I "^^ r"-^ m^ip OF THE U N IVER5ITY Of ILLINOIS The Legal Education Association requests your acceptance and perusal of the accompanying full report of the Speech made by Sir Roundell Palmer, Q,C., M.P. for Richmond, in the House of Commons on the 11th of July on moving Resolutions in favour of the Establishment of a School of Law. <^ ^ cy^^a^ ^O^ 1^ LEGAL EDUCATION. A SPEECH DELIVERED IN THE HOUSE OF COMMONS, ON TUESDAY, JULY 11, 1871, BY SIR ROUNDELL PALMER, Q.C. M.P. FOR RICHMOND, ON MOVING RESOLUTIONS FOR THE ESTABLISHMENT OF A GENERAL SCHOOL OF LAW. WESTMINSTER : PRINTED BY J. B. NICHOLS AND SONS, 25, Parliament Street. 1871. A SPEECH, &c The House, Sir, I hope, will believe that I am not in- fluenced by any mere professional prepossession or prejudice when I speak of the law of this country as a matter of the most vital importance to all our institutions and all our interests, and when I assert that a sound system of education in the law is a subject most w^orthy of the attention of this House. And, certainly, when it is remembered how long it is since this House gave its attention to that subject, and how great the defects of the existing system are, it is rather a cause of surprise that the matter should have been left un- settled until now, than that I should be bringing it to the notice of the House at the present moment. What is the true character of the prevailing system of legal education in England ? When the high reputation and attainments of the many great men who have adorned the profession are con- sidered, when the great power which the profession has always exercised in the State is borne in mind, together with the important duties which its members are called upon to dis- charge, it might naturally be supposed that the system of legal education which has produced such men must in itself be of a very excellent kind. And, yet, if there is one point upon which public opinion may be said to be almost unanimous, it is that legal education is, and has long been, in a very unsatisfac- tory condition. Ages ago chief justices spoke of our Inns of Court as a legal university, and not only was there a strong desire to establish in them an efficient school of law, but they were provided with large resources and means, intended to produce great results. The whole of that system has fallen into a state of decay, and within the recollection of those now living it is no untrue description of our law studies to say that they have been unscientific, unsystematic, desultory, and empirical. A young man comes from school or from the university (or wherever else he has received his general education), well prepared, I will suppose, and grounded in general elementary knowledge. He then endeavours to qualify himself for the legal profession by seeing practice — a very good thing in its way, if accompanied by the acquirement of a solid, scientific, and systematic knowledge of the principles of jurisprudence and the history of the law. Instead of this, however, no broad, no scientific foundation is laid. He studies text-books, wades through undigested and often questionable decisions of the present day and of former days, as they are reported in the voluminous books of cases ; he goes into the chambers of a conveyancer, and afterwards of an equity draughtsman or a special pleader, with a view to see how business is done. He gets what advice he can from his much-occupied tutor or firom the friends he makes in the profession, or in the pupil-room ; and thus picks up such elementary knowledge of law as he can put together. He then commences practice, and learns the busi- ness of his profession really and truly by practising, more than by anything else, and after he begins to build up the super- structure in this way he has very little time to amend or enlarge his foundation. Now let not the House suppose that this is a matter which concerns those only who practise the law. It is very important to the country that those who practise the law should have a good scientific knowledge, because, although it may be true that men do not succeed in business unless they prove themselves competent to transact it, yet on the other hand they would transact it better, as individuals and as a class, in proportion to the depth and solidity of their acquire- ments ; and not only would that be the case with the most eminent members of the profession, but it would be so, in an even more important degree, with those whose performances are less under the public eye, both among barristers and solicitors. There can be no doubt that great benefit would arise in the practice of all branches of the law from an improvement in the system of study. But the evil does not stop there. Tlie want of this science, of this foundation, of this method, is felt everywhere. The great and notorious defects of form and consistency in our legislation are, in a large measure, the result of law not being studied in England as a science ; and, so far from there being any promise of amendment in this respect, under the present system, there is every prospect of matters becoming worse. Our judicature again suffers greatly : for as judges are multiplied in the superior courts, and local courts are established throughout tlie country — a multiplication which is absolutely necessary for the due administration of justice — that multiplication itself t^nds more and more to bring into prominence the want of governing principles, the incoherent character of our jurisprudence. With the multiplication of judges you get constantly diverg- ing views, a continually increasing variety of precedents, and increasing uncertainty in their application. There are other considerations, in addition to those I have men- tioned. When we consider how many important offices of the State, requiring legal knowledge and legal habits and methods, arc confided to barristers of a certain standing, it is plainly of great importance that a system of education should be established which may enable the members of the class from which these appointments are made to acquire a good and sound general knowledge of the law, and, at the same time, afford to the public some guarantee of the posses- sion of that knowledge by those on whom the appointments are conferred. Again, the whole of the magistracy through- out the country, paid and unpaid, though not entirely 6 recruited from the class of barristers, is at all events selected from a class to whom it would be of great importance to have afforded them the means of acquiring sound instruction in the law. Would it not be of immense advantage, too, to those who come here to make laws, to have the opportunity of acquiring such knowledge before undertaking the duties which we are here called upon to discharge ? And I may say that, with regard to all men of business throughout the country, to our merchants, to the non-professional classes as well as the pro- fessional, It would be of great value and importance if a good school of law were established, where every man who wished to be instructed in the elementary knowledge of the laws of his country could obtain that instruction in a sound and scientific form. But, further, we must remember that we are the centre from which radiates law to other great regions of the earth. In the Colonies and in the East Indies we undertake the administration of the law, and we send out a continual supply of judges and barristers to carry on the traditions, the knowledge, and practice of our law in those remote possessions. Is it not of the greatest importance that we should do our best to ensure the proper qualification of those whom we send ? But, perhaps, I ought to apologize for having dwelt so long upon the importance and the necessity of an alteration in the present system, because it is not recently — it is as long ago as 1846 — that this house directed its atten- tion to that subject. A select committee was then appointed, one of its members being, if I recollect rightly, the right honorable gentleman the member for the University of Cambridge (Mr. Walpole). That committee made a report from which I will take the liberty of reading a few passages, passages which, with very little qualification, would represent the state of things now, as they represented the state of things at that time. The committee say : — " That the presei;it state of legal education in England and Ireland, in reference to the classes, professional and non- professional, concerned, to the extent and nature of the studies pursued, the time employed, and the facility with which instruction may be obtained, is extremely unsatisfactory and incomplete, and exhibits a striking contrast and inferiority to such education, provided as it is with ample means and a judicious system for their application, at present in operation in all the more civilized States in Europe and America." They add, " That it may be asserted as a general fact, to which there are very few exceptions, that the student, pro- fessional and unprofessional, is left almost solely to his own individual exertions, industry, and opportunities ; and that no legal education worthy of the name is at this moment to be had in either England or Ireland." That was written in 1846 ; and though there has been some improvement since, that improvement has not been of a very important or exten- sive character. The Committee go on to say : " That, among the consequences of this want of scientific legal education, we are altogether deprived of a most important class, the legists or jurists of the continent, men who, unembarrassed by the small practical interests of their profession, are enabled to ^ apply themselves exclusively to law as to a science, and to claim by their writings and decisions the reverence of their profession, not in one country only, but in all where such laws are administered." I will also mention one other just and important observation which was made by that Committee: " That a system of legal education, to be of general advan- tage, must comprehend and meet the wants, not only of the professional, but also of the unprofessional student." It ought to be open to all the country, and not be confined merely to those who are desirous of practising the law. As a remedy for these evils, the Committee recommended, that the Inns of Court should be united into one body, so as to " form for all purposes of instruction a sort of aggregate of colleges, or, in other words, a species of law university." I referred just now, among other considerations, to tliose connected with India and our colonies ; and w4th the per- mission of the House, I shouhl like to read an extract from a letter which I have received from an eminent Indian judge, who takes a warm interest in this subject. The writer is from Mr. Justice Markby, one of the judges of tlie High Court at Calcutta ; he says, " with the greatest confidence," that '* the want expressed by the movement is already felt in every part of India. It is through the administration of the law that England has her strongest hold on India. It is at this point that she has most completely broken down those barriers which in other matters separate us so widely from our Indian fellow-subjects.'^ He then refers to the appointment of native judges, both in the Mofussil, and, in four instances, as members of the High Court itself; and adds, *' In all parts of the country a native bar is springing up. I am satisfied that this desirable state of things is due, in a great measure, to the link which has been formed between England and India by the bar ; and I look with the greatest satisfaction at the prospect, that this link will be still further strengthened by the growing habit of Hindoos and Mahome- tans to resort to England for the purpose of studying law at the Inns of Court. But can anyone say that they find there what they have a right to expect ? Surely they ought to find a thorough and complete system of education. If this is desirable for ourselves, much more is it desirable for a native of India. A native of India requires, even more than an Englishman, some systematic instruction, before he attempts to acquire the art to practice. Indeed, I do not hesitate to say, that the most conspicuous failures of native lawyers in India have arisen entirely from the want of this preliminary instruction It seems to me, therefore, not too much to say, that the question which has been mooted is one imperial concern." It will be remembered, that one of the recommendations contained in tlie report of the Committee of 1846 was, tliat tlie four Inns of Court should be brought together, and» organised, so as to form for all purposes of instruction u sort of aggregate of colleges, or, in other words, a species of law university ; and they advised, amongst other things, that there should be admitted to some, at least, of the lectures to be given in the Inns of Court, when so organised, students intended to follow the profession of attorneys and solicitors. I mention that, to show that it was seen, even then, that it would not be desirable, in the early stage of legal education at all events, to draw any absolute line of separation between those who were intended for different branches of the profession ; but that the advantages which would result from the proposed change ought to be open to all who might be able and willing to profit by them. That report was not productive of any immediate effect ; but the subject did not entirely go to sleep; for in 1851, I think, the Inns of Court began to bestir themselves, find set on foot that system of assistance to legal education, of the results and character of which I will presently give the House some account. In 1855 a royal commission, which had been ap- pointed in the year before, with the limited object of inquiring into the Inns of Court and Chancery, and which included the present Lord Chancellor, who was its chairman. Lord West- bury, Lord Chief Justice Cockburn, Sir John Taylor Cole- ridge, Sir H. Keating, Sir J. Shaw Lefevre, and other emi- nent persons, adverted in forcible language to the evils which I have mentioned. They took the evidence of many witnesses of great experience ; and in the result they recommended that a university should be constituted, with a power of conferring degrees in law, and with a chancellor and a senate to be elected in certain proportions by the Inns of Court ; saying : — " We deem it advisable that there shall be established a preliminary examination for admission to the Inns of Court of persons Avho have not taken a university degree, and that there shall 10 be examinations, the passing of wKich shall be requisite for the call to the bar ; and that the four Inns of Court shall be united in one university for the purpose of these examinations, and of conferring degrees." I will now give the House some account of what has been done by the Inns of Court. As I said, it was in 1851 that the scheme began, of which the ultimate result was the establishment of the present '* Council of Legal Education,'^ a body representing; and receiving pecuniary assistance from, the four Inns of Court. The operations of that council have hitherto been limited to affording opportunities of improve- ment, by means of lectures given by readers in different branches of law, and of voluntary examinations, to those students who are willing to profit by them. Down to the present time it has continued to be possible for any one to be admitted to the bar, without any test to ascertain whether he possesses any legal knowledge. Eating a certain number of dinners, and attending for a year in a barrister's chambers, or attending for one year a prescribed course of lectures, is all that has been required ; the alternative being at the same time ojBfered of passing an examination which, being perfectly optional, very few have chosen to go through. Five lectureships in the whole have been established in different branches of law, with the results, in figures, which I will proceed to give. By the accounts for the year preceding the 10th of January, 1871, it appears that the contributions of the four societies, including what they gave for the expenses of the establishment, amounted to £1,440 ; the students' fees for public lectures amounted to £3,174, and the students' fees for private lectures to £556. These figures are sufficient to show that such a system as that which I desire to see established might easily be made capable of supporting itself And now with respect to the students. The number of attendances of students on the several courses of public lectures during the same year was 376 ; but here I ought to mention, that I 11 do not tliink these figures mean that 376 individual students attended lectures during the year, because, probably in many cases, the same person attended more than one course of lectures, and is counted for each course. The number, there- fore, attending the lectures, in the aggregate, was 376, subject to that deduction. Subject to a like deduction, there were 101 students who attended the private lectures, and 25 who attended the lectures on Indian law. Only 58 offered them- selves for the general examination, and 30 for the voluntary examination for exhibitions; of whom again, several must have been counted more than once, if (as is most probable) the same students were examined in several different subjects. These figures represent, down to the present time, the nume- rical results of the present system. With regard to the instruction itself, and the profit to be derived from it, the narrowness of the system has an unavoidable tendency to confine the advantages it is calculated to confer within a very limited range. The attendance is not sufficiently jiumerous, nor are the tests of proficiency sufficiently substantial, to stimulate to the utmost the energies of either teachers or pupils. I am afraid that, with the exception of a few distinguished students, the thing has worked in a languid, imperfect manner, because the scheme was not comprehensive or bold enough to produce serious and important effects ; and I need scarcely add, that the absence of a compulsory test of qualification before the call to the Bar has in itself been fatal to its success. In that state of things, a committee of gentlemen deter- mined, last year, that it should not be their fault if some- thing better was not attempted. And accordingly many members of the Bar, and many solicitors and attorneys who took an interest in the matter, united themselves into a society called the Legal Education Association. This associa- tion proposed to place the general course of studies and the examinations preliminary to and requisite for admission to the practice of the law, in all its branches, under the management 12 and responsibility of a legul university, to be incorporated in London ; to make the passing oF suitable examinations in this university (or of equivalent examinations in the legal faculty of some other university of the United Kingdom) indis- pensable to the admission of students to the practice of the Bar, or to practice as special pleaders, certificated con- veyancers, attorneys, or solicitors ; and, lastly, to oiFer the benefits of the course of study and examinations to be afforded by the university to all classes of students who may desire to take advantage of them, whether intending or not intending to follow the legal profession, in any of its branches, and whether members or not of any of the Inns of Court. They also considered it expedient that the proposed univer- sity should be so constituted, as to give a due share of repre- sentation, in its government, to all branches of the legal pro- fession ; and they desired to do this, as far as possible, in co-operation with the Universities of Oxford, Cambridge, and London, with the Inns of Court, and with the different law societies representing the attorneys and solicitors throughout the Kingdom. And now I would state, how these proposals have hitherto fared. The Universities of Oxford and Cambridge both ap- pointed committees with a view to friendly communication with this association. A great legal authority at Oxford has authorised me to state, that that University has lately effected a complete reconstruction of its machinery for teaching and examining in law and jurisprudence, with the express object of having it ready to fit in with any comprehensive orga- nization of legal education which may be established, either by the Inns of Court or by any body external to them. And the petition from the members of the Bar, which I have presented to day, is signed by Sir Henry Maine, Corpus Pro- fessor of Jurisprudence at Oxford, perhaps the most eminent of our living jurists; by Mr. Mountague Bernard, Professor of International Law, who lately acted as one of the British 13 Commissioners in negotiating the Treaty of Washington; by Mr. Bryce, Regius Professor of Civil Law, and by Mr. Kenelm Digby, Yinerian Reader of Law at Oxford; showing most distinctly, that these gentlemen, who represent, as well as any who could be named, the scientific element of jurispru- dence in this country at the present day, take an active interest in the proposals which I am now submitting to the House. At Cambridge also a similar disposition has been shown ; on the Ttli of March last the Senate of the Univer- sity appointed a syndicate to confer with the Legal Education Association; and the petition to which I just now referred bears the signature of Dr. Abdy, the Regius Professor of Civil Law at Cambridge. The University of London, by its con- stituted authorities, has also expressed approval of the general views and principles of the association ; subject, however, to objections which they have made to the creation of a new University, strictly and technically so called, with power to give degrees in Law. That part of the proposal, is not by any means of its essence. In consequence of that objection, and to avoid, upon the present occasion, any unnecessary cause of difference, 1 have altered the terms of the notice which I had given by omitting the word " university,^' which might seem to have prejudged that question, which I did not intend to do But, with regard to the substance of the plan, the University of London has expressed its approval, and I do not doubt its willingness to cooperate. I may state, moreover, that Mr. Sheldon Amos, the professor of jurispru- dence at University College, London, has signed the petition which I have presented to day. We have also had a very friendly communication from the University of Edinburgh, which shows that their experience is not unfavourable to the principles of the plan ; and from that communication I wish to read one passage, which bears upon the most controverted point in the scheme to which I am now calling the attention 14 of the House. The passage to which I refer is as follows : '* It may not be uniuterestiiig to the Association to mention, that in the teaching of the (Scottish) universities there has never been known any distinction between students intended for different branches of the legal profession. All sit on the same benches, listen to the same lectures, and submit to the same university examinations ; nor has it ever been suggested that this practice has been attended witli any evil results." Now, 1 come to the reception w^hich these proposals have met with from the different legal bodies in England — and, in the first place, I may perhaps be permitted to mention that many very eminent men, including the Lord Chancellor, and not less than eleven of the other judges in the superior courts of law and equity, have declared, and still authorise me to declare, their general approval of the scheme : and to these I am permitted to add, amongst other distinguished names, those of Sir William Erie, lately Lord Chief Justice of the Common Pleas, Sir John Taylor Coleridge, who was one of the Commissioners of 1854, and Sir Joseph Napier, formerly Lord Chancellor of Ireland, who moved for the appointment of that Commission in this House These gentlemen, and others whom I would rather leave to speak for themselves in this or the other House of Par- liament, have expressed a very warm interest in the accomplish- ment of the object which we have in view — and the petition from the Bar, to which I have already more than once referred, has received, within a very short space of time, nearly four hundred signatures —among which are those of eighteen Queen's Counsel. With regard to the reception which the plan has met with from the different organs of the profession, if I may so term them, I will first allude to the action taken by the Incorporated Law Society. The Incorporated Law Society met in May last, and passed the following resolution, in accordance with which, they have also addressed a Petition 15 to this House, which I presented this evening: — " That the Society approves generally of the proposals of the Legal Education Association for a University or School of Law, and is willing to co-operate with the Association on the foot- ing: I. That all the several branches of legal study will be open to all who may become students, without distinction or classification, leaving them to deteriinne with which branch of the profession they will ultimately connect themselves: — That the course of instruction of all members of the University intending to be barristers shall not be distinct and separate from the course of instruction of those intending to be attor- nies or solicitors: — That an examination by the proposed university or school shall be equally compulsory on both branches ; and, that no preponderance be given to the Bar, or to attornies and solicitors, on the governing body." It is only due to the Incorporated Law Society to mention, tliat they were the first to establish an effective system of instruction by lectures, and of compulsory examinations before aduiission to practice, for the branch of the profession which they so w^orthily represent ; and that their efforts have been attended with excellent results. From the Metropolitan and Provincial Law Association we also received a similar adherence to our general views and principles ; as also from the incorporated law societies of Liverpool, Birmingham, Manchester, New- castle, Plymouth, and other important towns, from several of which I have to-night presented petitions. I come now to the views of the Inns of Court. The Inns of Court, in consequence of communications made to them on behalf of the Association appointed committees to meet together, and to confer upon the subject ; and they have since adopted resolutions, which, if some of them appear to me to fall short of the best means of accom- plishing the object, are nevertheless important steps in the direction in which I wish to move. In the first place, \6 a committee appointed by Gray's Inn (always a liberal society) in November last, adopted two of our main principles, that of a general school of law, and that of a mixed, and not exclusive, system of preliminary education. They recom- mended, " That there should be a legal university, or some one body with united action, to provide means for the edu- cation of students for the legal profession ; with power to prescribe the educational qualification which shall be required from students on their admission as students, and on their being called to the Bar, or admitted as attornies." They were also of opinion, " That such body should not be formed of the four Inns of Court exclusively ; but that no other body should be associated with the four Inns, save and except the Incor- porated Law Society." The committee appointed by the Middle Temple (a society of whose early, constant, and zealous efforts, and large and enlightened views in the cause of legal education, it is impossible to speak too highly) have declared their substantial concurrence in all the principles of our scheme. They recommended, " That there should be a legal university to superintend and control the education of students for the profession of the law, consisting of such bodies or members as are contemplated by the council of the Legal Education Association ;" and " That passing such examination as may be established in that behalf by the legal university be recom- mended as one of the qualifications for admission to the bar, and for practice as attornies and solicitors." From the Inner Temple, and Lincoln's Inn, we have not met with an equal degree of concurrence. Both these societies appear to be at present of opinion that it is desirable to keep the education for the bar entirely separate, and to retain in the Inns of Court the whole of the educational power whicli they now possess. But in other respects they also are j'repared to move forward. The committee of the Inner Temple passed the following resolution — '* That there should be one body, with united action, to superintend and control the education 17 of students for the Bar, and a compulsory examination to ascer- tain that they are properly qualified before being called to the Bar. That such one body should be formed exclusively of cer- tain persons being members of one of the four Inns of Court, appointed by such inns respectively; and that such body should be endowed by the Inns of Court with sufficient funds for the foundation of legal professorships." In January last the Bench of the Inner Temple repeated their adherence to the views thus laid down. I come now to Lincoln's Inn. So far as relates to tlie formation of a legal university, the principle of the proposal which I am advocating was approved by Lin- coln's Inn as long ago as April, 1863, when, upon the motion of Sir Hugh Cairns (now Lord Cairns), the following resolution was agreed to : — *'Kesolved — That in the opinion of this Bench the creation of a legal university, to which the various Inns of Court might be affiliated, and through which legal degrees might be conferred, and discipline exercised, would be desir- able.^^ No action followed upon that resolution; aad. I regret to say, that, in one respect, that society appears to have since receded from the position which it then took up; having now adopted the resolutions lately passed by the joint com- mittee of the four Inns of Court, which seems to contem- plate that the constitution, as well as the powers, of these societies ought to undergo no change. In another direction, however, they have advanced ; and, if the movement I am advocating should have no further result, the action lately taken by all the Inns of Court, with regard to the requirement henceforth of compulsory examinations before admission to the Bar, will at all events be sufficient to show that it has not been without good effect. In the resolutions arrived at by a majority of the joint committee of the four Inns of Court (and which may be taken to represent the views at present prevailing among the Benchers of the Inner Temple and Lincoln's Inn), they say : *' That it is not desirable that the education of students for the 18 Bar, and the education of the articled clerks of solicitors and attornies, should be under one joint system of management:— That there should be a compulsory examination of students for the Bar before they are calle