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Whether the judges, who seem, as late as the seventeenth century, to have been able to select those who might speak in their courts, had any regard for the character of the would-be practitioner we do not know, but it is certain that the period of study and probation through which the young lawyer had to pass was long enough to dishearten any but the most persistent and persevering seeker after learning.
The four Inns of Court, the Inner Temple, the Middle Temple, Lincoln's Inn and Gray's Inn, have existed since very early days.
We have no record of their founding and no trace of any organization. Unlike the colleges of Oxford and Cambridge, which had their beginning in grants and charters, the Inns of Court were institutions when we first hear of them at the end of the thirteenth century. "They are not corporations and have no constitutions and charters from the Crown." They are defined by Lord Halsbury as "voluntary, unincorporated societies of equal rank and status, independent of the state."
In the early days of these colleges the instruction seems to have been somewhat varied, the curriculum including not only law and theology, but music, singing and dancing, subjects which the modern student hardly goes to college to learn, though he generally learns them at college.
We do not hear of barristers before the fifteenth century, but of apprentices (apprenticii ad legem) and sergeants (servientes ad legem). The degree of sergeant marked the right to practice, and the novice, before he had earned this, was called an apprentice, a name perhaps indicating his general unimportance. The sergeants indeed were long the senior order of jurists, and although later they had to share their exclusive right of audience with the barristers, until the year 1875, they alone were capable of being created judges.
In whatever manner the Inns of Court arose, we know that the lawyer, before he became worthy of audience in court, must
'Dugdale Or. pp. 311 to 324.
Ordinance of Edward I, 1290 and 1292.
share in the college life of his fellow students, "usually in commons," and must pursue learning by following readings on statutes, by practising the putting of cases, and by attending moots. True, today there is but a trace of this college life, but the community of life and labor in former years has surely had a great share in the creation of worthy professional ideals.
The moots were conducted with all the formalities of actions in the court of common pleas. The seniors took the place of judges and occupied the bench, whence even now they are called "benchers," or more formally "masters of the Bench," and they had then the same complete and unquestionable authority over the other members of their inns which today they still hold and exercise.
The next in rank, who sat outside the bar and carried on the argument, were known as "masters of the utter [that is, outer] Bar," or "utter barristers," while the juniors, who had their places within the bar, sat on forms and read or recited the pleadings, were called "masters of the inner Bar" or "inner barristers." Seven years of such life and study must elapse before the inner barrister could attain the degree of utter barrister, and even then he would not be admitted to audience by the judge until he had passed through three years of probation in “exercises of learning."
The source of the judges' authority in this matter is not clear, but when we remember what arbitrary and imperious creators of law were our then justices, whose chief aim was the increase of the power of their courts, we can quite understand that, if the control over the education of the lawyer was declared by them to be a prerogative of their own, the wise student would hardly say them nay.
'Dugdale Or. 312.
It is certain in any event that the judges originally had and exercised this control, both as being Visitors of the Inns and by limiting the right of audience in their courts, but at an early date their power was delegated to the benchers of the several inns. In theory, however, even today, the control vested in the
Bench or parliament or the inns is so vested by virtue only of such delegation. Mr. Underdown, in a lecture on this subject, states that "the Lord Chancellor and the judges had and still retain their rights to act as visitors," and Lord Mansfield, in Rex vs. Gray's Inn (Douglas, 353), speaking of the Inns of Court, says: "But all the power they have concerning admission to the Bar is delegated to them by the judges and in every instance their conduct is subject to their control as visitors."
Gradually the fire of enthusiasm for learning which illuminated the middle ages died down. The crowds of students at the colleges and universities became smaller, and the change manifested itself also at the Inns of Court.
By the reign of Charles the Second we find that the moots had been discontinued. The additional probationary period of three years required of the utter barrister disappeared. The term in residence of the student was reduced to five and later to three years, and after this residence the call from the benchers of his inn was the only prerequisite to a barrister's right to practise. But these requirements still remain, and still, subject to the control possessed, although not exercised, by the judges, the right to admit is vested in the benchers of the several inns, and the courts cannot inquire into the conduct of the benchers. Abbott, C. J., states: "I am of opinion that this Court has no power to compel the benchers of this society to permit any individual to become a member of the society or to assign any reason why they do not admit him."
So has grown up the control of the benchers of the Inns admission to the Bar, and in the study of the sources and objects of this control we realize how the independence of the Inns of Court and the permanence of their institutions have kept up the standards of the calling whose honor it is our duty to guard.
Having at such length as the scope of the present paper will permit glanced at the history of the Inns, let us see how their control is exercised at the present day.
'Rex vs. Benchers of Lincoln's Inn, 4 B. & C. 855.
Of the three classes, benchers, barristers and students, who constitute each Inn, the benchers, as already indicated, are still, in virtue of the authority delegated to them by the judges, exclusively competent to determine the desirability of candidates for call, their decision cannot be revised by any court, and as a matter of practice will not be revised at all.
So far, however, as concerns the intellectual capacity of a student to exercise his profession on being called, the four Inns have in their turn mutually intrusted the decision to the Council of Legal Education, which is a body of twenty benchers, five being chosen by each inn. Furthermore, by the same consolidated regulations which define the duties of this Council the four Inns adopt a uniform standard for determining the acceptability, other than intellectual, of applicants for admission as students.
The would-be student at the time of his application must not be carrying on any of certain proscribed occupations. Needless to say he must not already be a barrister, nor must he be a solicitor, a writer to the Signet, or a notary public. He must not be a land agent, a patent agent, a clerk in any court, or an engineer, and he will be required to take a declaration that he is not engaged in any of these occupations or a similar one.
The student from a colonial university must go armed with a certificate of good character from his principal, and the British student is required to be seconded by similarly independent and responsible persons.
Lastly, the candidate must have passed one of certain examinations held by universities, colleges, or schools approv by the Council of Legal Education, all of which are of at least equivalent standing with the matriculation examination of the Uni versity of London.
The probationary period of seven years was, as we have seen, reduced to five and then to three years, and all that is left of the college life of the apprentices at law is that the student must "keep terms" during this period.
There are four terms in each year, each lasting about three weeks, known as Hilary, Easter, Trinity and Michaelmas terms,
and a student keeps terms by dining three days, if he be a student of certain universities, or six days in any other case, in the hall of his Inn, on each of which occasions he is required to be present at grace before meat and to remain until grace after meat.
It is with this ceremony of "eating dinners" that the call to the Bar is connected in the minds of most of the laity, who do not realize the requirements of examinations, and perhaps, too, in the minds of those from whose memories the anxieties of examination days have faded.
And indeed the vaulted hall with the great open fire, the high table on the dais at which a few benchers are seated, and the long tables of students, who rise at the sound of a gavel to hear a Latin grace, cannot fail to bring to the mind a thought of the high traditions which surround our profession.
The Council of Legal Education appoints a Committee of Education, consisting of its own members, with whom may be joined members of the teaching staff and this committee organizes and superintends a course consisting of lectures and classes which the student once admitted is entitled to attend. A large number of students naturally are at the same time undergraduates of Oxford or Cambridge and depend on their instruction there to enable them to pass the examinations for the Bar, glad enough of the occasional requirement of eating dinners as an excuse for a trip to London. Thus the traditions of the two universities join with the traditions of the Bar in maintaining a standard of manners as well as one of professional honor.
At any time after his admission the student must pass the examinations known as Part I, covering Roman Law, Constitutional Law, Criminal Law and Procedure, and Real Property Law, which latter may be replaced by Roman-Dutch or Mahomedan aw.
Before being admitted to the Bar, but not before he has kept six terms, the student must take the final examination, known as Part II, and consisting of papers on Common Law, Equity, Evidence and Civil Procedure, and a general paper, together with viva voce questions.