SIR E. CLARKE ON THE LEGAL PROFESSION.
T"great value of the speech delivered on Wednesday to the law students of Birmingham by Sir Edward Clarke consists in this. It has always been alleged that the fusion of the two branches of the legal profession was only desired by solicitors indignant at being debarred from public office, and young barristers impatient of the difficulties they discovered in the way of making a living. Here, however, we have a Solicitor-General who is acknowledged to be a most successful
As regards the public and the solicitors, Sir Edward which they are now shut out. No profession in the obviously felt, justly as we think, that his case was unanswer- world was ever improved by a refusal of all the rewards able. The division in the profession injures the public at that other men are seeking, and the solicitor at present every turn. The man who wants legal assistance has at pre- can look for nothing except money, and perhaps some sent to pay two sets of lawyers neither of whom are com- private influence. He is, to speak broadly, never re- pletely educated, when one competent " lawyer," at once cognised, is never honoured, and can never publicly serve advocate and man of business, would better serve his the State. There is no sense in such disabilities ; and when turn. He is of necessity taxed not only to pay for the they are imposed on a profession which, perhaps more than skill of both, though he sees only one, but for the mass any other, influences legislation, they become an injurious of written communications through which they instruct oppression. They certainly are not made less invidious by each other ; and as regards one, the advocate, he has no the position of the Bar, which is, of all roads to public pro- security that he will ever get anything for his money. The motion, perhaps the quickest ; so that at this moment, barrister may forget his case if he likes, or neglect it, or says Sir E. Clarke, "there are thirty-six men each of whom blunder in it, and there is no redress. The loss of time receives not less than £5,000 a year as holding, or having caused by the system is enormous, and so, we may add, is the held, judicial office or the post of a law officer. Of these, six loss of confidence that the law will in civil cases always pro- have founded peerages, sixteen are members of the Privy vide in adequate remedy for wrong. Sir E. Clarke's bald Council, and, besides that, there are ten other Councillors who account of the system, which everybody who has ever had a enjoy that honour by virtue of having held legal or judicial suit knows to be undercoloured, is of itself an indictment of it:— office." This is exclusive of the fact that some scores "The client goes to his solicitor, and to him explains the whole of well-paid posts are open to barristers in India and the case, and asks if he ought to bring an action. He is advised Crown Colonies, while, as a Home Secretary is reported to to do so ; the writ is issued, and the action is launched. The have said, "the very failures at the Bar receive County-Court pleadings presenting no difficulty, are prepared in the solicitor's judgeships and £1,500 a year."
office. Summonses are heard at Chambers, orders are made, The point remaining is to make the change acceptable and the solicitor, or a clerk who is always in communication to the Bar, and that can only be done by addressing them as with him, does the work. Then comes the trial. It may be Sir Edward Clarke has done, as a profession. The leaders that the case is sent down to the County-Court for trial. If are not likely to be anxious for the change. They do so, the solicitor appears. He has his bundle of papers containing not want able solicitors competing with them for prac- all the notes taken and all the suggestions made. He knows tice, or to see their monopoly of judgeships shaken, or the whole case, and he conducts it in that Court. But if the to be themselves burdened by personal interviews with trial is in a Superior Court, counsel has to be instructed ; all prejudiced or overbearing clients. They like things as the facts have to be set down in writing ; all the proofs of they are, very naturally ; but then, their juniors like them a witnesses must be written out with such fullness that a person great deal less. Many of them feel that if they were only who has never seen them, and who comes fresh to the case, allowed, they would make admirable solicitors ; and very many shall know exactly what they can say in the matter. And more, without that self-confidence, would betake themselves, if then in general a very few observations are added by an in- they could, to that profession. The Bar, as a profession, to put dastrious clerk, and off the draft goes to the law stationer, it bluntly, has for some years past been starving for dignity's Upon paper of the mast inconvenient size and shape the state- sake, or to put it in Sir E. Clarke's less abrupt form of speech, ment of facts and pleadings and correspondence, and the this is the condition of affairs :—" The struggle of the man observations of the industrious clerk, are fully written out in a who comes to the Bar without very powerful patrons to force big round hand. The observations are not very often read by any him into practice has always been a very hard one, but I believe one after the first draft is made; but in they go at 24-,d. the folio it has become harder of late years. I know what the diffi- for the draft, and 4d. the folio for each of the brief-copies. And culties are, for I have seen too many men as capable of work then the counsel is instructed, brief-fees are paid, and then, and as industrious, but without the good-fortune that has at an enormous cost, the knowledge which the solicitor had helped me on, persevere for a time, making great sacrifices, has been conveyed to another person in order that he may put enduring much disappointment, and forced at last to turn before the Court the matters which probably the solicitor away from the practice of the profession in which they had knows much better, and could explain just as well. In most hoped to win fame and fortune. Many go to the ranks of cases the counsel is not the choice of the litigant, but is simply literature, others seek secretaryships or agencies, or some small the counsel usually employed by the solicitor." If we add appointment in our Colonial service. Others, again, having that the client cannot know his counsel, cannot confer with sacrificed some years of their lives in compulsory idleness him, and, as Sir E. Clarke strongly put it, cannot punish him, because no man gave them anything to do, turn away to the we have a system which necessarily works slowly, which is other branch of the profession, and, in so doing, abandon with necessarily absurdly expensive, and which only succeeds, so far a sigh all the generous ambitions with which they started of as it does succeed, because solicitors and counsel alike do their public service and of public honour. I have no patronage work a great deal more honourably than with such a practice whatever in my gift as Solicitor-General, but it has been they could be expected to do. The method is, in fact, only brought to my knowledge since I have held that post that the borne by the public because it has always existed, and has been number of men who, having been some years at the Bar, and moiified in working by a system of etiquettes ; and in America fully qualified for its work, are despairing of ever making it a and the Colonies it has been abolished with, so far as any means of livelihood at aU, is much larger than even I had one can perceive, no evil result. The only necessities, if the believed it to be. And this state of things is likely to grow
lawyer, and who says of himself that he has five thousand change is made, are to insist, as Sir E. Clarke does, reasons a year for letting things alone, who declares that fusion that the " lawyer " who combines both functions shall to be almost imperative, and this not only in the interest of be thoroughly well educated, and that, which he omits, the community, which has long been recognised, but in the supervising discipline shall be indefinitely more severe. that of the two professions, which has been so hardily We do not see why a lawyer, if he is to be so completely denied. When Sir E. Clarke pleads for such a change, trusted, should not be made criminally responsible for any dis- and pleads in the kind of phrases which prove that he honourable act, and at all events he must be much more speaks from conviction, and not for any hidden object, certain of expulsion than he is at present. The "shady lot" we may be certain that the ice is cracking, and that the of the joint profession must be crushed out without remorse.
conservative force which has so long resisted the innova- The case as regards solicitors is at least equally clear. They tion, is becoming at last doubtful of its old conclusions. know the facts of a case, they know the law of the case, and There must be others among the chiefs of the Bar who agree to permit them to state the facts and their view of the law in in the main with the Solicitor-General, though they may Court is only common-sense. If the permission is supposed to not perhaps be so outspoken ; and the mere fact that do mischief, why is it allowed at present in every County there is division on the subject will, when the question Court, where three-fourths of the legal business of the country comes up in Parliament, facilitate the work of the re- will shortly be decided ; or why is a solicitor permitted to formers who find it harder to deal with the argument, " the become a barrister by a process which, whatever else it does, whole Bar is against you," than with any other. Parlia- can neither change his nature nor greatly enlarge his acquire- ment is slow to move when all experts profess themselves ments ? In truth, the permission would of itself make the content ; but once they are divided, Members think of their solicitors abler men, not only by tempting them to studies constituents, and in this instance constituents are all clients, which they now neglect, but by attracting into their body a
or " legal advisers " who take the aide of Sir Edward Clarke. better class of aspirants, and offering to them careers from As regards the public and the solicitors, Sir Edward which they are now shut out. No profession in the obviously felt, justly as we think, that his case was unanswer- world was ever improved by a refusal of all the rewards able. The division in the profession injures the public at that other men are seeking, and the solicitor at present every turn. The man who wants legal assistance has at pre- can look for nothing except money, and perhaps some sent to pay two sets of lawyers neither of whom are com- private influence. He is, to speak broadly, never re- pletely educated, when one competent " lawyer," at once cognised, is never honoured, and can never publicly serve advocate and man of business, would better serve his the State. There is no sense in such disabilities ; and when turn. He is of necessity taxed not only to pay for the they are imposed on a profession which, perhaps more than skill of both, though he sees only one, but for the mass any other, influences legislation, they become an injurious of written communications through which they instruct oppression. They certainly are not made less invidious by each other ; and as regards one, the advocate, he has no the position of the Bar, which is, of all roads to public pro- security that he will ever get anything for his money. The motion, perhaps the quickest ; so that at this moment, barrister may forget his case if he likes, or neglect it, or says Sir E. Clarke, "there are thirty-six men each of whom blunder in it, and there is no redress. The loss of time receives not less than £5,000 a year as holding, or having caused by the system is enormous, and so, we may add, is the held, judicial office or the post of a law officer. Of these, six loss of confidence that the law will in civil cases always pro- have founded peerages, sixteen are members of the Privy vide in adequate remedy for wrong. Sir E. Clarke's bald Council, and, besides that, there are ten other Councillors who account of the system, which everybody who has ever had a enjoy that honour by virtue of having held legal or judicial suit knows to be undercoloured, is of itself an indictment of it:— office." This is exclusive of the fact that some scores "The client goes to his solicitor, and to him explains the whole of well-paid posts are open to barristers in India and the case, and asks if he ought to bring an action. He is advised Crown Colonies, while, as a Home Secretary is reported to to do so ; the writ is issued, and the action is launched. The have said, "the very failures at the Bar receive County-Court pleadings presenting no difficulty, are prepared in the solicitor's judgeships and £1,500 a year." worse. Every change in the rules of procedure naturally gives the larger portion of the work to the solicitor, as the object of these rules, which they sometimes entirely defeat, is to render litigation less expensive." The consequence is that the Bar, if the most "liberal," has also become the riskiest of professions, that the ablest men, unless personally connected with solicitors, shrink from entering its ranks, and that it tends more and more to become a great gamble, in which the prizes are by no means distributed in the order of legal merit. Things, moreover, as Sir E. Clarke admits, are daily becoming worse, and they will become worse still, for the tendency of all legislation is to heap business upon minor local Courts, and to throw the great list of half-legal State appointments open to a wider circle. As a profession, the change would improve the position of the Bar ; for be our reforms what they may, the business of the legal adviser will never end. With a wealthy people, a complex civilisation, and a Parliament whose business is law-making, the man who knows and can manage legal business is, if he is only competent, sure not only of pecuniary reward, but of a great position amidst the struggling mass. Every Colony, as it rises, adds to the demand ; America is governed by our laws ; and in a very few years, the lawyer who is at once advocate and legal adviser will be the most important of all professionals among a hundred millions of English-speaking people, owning one-third of the world, and doing the business of one-half.
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