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BAD LAWYERS OR GOOD? (1870.) - Walter Bagehot, The Works and Life of Walter Bagehot, vol. 5 (Historical & Financial Essays; The English Constitution) 
The Works and Life of Walter Bagehot, ed. Mrs. Russell Barrington. The Works in Nine Volumes. The Life in One Volume. (London: Longmans, Green, and Co., 1915). Vol. 5.
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BAD LAWYERS OR GOOD?
After many years’ delay a movement is, I understand, now beginning for the reform in legal education. To those who have looked at the matter, it is strange that this change has been delayed so long. Oxford has been changed and reformed with strange completeness; Eton is being reformed, and we may hope it will be with equal completeness. Our great seats of ordinary education have been more or less made to educate in our sense of education. But the Inns of Court are still unreformed; with slight exceptions, they still go their own way. Their great funds are nearly useless for education. Magnificent corporations as they are, the English barrister would, in all intellectual culture, and even in all gentlemanly discipline, be pretty much the same if they did not exist. It is not that the exposure has been defective. Fifteen years ago a very good Commission explored the whole subject. No doubt the reason is, that the mass of people do not think it matters at all to them. They think that it concerns lawyers only; and that, if the lawyers do not care to change their own education, probably it does not need change; or, at any rate, no common person need see to it. And this is my motive and my excuse for writing on the subject. If it were necessary to discuss Roman law, or abstract jurisprudence, or the effect of these great subjects as educational disciplines, I should have to be silent. Crowds of persons could teach them far better than I could. But it seems to me that the public mind, so far as it thinks of legal education at all, thinks of it too exclusively in connection with these high topics. The reforming movement has been weak because people in general do not see how it would help them. Some men may wish that some other men may know some Roman law, but they do not wish it with intense eagerness. There is no popular contagion in scholastic sentiments. The only way much to interest the public is to show the public that it is much hurt, and therefore it is that I want to try a short and practical way of treating this subject.
“At Oxford,” said Lord Eldon, “the degree examination was a farce in my time. I was asked who founded University College; and I replied, ‘King Alfred,’ though I believe this is often doubted. No other questions were asked me, and this was all the examination.” Careful sceptics, I believe, say that this anecdote is or may be exaggerated; they think that the aged Chancellor exaggerated the inefficiency of his favourite University. But be that as it may, the process of giving the Oxford degree, as Lord Eldon describes it, was not a bit worse than the Lincoln’s Inn way of giving its degree of “Barrister” twenty years ago. The process was then this: All the students dined in Hall during term, and the only attempt on the part of the Inn to test or augment our legal knowledge consisted in certain exercises, which we had to “keep,” as it was called, in due rotation. Though it is so short a time ago, people now-a-days will hardly believe what those exercises were. A slip of paper was delivered to you, written in legible law-stationer’s hand, which you were to take up to the upper table, where the Benchers sat, and read before them. The contents were generally not intelligible: the slip often began in the middle of a sentence, and by long copying and by no revision the text had become quite corrupt. The topic was “Whether C should have the widow’s estate?” and it was said that if you pieced all the slips together you might make a connected argument for and against the widow. In old time I suppose there used to be regular “moot,” or debate, before the Benchers, in which the students took part, and in which the Benchers judged of their competency. Probably this sort of examination, by publicly putting a nice case and publicly arguing it, was very effectual. But in 1850 the trial “case” had dwindled down to the everlasting question, “Whether C should have the widow’s estate?” The animated debate had become a mechanical reading of copied bits of paper, which it was difficult to read without laughing. Indeed, the Benchers felt the farce, and wanted to expedite it. If you kept a grave countenance after you had read some six words, the senior Bencher would say, “Sir, that will do”; and then the exercise was kept. But this favour was only given to those who showed due gravity. If you laughed you had to read the “slip” all through.
All established customs will find grave people to defend them, and ingenious reasons are soon found for them. Even “exercises” used to be defended. It was said “to be essential that only gentlemen should be called to the Bar; and that, when a man kept his exercise, the Benchers could see whether he was a gentleman or not”. But as no student was ever rejected for bad looks—as indeed some very refined men are not always very refined-looking—and as some of the Benchers themselves had certainly a singular aspect, it was not easy to acquiesce in this. Still there was a traditional sentiment that a man who had kept an exercise “had done a good work,” of which the use might be real, though not apparent. Indeed, there was some sort of motive for maintaining that feeling. No one likes to admit that a magnificent and an ancient institution, from which he gains glory, is a mere “sham” and empty appearance. But a student of Lincoln’s Inn had to admit that, or defend “exercises”. This occasional reading of a few words in an unintelligible document was all which your splendid “Inn” vouchsafed you; and if that was once conceded to be futile, the whole “Inn” must be pronounced useless. Even “exercises,” therefore, had their defenders, as every old thing has which is connected with a corporate power.
Such was studentship at Lincoln’s Inn twenty years ago. At our call to the Bar, we kept a last “exercise” (still on the old suit of C and the widow), and we presented comfits to the Benchers’ wives, but of any attempt to test our competency for our profession, or our fitness for the many posts monopolised by it, there was no trace or suggestion.
Since that time, however, there have been several changes. A vague feeling ran through society that the Inns of Court did not “look right”; if you wanted to prove their usefulness, the argument was difficult; the first impression on every listening mind was adverse; Lord Westbury and other reformers were stirring within the Inns; so “something” was done. And it was done in the natural way of those who think the present perfect, but fear that unless they do something they will not be able to keep the present long. As little in reality was changed as possible, but as much as possible was changed in appearance. The comforts of antiquity were retained, and yet, as far as might be, decent answers were provided for the unpleasant questions of the new world. Lectures were provided, and an examination previous to the call to the Bar was begun. But unfortunately these novelties were erected on the alternative: A student may either pass an examination, or else he must attend lectures. And this is surely very absurd. At present the natural idea is that an educational body should found lectures to teach, and examinations to see whether those lectures have been efficient. But the Inns of Court say, “No; we will examine, and we will teach; but we need not do both to the same persons. If some students attend lectures, that shall be enough; and if some pass an examination, that shall be enough. To examine those who have already attended lectures would be impertinent; it would seem as if we doubted whether they had learnt from those lectures or not.” Not long ago, however, I met a barrister and county magistrate whose legal attainments I much suspected; so I asked him: “How did you get through the Bar examination?” “Oh,” he said, “I was not examined: I attended lectures.” “And were the lectures good?” I asked again. “Oh,” he said, “I do not know about that: I did not listen much. I read Punch, and that sort of thing.” There is no examination to keep out incompetent barristers, and lectures only really teach those who really attend.
No doubt there is a most efficient education for the Bar, but that education is entirely independent of the Inns. If no call at all were wanted, if, as at Rome, any one could practise at the Bar who liked, their education would be just as efficient as it is now. Students read, as it is called, three years or more in the “chambers” of a conveyancer and a special pleader and an equity draftsman. But they are not called to the Bar by virtue of this, or because of their having profited by it. Any one who has not “read” is called just as easily as those who have. Before the Commission several witnesses (Lord Cairns was one) very sensibly insisted on the excellence of the present system. A student sees in chambers, it was said, real business; he has real transactions to study; he sees how other people cope with them; he is not trained on theory, or on the A B C notions of books; he sees actual facts as they occur in the various real world. And there is no answer to these arguments. Undoubtedly the study of real business is an indispensable part of legal education; if you had the choice whether to give up that or everything else but that, you had better keep that. Real business will train you in some degree without other help; but without seeing real business you cannot be trained at all. But then, for what purpose are the Inns of Court? They show you no real business, and do not pretend to show you any. If attendance at chambers alone qualifies for the Bar, why should not any person who has so attended at chambers be called to the Bar? Why should he have to enter at an Inn of Court at all? The defenders of the Inns say, “No doubt they do not educate, but then some one else educates”. But then we should not attend to them; we should attend only to the real educator.
But though the Inns of Court are so inefficient in education, they are exceedingly efficient in finance. The following were their incomes as given by the Commission of 1855:—
No doubt some of this is raised from the rent of old buildings which require an unusual annual outlay, but still there is a vast income—over £40,000—which, except an annual trifle for the library, is all spent uselessly. About £15,000 is spent every year on the dinners for the students, and more than £6,000 on establishment charges, besides “miscellaneous” items. The Inns are, in fact, legal clubs; and bad legal clubs, for they dine at a bad hour, much earlier than any one now wishes to dine; and all the arrangements are stiff and inconvenient, since they are regulated, not by a freely-elected body, but by a self-electing committee of old gentlemen.
There is a floating idea that these Inns secure the sociability of the students and Bar. But there is little enough of that in dinners where people speak little unless they are introduced; and if sociability be really what is wished, the Inns should further develop the club idea, and should establish a “smoking-room”.
A considerable part of the incomes of the Inns is levied by fees from the members of the Inns and from the students. They have dues for commons—that is, dinners—which you must pay whether you dine or not, with many intricate fees beside; and in levying these taxes, the Inns used to exhibit—there has very lately been a partial modification—a tenacity and firmness which might move the admiration of the Chancellor of the Exchequer. Indeed, Mr. Lowe has given us his opinion on it. “One other matter,” he said in 1855, “I would take leave to mention. I am a member of Lincoln’s Inn; I went to Australia without, I am afraid, thinking about my commons; and when I returned, after eight years’ absence, I was welcomed back to my native land by a bill of £48 for my absence from commons. Of that, however, I do not complain; it was my own oversight. I paid the bill, not wishing my sureties to be annoyed; and then I thought I had paid enough. At last, when I ceased to be a practising barrister, I made an application to see whether I might not be allowed to cease to pay, as in the case at the University; but I was informed that there was no means of my being so, but that I must pay for the term of my natural life. Now I think that is a great hardship.” The Inns of Court are, in fact, Clubs of Court, and till recently with the bad peculiarity, that if you once got into them, you could never get out. A member was obliged to continue his subscriptions for ever.
A greater abuse than the Inns of Court, or so great an abuse, probably does not now exist in England. They could only be endured in a country tenacious of ancient things, even the most lifeless. They figure in legal education, not because of their efficiency, but because of their size. Though they do nothing, they look as if they ought to do something. But for practical purposes, we must look to the reading in chambers, and see what that is, and what is likely to be the effect of it.
And the most remarkable thing about it is, that it is not “reading” at all. Many English things are called by some word which means exactly what those things are not, and so here. Reading law with a barrister ought to mean that the barrister read some law-book or statute with you, instructed you in it, pointed out things which might escape you, and gave in each case a kind of lecture. But the barrister does nothing of the sort. He is a very busy man, with as much business as he can get through; and in general it would be very much out of his way to give any sort of formal pupil lecture. What happens is this: A heap of papers is set before each pupil, and according to such light as he possesses, and with perhaps a little preliminary explanation, the pupil is set to prepare the document for which these papers were sent—in a special pleader’s chambers, a plea to be used in a court of common law; in an equity draftsman’s, a plea for a court of equity; in a conveyancer’s, probably some deed relating to real property. A precedent is set before each pupil, out of which he is to copy the formal part, which is always much the same in such documents, especially in the easier ones set before the younger pupils. As to all the non-formal part, the first precept given to a beginner is one not so much of deep jurisprudence as of simple practice. He is told to “write wide,” which means that the lines of the pupil’s writing should always be at so great a distance from each other that the preceptor should have ample room to strike them out if he pleased, and write his own words in between them. And of this room he largely avails himself. Not long ago an advocate was contending that the alterations in a draft implied a deep design, on which the presiding judge said: “When I was in chambers, the conveyancer I was with used always to scratch out all I wrote, and write something of his own instead”. Of course this was a playful exaggeration; but there is no doubt that at first younger pupils blundered dreadfully, and that what they write at great pains to themselves is, except in the formal parts of the document, quite useless. Gradually, however, by many failures, able men who work well learn much that is very valuable, and benefit both their teacher and themselves.
Lord Cranworth, I have been told, used to say that the most instructive part of his education—I believe he spoke not only of his legal but of his general training—was that which he spent in a special pleader’s office. And perhaps, as an introduction for a studious mind (such as Lord Cranworth’s was, no doubt) to the actual business of life, such an office could not be made much better. The documents to be prepared were usually short, so that the pupil got a good variety. They were all based on the mistakes of life, and each showed how easily business went wrong, and how difficult it was to keep it right. You saw the law, as it were, in rapid motion; for there was a quick litigation going forward, which presented sharp issues to be decided or settled in a month or two. No doubt there was much pure nonsense taught also. Such refined follies as special demurrers and the replication de injuria are hardly intelligible to younger men. But, side by side with much antiquated absurdity, there was a great deal more of healthy fresh business, which to men from college is enormously instructive, and is what they most want. And the mode of tuition was not cold and formal. It consisted in discussing with your fellow-pupils and your teacher the actual points as they turn up on the actual living cases. Unless a man be destitute both of legal capacity and of business capacity, he must in such a school learn much law and much business. If you could educate the higher classes by compulsion, I would require all young legislators and all young magistrates to go through this training. It would stop unnumbered proposals of nonsense in Parliament, and much minor folly at petty sessions.
But admirable as is this training within its limits, still it has limits. There is a serious objection to it, which applies also to the conveyancer’s chambers and to the equity draftsman’s. The education they give is fresh, but it is also “patchy”. Each set of papers teaches the learner one particular lesson, but there is nothing to combine the lessons together; each case has its peculiar instruction, but the instruction of each is separate; there is nothing to join the lesson of one case to that of another. The whole course of education is “discontinuous”. Point No. I. is not explained in relation to point No. II., nor point No. II. in its relation to point No. III. The student—at least, in many cases—leaves chambers with a very vivid image of many particular instances, but he hardly knows how to connect those instancss together. He is deficient in binding central doctrine. What has been set before him is a rich assortment of unselected transactions, and from each of these he has learnt something. But he feels—at least many have felt—that the knowledge so acquired is something like a knowledge of each separate island in the Pacific Ocean, without any knowledge of the configuration of that ocean itself. He has a mental picture of many clear images, but he does not know how they stand one against another, or what there is between them.
However good, therefore, education in chambers may be, we must carefully observe what it is: it is an education by means of unselected transactions, set before the pupil’s mind without arrangement, and out of which he has to make a system for himself if he is to have arrangement at all, and which he may leave disconnected in his mind if, like many, he scarcely knows the value of digested principle and well-arranged thought. And this is the whole education that most barristers receive.
But the education of barristers is not the only legal education in this country. It is not even the education of the larger half of the legal profession. There are less than five thousand barristers in England, and more than ten thousand solicitors. And what is curious is, that the principle of the whole legal education changes when you get to the lower half, as it is called, of the profession, and changes in exactly the reverse way to what you would expect. One might imagine that, as the duties of an attorney require less actual legal learning than those of a barrister; as he is excluded from all the best places which barristers monopolise; as his voice cannot be heard in a superior court; as he is obliged to employ a barrister to speak for him,—his education would be rather neglected by law, and that of the barrister more heeded. The sort of lawyer sedulously patronised would presumably have been more carefully tested, and shown to be qualified, than the other kind of lawyer, who is sedulously set down and made inferior. But, in fact, the case is just the reverse. As we have seen, a man who knows no law, and who has never tried to know law, has no difficulty in becoming a barrister. There is no kind of fence to keep him out. But such a man could never become an attorney. The law has made rigorous requirements for the legal knowledge of the “little lawyer,” though it has made no requirements at all for the legal knowledge of the “big lawyer”. In inverse proportion to the magnitude of the importance conferred is the care taken by the law to know that this importance is deserved.
“A person,” says Mr. Jevons, “intending to become an attorney or solicitor, before being selected, is required—unless he be a university graduate, or have passed one of certain university examinations—to pass a preliminary examination, showing that he has received a liberal education; he is thereon articled for five years (unless a graduate of one of the universities, or a barrister, in which case the term is reduced to three; or he has passed one of certain university examinations, in which case the term is reduced to four), of which term one year may be spent in the chambers of a barrister, or special pleader. And if articled in the country, one year of any of the said term may be passed in the office of a London attorney. He has, during the term, to pass an intermediate examination in the law; and, finally, to pass a severe examination before he is admitted in the five branches of conveyancing, common law, equity, bankruptcy, and criminal law,—of which he must pass in the first three branches.”1 Of course, having passed this stiff examination, it is expressly provided that an attorney cannot, while he is such, even begin to keep terms to be a barrister; not only he cannot act as one, but he cannot even begin to eat dinners to become one.
But it may be replied,—“Granting that what you say is true, that legal education is deficient in some cases, that the least taught are the most privileged, that the best taught are under the worst disadvantages, yet how does this hurt us? How are common people injured by it? Is it not a matter affecting lawyers only?” I answer that these faults much injure the mass of mankind—that they make the law uncertain, and that they keep it uncertain—that they make the law bad, and that they keep it bad.
In the first place—to a litigant—the division of a profession into two halves is a calamity. A considerate person naturally wishes to understand why his case is right, if it is right; and why it is wrong, if it is wrong. Most men are more interested in their lawsuits than in anything else, and would be glad, for their own guidance, to understand them if they could. But when a client, so wishing to see how and where he stands, cross-examines his attorney, he is referred to counsel at the first difficulty. The attorney says: “Sir, this is a more complex matter than I should like to advise you upon without assistance. It requires greater learning and more ability than mine: I could not pretend to give such an opinion as you ought to have on so important a transaction.” And at first the client is rather pleased. He does not, perhaps, much like the cost of paying for the aid of counsel, but he is much pleased at being mixed up in matters so abstruse and important that their aid is necessary. At any rate, he now thinks that he shall fully understand his case; that he shall really know why he is fighting his suit, and be able to judge for himself whether he ought to compromise or persist in it. On this ground he readily enough consents to “take the opinion,” and looks forward eagerly to receiving it. But when it comes he is almost sure to be disappointed. He finds, no doubt, a plain piece of advice that he ought to do so and so, and perhaps a categorical statement that so and so is the law; but he finds no reasons; he is obliged to believe what the oracle says; he is no nearer to a comprehension of his case than before. Nor can his solicitor help him. He says: “I am sure, sir, I cannot take it upon me to say why counsel gave that opinion; but as we have asked for it and paid for it, I suppose I must act on it”. Now, if the opinion recommends the spending of much money, the client may not quite like this. If he could, he would like to get hold of “counsel,” and cross-examine him; he would like to treat him plainly and familiarly, as he does his attorney. He pays one and he pays the other, and he thinks he ought to get as much as he can out of both. But, in fact, he cannot. Counsel is secluded in a remote and inaccessible shrine, and you cannot effectually get at him. Even if the client gets a “conference,” he has to pay for it; and counsel treats him as if he were a curious intellectual “specimen,” perhaps from the provinces. Any question he may ask is answered with a kind of condescension, but counsel thinks plainly, “What nonsense it is this fellow trying to understand his own case! I am paid to speak to him, and I will speak to him, but I will not speak to him very much.” And the client who has penetrated into the sacred “chambers” probably finds that he has been put off with some vague and cautious observations, which do not seem to him very consistent with each other, and all which he cannot but think happen to evade the worst difficulty, even if they were not meant to do so. As he comes away he calculates: “I paid so much a word for that interview, and what have I gained by it?” But it is only in the rarest cases that the client is so enterprising or so intrusive as this. In nine hundred and ninety-nine cases out of a thousand the client never sees counsel at all. He only gets a copy of the oracular opinion from the attorney, and peruses it several times, wondering at its brevity, but still a little admiring its decision. Gradually he comes to feel a confidence in it, and is content to act on it. But when he advances some way farther in the business, and is beginning to reflect on the expense, it occurs to him as strange that if the matter is as plain as the counsel tells him it is, the other side should be proceeding with so much confidence, and not attempting to strike their flag. Accordingly, he goes to his attorney, and asks, “How is it that the other side are not frightened? You showed them Mr. A. B.’s opinion—his very distinct opinion. I certainly imagined they would be rather inclined to yield after that.” On which, perhaps with a little smile, the attorney tells him: “Why, the fact is, that the other side have consulted counsel also. They have been to C. D., a very eminent man in Lincoln’s Inn, a gentleman I have often consulted myself, and he advises them that they are quite right. They have sent me his opinion. Here it is; perhaps you would like to take it home with you.” And so the client finds that there is “oracle against oracle”; that the god of “Old Square” speaks quite differently from the god of “New Square”; and goes home dissatisfied and bewildered. The courts of law are blocked with suits which counsel advised to be begun, which counsel advised to be defended, and in which neither plaintiff nor defendant likes to yield now, because both have spent so very much money.
I do not mean that all the uncertainty would be remedied by a better constitution of the legal profession. No doubt some uncertain cases there always must be; new varieties of complication arise daily, and require novel decisions. Unquestionably, too, other parts of our bad legal education make the law more uncertain than otherwise it would be. But it is plain that the artificial splitting of the law trade into two halves much aggravates the practical difficulty of getting at the law. “Opinions” are the opprobrium of the legal profession. Everybody knows that an “opinion” is to be had on almost every side of every question. “Show me your case,” it is often said, “and I will write you your opinion.” Now, this could hardly be if the solicitor, the man whom the client pays, had the responsibility of advising him. His interest would be to come as near to the truth as he could, because he would be responsible for the advice he gave. But now he gets a shelter under the distant “barrister”; he does not feel ashamed when the case is decided against him, because Mr. X. Y., a name in the papers, and a man you cannot get hold of, said you would win. And the barrister has no responsibility to the client either. The client cannot come and say, “You advised me to sue; you told me I was going to win; yet you see I have lost”. The man you can scold did not advise you, and the man who did advise you, you cannot scold.
There are other and very delicate points in this subject. I believe most English barristers, and most English solicitors, to be very honourable men; but we all know that there are some black sheep in both halves of the trade. When, years since, I was reading law, I had laid for me a peculiar rule for pleasing the less honest sort of attorneys: “Always,” said a very experienced man, “always recommend proceedings, and then you will be sure to succeed”. His notion was that a barrister who promoted “costs” would thrive with attorneys who live by costs. I quite believe that it would be a libel to ascribe such motives to most solicitors or most counsel; still one cannot help seeing how well the present system helps those who act on such motives. The ultimate adviser, the barrister, has no relation to the ultimate payer, the client; he has no motive to care to please him. He wants to please the attorney, for it is by the attorney’s favour that he lives. What pleases some attorneys is present income. The barrister, therefore, who upon fair reasons, and within decent limits, always promotes costs and contention, will always please at least those attorneys. In case of gross failure, the natural penalty is the client’s wrath; but we protect the attorney against this by enabling him to blame “counsel,” and we protect “counsel” by immuring him in distant dignity.
It may be said that it would be quite useless for clients commonly to see counsel, for the points which counsel have to decide on are so technical that the client cannot understand them. But ought they to be so technical? Ought not the main gist of all cases to be intelligible to men of business interested in them, and anxious to attend to them? In matter of fact, I believe that almost all the law of moneyed property is now intelligible to careful men of that sort; and if the law of landed property is not intelligible, it is only because that law is bad. Mysteries in practical affairs are very dangerous; the more so because, when they once exist, many quiet, unimaginative people cannot help saying and believing that they are inevitable and necessary. But any one who rouses his mind to ask in a specific case, How does this law come to be so unintelligible? will find that the reasons for it belong to some bygone time, and that now it wants to be altered and fitted to modern life. Nothing will ever simplify law so much as the making lawyers explain it to non-lawyers. It will be a great gain when all clients ask about their case anxiously, and when “counsel” have to explain it clearly.
But the bifurcation of our legal profession is not the only way in which our peculiar system of law-training makes the law uncertain. The education of our barrister, such as it was before explained, has as distinctly that effect as if it were designed on purpose. That education we saw to be an education of unselected detail. “Papers” which accidentally came into chambers were placed before the learner, and from them he educated himself. Casual instances were given him to learn from as they came, and from them he learnt what he did learn. By such a training we form excellent practitioners of detail, wonderful “case” lawyers. Years ago, an accomplished specimen of the results of such training used to answer every argument that in any sense purported to be general, or to be derived from principle, with an impatient question. “But have you got a case, Mr. ——? have you got a case?” To him, and to all equally characteristic specimens of our legal education, each transaction was isolated. He wanted to see in the books, not the decision of an analogous case, but the decision of an identical one. “It is of no use having an opinion,” he would add, “unless you can quote an authority for it,” and by an authority he meant some recorded suit in which the specific question had been submitted to a judge and decided by him. To this species of lawyer nothing is certain which is not “within the four corners,” as it used to be said, “of a case,” and a recent case.
Accordingly, when a new case is laid before such persons, one which in a material degree possesses new conditions, or which varies in a patent particular from the standard authorities, it is a matter of accident which way they decide. The most prosperous and most cautious say, unless they are belied, that “the matter is doubtful,” and then incline, more or less confidently, towards the side for which they are asked to advise. But in all cases the point, if new, is to the mass of lawyers very doubtful. An argument of “theory,” as they speak, has no weight with them.
And when we examine the matter, we find that it ought to have no weight with them. A most rigid and careful arguer from principle, a really great lawyer, afterwards on the Bench, used to say, with the emphasis of a past generation, “That’s the law—I know that is the law, but the d—d judges won’t decide it so”. And so, in fact, our system works. A great part of our law is really judge-made law. The courts always profess to be deciding on some ground of past precedent. But very often, and of necessity in novel circumstances, this is nothing but profession. The judges are really making the law when they are said to be declaring it; and if they declared it on solid grounds of principle, and for reasons which could with any sort of confidence be assigned and predicted beforehand, this judicial legislation would be tolerable. In fact, a great part of the best law in the world was so made by great judges who considered principle and followed out principle. But a mere successful practitioner, who began to learn by “papers” and “cases,” who has thriven on practice, who has for years sneered at principle, is the last man, when he becomes a judge, to make a judge of “principle”. His whole life has been spent in an opposite treatment of things; his whole mind has been invested in that treatment. You do not expect a plain cook to turn philosophical chemist; and it is as little rational to expect a barrister of cases and instances to be changed on a sudden to a judge of great principles and broad doctrines. And unless he does so change, his decision is uncertain. If the case is really new, if an identical precedent is not on the file, the judge trained on mere practice, the judge with no head for principle, is confused. There is nothing to guide him in the past decisions, and he has all his life tried to be guided, and boasted that he is guided only, by past decisions. Accordingly, in so many cases it is but a “solemn toss-up” how the judges decide. They are really making new law, but they are not making it on principle; they fear principle. They are guided by fancied analogies and past precedents—one judge relying on one analogy and another on another, but none having anything substantial.
The training for judicial legislation should surely be of two sorts; first, a knowledge of how, in other systems of law, the same or analogous cases have been dealt with. Yet here most of our practising lawyers are deficient. As the writer I have before quoted observes: “From the contemporaneous existence in England of two systems of law, the civil and the common law, applied to different branches, there are no doubt English lawyers, though comparatively few in number, who know something of the Roman law; but who knows anything of the laws of the modern Continental States? And when is even the Roman law systematically made a necessary part of the education of an English common lawyer? We often hear American decisions quoted; but do we, as a body, possess any thorough knowledge of American practice, or of the points on which it agrees with or differs from our own? Is not, in fact, our whole knowledge of Roman, Continental, or American laws a thing occasionally got up for a special purpose, and laid aside when that purpose has been answered?” No doubt we have some real jurists; the age which produced Sir Henry Maine’s Ancient Law could not be wholly deficient in such; but the mass of the law trade look to the cases in the books, and that is why we suffer from “the grotesque decisions” of our judges, as Sir Robert Phillimore happily called them, “in special pleading, the construction of wills, and the law of real property”. Or again, the training for judicial legislation should be one of jurisprudence in the highest sense—of the jurisprudence which Burke must have been thinking of when he called it the “pride of the human intellect”. It must be a knowledge of the reasons which make laws good or bad, eligible or ineligible, in given cases. But 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 able 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 Review1 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 man. A mystic charm is spread about him, as if his words were 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.
1066. Is not the effect of this system, that in all simple Causes, only one agent is employed?—Yes.
1067. Therefore it is much cheaper in practice than the system pursued in this country, of having two agents in every case?—Yes; this is certainly true.
The gradual separation brought about by nature has none of the bad effects of our arbitrary separation enforced by law. If you employed a firm, one partner in which was a barrister and one an attorney, you could scold both partners if you lost; you could talk of it in their district, and so they would not like you to lose. But in England now you are in “counsel’s” hands, and you cannot hurt him though he ruin you.
We should have better barristers too. Now a man cannot go to the Bar except he has some peculiar “connection,” or unless he has money enough to keep him in idleness for years. But if he could practise on small attorneys’ work, he might live till he made his talents known. And we should have infinitely better attorneys, for they would have a career and a future before them which now they have not. It is very hard that the want of a few hundred pounds should by law degrade a man for life, and very bad for the public that the highest energies of the sort of lawyers the public see most of should be for ever depressed by a despotic and unnecessary obstacle. But I do not care much about the legal profession; at least I cannot so much care; my principal anxiety is for the clients and the public. And because these artificial hedges cramp and hurt them, I hope soon to see them swept away.
[1 ] See a very able paper by W. A. Jevons, of Liverpool, on “The Relation between the Two Branches of the Legal Profession,” read before the Law Society of Liverpool.
[1 ]The Fortnightly Review.