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Great War,—just as the use of Gladstonian claret, as an article of ordinary family consumption, revived in Scotland, the moment that the duty was removed,—and the number of members of the Bar, at the present time, who have studied abroad is very considerable. But what was once the rule is still, and probably will always continue to be, the exception-an exception so rare as not materially to affect the general character of the body, or to act in any degree as a satisfactory substitute for home study. Nor does foreign instruction, even when resorted to, serve the same purpose as in former times.
From its exceptional character, and from the fact that Scotch professors are no longer at hand to aid their youthful compatriots abroad, it is no longer communicated in so systematic a manner, and rarely for so long a period, as to secure its full scientific advantages, whilst from the gradual divergence of the Law of Scotland from the continental systems it does not possess the same value for practical purposes as, formerly.
But though we are very far from calling in question the importance of foreign study even in our own day, we have dwelt upon its prevalence in former times not so much for the purpose of urging its revival, as because we believe that it furuisbes the true explanation of the facts, otherwise disparaging to our country, of the late foundation of the Faculty of Law in the University of Edinburgh, and the incomplete character that still belongs to it. Whilst matters were in the position we have described; whilst Latin was the common language of the learned, and Scotland, as regarded her judicial arrangements, and even her higher intellectual life, a sort of outlying province of continental Europe, a local School of Law was really in a great measure superfluous. Even after the cultivation of the modern tongues had given a local character to learning abroad, and British influences had gained the ascendancy in Scotland, such a school might not unreasonably be still regarded for a time as merely supplementary. The highest class of persons who studied the laws still followed the ancient custom. As regarded them, the function of a National School was accomplished if it enabled them to adapt their foreign studies to national uses. The training of the inferior branches of the profession, again, was mainly practical, and scarcely called for the services of a complete Faculty of Law.
Such was the position of affairs, and such probably the state
of feeling on the subject, up to the period of the Union. When that event occurred, the intimate ties which bound Scotland to the Continent were finally loosened, and the formation of a School of Law in the University of Edinburgh henceforth became an object of national concern. That it has not been more perfectly accomplished is a subject of regret, but of regret which must be largely mixed with thankfulness and national congratulation when we reflect that, in its present condition, it is, very much, the nearest approach to a complete School of Law of which this country can boast. For this fortunate circumstance we are no doubt indebted to the fact that the learned and enlightened tastes which our ancestors had derived from their own foreign studies, induced them to lay the foundations of the institution not in practice, but in theory. Had they begun at the other end, the error would have been irretrievable; for what we develope with such difficulty, we should have found it impossible to plant. But the two first chairs which they endowed were, not Scotch Law and Conveyancing (which we fear might have been the case with their descendants), but the Law of Nature and Nations—“the fountain of justice and equity,” as they denominated it, and the Civil Law !
But the good seed fell on a barren age. The generation which succeeded them was inferior to them. The elements of social disorder which soon after burst forth in the American War and the French Revolution, were already fermenting and deranging the organic development of European life. When these events occurred, the passion for a rude chaotic equality took possession of the minds of those who in better times would have constituted a really progressive party. Levelling of all distinctions was assumed to be the only remedy for the inconveniences which began to arise from feudal distinctions which had become effete, and all inquiry into the finer relations between liberty and order, and the deeper laws of society, was regarded by both parties not with disfavour only, but with suspicion. The study of the law of Nature and Nations languished, and the chair, whilst filled by a professor of great eminence, * fell into abeyance. The chair of Civil Law, being partially protected by the examination which the Faculty of Advocates has always imposed, held its ground but feebly supported and miserably endowed.
The practical chairs which were added—the chair of Scotch Laws more par
* Alan Maconochie, the first Lord Meadowbank.
ticularly—have attracted large classes, and have frequently been filled by men of real eminence, but their holders could not, of course, contribute very materially to the importance of the Faculty as a School of Scientific Jurisprudence.
Such was the position of affairs in the University wben the Faculty of Advocates, on the 25th January 1854, “ Resolved, , That a committee be appointed to consider the existing regulations applicable to the qualification of Intrants into the Faculty, and the expediency of making any alterations on those regulations.” The very interesting Report from which we have already quoted, for which the Profession and the country were indebted to the unwearied labours of the convener, Mr. Fraser, was presented on the 11th July following. The practical suggestions with which the Report concludes, were the result of inany meetings, and of a very careful consideration of the vast mass of materials which had been collected. These suggestions, with very slight modifications, were embodied in the existing “ Regulations as to Intrants," and constitute the present educational code of the Scottish Bar. But before placing this document before the reader, we shall quote two or three sentences illustrative of the spirit in which it was framed. “ The Faculty of Advocates,” say
say the reporters, “ is essentially a learned profession, and has ever held a high position as to learning among the Faculties of Law in Europe. Amid the general diffusion of education, and the increased knowledge of all ranks, it is certainly incumbent upon a body so renowned to maintain a character for learning upon other grounds than traditionary respect. It is possible to treat law as a mere mechanical art, and it is also possible to argue a case without knowing Latin ; and if it were enough to become a body of mere case-lawyers, contented, in argument, with simply placing before the Court an accumulation of Scotch anthorities, applied with the tact derived from a knowledge of Practice, then philosophical knowledge would not only be useless, but an encumbrance. Treating law on this footing, the mind is apt to confuse the law itself with the forms and routine which alone too often constitute the study and the practice of a lifetime. Such have not hitherto been the principles upon which the Scottish Bar have acted ; and these are not the
* The Committee were—The Dean (Inglis), the Solicitor-General (Maitland), Mr. Penny, Mr. Moir, Mr. Dundas, Mr. Patton, Mr. John T. Gordon, Mr. Fraser, Mr. James Lorimer, Mr. W. G. Dickson-Mr. Fraser, Convener.
times for lowering the standard of qualification. America is an example and a warning,” Recent events have given, both to the example and the warning, a significance which they scarcely. possessed in 1854, and they may probably prove not less instructive to the reader than they did to the Faculty. Here is the example—“Speaking generally, no attendance at schools, colleges, classes of philosophy, or other specific course of instruction, is required of one seeking admission to the Bar. No lectures on law are required to be attended. Only one examination is had, which is on applying for admission to practice, and refers to professional knowledge merely.” And this, on very high American authority, is the warning :-" There is a gradual change for the worse coming over the Bar, as a body of gentlemen. Among thenı learning is not quite as much respected as it was. Practical tact, adroitness, the arts of playing the demagogue before courts and juries, are becoming more available in the waning influence of learning, and want of some degree of legal rank. By the old plan” (abrogated in 1845 in the State of New York, which till then had accepted four years of classical studies as equivalent to four years of clerkship, and imposed other conditions favourable to culture), “some learning was insured, some service with superiors, which tended, if not to subordination, yet to a forbearing deference. Some unfit men were shut out. The people and the Courts, however, are the chief sufferers ; the magnates of the profession are not ; nor are there wanting sufficient inducements to learning and study." We must not withhold the concluding touches of the picture, though they render it more than doubtful if the inducements would seem sufficient to the magnates of the profession anywhere but in America. “ The salaries of the judges are low; the tenure of their office short. They are appointed by election. And now it is with difficulty that men of independent professional condition can be induced to go on the bench; and it may safely be said that the bench is not above, if equal to, the body of the bar. The result of this is conflicts of decision, and great uncertainty, and an entire absence of submitting to any judgments not rendered by the Courts of last resort; and these are acquiesced in, not from authority so much as from necessity. Juries disagree, and judges have small influence to guide them in any matter involving popular feeling.” The concluding reflection of the writer is, that “these are not pleasant prospects,” and the Committee was
deeply impressed with its justice. Feeling that the ballot-box, , which in former times had given to the Faculty something of the character of a learned club, had become a sham, that the entrance fees, once considerable, had been greatly lowered by the depreciation of money, they arrived at the conclusion that the Institutes of Justinian and a “Title from the Pandects” were no longer adequate protections to themselves against the inroads of unsuitable candidates, and consequently declared themselves unanimously of opinion “that evidence, both of general and legal learning, should be afforded by every candidate for admission to the bar.” proper evidence of general scholarship” they pronounced to be “a University degree.” “ But such a test as this the Committee are unwilling to require absolutely and exclusively, as it might bear hard upon persons of humble family and straitened circumstances." As, in the case of such persons, “all that ought to be insisted upon is proof of the possession of the requisite liberal education, the course which seemed most expedient to the Committee was "to subject the candidate to an examination upon certain branches of general knowledge, conducted by men to whose hands it may be reasonably and safely entrusted.” The subjects to which they recommend that the examination should be confined were the following : First, Latin ; Secondly, Greek ; Thirdly, Ethical and Metaphysical Philosophy ; Fourthly, Logic, or (in the option of the candidate) Mathematics." The Law course recommended extended to two years attendance at a University; and embraced the various subjects then taught at the University of Edinburgh. In accordance with these suggestions, slightly modified by the subsequent discussions in the Faculty, regulations were issued which up to this time have regulated admission to the bar.
In farther pursuance of the objects which the Faculty of Advocates had in view in the new regulations, the University Commissioners shortly after undertook the task of improving and developing the Faculty of Law in the University of Edinburgh. They slightly increased the endowments of the chairs, though leaving them still so slenderly provided for that their tenants, in several cases, would consult their pecuniary interests if they were to accept macerships of Justiciary, and would in almost every case be great gainers by becoming Sheriff-Substitutes. But in all respects, except those in which the parsimony of the exchequer constrained the good-will, and set at defiance what are believed to have been the strongly-expressed remonstrances