HC Deb 25 July 1871 vol 208 cc239-53

Order read, for resuming Adjourned Debate on Question proposed [11th July], That, in the opinion of this House, it is desirable that a General School of Law should be established in the Metropolis, in the government of which the different branches of the legal profession in England may be suitably represented; and that, after the establishment thereof, no person should be admitted to practise in any branch of the legal profession, either at or below the Bar, or as an attorney or solicitor in England, without a certificate of proficiency in the study of Law, granted after proper examinations by such General School of Law."—[Sir Roundell Palmer.)

Question again proposed.

Debate resumed.


, in opposing the Motion, remarked that after the most eminent lawyer in the House, and the acknowledged head of the English Bar had supported it, he could not expect to ob- tain for his opposition much attention. He, however, felt it to be a public duty to state to the House the strong objections which he entertained. In the first place, he objected to the Motion as being vague and indefinite in its terms, which did not convey the exact form and substance of the institution which it was proposed to found. It stated that it "was desirable that a general school of law should be established in the Metropolis;" but the word "general" conveyed no idea to his mind. He supposed that "a school of law" meant an institution in which law was taught, and taught by lectures. The Resolution went on—"in the government of which the different branches of the legal profession in England may be suitably represented." He was at a loss to understand what "suitably represented" meant; but he supposed that it meant that each branch of the profession should elect members of the Governing Body. If this were so, then it was intended that attorneys and solicitors would have a considerable share in the government of this school of law. It was then proposed that— No person should be admitted to practise in any branch of the legal profession without a certificate of proficiency granted after proper examination by such general school of law. He took this to mean that the same body that taught should also examine with a view to the granting of certificates, and that it was a very serious question whether this would be the best course to adopt. It appeared to him to be a strong course to pledge that House by a simple Resolution to future legislation, and afterwards to ask the Crown to grant a charter on the faith of future legislation. The hon. and learned Member for Richmond (Sir Roundell Palmer) had devoted a considerable portion of his speech to what he called the main principle to be embodied in his Motion—namely, that articled clerks and students for the Bar should be educated together. But it might happen that the Governing Board to be established might not be equally convinced of the necessity of having these two classes educated together. In order to show the necessity for so great an innovation as the establishment of a great school of law to supersede existing teachers and modes of teaching, it was requisite, as lawyers said, "to make out a case," and the way in which that had been done by the hon. and learned Member for Richmond did not commend itself to his mind. Certainly, the terms of disparagement in which our existing system was spoken of by his hon. Friend were such as struck him with surprise and mortification. It appeared to him that the kind of sweeping condemnation in which the hon. and learned Member for Richmond had indulged was expressed in far stronger language than the circumstances warranted. It was a condemnation far wider and more sweeping than was consistent with accuracy. In the last century, in Blackstone's day, it was the fashion to talk of English law as the perfection of reason. Exaggeration in one direction had brought its natural result, exaggeration in another. He did not concur in great eulogium of English law in the last century, nor in the depreciation of it in this century. He believed that English law was the law best adapted for the English people. He did not believe it was the best possible system of law, or deny that it was capable of great improvement; but he believed there was no system of law in the world so well adapted to the wants and wishes of the English people as the present system. With all its imperfections and shortcomings, there was no jurisprudence in the world so dear to the people among whom it existed. It must have extraordinary merits, because it was not only esteemed, but loved and reverenced by the English people. His view of English law was, that it was unscientific because it was pliable, and had grown up among the English people in accordance with their desire, and their wants and requirements. It was not a system that had been manufactured by doctrinairies and jurists. It had been made for the people and by the people, and was continually expanding with the progress of their civilization. He did not agree with his hon. and learned Friend that the defects in our legislation resulted from the law not being studied. We all knew pretty well from what causes those defects sprung. One of the many causes was that we were a free people, and that our legislation was the work of a popular Assembly, and that we sacrificed to some extent accuracy and science to that enjoyment of freedom and liberty which enabled that popular Assembly to enact laws for the country. He did not think that any system of lectures, that any establishment of professors, would be a cure for the occasional mistakes in our legislation. He had been not a short time at the Bar, and he had often heard Judges say the statutes were very difficult to comprehend; that the Legislature's intentions were not very well expressed; and he had often thought that if Judges, instead of giving vent to those expressions of discontent, had honestly and fairly applied their minds to ascertain what really the meaning of a statute was, they might have succeeded without much difficulty in finding out the meaning and intentions of the Legislature, and might have spared themselves unpleasant comments in regard to the Legislature. It appeared to him that all that was wanted to secure an effectual study of the law was a sensible and effectual system of examination. That examination must be conducted by an independent body of examiners; it must be searching and thorough. He did not believe that the 19th century was a century of teaching by lectures. He believed that learning would be much better acquired through books. Where printing was common the demand for books was sure to meet with a ready answer in the shape of supply. If the examination was able and thorough, we should find men who would discover the best means of acquiring the knowledge necessary to pass the examination. If they were of opinion that the knowledge could be best attained through lectures, then no doubt lecturers would be found in London and its neighbourhood, and in every great town in this kingdom. Once establish examination, once lay down that no man could be admitted to practise the profession of the law unless he had a competent knowledge of the law, and he was quite satisfied that education would be found, whether it was in a garret by the side of a rushlight, or in a magnificent lecture-hall illuminated by a thousand gas lamps. As regarded either knowledge of the law or practice of the law, he did not think the Bar of the 19th century had degenerated, and more he did not claim. The Bar was not employed by the outside public, but by solicitors, why professed to have a competent knowledge of the profession, and who employed advocates who would win their cause. But the matter did not stop there. Barristers every day of their lives had to undergo a competitive examination, not only in the presence of their clients—the solicitors—but in the presence of the Judges and of jealous and watchful colleagues at the Bar, who very soon discovered whether they possessed the necessary qualifications of knowledge and ability. He thought the practice of admitting to the Bar men who knew no law, and who only wanted to be dubbed barristers for the purpose of qualifying themselves for certain appointments, should be stopped. He thought a man who had no learning ought not to be a member of a learned profession. If he (Mr. Jessel) was told that the scheme of teaching and examining proposed by his hon. and learned Friend was to be self-supporting, that implied—"You shall attend my lectures and pay my fees, or I won't pass you." In other words, the examination would be so framed that nobody could pass except the man who attended lectures. If they established a single teaching body, and that body, through its examiners, was to be the only avenue to a learned profession, they established the worst of all monopolies—the monopoly of teaching. He looked upon a gigantic monopoly as a monstrous evil, and if there were no other objection to the scheme propounded, this alone should be sufficient to cause its rejection or modification. He objected to the government of the superior by the inferior branch of the profession. There were certainly some very excellent exceptions; but, as a rule, the present education of attorneys and solicitors did not entitle them to the position of becoming a portion of the government of colleges or Universities of law. The test of the school was its success, and he objected to the establishment of a school of law by anticipation that should have a monopoly of legal teaching. There would be some ground for chartering a successful school, and giving it to some extent exceptional privileges; but to give them by anticipation was without precedent or example. Another most important question was, whence were the funds for the support of the proposed University to be derived? When it was said that the State ought to establish a legal University, it might be supposed that it was intended that the State should furnish the funds necessary for its support; but he was afraid that when the matter came to be laid before the Chancellor of the Exchequer, he would, in trenchant and emphatic language, say—"If these gentlemen want a school of law for their own purposes, let them pay for it out of their own pockets." A suggestion had been made, however, that that institution might be made self-supporting. But how was that to be done except by levying a heavy fine, irrespective of the goodness or the badness of the teaching it provided, upon those who sought to enter the legal profession, and by giving it a complete monopoly of legal teaching to the exclusion of the really good legal education which was offered by the Inns of Court to their students at a trifling cost? The association to which the hon. and learned Member for Richmond belonged was certainly not of the opinion that such an institution could be self-supporting, and in their prospectus they pointed to large funds supposed to be under the control of the Inns of Court, and the Incorporated Law Society, as being applicable for its support. The great bulk of barristers and attorneys opposed the scheme. The hon. and learned Gentleman the Member for Richmond had presented a Petition in favour of it signed by 365 barristers; but, so far as he knew, there was not a large number of practising or working barristers amongst them, and some of them were lecturers, who might, perhaps, hope to be selected to fill the chairs and professorships proposed to be created; but 365 was a very small proportion of the Bar of the country—not more than one-sixth of the whole. They were told that 18 Queen's Council had signed the Petition. He was ignorant of their names, and he could not say anything about them; but, so far as he was aware, there was no man of eminence at the Bar who approved of the scheme except the hon. and learned Gentleman the Member for Richmond. There had been a great deal of canvassing for signatures, and he had a right fairly to assume that the great majority of the profession were opposed to the scheme. At a meeting of the Benchers of Lincoln's Inn, held for the purpose of inviting co-operation, a resolution was agreed to condemning the proposed change. Of the 26 Benchers present, 18 voted with the majority, and 8, including the hon. and learned Gentleman the Member for Richmond, with the minority. With regard to attorneys, he observed there were no Petitions from individual members of that branch of the profession. The Petition from the Incorporated Law Society had led him to make inquiry as to the reason why it was so anxious for a change. He found that the more eminent and experienced members of that society, who formed the council, were opposed to the change, and that a large majority of the younger members had called a general meeting and outvoted the council. Thus the Petition was got up and presented in the name of the Incorporated Law Society—in other words, this was a case in which the tail had outvoted the head. The four or five provincial societies which had petitioned in favour of this scheme were so obscure that he could not tell what proportion of the profession they represented; but he could not help thinking that they might have got up their Petitions according to the plan adopted by the Incorporated Law Society. The hon. and learned Gentleman had stated that it had met with the support of some of the Judges; but on examination it turned out that the only Judge who had expressed an unqualified approval of the plan was a puisne Judge in India. Again, the hon. and learned Gentleman had asserted that the Lord Chancellor and 11 of the Judges of this country had given a "general" approval to the proposition; but had they given to it a "special" approval? As regarded the Lord Chancellor and several of the Judges—those who served on the Commission of 1854 and 1855—they did not approve of this scheme, unless their opinion had since undergone a great change, for they recommended a totally different plan, and one which had commended itself to the Inns of Court, and to the majority of that branch of the profession. This was a subject which had been investigated over and over again. A Committee of that House was appointed to consider it in 1846, consisting of the late Lord Truro, then Sir Thomas Wilde, Mr. O'Connell, Mr. Rutherford, and other eminent lawyers. After a long and elaborate inquiry that Committee reported in favour of the scheme now adopted by the Inns of Court. Their Report stated that the in- stitutions or colleges of law that were desired were to be sought for rather by the application, if possible, of old establishments than by the creation of new, on account of the guarantee which the former gave of order, efficiency, and permanency; and that such institutions were to a great degree to be met with in the existing Inns of Court, which might together form a species of law University. The Committee also recommended compulsory examination, that the appointment of the professors should be made by the Inns separately, and that the final examinations should be left to a body of examiners appointed by the Inns of Court in common. The meaning of that suggestion was, that the Council of the four Inns should select the examiners, while the Inns separately should appoint the teachers; so that as far as possible the selection of the examiners should be separated from the selection of the teachers; and then that all matters of a common nature might be discussed and executed by a joint body elected from the Benchers of the four Inns. In substance that had been all carried out excepting that which he admitted to be a very vital point—the establishment of a compulsory examination. Again, a Royal Commission, consisting of the present Lord Chancellor at its head, Sir John Coleridge, Sir Joseph Napier, Sir Alexander Cockburn, Lord Westbury, and others, was appointed in 1854— To inquire into the arrangements in the Inns of Court and of Chancery for promoting the study of the Law and Jurisprudence, the revenues properly applicable, and the means most likely to secure a systematic and sound education for students of Law, and provide satisfactory tests of fitness for admission to the Bar. The Commissioners unanimously reported in favour of a preliminary examination for admission to the Inns of Court of persons who had not taken a University degree. That had been done, and the very form of examination which they recommended had been provided. They also recommended that there should be an examination, the passing through which should be requisite before a student was called to the Bar. That had not yet been done. Lectures had been established by the Inns of Court on the very subjects which had been pointed out by that Commission. The scheme recommended by the Commission was entirely different from that now proposed by his hon. and learned Friend, and was almost identical with that proposed by the Inns of Court. With regard to the latter scheme, he admitted that the Inns of Court had been rather late in their conversion to the principle of examination. But still, not very late, because the notion of examination was a modern—19th century—one. Examinations for the Army and the Civil Service were things of yesterday; examinations for the medical profession were not very much older; and, for the reason he had already given, there was not such a pressing need of examinations in the legal profession as in the other professions he had named. In 1863 Lincoln's Inn proposed—and at a later period he believed the other Inns were willing to adopt—a resolution declaring that in the opinion of that Bench the creation of a legal University, to which the various Inns of Court might be affiliated, and through which degrees should be conferred, was desirable; and in passing that resolution he thought that Lincon's Inn affirmed the principle of examination. At a later date the Inner Temple passed a resolution making examination compulsory. To that Lincoln's Inn did not at that time agree, and it fell through in consequence. But all the four Inns were agreed in the necessity and propriety of an examination, and why should they not carry it out? It was represented that they were so frightened at the competition of the articled clerks of attorneys and solicitors that they did not want the system of education for students at the Bar, and that for articled clerks to be under the same management. But how stood the facts? Articled clerks generally served from 16 to 21, giving an average age of 18½ years; whereas law students generally entered at 20 or 21, and went out at from 23 to 24, giving an average age of about 21½ years. Again, the majority of the Chancery Bar—and the same, he believed, was approximately true of the Common Law Bar—had enjoyed the enormous advantage of a University education; whereas but a very small percentage of attorneys and solicitors had enjoyed the same advantage. The result was that in the former case they had a trained man, who had gone through a course of mental training and culture, and who was three years older than the average articled clerk; and were they to force him to attend the same lectures as the man who, whatever might be his natural abilities, possessed an inferior education? Again, the articled clerks were numerically something like ten to one as compared with the students at the Bar; and, therefore, if they both attended the same lectures, they would have their classes composed of a very large number of young untrained persons, and a very small number of older and trained persons. Again, the Chancellor of the Exchequer in his evidence before the Commission stated, as the result of his experience of teaching in the Universities, that compulsory attendance at lectures was a great disadvantage to clever men; that it might be some advantage to inferior men, but that a clever man could employ his time much more profitably in chambers; and that lecturers must pitch the tone of their instruction not to suit a few of the cleverer students, but the great majority of their audience. What would happen? If they put such a great majority of articled clerks to study in the same class with the older and better trained students of law, they would bring about what the Chancellor of the Exchequer had so well described, and make the lectures wholly useless. That certainly was the feeling under which this resolution had been come to. What was the next point? That the Committee were of opinion, and recommended that there should be a compulsory examination of the students before they were called to the Bar or allowed to practice, and that the four Inns of Court should establish such examination. That was substantially the scheme assented to by the four Inns of Court. They had come to those resolutions, and undoubtedly they would be acted upon. Why should their action be superseded by an unknown and untried body? But it was said that Inns of Court, whatever might be thought of them by Committees of the House and by Royal Commissions, had fallen into a state of decay and decrepitude, and were utterly unable to conduct these examinations or to name examiners, for that was all they would have to do. And then there followed what he must call general abuse of the Inns of Court. They were called "mere ropes of sand"—rather an odd term to apply to societies which had held together for upwards of three centuries, and had grown in numbers, wealth, and power. "They were held together," it was said, "by dinners and occasional councils;" but might not that be said of other and more influential bodies? Perhaps even Cabinets might be said to be held together by dinners, not frequent, and councils more than occasional. The Inns of Court were held together by the esprit de corps which so frequently kept together the members of professions, and even of trades in association—by professional practice, and by the intimate knowledge and the respect, esteem, and friendship which the members had for one another. Then, they were told, they were badly governed, and that the government fell into the hands of the less distinguished members. It might be quite true that such members attended to the routine business of the Inns; but when they came to the question of legal education the members of the Bench took an active part in everything which concerned it. Lord Westbury, for very many years when at the head of the profession, even after he was Attorney General, was a prominent and active member of the Legal Education Committee. Then, it was said, they did not represent the Bar. They were self-elected nominally, but not really so. In Lincoln's Inn they consisted entirely of Judges and Queen's Counsel, and in the other Inns almost entirely so. In substance, they owed their appointment to the favour of the Crown which made them Benchers because it made them Queen's Counsel or Judges. He said, without fear of contradiction, that in the best sense of the term they did represent the Bar as being the most eminent members of it. Then it was said their efforts were purely professional. He admitted they had professional ends in view; but it was a mistake to suppose that they excluded or wished to exclude country gentlemen who desired to learn the law. Then, it was said, there was a precedent for this Motion in the case of the University of London. But that precedent was rather the other way. Mr. Tooke, in 1835, carried an Address to the Crown to incorporate not the present University, but a totally different body—what was now called University College. It had been established for many years, since 1827, and had been remarkably successful. It had 400 students, and a body of professors of the highest class. It had given proof of its excellence, and Mr. Tooke recommended the House to enable Her Majesty to grant a charter with power to confer degrees. The Address was carried, but a new arrangement was made embracing King's College and other bodies entitled to participate in the benefits of a University. The new University was moderately successful; but after a time some one started the idea that it did not matter where men obtained their knowledge so long as they passed a test examination satisfactorily. The charter was then surrendered, a new one was granted, and the University had since been a most successful examining Board. Applying that example to the present case, he would say, if the Inns of Court did not within a reasonable time establish an independent and efficient Board of Examiners; if they did not fairly fulfil their trust in this respect, he should be ready to vote an Address to the Crown to establish a Board of Examiners; but he preferred leaving the matter to the profession, who had its interest at heart. In conclusion, he protested energetically against the adoption of the Motion in the terms in which it was couched; he protested, in the name of freedom of competition, freedom of teaching, freedom of learning, and of the free access of all classes to these professions, which was the life and soul of them, and which entitled them to the esteem of their fellow-countrymen; and he thanked the House for the patience with which he had been listened to.


, while appreciating the motives of the hon. and learned Member for Richmond (Sir Roundell Palmer), entertained doubts as to the expediency of his proposals, so far as they affected his own branch of the profession, and, for one, he dissented from the Petition of the Council of the Law Institution. The scheme of the hon. and learned Gentleman was supported by young and ambitious spirits, who desired an absolute fusion of the two branches of the profession; but he wished on public grounds to keep them distinct. The attorney, from identification of himself with his client, was less likely than the barrister to see the weak points of a case, and, while the attorney must be competent to conduct all kinds of business, the barrister, with great advantage to all concerned, could make equity, or common law, or bankruptcy, or any other branch of law his speciality. The system of examinations established by the institution to which he belonged worked well on the whole, and the only question with him was whether it had not been carried too far. They were three in number—namely, the first preliminary examination in the groundwork of general education; the second examination on legal matters; and the final examination—and a man must pass the third before he could be admitted to practise. It was originally a test examination; but the introduction of prizes and scholarships had made it, to some extent, competitive, which caused young men to cram too much, instead of attending to the practical part of the business. On this account he had on one occasion, as examiner, to lower the standard rather than exclude the candidates. If the examination were made more of a test and less of a competitive examination, it would answer its purpose very well. He feared the fusion of the two branches of the profession would result in turning those who might be good attorneys into indifferent barristers. In reference to the present arrangement, by which a solicitor who desired to become a barrister was compelled for three years to abstain from practice as an attorney, he quite thought with the hon. and learned Member for. Dover (Mr. Jessel) that that rule might well be modified.


said, that his hon. and learned Friend the Member for Dover (Mr. Jessel) had, in his able speech, sufficiently indicated the view taken by the Inns of Court of the proposal which was under the consideration of the House. He (Sir Francis Goldsmid) therefore desired, to address himself to the subject not as a Bencher of Lincoln's Inn, but as having long taken a share in the management of one of the great teaching bodies of the Metropolis—University College, London. If he rightly understood the scheme now before the House, the new law school was to be the only authority having the right to admit to the Bar, and was at the same time to give instruction in law. To any such proposal he decidedly objected, on the ground that it would create a new monopoly, since every other teaching body would be put at a disadvantage as compared with this child of the State, with which it would be almost impossible to compete. The only thing really necessary was compulsory examination as a condition of being called to the Bar, and it was the want of this that had caused the failure of the schools of law already in existence. University College had instituted classes, and had secured the services of eminent teachers—sometimes of able young barristers, sometimes of men of higher standing in the profession; and a similar course had, he believed, been taken by King's College, London, and by the Inns of Court. But all these classes had had very little success in consequence of a legal examination not being a necessary preliminary to being called to the Bar. In these days of examination and competition young men would not spend their time in receiving instruction unless it were indispensable for entering the profession which they intended to pursue. It appeared to him that the proposal of the hon. and learned Member for Richmond (Sir Roundell Palmer) was open to the same objection as had originally attached to the Institution recently founded at Cooper's Hill, for training Civil Engineers for the East India service. Early in the Session, he (Sir Francis Goldsmid) had brought that subject under the notice of the House; and in accordance with the Resolution then passed, the Government had since modified their scheme, and had not only determined to allow other persons besides those trained at Cooper's Hill to enter the service, but had also provided that the examinations of young engineers, whether educated or not educated at that establishment, should be conducted by independent examiners. On the same principle, he contended, that if the new law school was to have an exclusive right to call to the Bar, it ought not to teach at all, but to leave the task of teaching to the other bodies which were ready to supply all necessary instruction. He trusted that the House would not sanction the present scheme, not for the sake of preserving any old monopolies, but because he was strongly opposed to creating a new one.

Debate further adjourned till Tuesday next.

The Clerk at the Table informed the House, That Mr. Speaker, having retired, was unable to return to the Chair during the sitting of the House.

Whereupon, Mr. Dodson, the Chairman of the Committee of Ways and Means, took the Chair as Deputy Speaker, pursuant to the Standing Order.