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BRISTOL, BIRMINGHAM, GLASGOW, KIDDERMINSTER, LEEDS, LEICESTER, LIVERPOOL, MANCHESTER, NEWCASTLE, SHEFFIELD,
BOARD OF DIRECTORS:
Chairman-The Right Hon. E. pleydellL BOUVERIE.
Sir HENRY E. KNIGHT, Ald.
J. SPENCER BALFOUR, Esq.
THOMAS CHARRINGTON, Esq.
ARTHUR HENTY, Esq.
HENRY HONEY, Esq.
General Manager-T. Y. STRACHAN, F.I.A.
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to it, and which claims it as a brother profession, sweeps up exclusively to itself some of the highest honours which the Sovereign and the State have to confer. The evil which is done to the calling by this injustice is, in my opinion, incalculable. The repression it nflicts, the dead level tone which it imparts, is a slur and an injury against which it is utterly impossible for it to raise its head; and however great may be the power, and great no doubt it is, which the profession indirectly exercises both in private and public affairs, it can never get over the fact that it is absolutely unable to point to any distinctions in itself, and can only say to its votaries, "slave and make money." Such a calling must suffer both in tone and character, and it does. There is none other to which the injustice applies. Commercial success, banking success, brewing success-they are all rewarded by peerages. Medical success is rewarded by baronetcies. Literary and artistic success by peerages and decorations; and all these honours are well and deservedly earned, after their kind. The useful practical work of legal administration is alone left to obtain the honours of its country by such rare and fortunate accidents as those which the Solicitor-General alluded to in his speech, the reason being that as the bar receives immense honours, and claims superiority, so it is thought that the inferior order has no right to them. Amidst the numerous arguments in favour of the change which I advocate, there is none, to my mind, so strong as this-namely, the flagrant injustice of confining legal distinctions and posts of legal honour and responsibility to one branch only of the legal profession; and, inasmuch as I am sure that that abuse can never be removed so long as there are two branches, one superior to the other-no! nor even if there were two equivalent branches with equal statutory advantages, since the tribe of briefless advocates would find ways and means to influence the patronage-I recommend the complete fusion of the profession.
solicitors, and solicitors shall, in addition to the rights and privileges at present exercised by them, be entitled to practise in all respects as counsel. It was also provided that, in case of such amalgamation, counsel and solicitor should alike be entitled to sue for their fees and be liable for neglect. The Bill in question was backed by ten well-known M.P.'s, the first being a member of our society, and a personal friend of my own; but with whom I regret to differ. As a matter of fact, the Bill was blocked, and for some reason or other, it was not heard of during the recent session. In the early part of the present year, 1888, the profession was suddenly roused by an admittedly premeditated speech of Sir Edward Clarke, the SolicitorGeneral, in which he avowed that during the greater part of his career he had been in favour of amalgamating the two branches, and that he had long waited for a fitting opportunity of publicly expressing his views, conceding, however, that fusion involved so many questions that it could not be effected by a simple Act of Parliament of two clauses. This movement on the part of Sir Edward Clarke was the more startling from the fact that the other law officer of the Crown, Sir Richard Webster, the present AttorneyGeneral, had on more than one occasion gone out of his way, so to speak, to publicly express his dissent from the views of those who asked for fusion. At the lar meeting of the profession ever known, he said, "I hope none of us will be tempted to break that particular line of difference which now exists between solicitors and the bar. Let those at the bar who think they can work as solicitors, and let those solicitors who think they could get on at the bar, have every means of change afforded to them." At a special general meeting of our society, held in London in April, 1888, a motion was submitted, "That in the interests of the public the time had arrived when the proposal of fusion of the two branches of the law, as shadowed forth by the Solicitor-General in his recent speech at Birmingham, should be adopted. I had given notice to move the following counter resolution, "That this meeting, while affirming the undesirability of fusion, is of opinion that the statutory privileges, enabling barristers to become solicitors, should be made reciprocal ; "but it was pointed out to me by an eminent provincial member, a much respected ex-president of our society, that it would hardly be fair to attempt to take the opinion of the profession on so important a subject at a meeting confined practically to town members; and in deference to his suggestion, and to the arguments of other friends, I altered my motion so that it read thus, "That this meeting, without expressing any opinion as to the desirability of fusion, is of opinion that the statutory privileges, enabling barristers to become solicitors, should be made reciprocal;" and I incidentally stated that I would undertake to bring up the main point for debate to-day at Newcastle. My motion in its altered form was carried, and the council afterwards placed the resolution before the benchers, who took some time to consider, but ultimately it was officially announced that they declined to grant reciprocal privileges. It is an open secret that there was a serious difference of opinion among the benchers; but the fact remains, and we have to deal with it. But to return to the bar curriculum. Few of us have quite realised that under the existing one-sided legislation, it is impossible for a young man to become a bar "student" for three years without premium to a master, to earn his livelihood meanwhile by any other occupation under the sun (not connected with a solicitor's office), and after being called to the bar still carry on any profitable business he pleases for another five years, and at the age of six-and-twenty he can quietly walk across to the solicitor branch of the profession on passing our final examination only, thus not only getting rid of the expense, but avoiding the strict conditions appertaining to service under our articles, which excludes all concurrent occupation whatever. I am not throwing stones at the bar, many of my best friends, besides family connections, being barristers; but what sort of reason exists for holding us at arm's length, after having opened our doors to the other side? I have heard it said that, inasmuch as a few solicitors have obtained orders dispensing with the preliminary educational examination, the bar hesitates to admit these gentlemen into their ranks; but apart from the circumstances that the number must be fractional, it would be easy, if there be really anything in the point, to provide that as to any such "dispensed" candidates, the "Bar Preliminary," as well as the "Bar Final,” should be passed, unless the benchers, under their powers which they occasionally exercise, see fit to dispense with the scholastic examination. As I share the common belief that the standard of excellence in any professional man is materially strengthened by the insistence of a sound educational knowledge, I should not think it altogether unreasonable that every solicitor going to the bar, whatever his age, should pass the" Bar Preliminary," the barrister coming to us being of course subject to a reciprocal rule. The real opposition of the majority to things being made easy for solicitors transferring themselves to the bar may not be far to seek, but it would not become the Incorporated Law Society, or a member standing upon a platform with any pretentions to speak for his fellows, to say a single word more than is necessary to bring home the justice of the case, and I pass on to consider in some detail Sir Edward Clarke's contention in favour of amalgamation. A deliberate speech from a Solicitor-General always commands attention, but nobody acquainted with Sir Edward Clarke personally can fail to be impressed with the sincerity of his arguments, and any criticism should be tempered with the greatest possible respect. In the first place, he avers 'that, whether we like it or not, a Parliament which addresses itself to social and industrial reform will make short work of professional rules or the privileges of private institutions after they are found to hinder the attainment of the improvement of a public object," the inference being that if the legal profession do not themselves amalgamate, the legislature will perform the task for them. I venture to say that there are little or no signs of any such intention. It is doubtful whether the public take any appreciable interest in the question, and, even if they do, I submit that they will of necessity
Mr. F. K. MUNTON read a paper on this subject. Long after the institution of the preliminary, intermediate, and final examinations for solicitors, said Mr. Munton, the bar were not called upon to pass any examination whatever, and it is not disputed that the test demanded during the last few years is of a much milder order than in our branch. A recent writer of a treatise on the subject (who himself passed the examinations for both branches) describes the bar tests as "very easy." The educational knowledge is limited to English and Roman history and schoolboy Latin, and the legal examination is mere child's play compared to ours; in short, there has ceased to be any comparison whatever between the old days of the barrister's then exalted position and the sixth-rate people assuming the office of attornys," who were at one time actually described in the printed rules as "ministerial persons of an inferior nature!" I have taken the trouble to examine the current year's law list, and I find that there are nearly as many London solicitors as there are London practising barristers who have taken university or other academical degrees; but it is perhaps slaying the slain to attempt to demolish the remnant of talk sometimes indulged in by the shallow and thoughtless about superiority or inferiority in the two branches of the profession. Every man of the world knows, irrespective of the fact that many of the judges have close family ties with our branch, that in society the high-classed solicitor runs side by side with the high-classed barrister, and that there is really no more difference between them than between officers of relative rank in the army and navy. For some years prior to 1877, many of us with a taste for advocacy lamented the then existing regulations, under which a solicitor, however experienced, was compelled, if he desired to join the bar, to go through the identical three years' process laid down for the youngest aspirant for the barrister's position, and I and others more than once took part in publicly protesting against these prohibitive rules. But as the bar had then no privileges in coming over to us, except the shortening the service under articles from five years to three, we did not see how we could practically press our views, and the controversy was shelved. In 1877, however, the bar sought statutory powers of transferring themselves to the solicitor branch without articles or service, and we allowed a clause to pass unopposed enabling any barrister of five years' standing to procure himself to be disbarred, and on passing our final examination to be at once admitted to all the privileges of a solicitor. The propriety of raising organised opposition to this movement was discussed at one of our annual meetings, and a few active members, including myself, entered our objections to the proposal being acceded to unless made reciprocal; but the president of the day expressed his belief that if the movement were gracefully permitted to pass, the benchers would voluntarily accord us the same privileges, the peculiar constitution of the bar empowering them to do this without statutory authority. The Bill became law, but the benchers, after having secured these privileges for their order, failed altogether to see that we were equally entitled. It is true that later on they reluctantly reduced the probation from three years to one, but even twelve months' enforced idleness to many of us is practically a prohibition. Let me just remark in passing, that although the records of our society years ago show that I was personally desirous of going over to the bar, I am quite out of the reckoning for I have not only passed the meridian of life, but have other reasons for abandoning my early intentions. My present advocacy for reciprocal transfer rests, therefore, entirely on the principle of abstract justice. In August, 1887, a Bill was introduced into the House of Commons containing the following clauses:-1. Every suitor who is entitled to appear and have audience in person before any tribunal in the United Kingdom shall be entitled to have audience there by counsel or solicitor without being bound to employ both. 2. Counsel shall, in addition to the rights and privileges at present exercised by them, be entitled to practise in all respects as
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cost of which brief is regularly allowed as against the other side on taxation, showing that when applied practically, and not merely theoretically, two persons are still required to bring a case actually into Court, except where the matter is comparatively small and can be dealt with in a County Court-a position already provided for in our own system. In the United States, too, "agents" are employed to beat up evidence and the like, and there are other indications of two persons being really wanted; indeed, a leading London Q.C. told me a few days ago that when across the Atlantic, in conversation with eminent counsel there, the latter said they were considering how to devise a scheme whereby they could in some way sever themselves from the solicitor's work, after our English system! I am dealing with the matter purely from a practical point of view, and I hardly stop to discuss the serious injury which would be done by fusion to what may fairly be spoken of as a vested interest. Neither a barrister nor a solicitor, except in rare cases, enters the profession because he has any special qualification in the way of debating power, such power being developed by practice; and although it is well said by the SolicitorGeneral that the average solicitor is as capable as an average barrister, we can all see that after a man has devoted himself to that branch of the profession associated with advocacy, and to little else, he develops into a practised speaker; in fact, not one person in a thousand can become a good debater unless the circumstances of his position afford him the opportunity of actually studying the art. Sir Edward Clarke's compliments are very agreeable to read, but his observations affect a limited area. The bulk of the solicitors have never paid any attention whatever to advocacy, and in that respect a large part of our branch of the profession would be at a serious disadvantage. However, no change can be made without damage to somebody, and I should not on this ground alone object to fusion (indeed, as far as I am individually concerned, having given some attention to conducting bankruptcy and other causes in my own firm's office, I should be the last person to complain), but I contend that, in common justice to all, if we are to have absolute fusion, there should be an interval of at least ten years before such a system should come into operation. I have said that there are 14,000 or 15,000 English solicitors, and, looking to the statistics given, the following state of things would be brought about if every solicitor were supposed to act as his own barrister. It has been seen that on the average there is not a single trial apiece annually for all the solicitors who take out certificates. But let us first take the case of large firms having perhaps fifty trials a year. How is any one partner or even two partners, specially devoting themselves to the advocacy branch, to attend to fifty trials? Of course if he could have them fixed at his own convenience, say one every Monday morning, it would be easy enough, but even in the largest office there are periods when there is a lull of Court litigation, and other times when there is great pressure, only capable of being dealt with effectually by having an outside bar amongst whom the briefs can be distributed. But let us return to the case of the numerous solicitors in London and the country who have only one or two trials a year. Apart from local prejudices in appearing personally against certain people, how can the rural solicitor possibly get the necessary experience to conduct a case in Court, or compete against a professed and brilliant advocate of some larger office, who does little else than make himself a skilled counsel? The advantage which every man enjoys under the present system is that he can employ his confidential solicitor for all legal work of every kind, well knowing that there is a bar from which he can pick for a particular service when, and only when, it becomes necessary. I may be answered by the statement that even under fusion the leaders of the Court would remain Queen's Counsel as they are now, but there are numerous cases requiring skill attainable only by Court practice, where the employing of Queen's Counsel at high fees would be out of the question. Sir Edward Clarke pleads for some of our work for the struggling young barristers. I reply, let them transfer themselves to our branch in the proper way. There are, however, plenty of struggling young solicitors who have suffered the outlay and served their time, and whose future is very unpromising, if we are brought face to face with some strange doctrines recently promul. gated as to what counsel may already do in the solicitor line without having paid his footing-a question requiring serious attention, and demanding a paper to itself. It must be admitted that here and there our system is faulty; but the more one considers the controversy, the less reason does there seem to be for the cry for fusion; and, if I rightly understand the members of our own profession, if they could all be polled, the vote would be overwhelming against the change, both in their own interests and in the interests of the public, especially if, as the Attorney-General says, solicitors" who think they can get on better at the bar, have every means of changing afforded to them." The onus probandi lies with those who demand amalgamation, and, as I desire to reserve the right of reply, I conclude by submitting with great confidence the following motion :-"That this annual meeting of town and country solicitors is of opinion that there is no sufficient reason for seriously entertaining any scheme having for its object the amalgamation of the two branches of the legal pro. fession; but it recommends the Council of the Incorporated Law Society to take into consideration the expediency of applying to Parliament that the facilities given by the 1877 Act to barristers of five years' standing for becoming solicitors should be made reciprocal, so as to enable solicitors of like standing to forthwith go over to the other branch on passing the Bar Final Examination."
Mr. LEE (Birmingham) moved to amend the resolution by striking out the first paragraph, being of opinion that it would be convenient for solicitors to be able in certain cases to act as advocates. After some discussion, Mr. SAUNDERS, in reply, said he did not go the whole length of Mr. Follett's paper. He would be governed by the Canadian system, where there were two roads, and it was a qualification by examination as to whether a man should be admitted to one or other or both branches. The benefit would be
be guided to a large extent by the opinion expressed in the profession, where alone can be formed a sound idea of the practicability of so great a change. On the whole, I suggest that this contingency is one not calling for present serious thought. The next point urged by Sir Edward Clarke is that a solicitor pays a yearly duty, and is liable in damages for default, whereas counsel is not amenable to any process. This question would be entirely met by imposing an annual charge on counsel, and making them responsible in respect of any services or duty voluntarily neglected. I say "voluntarily," because I believe that the instances of wilful neglect are extremely rare, the difficulty hitherto being largely attributable to what the Solicitor-General called "the strange uncertainty of the arrangement for the trial of causes"-an uncertainty, happily, in course of removal through the united recommendations of the Bar Committee and our society, between whom (as I happen to know, from having had the pleasure recently of sitting upon the joint Bar and Solicitors' Committee re the Nisi Prius Regulations) there is perfect accord, and long may we thus usefully act in concert. I venture this remark, because I cannot help thinking that the interests of both branches of the profession long suffered in many ways from the singular absence of any cordial understanding in regard to matters common to each. Sir Edward Clarke says that solicitors are precluded from obtaining judicial offices open to the bar. I answer that reciprocal transfer would afford a practical remedy. The next point advanced is that County Court legislation tends in the direction of enlarging the number of trials in that Court, where solicitors have audience, and that it would be unfair to the junior members of the bar to further encroach upon their province. I think that all extension of County Court jurisdiction is calculated to augment the chances of the junior bar, it being practically impossible for a solicitor in good practice to give personal attention to County Court trials, seeing that the Courts are distributed over large districts, and the bulk of a solicitor's business compels him to remain in his office. And now we come to the Solicitor-General's main pointviz., that in many instances "two persons are employed to do the work of one." It is important to bear in mind a few salient facts. There are nearly 6,000 solicitors in London actually taking out practising certificates, but let us take a few hundreds off for those who pay the annual duty without any real intention of practising, leaving, say, 5,000 solicitors in the metropolis. Provincial solicitors number about 9,000, say a total of 14,000 English working solicitors. There are some 8,000 barristers altogether, but more than half of them joined the bar to secure dignity and not briefs. It will surprise many people to learn what a very small proportion of a solicitor's business has any relation to that part of the work which it is alleged is performed by two, and which could by any possibility be done by one. Statistics show that since the rigid rules stamping out sham defences, only some 4,000 actions are annually tried in all the divisions of the High Court (including the Assizes); and even adding liberally for causes in which briefs are delivered, but which are disposed of other than by trial, there is little more than one per annum for every practising barrister, and not half of one for each practising solicitor. But let us assume that the contested causes (where counsel alone have audience-open Court and elsewhere) amount in the aggregate to double the number I have stated, even then we solicitors as a body have not one High Court trial apiece! As regards the public, therefore, the work which is in any way duplicated bears but an infinitesimal proportion to the entirety of the work entrusted to us, not necessarily on account of professional skill, but as men of the world, linked as we are to the client in many instances by the ties of friendship for, as Sir James Hannen once well said, "an honourable solicitor is a family blessing." Is nineteentwentieths of the business of a solicitor's office, involving constant presence there, to be upset on account of this very small proportion of advocacy, at present so conveniently handed over to counsel? It has been said that there are great advantages in the client having personal interviews with the advocate, but it has not been pointed out what is to be done in provincial cases. If the whole Courts of the country were divided into minute County Courts, and every client could complete his business in the district in which he lives, and where his confidential and regular solicitor practises, there might be something in this point; but how is one to deal with the important causes tried hundreds of miles away (or many miles away even if we have local centres) from the regular residence of the solicitor and the client? Let us take, for example, a large firm of solicitors carrying on business at Birmingham, with many cases (or even one case), for Birmingham clients set down for trial in London. Under the present system, when the brief is delivered to counsel, it is the occupation of the latter to be in or about the Courts, and constantly able to watch the progress of the lists, the litigant and the solicitor not being called upon to come up, or absent themselves from their ordinary business until the crucial moment arrives a most advantageous arrangement to everybody. It seems to me that the theory of amalgamation assumes non-existent state of things in other directions. In a country divided into a number of States, with local Courts and regulations affecting each State, or in a colony sparsely populated, where the real commercial business is entirely centred in one or two places, and all the litigants and the legal profession are in a small circle, there may be good reasons for no distinction being made between the solicitor and the advocate. To my mind, however, comparisons with England are utterly fallacious. We might as well be asked to follow Sweden, where solicitors and barristers are, I believe, unknown, and the litigant, if he cannot attend in person, is allowed to employ his tailor or his bootmaker to advocate his cause. One may just remark that even in New Zealand, which is so frequently quoted as an example for the mother country, and where the barrister and the solicitor form a united profession, it is no uncommon thing for one partner of the business to draw up and charge for a "brief" to enable the other partner to do the advocacy work, the
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