INNS OF COURT.—PAPERS MOVED FOR. (Hansard, 1 July 1864)

MR. GRANT DUFF
Sir, the Commission to whose Report I wish to call, or rather to recall, the attention of the House, was appointed on the 5th of May, 1854, and reported on the 10th of August, 1855. During that period, and for some time after it, the mind of the country was so wholly engrossed by the Russian war, that it had no time or thought to spare, even for matters so closely touching its daily life as those to which the present Lord Chancellor and other Members of this Commission hardly less distinguished had been devoting so much of their scanty leisure. The Report, which goes to the root of the question, as to what guarantees society has a right to demand for help in legislation, as well as for the intelligent and efficient administration of the law, treats of the discipline of the property and of the educational system pursued in those great and ancient institutions, the Inns of Court. With regard to the first of these subjects, I shall say nothing, because it is already in other hands. With regard to the second, I shall only say what every one will agree to, that it is a most truly lamentable thing that so large an amount of gross revenue as that possessed by the Inns of Court should produce such a very small amount of available 640 net income which can be applied to promote the study of law and jurisprudence; and I am sure many will think that the Commissioners were right in saying that, having regard to the great value of the site of these institutions, a doubt arises whether some mode might not be devised of rendering their property more productive, without departing from the purposes for which these societies were formed. I mean to confine myself to the third subject discussed in the Report—that is, to the part which the Inns of Court ought to take in facilitating and guarding the access to the bar. This subject has been frequently discussed in Parliament during the last twenty years, and I think I may say that the invariable result of its discussion in this building has been some reform in that gloomy but most important quarter of this great city, which stretches from Gray's Inn to the river. In the year 1846 Mr. Wyse moved for a Committee to inquire into the state of legal education in Ireland, and it was made an instruction to that Committee that it should inquire also into the state of legal education in England. The result was a most interesting Report, which was presented in August, 1846. Some time appears then to have been allowed to pass, in order that it might be seen whether the Inns of Court meant to take any steps to remedy the extraordinary and altogether disastrous state of things which had been disclosed by the evidence, and had been severely condemned by the Report; but I find from Hansard that on the 4th of July, 1848, a gentleman whom many of us will remember taking an important part in our discussions, and sitting on the other side of the House—I mean Mr. George Anthony Hamilton—asked whether anything was being done to carry out the suggestions of the Committee, and was informed, in reply, that the Inns of Court were holding conferences with the view of effecting a reform. The subject seems to have slumbered, as far as this House was concerned, till April, 1852, when my hon. Friend the Member for Dumfries elicited from the Attorney General of that day the very agreeable information that the Inns of Court had made a very real beginning of improvement by establishing a Council of Legal Education, by creating five readerships, by allowing such students as desired it to present themselves for examination, and encouraging them to do so by the offer of various rewards. No one of any authority doubted that this was a step in the 641 right direction, but many thought that the Inns had not gone nearly far enough, and in the latter part of the Session of 1852 a short discussion took place in another place, in which Lord Campbell, while apologizing for more not being done, very clearly showed it to be his opinion that the then recent changes could only be considered as an instalment, while Lord Brougham and Lord Lyndhurst declared, in the strongest possible way, that the examination at the threshold of the bar should be not voluntary, but compulsory. The name of Lord Lyndhurst leads me to observe that the country owes about as much gratitude for what of good has been done with regard to this question to one party as to the other; and the fact that it was Mr. Napier, so well known in connection with Lord Derby's Irish Administration, who took the next step, and moved for the Commission of 1854, further illustrates that observation. The Commission of 1854 echoed to a great extent the recommendations of the Committee of 1846, and, above all, brought into strong relief the point on which I wish chiefly to fix the attention of the House—that no one should be called to the bar who has not gone through some systematic training in the theory as well as the practice of law, and passed a satisfactory examination. This is a question with regard to which the opinions of very few individual Members are of much value, and what I want to impress upon the House is, not that the dominant party in the Inns of Court has opposed itself to what seemed to me, or to others, to be sound principles, but that they have put themselves in opposition to a perfectly overwhelming weight of legal authority. Of course no one considers that a compulsory examination, taken by itself, is a matter of very extraordinary importance; but it is of extraordinary importance as being the indispensable complement of the whole system of legal education proposed by the Committee and Commission. Without it that system cannot possibly be worked, and must remain all but a dead letter. I have said that I wish to put the question chiefly on the ground of authority. Still I wish to state, in a few words, the arguments which seem to my mind to be decisive. I can understand free trade in law; I can understand the bar being a monopoly; but our present system combines all the disadvantages of free trade and of monopoly. It is a monopoly for the advantage of the barrister, without any better guarantee for the public than would be 642 obtained if any one who pleased might exercise the profession of advocacy. We have, it cannot be sufficiently often repeated, no real guarantee at this moment for the competency of a barrister. Let us see how the system works with regard to the three classes into which the members of the bar may be divided—those, namely, who go to the bar with a view to practice; those who are called chiefly with a view to the various appointments which are by law or custom confined to members of the bar; and those who are merely nominal barristers. With respect to the first of these; classes, it may be said that the fact of their being in practice is of itself a sufficient guarantee. Well, supposing I were to admit that it is a sufficient guarantee for their being up to the requirements of ordinary business, it will not be contended that there exists any guarantee for their having the enlargement of mind which is necessary when they come to the higher walks of the profession—when they come to be Judges or law-makers. Is it not perfectly notorious that men who succeed sufficiently well as practitioners often fail egregiously in these other capacities? Have not Judges often been the worst enemies of law reforms, and do not the pages of the evidence taken before the Committee of 1846 and the Commission of 1854 afford abundant proofs that the truth of what I am now saying is generally acknowledged? With respect to the second class, you have not even the guarantee of practice. Read Lord Brougham's evidence before the Committee of 1846, and you will see how difficult he found it to put his hand upon men who had been fitted by systematic training to undertake the duties of Colonial Judges. Read Mr. Norton's very interesting evidence in the same blue-book, and you will see in how very difficult a position is a Judge who, knowing only a little English law, and having had no scientific training in jurisprudence, is suddenly sent to a colony. I think, Sir, we hardly realize how important a question this is in relation to the management of our colonies. If ever there were lawyers who ought to be grounded in the general principles of jurisprudence, which underlie all laws, it should surely be the lawyers of England. A few remarkable sentences, which I shall ask leave to read to the House, will bring this before it in a way far more vivid than I can do. They were written some time ago, but matters have not much altered since, and English barristers have still to deal either as Colo- 643 nial Judges or as practitioners before the Privy Council with the widely distinct systems to which I am going to allude:— At this moment there are few of the systems of legislation, either of ancient or modern times, which are not in force as living law in the British Empire—Menu and Mohammed, beside the civil rights of the Hindoo and the Mussulman, and an appeal from India compels our Privy Councillors to consult the Koran and the Puranas as authorities at Whitehall. In the Norman Isles, the severed portions of the domain of the Conqueror, the barbaric custumal framed by his justiciars still guides the grand bailiff and the seneschal who dispense the equity of Rollo, now forgotten, in the hall of Rouen. Canada cherishes the volumes which have been cast forth from the Palais de Justice, and the legitimate representatives of the proud and learned Presidents of the Parliament of Paris are found in the court-house of a colonial town. Banished from the flowering meadows of the Seine, the ordonnances expounded by St. Louis, under the oak tree at Vincennes, constitute the tenures of land on the Gulf of St. Lawrence. In the opposite hemisphere, we bestow an equal protection upon the Codes of Napoleon. Our Sovereign appoints her alcaldes and her corregidores in the Indies of Columbus, while her landrosts in Southern Africa are guided by the placets of the departed Republic of the Netherlands. It is enough to have spoken of Colonial Judges. I pass over a host of other appointments, in the nomination to which favour or political interest has much to do. I come, then, to the third class, a very large one, that of nominal barristers. It is a class which has numerous representatives on the magisterial bench, numerous representatives in this House, numerous representatives in general society; and for the interest of this class, and of all connected with it, it is above all desirable that there should be some systematic training, and an effective examination, otherwise their attaining the degree of barrister is a mere useless form, without advantage to themselves, and of serious detriment to all who, on the strength of it, conclude that they have necessarily any tincture whatsoever of legal learning. There are many other arguments: one might point to the absurdity of examining candidates for the line of the army, and not examining candidates for the one profession which gives in this House the title of learned. One might point to the void in the shelves of an English library where works on jurisprudence should be, and where Bentham, Austin, Maine, and the younger Stephen look wistfully around for companions. One might ask how long are we to wait for that great blessing, a codified law, if we do not begin to train lawyers, who will 644 be inclined to work, or able to work a code. All these, however, and many more, with which. I will not weary the House, are set forth in the blue-book which records the labours of this Commission, and by it, as by the Committee of 1846, a compulsory examination is pronounced indispensable. Such, then, being the recommendations of the Select Committee and of the Royal Commission, backed by those of our greatest legal luminaries, what have the Inns of Court done? Have they adopted them? Have they instituted a systematic training, followed by a compulsory examination? Far from it. The history of their action in this matter is as follows:—In 1856, the Council of Legal Education met, and reported unanimously in favour of compulsory examination. They supported their recommendation by a document signed by all the readers, and supporting the same views without the slightest reservation. In May 1859, the Committee of the Four Inns appointed to reconsider the whole subject of Legal Education made their Report, and insisted in the strongest terms on the necessity of a compulsory examination, and proposed that it should embrace precisely the same subjects which were suggested by the Royal Commission. This report is signed by the present Lord Chancellor, and marks the period of greatest advance in the history of this question. But now a change came. Lincoln's Inn took upon itself to oppose the recommendations of the committee appointed by the Four Inns, and passed, by a majority of its members, in November, 1859, resolutions condemnatory of the proposed compulsory examination. Somewhat later they declared open war with the two Templars, and on the 4th of July, 1860, a committee of Lincoln's Inn made a report which contemplated the establishment of a system of education distinct from theirs, the great cause of quarrel being, of course, the compulsory examination. Then followed negotiations, the result of which was that Lincoln's Inn carried its point, and succeeded in persuading the other Inns, against their own better judgment, to be parties to the issuing of the consolidated regulations, by which the students of these societies are now governed, dated Michaelmas, 1863. In them I find many good things and several improvements; but I also find a heavy blow and great discouragement to the cause which I advocate, in the fact that, under these regulations, a student of the Inns of Court is now quali- 645 fied to be called to the bar if he has attended lectures and private classes of two of the readers for a year, or if he has spent a year in chambers, without having passed an examination. We all can imagine, and many of us know from experience, that the mere obligations of attending a year's lectures does not imply the acquisition of any knowledge whatsoever, and that a large number of the students occupy themselves with matters quite alien to those about which the reader desires to interest them. In short, they look upon the obligation to attend lectures, not as a means of acquiring legal knowledge, but as a sort of corvée, which it is their right to evade in every possible way. Again, many of us have passed a year in chambers, and we know that doing so may imply very great assiduity, absolute idleness, or anything between these two extremes. On the other hand, an examination, which is even decently conducted, at least guarantees some modicum of knowledge and power of application in the candidate for admission to the bar. I bring this subject forward in the most friendly spirit to the governing bodies of the Inns of Court, but my respect for them does not prevent my calling upon them to set forth, for the information of the public, those strong reasons of principle and expediency which have induced them to disregard, in a most essential point, the unanimous recommendation of a Select Committee, the unanimous recommendation of a Royal Commission, the unanimous recommendation of the Council of Legal Education, the unanimous recommendation of all the readers of all the Inns of Court, the opinions of Lord Brougham, Lord Lyndhurst, Lord Westbury, backed by those of eminent lawyers too numerous to mention. In May, 1856, and again in May, 1857, the Report of the Commission was alluded to in this House. It has not, I think, been mentioned since. On the latter occasion, the Attorney General of that day more than hinted that, if the Inns of Court would not carry out the views of the Commission, the Government would be obliged to do so. I do not ask the Government to take any action now. I had infinitely rather that reform came from within, but, if it does not, I beg to give notice that I will next year bring forward this Motion in another form.

§ MR. NEATE
said, that the difficulty of dealing with the Inns of Court was that they claimed to be associations of private individuals, and repudiated all responsibility. They denied that there was any process for compelling them to discharge their duties. In fact, they might be described as squatters upon the legal constitution. They had acquired title by prescription. He had the honour of being a member of one of the Inns of Court, and he had had a good deal of correspondence with them. When a man had once become a member of one of the Inns of Court, it would not allow him to withdraw without requiring him to enter into an obligation which it had no right to impose. Now, if a man wished to renounce his privileges in an University he had only to write to the bursar of his college to take his name off; but a man was not allowed to retire from an Inn of Court without entering into a covenant that he would not practise anywhere as a barrister.

THE SOLICITOR GENERAL
said, he understood the hon. Member who had brought forward the question not to make any attack upon the Inns of Court, but only to complain that they had not carried out the recommendation of the Royal Commission, that a candidate for the bar should pass a preliminary examination before being admitted. He would remind him that with respect to that question a good deal could be said on both sides. He confessed that his own inclination was in favour of compulsory examination; but there were reasons which influenced the benchers in arriving at a different conclusion, and which were still to a great extent under consideration. It should be borne in mind that all who were called to the bar were not necessarily practitioners, or persons who intended to practise. Many only intended to qualify themselves for performing their duties as magistrates, or as chairmen of Quarter Sessions. He might instance many Members of that House, among whom were some of its 647 greatest ornaments, who were called to the bar but never intended to practise. It had been considered by the Inns of Court that if they imposed a strict examination, such as the hon. Member required, it might have the effect of deterring such persons from becoming candidates for admission to the bar, and would therefore be prejudicial not only to the bar but to the public. As the hon. Member said, that if the Government did not take up the question he would bring it forward again, probably the most convenient time for discussing it would be on that future occasion. He (the Solicitor General) could only say further, that it did not appear to him that the Government were called upon at present to take any steps in the matter. He believed that the Inns of Court thoroughly represented and had the full confidence of the profession. If the Inns of Court did not fairly represent the bar, nor conduct themselves to the satisfaction of the great body of the profession, they would have heard complaints from the profession, but he was not aware of any such complaints having been made. With regard to the complaint of the hon. Member for Oxford (Mr. Neate), he believed that it was unfounded. He understood the case to be this—if a barrister wished to take his name off the books of his Inn, it was necessary that he should undertake that he would not practise at all as a barrister, and for that purpose they took from him some security. The Government would be willing to produce any papers in their possession on the subject if the hon. Member would indicate them; but he hoped he would be satisfied with his explanation and not press his Motion.