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.