"The duty of a court. . . . is not to remedy a particular grievance, but to determine whether an alleged grievance is one for which the law supplies a remedy."

But this is not the popular conception, and it is only too easy to raise a cry against a learned and honorable court, where the emotions of the people have been roused for the redress of some real or imaginary grievance for which the law affords no remedy or for which the proposed remedy is unlawful.

It would be going too far afield to dwell further upon the function of the courts in a modern English or American community. As Professor Dicey shows in the work from which I have already quoted, "judge-made law has tended, owing to the training of our judges to represent convictions of an earlier date than parliamentary legislation"; but not always so, as where he shows that Lord Mansfield carried out ideas in the field of commercial law which could hardly have been embodied in Acts of Parliament.

Yet, notwithstanding the inestimable service thus rendered to the cause of true civilization, there is a well-marked tendency towards a new and different attitude in relation to our courts, one which finds its expression in the proposal to submit individual judges to popular recall, or to override their decisions on constitutional subjects by popular election. Is there not a connection between this dangerous feeling and the gradual lowering of the tone of ethics in the profession itself? Mr. Coudert has expressed the opinion that

"There are two main causes which popular distrust of the law and lawyers. that the law of today and especially the out of harmony with real life. tremendous economic changes have so relations that the American law of today reflects the views of the dead rather than those of the living and is in many respects far behind that of England, France and Germany."

largely account for the One of these is the fact judge-made law is largely In this last generation modified actual human

I am not prepared to say that this statement is not to some extent well founded; but I venture to suggest that in giving it its proper weight, it is but fair to remember that so long as

36th Report A. B. A., 678.

judges are bound by the limitations of written constitutions, they cannot give free vent to their individual sense of what may be economically best for the community under conditions that were not foreseen when the constitutions were adopted. A review of the decisions of the New York Court of Appeals in the various cases bearing upon the subjects of cigar making in a tenement house, women's work after night, and workmen's compensation, shows them to have been based upon constitutional interpretations which, whether right or wrong, presented no real grievance.'

But the second of the causes as given by Mr. Coudert is one with which we may justly be concerned, because, as he says, “it relates solely and simply to the ordinary administration of justice between man and man in the courts of common law." He tells us, and his opportunities for observation are not excelled, that the general unpopularity "into which the law and thereby the administration of justice, has fallen, is due primarily to incompetence both at the Bar and on the Bench." As the Bench is recruited from the Bar through popular elections, where the opinion of the profession itself counts but little as between the rival candidates, the inadequate education of the Bar extends its bad influence to the court. The obvious remedy is insistence upon "a higher standard of character and legal education for admission."

I believe that the latter of these requisites is receiving due care. While from the very nature of the act of practising law, facility and certitude can only come from actual experience in practice, every effort is being made in all the leading law schools to give as much instruction in practice as can be given by academic education. The candidates go before the state board of examiners at the end of their course so well prepared that but rarely do they fail in passing. I am not now referring to the peculiar local conditions that prevail in New York, and perhaps to a less degree in other jurisdictions. My own observation is confined to Pennsylvania, where the state board of law examiners has set as high a standard as present-day conditions will permit.

8 Recall of Decisions, Henry W. Taft, before N. Y. State Bar Ass'n, Jan. 24, 1913.

It is, I think, in the elements of high character that graduates of law schools require closer attention. For years the efforts of the American Bar Association have been concentrated upon the perfection of a just code of professional ethics, and success has crowned them. In all or the greater part of the states it has been adopted by law associations, and has in many instances been made part of the curriculum of the law schools. But perhaps because of the low tone of the students themselves, who but respond to the prevailing atmosphere of society, it is too evident that the license to practise law by no means implies necessarily a man of high character. It is interesting to read some of the questions propounded for solution to the Committee on Professional Ethics of the New York County Lawyers' Association,' and note the utter lack of high professional feeling that is sometimes shown, though it is encouraging to find that there is at least enough to raise a doubt in the mind of the inquirer.

Since there has come, and apparently to stay, a totally different method of instruction for law students, and hereafter the great majority of them will carry into practice after admission the ideals they have imbibed in the class rooms of the law schools, a responsibility is imposed upon the individual professor to impress them with the primary duty of making ethical considerations of paramount importance. If the Bar is to overcome the rapidly rising tide of popular reprobation it must show that the aspersions cast upon it as a body are unfounded, and when the occasional case of unworthy conduct appears among its members be swift to visit the offender with severe punishment. It has been truly said that the lawyer's most valuable asset is his reputation among his own brethren. In no other profession do adventitious circumstances count for so little. The only aristocracy among lawyers is that of learning, intellect and character. Possessing them, one can aspire to the highest honors of the law; without them, neither birth nor wealth can avail.

With such faculties as American law schools now possess, we need have no fear that, together with the best technical teaching, every

27th A. B. A. Rep., 795.

effort will be made to impress the students with noble professional ideals. The misfortune is that with the mixed character of our population and the steady influx of races that have none of the traditions that centuries have handed on to those who have inherited our ancient ideals of private and public honor, men will continue to come to the Bar, to whom the ethical appeal based on the supernatural sanction which is at the foundation of all true civilization will be meaningless. Against this danger, both before and after admission, we should do all in our power.





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There is perhaps no order which has more jealously guarded its dignities or more carefully watched over the admission of new members to share in its privileges than has the English Bar, and the result is the unquestioned position of its members in the social order of today.

In examining the manner in which admission to the Bar is obtained it cannot fail to be impressed upon the enquirer that not only must the applicant show himself intellectually capable of joining a profession which has at all events in legal theory a monopoly of learning in the law, but he must be personally worthy of becoming one of a class of recognized dignity and importance.

Some well-known privileges of a barrister show this estimation.

He has the rank of esquire; he has, with certain exceptions, an exclusive right of audience before certain inferior courts and the High Court of Justice, and, with no exception at all, before the Court of Appeals and the House of Lords. His opinion bears such weight that, for example, an appeal cannot be taken to the House of Lords unless the counsel who sign the petition also certify that it is a reasonable one. He has the right of authenticating the report of a case by his signature, and, last but not least, he is exclusively eligible for the highest judicial position.

The power of the Inns of Court to determine who shall be admitted to their membership is therefore of the first importance and it is absolute and unencumbered.

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