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.