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Choice of Counsel by Attorneys.-The Present State of the Legal Profession. direct communication with the suitor, un- None will be disposed to deny the great imassisted by an Attorney, that he, who per-portance to a State of a just and able adminishaps had only one suit in his whole life, tration of its laws. Good laws become almost would make a better selection than an At- a dead letter if inefficiently executed. The torney who, if he did not rely on his own experience, might have the advantage of the opinion of his brethren if he had any doubt of the selection he had to make?

We know that the merits and defects of leading Counsel come frequently under discussion amongst Solicitors, and no doubt an accurate estimate is formed of their respective qualifications and the several classes of cases in which they are best fitted to excel. The struggles between Attorneys to secure a favourite Counsel for their clients are well known. Special retainers are attempted to be superseded by general retainers, and the slightest mistake in the title of a cause is made the subject of controversy.

In the unsettled state of the practice, the appeal being made from one Barrister to another, and no rules being published to guide the practitioner, many questions arise. The Incorporated Law Society, indeed, have established certain regulations which are binding on their members, but not recognised by the Bar, although they were previously submitted to the consideration of every leading Counsel.

subjects of Rome, during the time of her decay, and of many of the worst governed countries of the present day, have suffered much more from the imperfect and corrupt administration of their laws, than from defects in the laws, themselves.

It becomes the special duty of the Legislator, therefore, not merely to determine upon but to take every precaution which prudence the laws likely to be beneficial to his country, and forethought may dictate for having these laws properly administered.

In every civilised country, none but those who have devoted their time and attention exclusively to the consideration of its laws can have that intimate acquaintance with them to be able practically to apply them. To these persons the community must have recourse for advice upon every occasion when the legality of an action is in question, and to them must be left the administration of the laws. It is of the greatest importance, therefore, to the State, that these persons should be men of high principle and of well-informed, cultivated


The object of this paper is to consider how far the present state of the Legal Profession in England conduces to this end.

The Profession is divided into two branches: It is evident, therefore, that the choice of 1st. Those who confine their attention chiefly Counsel must rest with the Attorney, ex- to one department of law, and whose duty it is cept in cases where the client desires a re-to advocate the interests of the client in public tainer to be given, either to some eminent well-known Advocate, or to some friend or relative. The latter is not unfrequently the




Court, and to advise upon any point of law arising in their department, but who (except under special circumstances) have no direct

communication with the client.

2ndly. Those who are required to have a general knowledge of every department of the law, and who directly communicate with and advise the client, and manage and conduct his entire legal business, with the exception of advocating his case in a Superior Court in the

very able Paper was read at the Meet-event of a trial. ing of the Metropolitan and Provincial Law Association, at Birmingham, in October last.

The writer stated, that the union of the two branches of the Legal Profession, advocated in the paper, was not brought forward with a view to the immediate adoption of any practical measure founded upon it, but as a question which, though at present a theoretical, was sure, at no distant time, to become a practical one, and for which, therefore, it was desirable to prepare and mature a sound professional opinion, by free and ample discussion. That seemed the more necessary, as opportunities had lately been taken in the House of Lords and other places, to inculcate opinions different from those maintained in this paper.

The first branch are the least numerous, consisting of little more than one-fourth of the whole Profession. To them, however, almost every office of distinction and emolument connected with the Profession (including the highest offices in the State) is given. They are allowed the management of all the large funds devoted for Legal Education; from participation in the benefits of which they have excluded the more numerous branch of the Profession altogether. They are exempted from all responsibility to the client for wrong advice, gross ignorance of their Profession, or neglect of his interests; and are allowed to retain the remuneration (which is often great) given them by the client, for their services, without rendering them the services in returnand which they constantly do. High social rank, also, is given to them, so that members connected with the aristocracy think it no de


The Present State of the Legal Profession.

gradation to belong to them, and social position | merous offices confined exclusively to this branch of the Profession, or to obtain social rank and position; many of whom are unfitted by want of legal knowledge or mental powers for the duties they may have to perform.

is conferred on the lowest member, and no test of fitness for their duties, either as to their legal knowledge or general education, is required for admission.

But its effects on the second branch are still more injurious. It depresses and degrades them. Its direct tendency is to drive from their ranks men of intelligence and enterprise, by closing every avenue to distinction, and holding out no hope for honourable ambition. This is no fancied evil, but is well known and felt by every member of the second branch. A strong instance occurred to the writer in his early professional career. In the office in which he was articled were three other gentlemen. After serving their Articles, and occasioning an expenditure to their friends of from 1,000l. to 1,2007. each, they left the Profession from dissatisfaction with the social position it gave them, and a conviction that it afforded no opening for their talents. One went to college, and afterwards into the Church, another to the Bar, and the third obtained a public appointment. Each was a man of talent and education, and would have reflected credit

The second branch, which constitutes nearly three-fourths of the whole Profession, are excluded from almost every office of emolument or distinction connected with it-even those offices, which so long as a separation of the Profession into two branches continues to subsist, would appear to belong to members of the second branch, and which members of the second branch, who have considerable practical experience in their Profession, are best qualified to perform, are taken from them in case they confer honour and distinction, as the Solicitorships to Government boards and offices, &c. They have a heavy duty imposed upon them upon their admission, and an annual one whilst in practice;-are made responsible to the client for ignorance of their Profession or neglect of his interests;-are not allowed to determine the amount of remuneration they may receive for their labour and skill; but are subjected to an unjust system of taxation, by which the ablest and most experienced practitioner is not al-upon any profession to which he belonged, and lowed to receive a larger remuneration for his time and trouble than the youngest or most ignorant, and by which a premium is held out to ignorance or indolence by giving large remuneration, and creating no responsibility if the first branch be consulted, but allowing scarcely any remuneration and imposing heavy responsibility if the second branch act upon their own opinion. They are virtually excluded from entering the first branch of the Profession, the fact of their being members of the second branch being deemed a special disqualification. Thus, whilst a man who is following the calling of a reporter for a newspa per is allowed to keep his Terms and enter the first branch; if he be a member of the second branch (which particularly qualifies him for entering the first) he is not. He must cease to be a member of the second branch for period of five years before he is deemed purified from the taint of having belonged to it. They are, also, excluded from all participation in the benefits of the large funds possessed by the Inns of Court, and which ought to be applied to the education and for the advantage of the whole Profession.

each has done so upon that which he has chosen. There is scarcely any member of the second branch, if he have a son distinguished for ability and learning, that does not either place him in the first branch, or bring him up to some other profession.

Sir Samuel Romilly, when advocating the cause of the Roman Catholic Stuff Gownsmen at the Irish Bar, who were excluded on account of their religion from being King's Counsel or holding offices of distinction, observes:—

"What, is it no hardship to be told you may enter, indeed, into professions which are highly honourable to others, but by you they must be followed merely as the means of gaining a subsistence? As to all the proud objects of hoanourable ambition-as to everything which can ennoble your labours in your own eyes or in the eyes of others—as to the hope of ever rendering yourselves eminently useful to mankind, or gloriously distinguishing yourselves by services to your country-as to the prospect of establishing a reputation which shall live in the memory of a grateful posterity, of becom

This state of the Legal Profession, it is sub-ing an example which shall serve to kindle the

virtues of a future generation, and of leaving a name which your children shall never hear pronounced but with a glow of honest pride and pious exultation-as to all these animating hopes and prospects, they must be by you for

mitted, is unjust towards the more numerous branch of it, and prejudicial to the interests of the public. It is by no means advantageous to the mem-ever relinquished. You may toil on in the bers of the first branch of the Profession, for it deprives them of that practical acquaintance with business which communication with the client and the management of his affairs must necessarily give, and it forces into its ranks five times the number of persons necessary for the work there is to do, who enter them solely to obtain through interest some of the nu

humble situation where gain must be your only object; you may see honours and distinetions distributed to those around you, but you must be for ever precluded from them. That profession, which to your colleagues leads to the most eminent station, shall be to you an unhonoured, though profitable trade. Can it be possible that these distinctions should not

The Present State of the Legal Profession.


operate in some degree to humiliate and de- | Court Judgships, Commissioners of Bankgrade a man in his own eyes, and in the eyes ruptcy and Insolvency, &c., than the present of those around him? What was the Profes-possessors, and yet they are excluded from sion of the Law in France previous to the Re-these offices simply because they are Solicitors. volution, compared to the same Profession in Such men cannot but feel themselves unjustly our country! It was comparatively a degraded treated. Profession, and for this very reason because, however lucrative, it led to no honours. It was one of emolument alone."

If these observations were applicable to the Irish Stuff Gownsmen, whose position thus called forth the warm sympathy and eloquence of the philanthropic Romilly, are they not equally applicable to the position of Solicitors in the present day?

It is not merely the Legal Profession, however, which suffers by its present position; the public interests are injuriously affected by it.

ceed greatly the number of men from whom 1st. The immense number of public offices given to the first branch of the Profession exthat branch affords professional employment. It, therefore, overflows with men who enter it for no other purpose than to obtain office In the Church, the humblest curate may pointed to offices to administer the laws who through interest, and men are constantly apaspire to be an archbishop, and every arch- have had no professional practice, are unknown bishop must be a curate: and in the Army and to the public, and consequently have not their Navy every ensign and middy may hope to be confidence, and are ignorant of business habits, a general or an admiral, and every general or and the customs, feelings, and wants of those admiral must be an ensign or middy. The amongst whom they are placed; and some, effect of this is advantageous to the whole Pro-the writer regrets to say, are even ignorant, to fession, and gives a much higher and more a great extent, of the laws they have to adintelligent class of men to occupy the lower minister. positions of these professions than would otherwise be the case. The public are, therefore, sent state of the Profession, of the services of a 2ndly. The public are deprived, by the prebenefitted by it. Can it be supposed for a large body of experienced men, who are exmoment that we should have the same class of cluded from offices which, from their business men in the lower positions of these professions habits and well-known ability, they are pecuif a broad line of distinction were drawn be- liarly qualified to fill, simply because they between them and the upper positions, and those long to the second branch of the Profession. in the lower were cut off from all preferments? That the public has confidence in, and highly Why then is this distinction made in the Legal appreciates the services of, this body, is evinced Profession? When the confidential nature of by the fact that they are the business, which the Solicitor has to trans-elected chief magistrates of cities and towns act, his close communication with, and influ- than any other class of the community. And more frequently ence over, the client, and the important trusts it may be safely said that in every city and that are reposed in him, are considered, and town it will be admitted that no class discharge that the happiness, the property, and even the their duties as chief magistrates with greater life of the client are often dependent on his ability, impartiality, or integrity. skill, his judgment, or his honour, it must be admitted that it is of the greatest importance the community lose altogether the services of 3rdly. In the present state of the Profession, to society that Solicitors should be men of men combining high intellect and extended ability, education, and high principle. Why education with practical knowledge of business then is a system adopted which has a direct tendency to deter such men from becoming Solicitors? Dispersed through every part of the kingdom; professionally brought in contact with every grade of society; to be found at the table of the peer, and in the cell of the felon; counselling and guiding in every important doubt and difficulty, advising and directing in every important dispute; their influence for good or evil over society must be immense.

But the present state of the Legal Profession has not only the effect of deterring men of ability and learning from entering the second branch of the Profession; it has a depressing influence on those who remain in it. They feel themselves unjustly treated and aggrieved. In every large town in the kingdom there are Solicitors, who, from their experience in business, and legal and general knowledge, and from the public confidence which they possess, are equally, and, in many instances, better qualified to hold such legal appointments as County

and the world. It is only by uniting the theoretical with the practical that the ablest and most useful men can be obtained. In the eloquent words of a philosophical writer of the present day (the Rev. F. D. Maurice, the chaplain of Lincoln's Inn), the result of the collision and conflict between "A right education is the practical intellect and the meditative intellect, and no true spark comes forth till the one denied but that practical experience can only is struck by the other." Now, it cannot be be obtained in the second branch of the Profession, for they alone have communication with the client, and the management of his business, and are alone acquainted with his wants, his feelings, and his wishes.

fession is injurious to the public by its influ4thly. The present state of the Legal Proence on the second branch of the Profession, whose social position it degrades, and deters from entering its ranks the very description of men whom the public interests most need in it,


The Present State of the Legal Profession.

viz., the highly-educated, the well-informed, | the introduction of measures to compel the inhaand the high principled.

effect of the present laws regarding the Legal Profession, it may naturally be asked, How came such a system to exist, and how can it be defended?

bitants to burn their smoke and cleanse the

If what has been written be true as to the town. "It is a well-known saying," said the sapient Town Councillor, “ more muck more money.' Leeds has thriven more than almost any other town, and its inhabitants grown rich and powerful amidst smoke and dirt. I shall, therefore, oppose any alteration of the present system." To the credit of the Council, he was answered by another member, that Leeds had grown rich by the industry and energy of its inhabitants, and in spite of its smoke and dirt, not owing to them.

Its existence appears to be an encroachment, no such division as is now found having anciently existed in this kingdom.

Serjeant Manning (a learned and good authority on the subject), in his Serviens Legem, states that Apprentices and Attorneys constituted one body, and were alike admitted to the Inns of Court, and the advantages to be derived from those institutions. In a petition to Edward III. (1337), John de Codrington describes himself" as an Apprentice of our Lord the King and Attorney," and petitions to be exempt from appearing as a man at arms completely armed at Orwell; and his petition was granted inasmuch as he was an Attorney. Not only were Attorneys admitted to the advantages of the Inns of Court, but Merrifield, in his "Law of Attorneys," says, that they could not be sworn Attorneys unless first admitted of one of the Inns of Court or Chancery, and that every Attorney so admitted was ordered to come into and continue commons for the time appointed, on pain of being put off the roll; and he refers to the rules so late as Michaelmas, 1655, K. B. and C. P., and 1704, K. B., and 1705, C. P. During the latter end of the fifteenth century, in the case of Parton v. Genny, 2 Edward IV., fol. 2, pl. 4, 1471, we hear of Attorneys or Apprentices arguing in the Superior Courts. Then (as would now be the case if the Profession were united), each member devoted himself to that department for which his talents might peculiarly qualify him, or to which his taste or his interest might lead


It was not until those who devoted themselves solely to advocacy found that they had sufficient strength to exclude their more numerous brethren from the honours of the Profession and the Inns of Court, that the present division into two branches was accomplished.

The advocates having once attained this object, their branch of the Profession, of course, attracted to it exclusively the members of the aristocracy, and those connected with members of the Legislature; and their power in the Legislature has succeeded in maintaining the unjust division to the present day.

The reasons which the writer has heard urged in favour of this division he will endeavour to state fairly, and to answer.

The same answer may be given to the reason mentioned in favour of the present system in the Legal Profession. We have learned Judges and Barristers in spite of such a system, not owing to it.

2ndly. It is urged by the advocates of the present system, that our Bar is a most learned body, having a high position, and contains within its ranks men of the greatest intellectual powers and cultivated minds-gentlemen by birth and in feelings-and that it is of the greatest importance to the country that such men should be there; that this might not be the case if the two branches of the Profession were united; and that, as a body, the Bar are better educated and more learned than the Attorneys.

To this it is answered, Throw open honours, distinctions, and advantages to the second branch of the Profession, and there will be quickly found within its ranks men of the same mental calibre and social position as are now found at the Bar. It is the honours and distinctions which attract them.

Besides, the writer is by no means disposed to admit as a fact, that the Bar are so learned a body, or so well informed, as they ought to be. Although it contains powerful intellects and ready debaters, yet their minds are contracted by our system, and they are rather case Lawyers, and acute in refined distinctions, than men of extensive information and comprehensive views. Lord Brougham, in his examination before the Committee on Legal education, says:-"I am sorry to say that legal education in England is at as low an ebb as it is possible for education to be in any country." And again :-" Not only are we deficient in productions of a high character, but the greatest difficulty is found from the want even of good elementary works."

And the present Solicitor-General, before the same Committee, states, "That the inquirer will not detect amongst our Lawyers any evidence of any great extent of reading, or of any large acquaintance with the principles of the science of law. The argument (that is, Counsel's) is most frequently a mere task of memory, rather than of the enumeration and application of legal principles. The consequences are conspicuous; a most serious evil takes place in the administration of justice." And again the This reason, it is submitted, contains in it same authority says:-"There is a remarkable the same fallacy as the reason given by a mem-deficiency in that higher class of scientific ber of the Leeds Town Council, when opposing (works, in those systematic developments of the

1st. It is said that the present plan works well, for that no country has more able, highminded, and impartial Judges, or a superior class of Advocates to our own.

The Present State of the Legal Profession.


In the Netherlands, also, the Barrister and Attorney is the same person, and a University education is required.

history and philosophy of law, which, arising | same person. A University education is refrom broader and deeper studies, also tend to quired, and a certificate from the Minister of render still broader and deeper its practice and Public Instruction. administration, and of which we daily see so many distinguished evidences from the press, not only of the Continent, but America." And Professor Empson says:-" At present we are indebted, both in our public institutions and in the Profession, for whatever works of eminence we use, either to the schools of the Continent, or to those of America."

After these statements by some of the most eminent of the first branch of the Legal Profession, it is conceived that their learning and high position cannot be advanced as a justification for the present treatment of the more numerous branch. The great American jurists, Story, Greenleaf, and others, whose works are unequalled by any produced in England, are found in a country where no division of the Legal Profession exists; and the merits of their writings are attributed by themselves and their countrymen, to a considerable extent, to their being able to combine that practical knowledge with theoretical which a united Profession enables them to acquire.

The third reason the writer has heard urged is, that the present system is only carrying out a principle which is admitted on all hands to be sound, viz., a division of labour, and that, by confining each branch to its own department, both are better done.

And lastly, in America, where our laws and legal institutions were all adopted, our absurd and unjust division in the Legal Profession has been rejected.

The following remarks on the subject of this division are made by a distinguished philosopher in his journal during his second tour through the States, and being those of a man of extensive knowledge of society, and not a member of the Legal Profession, are entitled to much weight:

"The Profession of the Law," says Sir Charles Lyell, "is, of all others in the United States, that which attracts to it the greatest number of able and highly-educated men. Practically, there is much the same subdivision of labour in the Legal Profession here as in England, for a man of eminence enters into partnership with some one or more of the younger or less talented lawyers, who play the part assigned with us to junior Counsel and Attorneys. There are, however, no two grades here corresponding to Barrister and Attorney. Every Lawyer in the United States may plead To this he would reply, that so far as a divi- in Court and address a Jury; and, if he be sion of labour is concerned, the same would successful, may be raised to the Bench; but take place if the Profession were united. Each he must qualify as a Counsellor in order to be member would devote himself to that depart-entitled to plead in the Supreme Courts, where ment for which his talents or knowledge parti-cases are heard involving points at issue becularly qualified him, or to which his inclination tween the tribunals of Independent States. led him. It is not of the division of labour of The line drawn between Barristers and Attorwhich Attorneys complain, but of that division neys in Great Britain, which never existed, into castes which debars them from the free choice of their department of labour, and appropriates all offices of honour or emolument, and the advantages of the Inns of Court, exclusively to those devoting themselves to Advocacy; while Attorneys are compelled to cease practising for a period of five years before being allowed to enter the privileged order.

After making many inquiries, the writer cannot ascertain that such a system as that of England exists in any other country.

In Prussia, the Lawyer goes through University education, and then practises indis criminately as a Barrister or Notary.

In Sweden, the Barrister and Attorney are the same person, and must go through a University education.

In Denmark, the Lawyer undergoes an examination and a course of probation; and, when certified, practises as both Advocate and Attorney. Throughout the whole of Germany the Lawyer performs the functions of both Barrister and Attorney.

In Portugal, the Lawyer must pass through a five years' course at the University and two years with a practitioner, and then acts both as a Barrister and Attorney.

In Spain, the Advocate and Attorney is the

even in colonial times, in Massachusetts, could only be tolerated in a country where the aristocratic element is exceedingly predominant. In the English Church, where seats in the House of Lords are held by Bishops, we see how the rank of a whole Profession may be elevated by making high distinctions, conferred only on a few, open to all. That in like manner the highest honours of the Bar and Bench might be open without detriment to the most numerous class of Legal Practitioners in Great Britain, seems to be proved by the fact, that occasionally some Attorneys of talent, by quitting their original line of practice and starting anew, can attain, like the present Chief Justice of the Common Pleas, to places of the first dignity. In Canada, under British rule, it is the custom to grant licenses to the same individual to practise indifferently in all the Courts as Advocate, Solicitor, Attorney, Proctor. When we consider," continues Sir Charles, "the confidential nature of the business transacted by English Attorneys; the extent of property committed to their charge; the manner in which they are consulted in family affairs of the utmost delicacy, as in the framing of marriage contracts and wills; and observe, moreover, how the management of elections falls

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