HL Deb 17 April 1877 vol 233 cc1250-63

(The Lord Selborne.)


Order of the Day for the Second Reading, read.

Moved, "That the Bill be now read 2a."—(The Lord Selborne.)


said, their Lordships might recollect that this Bill, and the General School of Law Bill, which followed it on the Paper, had been two or three times before the House in as many different Sessions. He had on all those occasions been most ready to express his respect for the motives which had led his noble and learned Friend to introduce those Bills, and his desire to render any assistance in his power towards carrying out the object which his noble and learned Friend had in view. When the Bills were before the House last Session he expressed his hope that, without interposing anything in the progress of the Bill, he should in some form or other be able to obtain the concurrence of the Inns of Court to dealing with some of the subjects to which the Bills then under consideration were directed. Since then he had been in communication with the four Inns of Court, and had been put in possession of their views on the subject. As their Lordships wore aware, they expressed their decided objection to the measures of his noble and learned Friend, and had presented Petitions to that House in which those objections had found expression. Before stating more fully what were the views of the Inns of Court, he would endeavour to explain his own view as to the principle on which legislation on the subject of legal education and legal discipline ought to proceed. As to the general question—we were accustomed to hear persons regarding the Inns of Court from different points of view, and speaking of them accordingly. Some persons maintained that those Inns were simply private bodies, intrusted with property which was their own, and that no legislation should take cognizance of or interfere with them. On the other hand, there were those who held that the Inns of Court were public bodies, and executed a public trust, and that their property, which was in no respect like private property, ought to be subject to legislation, and that their rules were subject to the regulations of Parliament. His own view was this—that there was a certain amount of truth in both those views, though they seemed to be antagonistic. In his mind the Inns of Court were private societies in this respect—that they regulated their own government; they chose their own members and their own Governing Body; laid down the terms of the subscriptions which must be contributed by their own members; and the property they possessed they possessed as a private society, such as a club. But, on the other hand, it was equally free from doubt that the Inns of Court had a public trust of a very important description. To the Inns of Court was assigned the power of determining what persons should be entitled to audience in Her Majesty's Courts of Law; and they had the power of regulating the discipline of the Bar. Audience in Her Majesty's Courts of Law was a very high privilege and honour, and it emanated from the Crown in the same way that a University degree did. In his opinion, it was not within the province of legislation to interfere with the private regulations or the private property of the Inns of Court; but, on the other hand, it was within the province of the Legislature to see that the public trust which was delegated to the Inns of Court should be performed in a manner satisfactory to the Legislature, and, if necessary, to take securities for its being so performed. There were three points in respect of which it interested the public and interested Parliament to see that the trusts and duties delegated to the Inns of Court should be properly performed. The first of these was the education of those who proposed to be called to the Bar. The second was admission to the Bar—that the terms and conditions of that admission were satisfactory, that the standard of examination was sufficiently high, and that, on the other hand—which he thought of as much importance—that it was not too high. The third was the administration of the discipline of the Bar, after those who had been admitted members of the Inns of Court had been called to the Bar;—so that the interests of the public were consulted, while justice was secured for every member of the profession. Having stated what seemed to him to be the principle which should guide the Legislature on this subject, he would proceed to lay before their Lordships the objections of the Inns of Court. These societies found that one of the Bills of his noble and learned Friend provided for the appointment of a body of Commissioners, who were to inquire into the laws, rules, usages, or practice of the Inns of Court. The Governing Body of any Inn of Court was to have power to frame ordinances and regulations for the better government of their Inn; which ordinances were to be subject to the approval or disapproval of the Commissioners. In default of such action by any Inn of Court, or of their ordinances failing to obtain the approval of the Commissioners, the Commissioners themselves were to make ordinances, &c. But the Inns of Court objected that they did not require legislation to enable them to make ordinances; they were unfettered by any statutory rules, and they were free themselves to make any ordinances which the necessity of the case might require. The Inns of Court further pointed to what they had already done in the matter of education for the Bar and admission to the Bar, and that they had done, and were doing, their duty in that respect; and he was bound to say that the Inns of Court de-served credit for their liberality in that respect. The sum annually spent by them jointly for this object amounted to £7,850. Deducting from this £2,435 received in fees from the students, there remained £5,415. To this had to be added £3,102, made up of separate expenditure on education by each of the four Inns in educational purposes, so that the total expenditure for education by the four Inns amounted to £8,517 a-year. There was a Committee of the four Inns, for the superintendence of education, and a member of that Committee had assured him that it never had suggested any expenditure for education that was not voted by the Inns as a matter of course. This was undoubtedly a state of matters that was highly creditable to the Inns of Court. He would, however, take the liberty of pointing out a matter in respect of which the present position of the Inns of Court was decidedly unsatisfactory, and in respect of which he was unable to see any remedy without legislation. The General Committee for superintending legal education was entirely a voluntary one—any one of the Inns of Court could withdraw from it at any time. There was a time some years ago when different views on the subject of education were held by different Inns, and the consequence was that they acted in antagonism rather than in harmony. Then it was utterly impossible under the existing system that there could be a united regulation on the part of the four Inns in respect of discipline. According to the traditional mode of procedure, discipline must at present be exercised by each in respect of its own members. Again, when inquiry was to be made with the view of exercising discipline, there was the want of power on the part of the Inns of Court to compel the attendance of witnesses. Having stated this, he would now state how far the Inns of Court were willing to consent to legislation in respect of the matters to which he had just referred. They were willing that a Council should be appointed to represent the joint action of the four Inns; that the Council should be composed of 30 members—six to be appointed by the Crown, and six each by the four Inns; that the appointment of these members should be compulsory; and that provision should be made for a change, so that the same persons should not remain too long on the Council. The Inns of Court were willing that this Council Thirty should have the power of making rules for controlling legal education and admission to the Bar, and that it should have the administration and discipline, with the power of investigation and of requiring the attendance of witnesses. The mode in which the Council was to be supplied with funds was matter of detail. He did not want to raise any issue on the Bill of his noble and learned Friend; but he made this statement in order that his noble and learned Friend might take it into consideration. He thought his noble and learned Friend would agree with him that with a view to succeeding in passing his measures through Parliament and rendering them generally acceptable, it was desirable that he should have the co-operation of the Inns of Court; and therefore he would suggest that in Committee on one of his Bills his noble and learned Friend might introduce Amendments which would embody the plan to which the Inns of Court were willing to consent. He must point out that such a scheme would not meet one point in the proposal of his noble and learned Friend —namely, the united education of barristers and solicitors. In the scheme which he had had the honour of pointing out no provision was made for the education of solicitors; but, although the Incorporated Law Society had expressed its approval of the proposal for such united education, he had some doubt as to the extent of approval which it would receive from the solicitors generally. One of the things for which the solicitors were anxious was an alteration in the present rules relating to the admission of a solicitor to the Bar or of a barrister to the rank of solicitor in cases where the members of either of the legal professions wished to change to the other. The Incorporated Law Society would desire to have the examination of solicitors more under their control than it was at present—and there was much to be said in favour of that desire. He did not wish to go into the question whether the separation of the profession of barrister from that of solicitor ought to be maintained—that was foreign to the question before their Lordships; but what he did say was, that so long as the two professions remained separate, he had the greatest doubt as to the expediency of trying to establish a combined plan for the education, examination, and the discipline of both. If such a scheme was formed the controlling body should be composed of a certain number of barristers and a certain number of solicitors, and he believed that very considerable inconvenience would arise from solicitors exercising discipline over barristers or barristers exercising discipline over solicitors. He was certain that the very strongest opposition would be offered by the Inns of Court and the Bar to any measure which should attempt to create a central body selected out of the two professions. He asked the consideration of his noble and learned Friend for the suggestion he had ventured to make with reference to the plan of the Inns of Court.


said, he thanked his noble and learned Friend for the great consideration he had always manifested towards him; but he felt disappointed at what had just been said by his noble and learned Friend, remembering that last year he had told their Lordships that he hoped to be able, with the concurrence of the Inns of Court, to introduce a measure dealing with those Societies, and with legal education. In the measure shadowed out by his noble and learned Friend on that occasion, an external body was also one of the elements. In the plan sketched by him that evening that element was omitted. He regretted that his noble and learned Friend did not take the matter in hand himself with all the authority of his high position.


begged to say that his suggestion to his noble and learned Friend arose from his desire not to take the subject out of his hands; but he was perfectly prepared to deal with it himself by a separate Bill or by Amendments in the Bill of his noble and learned Friend.


said, he had no personal feeling on the subject, and looking only to the interest of the public in this matter, he considered it would be better and more for the advantage of all concerned if his noble and learned Friend would undertake to bring in a Bill which would have a chance of being passed into law. He must say he thought that his noble and learned Friend had conceded too much to the views of the Inns of Court. He had spoken of what he called the private character of the Inns of Court; but he (Lord Selborne) confessed that he knew no single circumstance which gave them the character of private Societies, unless it was that they wore not incorporated. Ho declined to look upon incorporation as a test for that purpose; some private societies, such as clubs and trading companies, might be incorporated; and institutions, not incorporated, might be of a public character. Looking back to the history of the four Inns, he did not find a single fact which went to establish that they were private Societies. Not one of them, he believed, had ever applied one shilling of their funds to private uses—he was certain that the Inn to which he had the honour to belong had never done so. As to two of these Inns, the property which they possessed were held under charters of King James the First, expressly, as the Royal Commissioners had pointed out, for the purpose of legal education. It might be that, on account of the visitatorial jurisdiction exercised over them by the Judges, and even if their property could not be administered by the Court of Chancery; but there was a well-constituted trust for the purposes of education. As to the other two Inns, ho was not aware that there was the same kind of proof of any express trust; but their endowments had been acquired in times, when a trust for public purposes might be constituted without writing; and they were so alike in other respects that there was no one single fact to justify the conclusion that they were institutions of a private character; and therefore their property could not be treated as private. His noble and learned Friend had stated that their funds were derived from subscriptions received from their members; but it must be remembered that there was no road to the profession of the Bar except compulsorily through one or other of these four Societies, and that the members were required by the Societies to pay fees and subscriptions before admission could be obtained. He could not think, therefore, that the Inns of Court received those moneys in the nature of voluntary subscriptions. The payment of these fees was an indispensable preliminary to becoming a member of one of the most important professions in the country. The Inns of Court were the only avenues to that great profession. It seemed to him that as the position and functions of the Inns of Court were recognized by law, and as every shilling they possessed was legally the result of ancient endowments, or of fees so received, no element of a private character could be recognized in them. He quite agreed in the praise bestowed upon the Inns of Court for what they had done during the last 20 years—and especially for what they had done during the last five or six years— in the interest of legal education—they had, no doubt, contributed large sums of money for that purpose. He should have been glad to see the Inns of Court doing all that without pressure from without; but he could not help thinking that the pressure of those who had associated themselves together for the promotion of that object had brought to bear a very wholesome stimulus upon the Inns of Court. What they had done up to a certain time had not met with any very great success; and what they were doing now had not been long enough on trial to enable any final judgment to be formed about it. They did not open the doors of their professors and lecturers to any persons except their own members. Now, he had advocated, and should continue to advocate, a plan which would enable all persons who desired to do so to attend those lectures. It would be well for the country that as many as possible should have some knowledge of law, considering that it was administered by magistrates, county gentlemen, Members of the Legislature, merchants, and others, who were not educated for forensic pursuits; and he felt sure that if there were easy means of obtaining a legal education provided many of those persons would be attracted to it. At the same time, his great object was to have a good school of jurisprudence for the training of future barristers and future solicitors, and where all those who intended to practise the law should be able to obtain the necessary instruction. He had always felt the want of such a general school was the greatest objection to the present system, which he thought tended very decidedly to prevent the enlargement and expansion of legal education. He was, therefore, most anxious to see some such institution established as the one proposed, which should enable the whole country to know where to find a really good school of jurisprudence without any premature anticipation of the professional differences and distinctions which would afterwards arise. To found such a school had been one of his most cherished wishes, and he was sure that there existed in the country a disposition to support some similar scheme. Fresh evidence of this disposition had been given only last year. The widow of a recently deceased barrister, Mr. Barstow, had given £4,500 for the purposes of legal education, and the terms of the bequest showed distinctly what her sympathies were; and, again, the late Mr. Justice Quain, an eminent Judge, whose name he could not mention without expressing his regret at the loss which the country had suffered by his death, had left by his will £10,000, subject to a life interest, for the promotion of legal education—but with the proviso that the legal profession should not share exclusively in the benefits of the bequest, but that the education given should be open to all. And these gifts had been made when the scheme which he had proposed was struggling for notice, and when it was quite uncertain what Parliament would consider fit to be clone. Those bequests clearly showed that there would be no want of public sympathy when the scheme had been once established. He regretted that the Inns of Court had not been willing to do more—that they had carried out so few of the recommendations of the Royal Commission. His noble and learned Friend when at the Bar proposed, and induced the Benchers of Lincoln's Inn to adopt, a resolution that the Inns of Court should be formed into a University: now, however, his noble and learned. Friend was forced to be content with a proposition which would do little more than regulate the preparation for the Bar and maintain discipline. If nothing more than that could at present be done it must be accepted; still, as an old member of one of the larger Inns of Court, he thought that they should not go back but forward; that they should not cling to the notion that they were private bodies—a notion which he confessed he could not see that the Inns of Court had any interest in adhering to. His idea of the true interest of these Societies was, that they should magnify, and not seek to reduce to a minimum, their public functions and dirties; that they should rise above narrow professional considerations, and think if their greatest honour to take the leading part in everything which could improve and extend a sound knowledge of the law, both among legal practitioners of every grade, and among the public at large. It had been to him a matter of surprise as well as disappointment, that they had not hitherto agreed in this view; but the time would yet come when they would take it, or it would be taken for them. He hoped the Inns of Court would never follow the precedents of Doctors' Commons and Serjeants' Inn, which had acted on the notion that they were private Societies, and, carrying that idea to its final results, had sold their property and had, in the case of Doctors' Commons—whatever Serjeants' Inn might do—divided it among their members. In taking up this subject he had only strictly public interests in view. He had no feeling of a personal kind about it from beginning to end. Indeed, all feelings of that kind would have rather inclined him to do what was pleasant to the Inns of Court—especially his own Inn, of which friends of his were conspicuous members. He was aware that effect could not be given to his proposals unless they received a certain amount of support both from the Bar and the solicitors, and also the acquiescence of the general body of the Judges. He had received communications from several of the latter, some of whom gave no discouragement, and others gave positive approval and encouragement to his scheme. Ho had likewise done his best to obtain support from the Bar; but in this respect he had not obtained the success he had hoped for. The solicitors, however, had uniformly supported the scheme, and he did not think they would do otherwise now. After the present stage of the Bills he would not press them forward until he had seen the Bill which his noble and learned Friend would lay upon the Table. He should then know how far it would be right to persevere with the scheme which he himself should prefer. In conclusion, he remarked that he should prefer even such a measure as his noble and learned Friend had sketched out to the continuance of the existing state of things.


said, his noble and learned Friend had made some reflections on the conduct of the members of Doctors' Commons some years ago and on what he understood might be the conduct of the members of Serjeants' Inn at the present moment. Though he himself was a member of Serjeants' Inn, ho was unable to inform their Lordships at once what course had been adopted with respect to the money realized by the sale of the Inn, for the best of all reasons—namely, because the ultimate course to be taken had not yet been agreed upon. Ho might remark that no person was more responsible than his noble and learned Friend for the measures which led to the extinction of the order of Serjeants; this was done, however, with his entire concurrence and assistance in the other House of Parliament. The question then arose whether something should be done with the property at once, or whether the members should be considered as private trustees, of whom the sole survivor would become the sole owner of the property. The noble and learned Lord on the Woolsack was aware that the Society pressed on the Government some time ago the advantage of the property of Serjeants' Inn being acquired on moderate terms for the use of the public for law purposes; but the representatives of the Government rejected that offer—no doubt for very good reasons. It was obvious that the property must either remain in the possession of a moribund and gradually diminishing body, or else that it must be sold. In point of fact it had been disposed of, and there was no means of doing this except through the action of the individual members of the Society. He did not know what was to become of the proceeds; but he had no doubt they would be dealt with in a manner which was wise and just.


explained that nothing was further from his intention than even to imply that the members of Serjeants' Inn or Doctors' Commons would deal with the property in their hands in any other way than they were legally and equitably entitled to. He might add that Serjeants' Inn never had public functions attached to it.


concurred in what had been said by his noble and learned Friend (Lord Selborne), that in any scheme they adopted, means should be taken for widening the sphere of the study of the law—so that not only those who intended to follow the law as a profession, but those who had no such purpose, but who might reasonably hope to have some share in administering the affairs of the country, might have the opportunity of acquiring a knowledge of the law. It was the custom in Germany that all men, whether they intended to practise the law or not, should go through a course of legal studies in order that they might be able to take part in the administration of the law. In this country a great many unprofessional men were entrusted with the administration of justice; and therefore if there was any country more than another in which a knowledge of the law was requisite it was this.


mentioned that he had the evening before presented a Petition from the Incorporated Law Society in favour of the Bill, suggesting Amendments to the effect that the lines on which the Commissioners to be appointed under it were to regulate their procedure should be distinctly laid down, and that, following the example of the Oxford and Cambridge Bill, the Commissioners should be named in the Bill itself. Having himself taken an active part in reference to the Royal Commission on Legal Education, he thought that the objects recommended by that body should form the bases of the proposed legal education. He entirely concurred, he might add, with the noble Earl who had just spoken as to the desirability of enlarging the whole system of legal education.


said, he had not meant to suggest for one moment that the course taken by the members of Serjeants' Inn in selling the property was not a proper one. It was also quite true that the property of the Inn had been offered to the Government, and that that offer had been refused. But a point of more importance was the statement that the order of Serjeants had been extinguished. From that proposition, however, he must express his dissent. It was true that the Judicature Act provided that it should be no longer necessary that a Judge on his elevation to the Bench, if not already a Serjeant-at-Law, should become one; but he was not aware that there was anything to prevent him, if he deemed it to be his duty to do so, from humbly submitting to Her Majesty the propriety of calling any barrister to the degree of the coif. As to the Bill under discussion, he wished to say that he did not intend to express any opinion with regard to the position of the Inns of Court in reference to the property which they held connected with trust, but only such property as had been acquired by their members from time to time. His own views on the subject with which the Bill dealt, he might observe, lie had entertained for a long time; for he had many years ago carried, by a majority of one, a Resolution to the effect that it was desirable that the different Inns should be affiliated to a legal University, and that steps should be taken with that object. He had always been very much surprised that the Inns of Court had not favoured a scheme which would give the country a great corporate school of law. Another course that might be adopted was the appointment of Commissioners who would empower the Inns of Court to make ordinances on the subject of education. The proposal now made by the Inns of Court, while it was not the proposal he would himself have made, was yet one which, if properly expressed, might enable them to attain the end they had in view. He attached the greatest possible importance in this country to having legal education provided, which should not only answer the purpose of gentlemen who wished to practise at the Bar; but also be suitable for those who desired to act as magistrates, as Members of the Legislature, or in other similar capacities. He was, at the same time, extremely anxious that in any regulations which might be made—while care was taken that the curriculum should be large and liberal enough, the test of qualification for call to the Bar should not be so severe as to deter persons who wished to study law with some other view than that of practice at the Bar from taking the degree of barrister in the same way as they would take a degree at the University. He ventured to think that such bodies as the Inns of Court might furnish such a curriculum of education as they all desired to see 'provided. He would be quite prepared to introduce a Bill embodying what he had endeavoured to describe, and there was reason to hope that if such a Bill was proposed this year it would be accepted elsewhere and become law.

Motion agreed to; then the Bills severally read 2a, and committed to a Committee of the Whole House on Tuesday the 15th May next.

House adjourned at Seven o'clock, to Thursday next, half-past Ten o'clock.