Law regularly studied anywhere in the the members of the profession itself northern or middle States; international than to the almost nominal entrance law, where taught, is usually deemed a examination. The experience of America part of the literary or historical, not of seems on the whole to confirm the main the legal course.
Attendance on law conclusion of Mr. Dicey's singularly classes is purely optional, so that the clear and vigorous article? on legal edudemand which exists may be taken to cation, that our chief aim ought to be prove the excellence of the article sup to provide thoroughly good instruction plied.
in law, and that examinations should The right of admitting to practise rather be used to test this instruction is in all or nearly all the States vested, than trusted to as in themselves suffior supposed to be vested, in the judges, cient to produce a body of competent who usually either delegate it to the practitioners. bar, or appoint on each occasion one, The strictly practical character of the two, or three counsel to examine the legal instruction given, good as much of candidate. Occasionally, as for instance it is, has been followed by one unin Philadelphia, he is required to have fortunate result. There is but a slight read for a fixed period in some lawyer's interest in the scientific propriety of office, but more commonly nothing more law, or in the discussion of its leading than an examination is demanded, and principles; an American lawyer seems the examination, nowhere severe, is often quite as unwilling to travel out of the little better than a form. In Massachu- region of cases as any disciple of Lord setts applicants may be, but are rarely, Kenyon or Mr. John William Smith plucked ; in New York, less scrupulous could have been. More has been done in this as in most respects than other in the way of law reform there than cities, the whole thing is said to be a here in England, for the Americans are farce, and people whose character and more impatient of practical inconveniwhose attainments are equally unsatis ences than we are, more dexterous in factory, find their way into the profes- getting rid of them, and less hampered sion. Unless the opinion of their fellow- by the complexity and slowness of their citizens does them great injustice, many political machinery. Most, if not all, of the New York judges are not quite the of the northern States have codified men to insist on a rigid standard of pro their statutes, have united legal and fessional honour and capacity. An ad- equitable jurisdiction in the same court, mission in any one State gives a title to and greatly simplified the law of real practise within its limits only ; but prac property. But this has all been done tically, he who has been admitted in in a sort of rough and ready way, with one State finds no difficulty of being no great attention to elegance of form. admitted pro forma to the court of The codification of case-law has (I speak another in which he may happen to again of the northern and eastern States) have a case.
On the whole it may be been very little discussed, and the atsaid that very little care is taken in tempts made are, in a scientific point of America to secure the competence of view, far from satisfactory. Among the Property, The Domestic Relations, Wills, &c.,
1 In the December number of this Magaand Uses and Trusts.
zine. I may add, however, that the entrance “(d.) On Pleading and Practice, Evidence,
examinations in America seem to be much Personal Property, Easements, and Bailments.”
laxer than could be wished, and that most of Not a very philosophical distribution of the leading lawyers desire them to be mado topics.
individual American lawyers there are as well as those whom we should call many men of the highest powers—men barristers, its social position ought to whose learning and acumen would have be compared with that of both the put them in the forefront of the bar in branches of the English profession taken England had they lived here, and together. So regarded, it seems to be enabled them to rival the best of our somewhat higher than in England ; English judges. But those who take a naturally enough, when we remember speculative interest in law, and study that there is no hereditary aristocracy to its philosophy and its history, seem to overshadow it, and that in the absence be extremely few, fewer than in Eng of a titled class, a landed class, and a land. As every lawyer practises both military class, the chief distinction law and equity, and as the bulk of the which common sentiment can lay hold law altogether is much smaller than in of as elevating one set of persons above England, an average New England town another is the character of their occupractitioner has probably a better general pation, and the degree of culture and knowledge of the whole field than a per- intelligence which it implies. Such disson of corresponding talents and stand tinctions, however, carried more weight ing in this country, and is probably in days when society was smaller, simsmarter and quicker in using his pler, and less wealthy than it has now knowledge. On the other hand, there become. The growth of great mercanare fewer men who are masters of a tile fortunes has in America, as in special department; the judges are in England, and perhaps even more notably most States (Massachusetts is a con there, lowered the relative importance spicuous exception) inferior people, and dignity of the bar. An individual whose decisions carry little moral merchant holds perhaps no better place weight, and before whom counsel compared with an average individual naturally acquire comparatively lawyer than he did forty years ago ; but slovenly habit of arguing. There is, the millionaire is a much more fretherefore, some danger that the case quent and potent personage than he law may gradually decline, may grow was then, and outshines everybody in looser and less consistent; while from
Now and then a great unlearned popular bodies, such as the orator or a great writer achieves fame State Legislatures, no finished legislation of a different and higher kind ; but in can be expected. In this condition the main it is the glory of successful of things, the value not only of the commerce which in America and Europe reports of the Federal Courts, whose now draws admiring eyes. Wealth, it judges are mostly persons of some is true, is by no means out of the reach mark, but of our own English reports, of the leading lawyers : yet still not is very great. Pretty nearly every lawyer such wealth as may be and constantly of standing takes in the Law Reports as is amassed by contractors, share specuthey appear, and the decisions contained lators, hotel
lators, hotel proprietors, newspaper in them, although not legally binding, owners, and retail storekeepers. The are cited with as much readiness and incomes of the first counsel in cities enjoy as much moral weight as they do like New York are probably as large here. An English judge can have no as those of the great English leaders; more legitimate subject for pride than one firm, for instance, is often menin reflecting that every decision he tioned as dividing a sum of 250,000 gives--I might say, every dictum he dollars a year, of which the senior utters—is caught up, and bears with it member may probably have 100,000. almost the force of law over the vast It is, however, only in two or three of territory that stretches from the Bay of the greatest cities that such incomes Fundy to the Golden Gate.
can be made, and one may doubt wheAs in the United States the bar in ther there are ten or fifteen counsel cludes the whole mass of the attorneys in the whole country who, simply by
their profession, make more than fifty purely administrative character, or does or sixty thousand dollars a year.
not touch on popular questions) is left Next after wealth, education and power
to them ; that is to say, if any permamay be taken to be the two elements or nent change is to be made in the qualities on which social standing in a private law of the community, or in new and democratic country depends. As procedure, the lay public can hardly respects education, the bar stands high help trusting them. When they act -higher, it would seem, than either of together as a class upon class questions, the two other learned professions, or they can put forth very great strength. than their new sister, journalisın. Most In some States it is entirely the will of lawyers have had a college training, the lawyers that has delayed law reforms, and are by the necessity of their employ- and in a good many, where the judiciary ment persons of some mental cultiva is elective, a fairly respectable selection tion; in the older towns they (in con of judges is ensured by the joint action junction with the professors of the of the bar, whose nominees are usually University, where there is one) form the accepted by the bulk of sensible lay intellectual élite of the place, and main citizens. This happens, one is told, in tain worthily the literary traditions of Philadelphia, as well as in Chicago and the Roman, French, and English bar. many cities of the West. It is worth noting, that the tendency of The decline of the influence of the their professional training is, there as bar in politics opens up a group of hiswell as here, to make them conservative torical questions which one can only in professional matters. They have the touch on, and which a stranger can insame dislike to theorists, the same deed hardly hope to have mastered. In attachment to old forms, the same the earlier days of the Republic lawyers cautiousness in committing themselves played a great part, as lawyers have to any broad legal principle, which done wherever free governments exist. distinguish the orthodox type of the So in England, long before the days English lawyer, and tend to reproduce of Somers; so still more conspicufaithfully on the shores of the Missis- ously in France, most of the leaders sippi the very prejudices which Bentham whom each revolution has brought to assailed eighty years ago, at a time the top having been men of the robe, when those shores were inhabited only as Grévy, Favre, Gambetta, and other by Indians and beavers. In Chicago, people of eminence
In a city of yesterday, special denurrers, America, most of the Presidents, inreplications de injuria, and all the deed nearly all, except the soldiers, have elaborate formalities of pleading which been lawyers ; witness, among others, the were swept away by our Common Law last four, Fillmore, Buchanan, Lincoln, Procedure Acts, flourish and abound to and Andrew Johnson. So too were this day. As for power, the power of the Webster and Clay; and so, to come bar in politics is considerable, although down to the notable and the notorious the rise of a class of professional poli men of to-day, are Seward, Sumner, ticians has of late years weakened it. John T. Hoffman, B. F. Butler, A. O. The affairs of private persons are of
Hall. The absence of any permanently course, to a great extent, in their hands; wealthy and influential class, such as but the simpler state of the law, the landed gentry form in England, especially the law of land, and the gives the American advocate a special absence of complicated settlements, advantage in public life, over and make a man rather less dependent on above those which he derives from his his solicitor than an English country practice in speaking and his habit gentleman is almost certain to be. The of dealing with legal questions; and he
machinery of local government is largely finds another in the fact, that such conI worked by the lawyers, and the conduct stant reference is made in American
of legislation (so far as it is not of a politics to the written Constitution.