THE

AMERICAN LAW REGISTER.

JULY, 1888.

A REPLY ON THE SUBJECT OF LEGAL EDUCA

TION.

In the June number of the REGISTER appeared an article by Professor Rogers, criticising one which was published in the February number, to which it seems fitting a brief reply should be made. The Professor's article is replied to not because it is the only attack upon the positions maintained in the February article, for criticisms thereon have appeared in several quarters, but because it is a dignified, earnest argument and plea for those interests which the distinguished Professor represents, and for the cause to which he has devoted his time and abilities. Professor Rogers does not, like a writer in one of the minor legal journals, endeavor to build up a case by misquoting the article attacked, and by italicizing passages or words, not italicized in the original, discovering a sneer against a class of men, for whom the present writer has great respect and with some of whom his personal relations are of the pleasantest character. This is only mentioned because it has been insinuated in a certain journal that the present writer has intended to cast a slur upon the attainments of professors of the law schools, and while those who know him would be hardly silly enough to think that there lurked in his words any such innuendo, yet some persons coming by chance across the words, as quoted at second-hand and distorted, might regard them as having a meaning which, for the sake of such readers is emphatically disclaimed. It is unnecessary to make such a disclaimer to those who have read or

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will read the February article itself. This together with the fact that by the omission of a material part of a sentence, the article has been misquoted in a manner slightly suggestive of the famous scriptural argument in favor of hasty suicide, constitutes the writer's apology for what would otherwise be a waste of time and space. We come now to a brief consideration of the Professor's article, its criticisms and positions.

On the threshold, it may be remarked that, as might be expected, there is a wide difference between the view naturally taken by a learned professor in a law school, whose time, when not engaged in the active duties of lecturing, is devoted to profound research and who, it may be said, with all respect, from habit of life and mind, comes to regard the ability to master the instruction given by a faculty as the test of a student's qualification as a lawyer, and that taken by the practicing lawyer, whose life is led in the court and in his office, and by whom the test of qualification is to be found in the answer to the question -is the student so far grounded in the fundamental principles of law and has he thought upon those principles to such an extent that when a question involving them arises in real life, he can promptly and correctly apply those principles and determine what is right, what is the law of the case? in other words-is the student so thoroughly imbued with the science of law, that he can use it in the art, or the practice, of law? The idol of the forum will intrude into almost every man's judgment, strive we never so hard to exorcise him-and this difference of view between Professor Rogers and the writer, the one looking at the subject professorially, the other as a practicing lawyer who hopes nevertheless that he is not careless of the science of the law, and is most heartily desirous that it shall be thoroughly taught, may possibly account for some of the remarks and strictures which appear in the Professor's article.

The Professor seems to misunderstand the article he criticises; it is not a mere attack upon law schools. It deals with the relations of courts and law schools to legal education; and the remedy for the present state of affairs, for which the law schools are held to be in a great degree responsible, is distinctly pointed out to lie, in the first place, with the courts. The writer is far from being an enemy of law schools in their proper place and

doing their proper work; he regards them as most valuable and believes that they should be encouraged and upheld; and when Professor Rogers says, "It is the impression of the writer that a law school is on the whole a pretty poor place for one who really wants to know the law," if he, by "a law school," means a law school in the abstract, he misapprehends the writer's meaning, which is that the knowledge of law acquired in a law school as generally conducted at present in the United States, where the system of instruction is purely in classes, where as a rule there is no entrance examination and where the course is too short to permit of full, systematic, scientific instruction, is inferior to that which was obtained under the old system, where the preceptor was a learned and conscientious man (and no other should ever dare to take students) who would not make a mere clerk of his student and who would give to him careful, individual instruction. A preceptor of that class frequently sent his pupils to attend law lectures and they reaped in many cases great benefit from them, but the charge of their education, in the full sense of the building up of the student into a lawyer, rested upon the preceptor. It will be observed that the writer admitted that there might be a law school, at present but an ideal one, so conducted as to be the very best means of instruction, and there is quoted against him, apparently to show that the law school now is the best means of instruction, the report of the Committee of the American Bar Association. Let us see, by a little further examination of that report, whether it fully accomplishes the work it is called into service to do. Taking up the report exactly where Professor Rogers's quotation from it stops, we read, "If then, the schools of law in America were what they ought to be, every advantage which is attainable would be offered by them. They would prepare the young men ambitious of a professional career, systematically and scientifically, and year after year add them in sufficient number to the ranks of the profession.

"Unfortunately, however, this is not the case. The Committee do not desire to discredit those seminaries of legal learning which have constantly striven for improvement and which in the face of many adverse obstacles, trials, and discouragements, have always endeavored to advance the standard of professional

studies and attainments. Let it be remembered to their honor, that there are such schools and let it be hoped that their example may serve to inspire others. It is only just to add here, that rare as didactic efficiency and ability in law lectures are well known to be, the United States are able to point to a number of such distinguished for the highest degree of success. "But it is difficult to deny that there are American colleges not deserving of commendation. Institutions where the course is unjustifiably limited and circumscribed, where the term of study is evidently too brief for useful purposes; where students continue to be invited, when they are unfit by reason of deficient education and want of contact with liberal studies, to wrestle with the difficulties of the law; where, in a way unworthy of the cause of legal learning, a spirit of competition to attract greater numbers than are to be found in other establishments, is allowed to obtain control; where examinations which are such only in name, take the place of a searching scrutiny of the students' acquirements; where there are no exercises sufficiently serious to try and develop the abilities the student may have; and where degrees are thrown away on the undeserving and the ignorant." These sentences quoted, do not stand by themselves; the whole trend of the report is in the direction of the necessity of the improvement of law schools and recommends, inter alia, the placing of them under public authority, the extension of their courses and the lengthening of the term to three years. If the report is called as a witness for the law school of the present day, it certainly seems to leave on the mind an impression that at present the school's usefulness, and usefulness it undoubtedly has, is circumscribed, that it does not by itself, give a qualifying education.

On page 346, Professor Rogers charges that the writer labors under a serious misapprehension with reference to what legal education in England some years back was; now whether this be so or not, it hardly touches the matter under consideration, but it is hard to imagine that one educated lawyer should think another so ignorant of the history of the bar as not to know that the education in the Inns of Court (which, by the way, were law schools and at one time fulfilled their duty), had, in the last century, terribly fallen off and had not recovered its

position in the early part of this, or that he had not heard the old joke about eating the requisite number of dinners for a call. But can it be forgotten that in those degenerate times, when the Inn education was at the lowest, men who strove to master their profession in earnest, sought instruction in the offices or chambers of members of the bar, of special pleaders, or even of attorneys? Recall a few instances-Salkeld's office contained, at one time, Parker, afterwards Chief Baron, Jocelyn, afterwards Lord Chancellor of Ireland, Strange, afterwards Master of the Rolls, and the great Philip Yorke; Warren had as pupil Runnington-Runnington, Tidd—Tidd, Lyndhurst, Campbell, Denman and Cottenham-aud, in 1847, Campbell speaking of Tidd says, "To the unspeakable advantage of having been three years his pupil, I chiefly attribute my success at the bar :" Campbell himself had as pupils, Dundas and Vaughan Williams; Lord Eldon was a pupil of the conveyancer Duane; Brougham and Parke (afterwards Lord Wensleydale) were pupils of Tindal, afterwards Chief Justice. So that we find office study not neglected, even in England, by men aspiring to be great lawyers. But this really does not touch the question before us and we have simply been led off by Professor Rogers into a pleasant little retrospect. The real misapprehension upon this part of the subject is with the Professor, for the education had in view in the former article was, plainly, not that given in England, but that given by an American lawyer of the old school to his pupils; what was said was, "It is not necessary * * to go back to the days of laborious preparation of the old English bar, to the long apprenticeship of the Inns or, indeed, to cross the water at all; any one educated in the office and under the preceptorship of a member of the bar of the old school, will without trouble, recognize the difference," etc. The question then is, are the young men who have come to the bar within the past fifteen or twenty years, having drawn their education principally, if not entirely, from law schools, better prepared lawyers than were those educated under the old system, in the office of a preceptor at a centre of legal education, some few years or so back of that time? Let any lawyer past fifty years of age answer the question.

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