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THE SOCIAL IMPORTANCE OF PROPER STANDARDS FOR ADMISSION TO THE BAR

BY

WILLIAM H. TAFT,

OF NEW HAVEN, CONNECTICUT.

66

A great French judge truly said that the profession of the law was as old as the Magistrate, as noble as Virtue, and as necessary as Justice." The importance of having a Bar, the members of which are sufficiently skilled in the principles of law and the procedure of the courts, properly to advise laymen as to their rights and the method of asserting or defending them, and to represent them in judicial controversies, I need not dwell upon. It has been the habit in many states to regard the practice of the law as a natural right, and one which no one of moral character can be deprived of. Such a view of course ignores the importance of the profession to society and looks at its practice only as a means of earning a living. Laymen can readily be made to see that society should be protected against the malpractice of the medical profession and surgery by men who know nothing of discase or the effect of medicine, or the handling of a surgical instrument. It is, therefore, comparatively free from difficulty to secure laws prescribing proper educational qualifications for those holding themselves out as physicians or surgeons. The danger to society of the misuse of the power which a lawyer's profession enables him to exercise is not so acutely impressed upon the layman until he has had some experience in following bad advice. A legal adviser cannot ordinarily injure his client's bodily health, but he can lead him into great pecuniary loss and subject him and his family to suffering and want. The more thorough the general education of one who proposes to be a lawyer, the more certainly his mind will be disciplined to possess himself of the principles of law and properly to apply them. There is a spirit of hostility mani

fested by some courts and lawyers, and some who are not lawyers, to the suggestion that a fundamental general education is necessary to the making of a qualified member of the legal profession. In Indiana the constitution impliedly forbids the imposition of examination for admission to the Bar. The argument is: "Look at Abraham Lincoln. He never had any education of any sort. He educated himself, and note his greatness both as a lawyer, a statesman and a man." Such an argument would do away not only with the necessity for education at the Bar, but the necessity for schools or colleges of any kind. The question is not whether exceptional men have made themselves learned men, educated men and great lawyers without the use of schools, academies, colleges or law schools, but the question is by what means are we likely to produce the best average members of the profession. By what means are we most likely to make them skilled and able and useful in the office for which the profession is created. Certain law schools in the country have imposed the necessity for a collegiate education upon intending lawyers, before they shall begin the study of their profession. In the medical profession, schools of a similar standard require, after the Bachelor's degree, a study of four years. In the law schools a study of three years is now generally required, and in many states the same period has been fixed as the necessary period of preparation for the Bar examinations. It is said this will exclude many worthy young men who would aspire to the law. As the reason of the profession for being is to serve society, the interest of society is the point from which we must approach the question, and but little consideration should be given to the welfare of those who would like to practice law and are not fitted. to do it well. The graduates of colleges are in number greatly more than sufficient to supply the needs of the clerical, the medical and the legal professions, and there is no danger that there will be any dearth of lawyers of good material because a heavier burden of preparation is required of them. The view that the profession exists solely as a livelihood creates a demand for law schools furnishing the easiest and shortest way for their students to acquire the temporary information needed to pass the required

examinations. Such schools are cramming factories with no thought to the broad legal education which students should bring to the practice after they are admitted to the Bar. They confer only a smattering of the law and only a transient familiarity with the subjects upon which applicants are examined. Men who are thus prepared may become good lawyers, but if they do, it will be because of their natural mental capacity and the education that they give themselves afterwards, and not because of any basis of legal learning they acquired in such schools. For the good of society, the standards of legal education ought to be made higher and a broad collegiate education before the study of the law should be insisted upon as the sine qua non.

In most states the question of the admission to the Bar is given to the Supreme Courts. It should be possible, therefore, to secure, through such good and eminent lawyers, a proper standard for the making of new lawyers. They ought, of all men, to appreciate in the highest degree the benefit in the administration of justice of requiring the most thorough preparation for the practice of the profession. They could impose a standard for preliminary and fundamental education, and then for the education in law. Such an Association as this should have more influence with them than it ever can have through legislatures or upon the people, for it is dealing with its own. Of course the judges do not generally prepare the questions for examination or mark them. They delegate this to a committee of lawyers. When we find in one of the great states of the union a committee of examination that imposed questions based on cases taken from reports of its own state, some of doubtful authority, and gave no credit for answers which differed from the decisions of the courts, however good the reasons, we are not surprised to learn that some of the best prepared students from firstclass law schools were rejected, and that applicants with education in the law much less thorough were admitted, who had pursued the course of studying the special character of previous questions and cramming on the answers to them from a book prepared by one of the committee. This book shows not a few instances in which the answers required were hardly sustained by good

authority, even in the particular state. Some features of this bad system have been changed. The reform should be more radical. No court that knowingly permits such a system to remain in vogue can escape criticism. Examinations of this kind commercialize the practice of the law more than any other one. Those who come to the Bar by a mere trick of memory, and without thorough absorption of legal principles, are not likely to improve the tone of the practice to which they have succeeded by such means. I am not, however, sufficiently familiar with the details of State Bar examinations, or with the curricula of law schools, to be able to write an informing paper on them, and I am glad to know that I am to be followed by one so much better qualified to speak on this subject.

What I wish to dwell upon especially today is the influence of a proper standard for admission to the Bar on another office of lawyers than that of advising and representing clients. We get our judges from the Bar, and we add to the education of our judges when they are on the Bench by the Bar. It is the tone of the Bar, therefore, and the ability and learning of the Bar that necessarily affect the learning and standards of the Bench. The influence of a great Bar to make a great court and to secure a series of great decisions, everyone familiar with judicial history knows.

The function of judges is to interpret constitutions and statutes, and apply and enforce them, and also to declare and apply that great body of customary law known as common law which we received from past generations. According to the view and theory of one who does not understand the practical administration of justice, they ought to interpret the exact intention of those who established the constitution, or who enacted the legislation, and they ought to apply the common law exactly as it came to them. But frequently new conditions arise that those who were responsible for the written law could not have had in view, and to which existing common law principles have never before been applied, and it becomes necessary for the court to make new applications of both. The power which the court thus exercises is said to be a legislative power, and it is

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urged that it ought to be left to the people. That it is more than a mere interpretation of the legislative or popular will, and in the case of the common law that it is more than a mere investigation and declaration of traditional law is undoubtedly true. But it is not the exercise of legislative power as that phrase is used. It is the exercise of a sound judicial discretion in supplementing the provisions of constitutions and laws and custom, which are necessarily incomplete or lacking in detail essential to their proper application, especially to new facts and situations constantly arising. Then, too, legislation is frequently so faulty in proper provision for contingencies which ought to have been anticipated that courts cannot enforce the law without supplying the defects and implying legislative intention, although everyone may recognize that the legislative body never thought anything about the operation of the law in such cases and never had any intention in regard to them. Neither constitutional convention nor legislature nor popular referendum can make constitutions or laws that will fit with certainty of specification the varying phrases of the subject matter sought to be regulated, and it has been the office of courts to do this from time immemorial. Indeed, it is one of the highest and most useful functions that courts have to perform in making a government of law practical and uniformly just. You can call it a legislative power if you will, but that does not put you one bit nearer a sufficient reason for denying the utility and necessity of its exercise by courts.

Of all the people in the world who ought not to be heard in objection are the advocates of the initiative and referendum as a means of legislation. Legislatures and constitutional conventions have been bad enough in the enactment of measures inconsistent in themselves, and full of difficulty for those charged with their enforcement; but now it is proposed to leave the drafting of laws to individual initiative and to submit them to popular adoption without any possibility of correction and needed amendment after discussion which is always afforded in the representative system. The puzzles in legislation now presented to courts by this new method of making laws can be

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