An English View of the Legal Profession in America.

[From Macmillan's Magazine.]

Among English institutions there is, perhaps, none more curiously and distinctively English than our bar, with its strong political traditions, its aristocratic sympathies, its intense corporate spirit, its singular relation (half of dependence, half of patronage) to the solicitors, its friendly control over its official superiors, the judges. Any serious changes in the organization of such a body are sure to be symptomatic of changes in English society and politics at large, and must have an influence far beyond the limits of the profession. Such changes have, of late years, begun to be earnestly discussed; and in the prospect of their attracting much attention during the next few years, it becomes a matter of more than merely speculative interest to determine how far the arrangements of our bar are natural, how far artificial; or in other words, to ascertain what form the legal profession would tend to assume if it were left entirely to itself, and governed by the ordinary laws of demand and supply. Suppose a country where this has happened, where the profession, originally organized upon the English model, has been freed from those restrictions which ancient custom impcses on it here,-what new aspects or features will it develop? Will the removal of these restrictions enable it better to meet the needs of an expanding civilization? And will this gain, if attained, be counterbalanced by its exposure to new dangers and temptations? Such a country we find beyond the Atlantic: a country whose conditions, however different in points of detail from those of England, are sufficiently similar to make its experience full of instruction for us.

When England sent out her colonies, the bar, like most of our other institutions, reappeared upon the new soil, and soon gained a position similar to that it held at home; not so much owing to any deliberate purpose on the part of those who led and ruled the new communities (for the Puritan settlers, at least, held lawyers in slight esteem), as because the conditions of a progressive society required

existence. That disposition to simplify and popularize law, to

make it less of a mystery and bring it more within the reach of an average citizen, which is strong in modern Europe, is, of course, nowhere so strong as in the colonies, and naturally tended in America to lessen the individuality of the legal profession and do away with the antiquated rules which had governed it at home. On the other hand, the increasing complexity of relations in modern society, the development of so many distinct arts and departments of applied science, brings into an always clearer light the importance of a division. of labor, and, by attaching greater value to special knowledge and skill, necessarily limits and specializes the activity of every profession. In spite, therefore, of the democratic aversion to class organizations, the lawyers in America soon acquired professional habits and an esprit de corps similar to that of their brethren in England; and some forty years ago they enjoyed a power and social consideration relatively greater than the bar has ever held on this side the Atlantic. To explain fully how they gained this place, and how they have now to some extent lost it, would involve a discussion on American politics generally. I shall not, therefore, attempt to do more than describe some of those aspects of the United States' bar which are likely to be interesting to an English lawyer, indicating the points in which their arrangements differ from ours, and endeavoring to determine what light their experience throws on those weighty questions regarding the organization of the profession which are beginning to be debated among us.

In the United States, as in most parts of Europe and most of our colonies, there is no distinction between barristers and attorneys. Every lawyer, or "counsel," which is the term whereby they prefer to be known, is permitted to take every kind of business: he may argue a cause in the Supreme Federal Court at Washington, or write six-and-eightpenny letters from a shopkeeper to an obstinate debtor. He may himself conduct all the proceedings in a cause, confer with the client, issue the writ, draw the declaration, get together the evidence, prepare the brief, and manage the trial when it comes on in court. Needless to add that he is employed by and deals with, not another professional man as our barristers do, but with the client himself, who seeks him out and makes his bargain directly with him, just as we in England call in a physician or make our bargain with an architect. In spite, however, of this union of all a lawyer's functions in the same person, considerations of practical convenience

have in many places, established a division of labor similar to what exists here. Partnerships are formed in which one member undertakes the court work and the duties of the advocate, while another or others transact the rest of the business, see the clients, conduct correspondence, hunt up evidence, prepare witnesses for examination, and manage the thousand little things for which a man goes to his attorney. The merits of the plan are obvious. It saves the senior member from drudgery, and from being distracted by petty details; it introduces the juniors to business, and enables them to profit by the experience and knowledge of the mature practitioner; it secures to the client the benefit of a closer attention to details than a leading counsel could be expected to give, while yet the whole of his suit is managed in the same office, and the responsibility is not divided, as in England, between two independent personages. Nevertheless, owing to causes which it is not easy to explain, the custom of forming legal partnerships is one which prevails much more extensively in some parts of the Union than in others. In Boston and New York, for instance, it is common; in the towns of Connecticut, and in Philadelphia one is told that it is rather the exception. Even apart from the arrangement which distributes the various kinds of business among the members of a firm, there is a certain tendency for work of a different character to fall into the hands of different men. A beginner is of course glad enough to be employed in any way, and takes willingly the smaller jobs; he will conduct a defense in a police-court, or manage the recovery of a tradesman's petty debt. I remember having been told by an eminent counsel that when an old apple-woman applied to his son to have her marketlicense renewed, which for some reason had been withdrawn, he had insisted on the young man's taking up the case. As he rises, it becomes easier for him to select his business, and when he has attained real eminence he may confine himself entirely to the higher walks, arguing cases and giving opinions, but leaving all the preparatory work and all the communications with the client to be done by the juniors who are retained along with him. He is, in fact, with one important difference, to which I shall recur presently, very much in the position of an English Queen's Counsel, and his services are sought, not only by the client, but by another counsel, or firm of counsel, who have an important suit in hand, to which they feel themselves unequal. He may, however, be, and often is, retained VOL. I.-NO. II.—7.

directly by the client; and in that case he is allowed to retain a junior to aid him, or to desire the client to do so, naming the man he wishes for, a thing which the etiquette of the English bar forbids. In every great city there are several practitioners of this kind, men who only undertake the weightiest business at the largest fees; and even in minor towns court practice is in the hands of a comparatively small. knot of people. In one New England city, for instance, whose population is about 50,000, there are, one is told, some sixty or seventy practicing lawyers, of whom not more than ten or twelve ever conduct a case in court, the remainder doing what we call attorney's and conveyancer's work.

Whatever disadvantages this system of one undivided legal profession has, and it will appear that they are not inconsiderable, it has one conspicuous merit, on which any one who is accustomed to watch the career of the swarm of young men who annually press into the Temple or Lincoln's Inn full of bright hopes, may be pardoned for dwelling. It affords a far better prospect of speedy employment and an active professional life, than the beginner who is not "backed," as we say, can look forward to in England. Private friends can do much more than with us to help a young man, since he gets business direct from the client instead of from an attorney; he may pick up little bits of work which his prosperous seniors do not care to have, may thereby learn those details of practice of which, in England, a barrister often remains ignorant; may gain experience and confidence in his own powers, may teach himself how to speak and how to deal with men, may gradually form a connection among those for whom he has managed trifling matters, may commend himself to the good opinion of older lawyers, who will be glad to retain him as their junior when they have a brief to give away. So far he is better off than the young barrister in England. He is also, in another way, more favorably placed than the young English attorney. He is not taught to rely in all cases of legal difficulty upon the opinion of another person. He is not compelled to seek his acquaintances among the less cultivated members of the profession, to the great majority of whom law is not much of an art and nothing of a science. He does not see the path of an honourable ambition, the opportunities of forensic oratory, the access to the judicial bench, irrevocably closed against him, but has the fullest freedom to choose whatever line his talents fit him for. Every En

glish lawyer's experience, as it furnishes him with cases where a man was obliged to remain an attorney who would have shone as a counsel, so it certainly suggests cases of persons who were believed, and with reason believed, by their friends, to possess the highest forensic abilities, but literally never had the chance of displaying them, and languished on in obscurity, while others, every way inferior to them, became, by mere dint of practice, fitter for ultimate success. Quite otherwise in America. There, according to the universal witness of laymen and lawyers, no man who is worth his salt, no man who combines fair talents with reasonable industry, fails to earn a competence and to have, within the first six or seven years of his career, an opportunity of showing whether he has in him the makings of something great. This is not simply due, as might easily be supposed, to the greater opportunities which every body has in a new country, and which make America the workingman's paradise, for, in the Eastern States, at least, the professions are pretty nearly as much crowded as they are in England; it is owing to the greater variety of practice which lies open to a young man, and to the fact that his patrons are the general public, and not, as in England, a limited class, who have their own friends and connections to push. Certain it is, that American lawyers profess themselves unable to understand how it can happen that deserving men remain briefless for the best years of their life, and are at last obliged to quit the profession in disgust. In fact, it seems to require an effort of politeness on their part to believe that such a state of things can exist in England and Scotland as that which we have grown so familiar with that we accept it as natural and legitimate. A further result of the unity of the whole profession may be seen in the absence of many of those rules of etiquette which are, in theory at least, strictly observed by the English lawyer. It is not thought undignified, except in the great cities of the Eastern States, for a counsel to advertise himself in the newspapers: in Canada, as well as in the States, one frequently sees respectable firms soliciting patronage in this way. A counsel is allowed to make whatever bargain he pleases with his client: he may do work for nothing, or may stipulate for a commission on the result of the suit, or even for a certain share in whatever the verdict produces—a practice which is open to grave objections, and which, in the opinion of more than one eminent American lawyer, has produced a good deal