city, for instance, whose population is about 50,000, there are, one is told, some sixty or seventy practising lawyers, of whom not more than ten or twelve ever conduct a case in court, the remainder doing what we should call attorney's and conveyancer's work.

Whatever disadvantages this system of one undivided legal profession has, and it will appear that they are not inconsiderable, it has one conspicuous merit, on which any one who is accustomed to watch the career of the swarm of young men who annually press into the Temple or Lincoln's Inn full of bright hopes, may be pardoned for dwelling. It affords a far better prospect of speedy employment and an active professional life, than the beginner who is not "backed," as we say, can look forward to in England. Private friends can do much more than with us to help a young man, since he gets business direct from the client instead of from an attorney; he may pick up little bits of work which his prosperous seniors do not care to have, may thereby learn those details of practice of which, in England, a barrister often remains ignorant, may gain experience and confidence in his own powers, may teach himself how to speak and how to deal with men, may gradually form a connection among those for whom he has managed trifling matters, may commend. himself to the good opinion of older lawyers, who will be glad to retain him as their junior when they have a brief to give away. So far he is better off than the young barrister in England. He is also, in another way, more favourably placed than the young English attorney. He is not taught to rely in all cases of legal difficulty upon the opinion of another person. He is not compelled to seek his acquaintances among the less cultivated members of the profession, to the great majority of whom law is not much of an art and nothing of a science. He does not see the path of an honourable ambition, the opportunities of forensic oratory, the access to the judicial bench, irrevocably closed against him, but has the fullest freedom to choose whatever line

Every English

his talents fit him for. lawyer's experience, as it furnishes him with cases where a man was obliged to remain an attorney who would have shone as a counsel, so it certainly suggests cases of persons who were believed, and with reason believed, by their friends to possess the highest forensic abilities, but literally never had the chance of displaying them, and languished on in obscurity, while others every way inferior to them became, by mere dint of practice, fitter for ultimate success. Quite otherwise in America. There, according to the universal witness of laymen and lawyers, no man who is worth his salt, no man who combines fair talents with reasonable industry, fails to earn a competence and to have, within the first six or seven years of his career, an opportunity of showing whether he has in him the makings of something great. This is not simply due, as might easily be supposed, to the greater opportunities which everybody has in a new country, and which make America the working man's paradise, for, in the eastern States at least, the professions are pretty nearly as much crowded as they are in England; it is owing to the greater variety of practice which lies open to a young man, and to the fact that his patrons are the general public, and not, as in England, a limited class who have their own friends and connections to push. Certain it is that American lawyers profess themselves unable to understand how it can happen that deserving men remain briefless for the best years of their life, and are at last obliged to quit the profession in disgust. In fact, it seems to require an effort of politeness on their part to believe that such a state of things can exist in England and Scotland as that which we have grown so familiar with that we accept it as natural and legitimate. A further result of the unity of the whole profession may be seen in the absence of many of those rules of etiquette which are, in theory at least, strictly observed by the English lawyer. It is not thought undignified, except in the great cities of the eastern States, for a counsel to

advertise himself in the newspapers: in Canada, as well as in the States, one frequently sees respectable firms soliciting patronage in this way. A counsel is allowed to make whatever bargain he pleases with his client: he may do work for nothing, or may stipulate for a commission on the result of the suit, or even for a certain share in whatever the verdict produces-a practice which is open to grave objections, and which, in the opinion of more than one eminent American lawyer, has produced a good deal of the mischief which caused it to be seventeen centuries ago prohibited at Rome. The sentiment of the Boston bar seems to be on the whole opposed to the practice, but, so far as one can learn, there is no rule against it there or elsewhere. A counsel can bring an action for the recovery of his fees, and, pari ratione, can be sued for negligence in the conduct of a cause.

Respecting the condition of legal education, a subject on which so much has been said and written in England these last few months, it is hard to say anything general which shall also be true. (Most of our errors about the United States arise from our habit of taking what is true of some one place to be true generally. New York, for instance, is supposed by most English visitors to be typical, which is a good deal more absurd than for a stranger to take Liverpool as typical of England.) Like ourselves, the Americans have no great feeling for die Wissenschaft, and law is with them, as in England, much more an art than a science. One hears very little said about the value of studying it theoretically, nor is any proof of such study required from candidates for admission to the profession. But as a matter of fact the provision for instruction in law is as good, or better, all things considered, than in England, and is certainly more generally turned to account. Harvard, which stands in the front rank of American Universities, has a most efficient law-school, with three permanent professors, and several (at present four)occasional lecturers, among them men of the highest professional reputation, who No. 147.-VOL. XXV.

undertake the work more for the love of it than for the inadequate salaries offered, and worthily sustain the traditions of Judge Story, some of whose great works were delivered as lectures to a Harvard class.1 In New York, the institution called Columbia College is fortunate in possessing a professor of great legal ability and an extraordinary gift of exposition, whose class-rooms, like those at Harvard, are crowded by large and highly intelligent audiences. Better law-teaching than Mr. Dwight's it is hardly possible to imagine; it would be worth an English student's while to cross the Atlantic to attend his course. Many of the lesser Universities and Colleges have attached to them lawschools of greater or less fame, but sufficient to bring some sort of instruction within the reach of any one who cares to have it. The teaching given

1 "The course of study in the Harvard Law School will comprise the following subjects, of which some are required and others elective:

REQUIRED STUDIES.

"1. Real Property. 2. Personal Property. 3. Contracts. 4. Torts. 5. Criminal Law and Criminal Procedure. 6. Civil Procedure at Common Law. 7. Evidence.

ELECTIVE STUDIES.

"Commercial Law.-1. Sales of Personal Property. 2. Bailments. 3. Agency. 4. Negotiable Paper. 5. Partnership. 6. Shipping, including jurisdiction and procedure in Admiralty. 7. Insurance.

"Equity, Real Property and kindred subjects. -8. Real Property. 9. Evidence. 10. Jurisdiction and Procedure in Equity. 11. Principal and Surety, including guarantee. 12. Domestic 13. Marriage and Divorce. Wills and Administration. 15. Corporations. 16. Conflict of Laws. 17. Constitutional Law. 18. Debtor and Creditor, including Bankruptcy.

relations.

14.

"All the required subjects, and as many as possible of the elective subjects (eleven in 1870-71), will be taught every year."-(Prospectus of the Harvard University Law School, Cambridge, Mass.)

2 For instance, the State University of Michigan, at Ann Arbor (a University which has just signalized itself by admitting women to its classes on equal terms with men), has a law-school with four professors, who lecture on the following subjects :

"(a.) On Equity and Equitable Remedies, Criminal Law, United States' Jurisprudence, and International Law.

"(b.) On Contracts, Bills and Notes, Partnerships, and the Law of Corporations and Agency. "(c.) On Constitutional Law, Estates in Real

P

is of a definitely practical character, and bears only on our English and American Common Law and Equity. Jurisprudence, using the term to mean the science of law in general, is not recognized as a subject at all; nor is the Civil Law regularly studied anywhere in the northern or middle States; international law, where taught, is usually deemed a part of the literary or historical, not of the legal course. Attendance on law classes is purely optional, so that the demand which exists may be taken to prove the excellence of the article supplied.

The right of admitting to practise is in all or nearly all the States vested, or supposed to be vested, in the judges, who usually either delegate it to the bar, or appoint on each occasion one, two, or three counsel to examine the candidate. Occasionally, as for instance in Philadelphia, he is required to have read for a fixed period in some lawyer's office, but more commonly nothing more than an examination is demanded, and the examination, nowhere severe, is often little better than a form. In Massachusetts applicants may be, but are rarely, plucked; in New York, less scrupulous in this as in most respects than other cities, the whole thing is said to be a farce, and people whose character and whose attainments are equally unsatisfactory, find their way into the profession. Unless the opinion of their fellowcitizens does them great injustice, many of the New York judges are not quite the men to insist on a rigid standard of fessional honour and capacity. An admission in any one State gives a title to practise within its limits only; but practically, he who has been admitted in one State finds no difficulty of being admitted pro forma to the court of another in which he may happen to have a case. On the whole it may be said that very little care is taken in America to secure the competence of

pro

Property, The Domestic Relations, Wills, &c., and Uses and Trusts.

"(d.) On Pleading and Practice, Evidence, Personal Property, Easements, and Bailments." Not a very philosophical distribution of topics.

practitioners. In this, as in other matters, the principle of laissez faire is trusted to, and the creditably high level of legal knowledge and skill in the best States is due rather to a sense of the value of systematic instruction among the members of the profession itself than to the almost nominal entrance examination. The experience of America seems on the whole to confirm the main conclusion of Mr. Dicey's singularly clear and vigorous article1 on legal education, that our chief aim ought to be to provide thoroughly good instruction in law, and that examinations should rather be used to test this instruction than trusted to as in themselves sufficient to produce a body of competent practitioners.

The strictly practical character of the legal instruction given, good as much of it is, has been followed by one unfortunate result. There is but a slight interest in the scientific propriety of law, or in the discussion of its leading principles; an American lawyer seems quite as unwilling to travel out of the region of cases as any disciple of Lord Kenyon or Mr. John William Smith could have been. More has been done in the way of law reform there than here in England, for the Americans are more impatient of practical inconveniences than we are, more dexterous in getting rid of them, and less hampered by the complexity and slowness of their political machinery. Most, if not all, of the northern States have codified their statutes, have united legal and equitable jurisdiction in the same court, and greatly simplified the law of real property. But this has all been done in a sort of rough and ready way, with no great attention to elegance of form. The codification of case-law has (I speak again of the northern and eastern States) been very little discussed, and the attempts made are, in a scientific point of view, far from satisfactory. Among the

1 In the December number of this Magazine. I may add, however, that the entrance examinations in America seem to be much laxer than could be wished, and that most of the leading lawyers desire them to be made more strict.

individual American lawyers there are many men of the highest powers-men whose learning and acumen would have put them in the forefront of the bar in England had they lived here, and enabled them to rival the best of our English judges. But those who take a speculative interest in law, and study its philosophy and its history, seem to be extremely few, fewer than in England. As every lawyer practises both law and equity, and as the bulk of the law altogether is much smaller than in England, an average New England townpractitioner has probably a better general knowledge of the whole field than a person of corresponding talents and standing in this country, and is probably smarter and quicker in using his knowledge. On the other hand, there are fewer men who are masters of a special department; the judges are in most States (Massachusetts is a conspicuous exception) inferior people, whose decisions carry little moral weight, and before whom counsel naturally acquire a comparatively slovenly habit of arguing. There is, therefore, some danger that the caselaw may gradually decline, may grow looser and less consistent; while from unlearned popular bodies, such as the State Legislatures, no finished legislation can be expected. In this condition of things, the value not only of the reports of the Federal Courts, whose judges are mostly persons of some mark, but of our own English reports, is very great. Pretty nearly every lawyer of standing takes in the Law Reports as they appear, and the decisions contained in them, although not legally binding, are cited with as much readiness and enjoy as much moral weight as they do here. An English judge can have no more legitimate subject for pride than in reflecting that every decision he gives-I might say, every dictum he utters-is caught up, and bears with it almost the force of law over the vast territory that stretches from the Bay of Fundy to the Golden Gate.

As in the United States the bar includes the whole mass of the attorneys

as well as those whom we should call barristers, its social position ought to be compared with that of both the branches of the English profession taken together. So regarded, it seems to be somewhat higher than in England; naturally enough, when we remember that there is no hereditary aristocracy to overshadow it, and that in the absence of a titled class, a landed class, and a military class, the chief distinction which common sentiment can lay hold of as elevating one set of persons above another is the character of their occupation, and the degree of culture and intelligence which it implies. Such distinctions, however, carried more weight in days when society was smaller, simpler, and less wealthy than it has now become. The growth of great mercantile fortunes has in America, as in England, and perhaps even more notably there, lowered the relative importance and dignity of the bar. An individual merchant holds perhaps no better place compared with an average individual lawyer than he did forty years ago; but the millionaire is a much more frequent and potent personage than he was then, and outshines everybody in the country. Now and then a great orator or a great writer achieves fame of a different and higher kind; but in the main it is the glory of successful commerce which in America and Europe now draws admiring eyes. Wealth, it is true, is by no means out of the reach of the leading lawyers: yet still not such wealth as may be and constantly is amassed by contractors, share speculators, hotel proprietors, newspaper owners, and retail storekeepers.

The

incomes of the first counsel in cities like New York are probably as large as those of the great English leaders; one firm, for instance, is often mentioned as dividing a sum of 250,000 dollars a year, of which the senior member may probably have 100,000. It is, however, only in two or three of the greatest cities that such incomes can be made, and one may doubt whether there are ten or fifteen counsel in the whole country who, simply by

their profession, make more than fifty or sixty thousand dollars a year.

Next after wealth, education and power may be taken to be the two elements or qualities on which social standing in a new and democratic country depends. As respects education, the bar stands high -higher, it would seem, than either of the two other learned professions, or than their new sister, journalism. Most lawyers have had a college training, and are by the necessity of their employment persons of some mental cultivation; in the older towns they (in conjunction with the professors of the University, where there is one) form the intellectual élite of the place, and maintain worthily the literary traditions of the Roman, French, and English bar. It is worth noting, that the tendency of their professional training is, there as well as here, to make them conservative in professional matters. They have the same dislike to theorists, the same attachment to old forms, the same cautiousness in committing themselves to any broad legal principle, which distinguish the orthodox type of the English lawyer, and tend to reproduce faithfully on the shores of the Mississippi the very prejudices which Bentham assailed eighty years ago, at a time when those shores were inhabited only by Indians and beavers. In Chicago, a city of yesterday, special demurrers, replications de injuria, and all the elaborate formalities of pleading which were swept away by our Common Law Procedure Acts, flourish and abound to this day. As for power, the power of the bar in politics is considerable, although the rise of a class of professional politicians has of late years weakened it. The affairs of private persons are of course, to a great extent, in their hands; but the simpler state of the law, especially the law of land, and the absence of complicated settlements, make a man rather less dependent on his solicitor than an English country gentleman is almost certain to be. The machinery of local government is largely / worked by the lawyers, and the conduct

of legislation (so far as it is not of a

purely administrative character, or does not touch on popular questions) is left to them; that is to say, if any permanent change is to be made in the private law of the community, or in procedure, the lay public can hardly help trusting them. When they act together as a class upon class questions, they can put forth very great strength. In some States it is entirely the will of the lawyers that has delayed law reforms, and in a good many, where the judiciary is elective, a fairly respectable selection of judges is ensured by the joint action of the bar, whose nominees are usually accepted by the bulk of sensible lay citizens. This happens, one is told, in Philadelphia, as well as in Chicago and many cities of the West.

The decline of the influence of the bar in politics opens up a group of historical questions which one can only touch on, and which a stranger can indeed hardly hope to have mastered. In the earlier days of the Republic lawyers played a great part, as lawyers have done wherever free governments exist. So in England, long before the days of Somers; so still more conspicuously in France, most of the leaders whom each revolution has brought to the top having been men of the robe, as Grévy, Favre, Gambetta, and other people of eminence are now. In America, most of the Presidents, indeed nearly all, except the soldiers, have been lawyers; witness, among others, the last four, Fillmore, Buchanan, Lincoln, and Andrew Johnson. So too were Webster and Clay; and so, to come down to the notable and the notorious men of to-day, are Seward, Sumner, John T. Hoffman, B. F. Butler, A. O. Hall. The absence of any permanently wealthy and influential class, such as the landed gentry form in England, gives the American advocate a special advantage in public life, over and above those which he derives from his practice in speaking and his habit of dealing with legal questions; and he finds another in the fact, that such constant reference is made in American politics to the written Constitution.