CHAPTER II

THE MAKING OF LAWYERS

CLASSES FROM WHICH BARRISTERS AND SOLICITORS ARE

DRAWN--THE INNS OF COURT--INNS OF CHANCERY--

STUDENTS AT PERIOD OF REVOLUTION--A

BARRISTER'S CHAMBERS--TRAINING OF BARRISTERS IN

AN INN--BEING CALLED TO THE BAR--TRAINING OF

SOLICITORS.

To young Englishmen possessing neither fortune nor influence, the

profession of the law has long been an open road to advancement in a

country notable for orderly and constitutional methods, where the

ultimate appeal is always to reason. Perhaps the worship of money,

which characterizes modern England, has somewhat lessened the

prestige of success at the Bar there, as it has done in America,

where a millionaire, upon urging his son to enter the profession,

was met by the young hopeful's reply: "Pooh, father, _we_ can hire

lawyers." Nevertheless, the law still draws its recruits from the

flower of the youth of both countries and, in England, it appeals to

two types of men: to those who would become barristers, and to

those whose ambition soars no higher than the solicitor's calling;

moreover the classes from which the candidates are generally drawn,

differ as do their training and the future functions.

Traditionally, indeed, the sons of gentlemen and the younger sons of

peers were restricted, when seeking an occupation, to the Army, the

Navy, the Church and the Bar. They never became solicitors, for that

branch, like the profession of medicine, was somewhat arbitrarily

excluded from possible callings, but this tradition, as is the case

with many others, has been gradually losing its force of late years.

It must always have been a little hazy in its application, owing to

the difficulty of ascertaining accurately the status of the parent,

if not a peer; and Sir Thomas Smith who, more than three centuries

ago, after describing the various higher titles, attempted a

definition of the word "gentleman," could formulate nothing more

definite than the following: "As for gentlemen they be made good

cheap in this kingdom; for whosoever studieth the laws of the realm,

who studieth in the universities, who professeth the liberal

sciences, and, to be short, who can live idly and without manual

labor, and will bear the port, charge and countenance of a

gentleman, he shall be called master and shall be taken for a

gentleman." The ancient books, too, afford a glimpse of a struggle

on the part of the Bar to demand a certain aristocratic deference,

for an old case is reported where the court refused to hear an

affidavit because a barrister named in it was not called an

"Esquire."

That the struggle was not in vain, is evidenced by the reply of an

old-time Lord Chancellor, who, when asked how he made his selection

from the ranks of the barristers when obliged to name a new judge,

answered: "I always appoint a gentleman and if he knows a little

law, so much the better."

Naturally, the solicitor (who was formerly styled an attorney,

except when practicing in an equity court) was sensitive about his

own position, for the passage of a now-forgotten Act of Parliament

was once procured, decreeing that attorneys should thereafter be

denominated as "gentlemen."

But times have changed in the law, as in other fields of activity,

and sons of good families, as well as those of less degree, now

enter both branches of the profession. Hence, representatives of the

best names in England are to be found on the barristers' benches

side by side with self-made men, some of whom have become ornaments

of the Bar, and with men of divers races, such as swarthy East

Indians, and Dutch South Africans. One or two barristers may even be

found, who, although members of the Bar and necessarily of one of

the Inns, nevertheless, remain, as born, American citizens. The Bar,

in short, although a jealously close and exclusive organization, has

become a less aristocratic body and is now a real republic where

brains and character count.

The same diversity of origin exists amongst the solicitors, for, as

has been stated, they are now, in part, recruited from those who

formerly would have condescended to nothing less than the Bar. A

constant improvement in training, too, in the promulgation of rules

of professional conduct, in the enforcement of a firm discipline and

in the nursing of traditions, all tend to raise and maintain a

higher standard and a better tone than formerly existed in the ranks

of the solicitors. Thus, the modern tendency is that there should be

less difference in the personnel of those entering either branch of

the profession.

Candidates for the Bar are mostly University men, more mature in

years, perhaps, than our graduates--for boys commence and end their

college courses late in England--and they are, as a rule, more

broadly cultivated than those who intend to become solicitors. Some,

indeed, take a full course of theoretical law at Oxford or Cambridge

before beginning practical training as a student in one of the Inns

of Court, which are peculiarly British institutions, having no

counterpart elsewhere.

Physically, an Inn of Court is not a single edifice, nor even an

enclosure. It is rather an ill-defined district in which graceful

but dingy buildings of diverse pattern and of various degrees of

antiquity, are closely grouped together and through which wind

crooked lanes, mostly closed to traffic, but available for

pedestrians. Unexpected open squares, refreshed by fountains,

delight the eye, the whole affording the most peaceful quietude,

despite the nearness of the roar of surrounding London. The four

Inns of Court (as distinguished from the Inns of Chancery and

Serjeants' Inn, all of which have ceased to exist) are, the Middle

Temple, the Inner Temple, Lincoln's Inn and Gray's Inn, but the last

is of minor importance in these modern days, having fallen out of

fashion.

The Middle Temple and the Inner Temple acquired, by lease in the

XIV Century, and by actual purchase in 1609, the lands of the

Knights Templar, consisting of many broad acres situated on the

south side of the Strand and Fleet Street, opposite the present Law

Courts Building, and the whole space is now occupied by an intricate

mass of structures--the great Halls, the Libraries, the quaint

barristers' chambers--and by the beautiful Temple Gardens, sloping

to the Thames, adorned with bright flowers and shaded by fine trees.

There is no line of demarcation between the two Temples--one simply

melts into the other. They own in common the Temple Church, part of

which dates from 1185, with its recumbent black marble figures of

Knights in full armor and, in the churchyard, its tomb of Oliver

Goldsmith.

The wonderful Hall of the Middle Temple, where the benchers,

barristers and students still eat their stated dinners, was built

about 1572, and is celebrated for its interior, especially for the

open-work ceiling of ancient oak. Shakespeare's comedy, Twelfth

Night, was performed in the Hall in 1601, and it is believed that

one of the actors was the author himself. The Library is a great

one, but an American lawyer may be surprised at the incompleteness

of the collection of American authorities. The Hall of the Inner

Temple, on the other hand, is quite modern, although most imposing

and in the best of taste.

Lincoln's Inn became possessed about 1312 of what was once the

country-seat of the Earl of Lincoln, which, running along Chancery

Lane, adjoins the modern Law Courts Building on the north and

consists of two large, open squares surrounded by rows of ancient

dwellings, long since converted into barristers' chambers, and shady

walks leading to a fine Hall of no great antiquity, however. An old

gateway, with the arms of the Lincolns and a date, A. D. 1518, is

considered a good example of red brick-work of a Gothic

type--probably the only one left in London. The Library, which has

been growing for over four hundred years, contains the most complete

collection of books upon law and kindred subjects in England,

numbering upward of 40,000 volumes.

These three Inns of Court are the active institutions; the fourth,

Gray's Inn, which probably took its name from the Greys of Wilton

who formerly owned its site, has long since ceased to be of much

importance, although the old Hall and the classic architecture of

some of the Chambers, still attracts the eye. It happens, however,

that a Philadelphia student, who attended this ancient Inn nearly

two hundred years ago, was responsible for the phrase still

proverbial on both sides of the Atlantic, "that's a case for a

Philadelphia lawyer." The unpopular Royal judges of the Province of

New York had, in 1734, indicted a newspaper publisher for libel in

criticising the court and they threatened to disbar any lawyer of

the Province who might venture to defend him. But, from the then

distant little town on the Delaware, the former student of Gray's

Inn, although an old man at the time, journeyed to Albany and, by

his skill and vehemence, actually procured a verdict of acquittal

from the jury under the very noses of the obnoxious court; the fame

of which achievement spread throughout not only the Colonies but the

mother-country itself.

Names great in the law, in literature, in statecraft and in war are

linked with each of these venerable establishments, to record which

would mean to review much of the history of England as well as of

America; for, besides the early Colonial students, a large number

were entered in the different Inns during the period immediately

preceding the Revolution. Of these, South Carolina sent forty-seven,

Virginia twenty-one, Maryland sixteen, Pennsylvania eleven, New York

five and New England two. The names of many of them are later to be

found amongst the leaders of the Bar of the new country, on the

bench as Chief Justices and even as signers of the Declaration of

Independence.

The Halls of the Inns were once the scenes of masques and revels,

triumphs and other mad orgies, in which the benchers, barristers and

students took part; including, as mentioned, the production of

Shakespeare's plays during his lifetime.

In these halls also occur the stated dinners--to which, in the

Temple, at least, the porter's horn still summons. The members and

students of the Inn, arrayed in gowns, attend in procession and,

entering the hall, seat themselves on long benches before oaken

tables; the governing body--the benchers--being placed at one end

where the floor is elevated. It is pleasant to record that, during

the last year or two, the daily contact of the barrister with his

Inn has been increased by the innovation of a luncheon which is

served in the hall at the hour when the courts take a recess. On

this occasion the most noted English advocates may be seen,

strolling in without removing their silk hats, sometimes without

even having dispensed with wig and gown, when, seating themselves on

the uncompromising oak, they call for a chop and beer and relax into

jolly sociability.

At one time barristers actually lived in the Inns of Court, but this

practically ceased about the time of the reign of Elizabeth. All of

them now have their "chambers" in the obsolete little dwelling

houses, facing upon the open squares or narrow lanes of the Inns,

which are merely offices, but very unlike those of an American

lawyer in one of our "skyscrapers."

Entering the front door by a low step, or climbing two or three

flights of a rickety staircase in one of these houses, the visitor

finds a door on which, or on a tin sign, are painted the names of

one or more gentlemen, without stating their occupations, which

would be superfluous in this small world of barristers. A summons by

means of the old iron knocker, discloses the barrister's clerk,

whose habitat is an outer room, and whose business it is to receive

visitors--perchance the clerks of solicitors with briefs and fees.

Ushered into the barrister's sanctum, one finds a meagrely

furnished room, the walls masked with rows of books, the table,

chairs and window-sills littered with papers. Amidst all this, a

modern telephone looks quite out of place, and the American tries to

avoid detection when his eye unconsciously steals to a wig hanging

on a hook back of the barrister's chair and to a round tin box,

lying on the floor, which is for the transportation of the tonsorial

armor when its owner travels on circuit. The otherwise uninviting

aspect of the place is redeemed, however, by a cheerful fire blazing

on the hearth and by a restful outlook upon a shady garden, and a

splashing fountain, where the sparrows sip the water and take their

dainty baths. Here the barrister remains when not in court; but when

the day's work is done, if he be prosperous, his motor car whisks

him to the more elegant surroundings of a home in the West End, or,

perhaps a humble bus and suburban train carry him far from town.

The Inns of Court began their existence about 1400, nearly

cotemporaneously with the Trade Guilds, and both, doubtless, took

their rise from the instinct of men engaged in a common occupation

to combine for mutual protection. All lawyers were once men in holy

orders and the judges were bishops, abbots and other Church

dignitaries, but in the XIII Century the clergy were forbidden to

act in the courts and, thereupon, the students of the law gathered

together and formed the Inns. Much concerning their origin is

obscure, but the nucleus of each was doubtless the gravitation of

scholars to some ancient hostelry, there to profit by the teachings

of a master lawyer of the day--just as the modern London club had

its beginning in the convivialities of a casual coffee house. In

time these loose aggregations developed into strong and elaborate

organizations which acquired extensive real property, now of

enormous value, and have long wielded a powerful influence.

In order to enjoy the quiet of what was then the country, and yet to

retain the advantage of the city's protection at a time when rural

localities were far from safe, the Inns were mostly located close to

the west wall of the City, although the Inner Temple, as its name

implies, is just within the line of that vanished wall, and thus

they were convenient to Westminster, where the courts were

permanently located by a provision of Magna Charta. During the

present generation, however, the principal courts (except the House

of Lords and the Judicial Committee of the Privy Council) have

returned to a situation actually contiguous to the old Inns, whilst

the vast town, during the centuries, has not only engulfed

Westminster but has spread miles beyond it. Thus, all the Inns were

grouped in a section, perhaps a square mile in extent, bounded on

the east by Chancery Lane, which roughly follows the old City wall

and between the Thames on the south, and the district called Holborn

on the north.

Looking now to the functions of these ancient institutions, an Inn

of Court may be defined as an unincorporated society of barristers,

which, originating about the end of the XIII Century, possesses by

immemorial custom the exclusive privilege of calling candidates to

the Bar, and of disciplining, or when necessary, of disbarring

barristers.

The governing body is composed of the benchers, who are either

Judges or King's Counsel and prominent junior barristers, but it is

usual to invite a member to join the benchers of his Inn when, and

only when, a vacancy occurs. The executive officer is the treasurer,

who is selected annually, and the members consist of the barristers

and students.

All the Inns are alike in authority, and in the privileges which

they enjoy and the regulations of each, governing the admission,

education and examination of students and the calling to the Bar of

those who are qualified, are precisely uniform; any differences

which may have existed having been abolished by the adoption in 1875

of a code of rules known as the "Consolidated Regulations." While

there is thus complete equality and no official precedence, yet each

Inn has its own history, traditions and ancient customs. The choice

of which Inn to enter, thus becomes a matter of individual

preference, depending upon sentiment, or upon family or social

surroundings.

The former Inns of Chancery should also be mentioned before leaving

the subject, although they have no present interest for the modern

lawyer. Their origin, too, is buried in obscurity, but they arose

about the same time as the Inns of Court, with one of which each was

connected, and were at first places of preparatory training for

young students later to be admitted to the particular Inn. These

youthful apprentices, however, were gradually ousted by the

attorneys and solicitors--who have always been excluded from the

Inns of Court--whereupon the Inns of Chancery fell out of fashion

and deteriorated, so that by the middle of the Eighteenth Century

they had disappeared and their names are now mere memories. During

the period of activity of the Inns of Chancery, Staple Inn (perhaps

the best known) and Barnard's Inn, were attached to Gray's Inn;

Clifford's Inn, Clement's Inn and Lyon's Inn were intimately related

to the Inner Temple; Furnival's Inn and Thavie's Inn to Lincoln's

Inn; the New Inn and Strand Inn to the Middle Temple. One block only

of quaint Elizabethan buildings, with gables of cross timber and

plaster, still overhangs the great thoroughfare of Holborn and marks

what is left of Staple Inn.

Likewise Serjeants' Inn vanished in 1876, when its valuable realty

was sold--for Serjeants-at-law had long ceased to be created--and

the proceeds were divided amongst the few survivors; a proceeding

much criticized at the time, although one of them gave his share to

charity. The serjeants-at-law were once a class of barristers who

had in some manner acquired the exclusive right of audience in the

Court of Common Pleas and had also secured a monopoly of the then

profitable art of pleading. Upon attaining this degree, a serjeant

severed his relations with his Inn of Court and attached himself to

the Serjeants' Inn. After having occupied several sites since the

Sixteenth Century, Serjeants' Inn was finally located on Chancery

Lane, and to it belonged all of the Serjeants, and all of the judges

of the Common Law Courts, for they, necessarily, had been serjeants

before being elevated to the bench. The buildings, which are small

and have no pretensions to architectural beauty, have for many years

been occupied as offices, chiefly those of solicitors.

Thus, of the many Inns of Chancery, of the Serjeants' Inn (and the

once powerful societies which they housed), there remain none but

the four great Inns of Court, through one of which must pass every

barrister called to the English Bar.

This brief sketch may convey some idea of the extent to which the

young law student unconsciously absorbs tradition, and is moulded,

when plastic, by the pressure of centuries of custom and etiquette.

Whatever may have been his forebears, he is more than likely, when

turned out as a full-fledged barrister, to answer pretty nearly to

the old definition, for he has, indeed, been one "who studieth the

laws of the realm" and he is apt to "bear the port, charge and

countenance of a gentleman."

To the embryo barrister, however, the existing Inns possess

interests far livelier than those referred to, for he must enter one

of them, and not only thus gain access to the Bar, but must ally

himself to his choice unless he elects, by going through certain

formalities, to emigrate to another Inn. Formerly he had only to

attend a single function--a dinner--during each term and, having

"eaten twelve dinners," he, ipso facto, became entitled to be called

to the Bar, no matter how inadequate might be his knowledge of the

law. In these less aristocratic and more prosaic days, however, he

is obliged diligently to apply himself to study, and to pass, from

time to time, regular and strict examinations, prescribed by the

Council of Legal Education, so that his equipment is no longer left

to chance, but is really measured with cold accuracy. The term of

study is not less than three years, and twelve terms, four in each

year, must be "kept" at the Inn, the evidence of which is still the

fact of dining in the hall six days during each term, although

members of the Universities of Oxford and Cambridge need dine but

three days in each term.

An English student's reading is much like that pursued in one of our

own law schools, the chief difference being that he devotes more

time to mastering general principles than to the consideration of

reported cases from which our students are presumed to extract the

underlying principle. Much has been said in favor of each method,

and the true course probably lies between the extremes, but the

average result of an English law training, superimposed upon a

generally superior prior education, is perhaps somewhat better than

the average American result, while, as to the few on both sides of

the water destined to attain real eminence, no superiority could

fairly be claimed by either.

The total fees payable by a student amount to about £140. and women,

be it observed by progressive ladies, are not eligible for the Bar

in England.

Having passed the necessary examinations, the young barrister is

finally "called to the Bar," a ceremony which takes place in the

Hall of his Inn, at the close of dinner on "Grand Day," which is the

day appointed for a banquet, to which a score or more of

distinguished guests are invited by the "Treasurer and the Masters

of the Bench." The Students, wearing gowns over evening dress, are

grouped together, below the dais on which the benchers' table

stands. The Steward of the Inn calls out the names in order of

seniority. Each Student, as his name is called, advances to the high

table and halts there, facing the Treasurer, who, standing up, says

to him: "Mr. ----, by the authority and on behalf of the Masters of

the Bench, I publish you a barrister of this Honorable Society."

Then the Treasurer shakes hands with the new barrister and the

latter walks away to join his comrades.

Solicitors are created by entirely different methods, as there are

no Inns nor any similar organizations for students. There is a

preliminary examination to determine whether the boy who desires to

become a solicitor, has sufficient general education. If so, he is

apprenticed, for a period of five years, to some practitioner, for

which privilege he pays a sum of money, say from 100 to 400 guineas;

the amount chiefly depending upon the solicitor's standing. There

are official fees, too, amounting to about £130, so that, as he

receives no compensation during his five years' apprenticeship, and

meantime must be supported by his people, the cost of entering the

solicitor's calling is not inconsiderable. He begins by copying

papers and performing minor services in the public offices and, at

the same time, pursues his legal studies, which have steadily become

more arduous. His progress as a law student is ascertained by an

intermediate examination, held under the direction of the

Solicitors' Incorporated Law Society, and a final one determines

whether he has acquired sufficient knowledge of the law to be

admitted to practice. If shown to be qualified, he is admitted by

the courts, and is thereafter subject to the discipline of the

Society and to that of the courts themselves, usually prompted by

the Society. The marked difference, therefore, that distinguishes

the solicitor's training from that of the barrister, is the absence

of any Inn of Court--with its _esprit de corps_--as a commanding

influence in shaping his development and governing his whole career.

Nevertheless, while the whole body of solicitors is, perhaps, not as

liberally educated nor as polished as the Bar, the higher grade of

solicitors are lawyers quite as well equipped, and gentlemen equally

accomplished, as members of the Bar itself.

Some glimpses of the separate roads which the barrister and the

solicitor travel after their student days, will be reserved for

later chapters.

A Philadelphia Lawyer in the London Courts · 第 2 / 15 章