The Albany Law Journal. ALBANY, DECEMBER 9, 1871. ADMISSION TO THE BAR. Ten years ago it seemed probable that the practice of the law would soon be open to every one, without regard to capacity or acquirements. The framers of the New York constitution of 1846 inserted in that instrument a provision designed to take from the legislature and the courts all power of making effective general rules with regard to admission to the bar. The declaration that "any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to practice in all the courts of this State," theoretically permitted all intelligent men to enter the profession. It was intended to do even more than this, that is, to allow every man who wished to set up a law office. The popular impression of that day was, that the lawyers were a privileged class. And there was some grounds for this impression. Almost all the public offices were filled by members of the bar. They were exempt from jury duty, and, practically, from service in the militia and from civil arrest. They seemed to do little labor for large pay, and their business was secure from the dangers of a commercial crisis. It is not surprising that those who followed other callings believed that a position at the bar was an open sesame to honor and wealth, and that they regarded, with jealousy, the existence of certain rules and customs which rendered the attainment of that position difficult. The most obnoxious rule, under the old system, was the one which made a long apprenticeship essential for admission to the bar. This rule, in effect, excluded the great body of the people as the time required was greater than could be afforded by one compelled to earn his own livelihood. Seven years were necessary to educate the lawyer, and though a concession was made to graduates of colleges by allowing the time passed in college to count as part of the needed years, this concession probably tended to make the rule, if any thing, more unpopular. Then the requirement could not be evaded, as the time must be spent, and it was not easy or profitable for the candidate to mislead the court concerning that matter. The popular sentiment at last found expression in the fundamental law, but it was found that the way had not become entirely smooth inasmuch as the courts, though no longer permitted to insist upon a term of clerkship, established a standard of intelligence and qualifications which could be attained to only through the instruction and discipline of a clerkship of some length. The legislature of 1847 undertook to take away this last barrier against indiscriminate admission, by providing that "any person of good moral character, although not admitted as an attorney, may prosecute or defend a suit for any other person provided he is specially authorized for that purpose, by the party for whom he appears, in writing, or by personal nomination in open court." But this act was declared unconstitutional by Mr. Justice Edwards in the first, and Mr. Justice Willard in the fourth district, and no attempt has since been made to take advantage of it. But the public sentiment exerted itself in other ways. The court could determine the qualifications, ability and learning only by examination of the candidate, and this examination was necessarily brief and cursory. Whether made by the court or by examiners, it has usually occupied only a few hours, no matter how large a number presented themselves for examination at the specified time. Nothing but a vague and uncertain estimate could be made concerning any individual, and the examiners, not wishing to do injury, gave each applicant the benefit of any doubts they might have concerning his claims for admission. This slackness enabled many who were notoriously unqualified to pass the ordeal, which at length came to be regarded as a mere technical ceremony that the most stupid and ignorant need not fear. Now and then an examining committee, with a desire to put a stop to indiscriminate admissions, would recommend the rejection of a large proportion of the class brought before them, but this proceeding had only a temporary effect, as most of the rejected ones usually came through by the next committee. Then it grew to be not unusual to admit upon motion, and this in cases where the applicant was known to be unable to pass a satisfactory examination. This ease of access has, of course, done great injury to the bar, both in character and reputation. Great numbers of uneducated men have entered. Thus the average culture of the profession is lowered. Very many become attorneys in order to profit by chicanery and trick. These injure the moral character of the bar and destroy its good name. The result, however, which has been most keenly felt, especially in the city of New York, is that arising from over-competition. Thousands have taken up the law as a means of livelihood, spent as short a time as possible in preparation, and, immediately upon admission, opened for business. The metropolis is a rich field for the lawyer; so those desiring fame and profit, are apt to go there. It is said that upward of three thousand attorneys hold forth for business in New York city. What the amount of professional receipts may be we do not understand. It is stated, however, that considerable over half the paying business is done by one hundred and fifty persons, and, probably, one thousand do four-fifths of all. The great majority, then, of the lawyers in the city, must derive from their profession only a meagre income. That the profession, as a whole, does not occupy, in this State, the position held by it twenty-five years ago, is apparent to every one. Some have attributed this circumstance to the adoption of a code of procedure; others, to the establishment of an elective judiciary. That each of these has had considerable influence we cannot doubt; but the chief cause of the social and political decline of the legal guild will, we are confident, be found in that mass of incompetence and ignorance which has crowded into every department of practice. It may be urged that the bar in England is in the same condition as ours, filled to overflowing, and containing many persons of small ability and learning. This is true as to the bar there, but the bar in England get only a small share of legal business, and even that comes through the hands of attorneys. The whole profession does not materially suffer from the facility of entrance to a single department. But with us, where all distinctions are merged, admission to the bar of a multitude of improper persons affects injuriously every lawyer. The constitutional convention of 1867, by their amended judiciary article, designed to allow a restoration of something like the ancient system, and the legislature and courts have seconded such design, by requiring, in addition to the usual examination, a preliminary clerkship or course of study. While an apparent discrimination, by the statute, in respect to certain law schools, has raised a cry about favoritism, the profession generally seem to be well pleased with the change. It is perhaps too early to feel the effects of such change, but we have little question that if the bench and bar use the means now in their power for the exclusion of improper persons from the practice of law, the legal profession will, in a few years, regain its old position. CIVIL SERVICE REFORM. The civil service commissioners have been recently active enough at Washington. But we think there is a very good precedent already open to their adoption. They could not do better than to take the English system in globo, or as much of it as will be pleasing to congress. When once a practical beginning is made in the matter, it will be the easier to make still further amendments. But a beginning should be at once made. Dirnidium facti qui capit, habet. The public are impatient, and are most anxious that, even though the constitution contains no doctrines of divinity, our civil service, at all events, should have more or less of a moral basis. The States will doubtless all follow suit in this matter of civil service reform. Sauce for one description of domestic pets will equally well suit all the rest. Such reforms will tend more than any number of septuagint committees to reform and purify State administration. implied in the proposed change that civil service offices are to be for life, else no one in his senses would devote much time and labor to studying what would bear him fruit only for a few years. A freehold in an office is, in its nature and results, like to a It is similar tenure of land. A tenant at will is rarely unwilling to commit waste. A tenant for life, on the contrary, will endeavor to discover new modes of economizing his own labor and dispatching the public business He will ever seek to improve the field of his labors in order that he may rise still higher in the scale of promotion. The present system operates as a bounty against all these advantages both to the office-holder and the public. An ulterior result of civil service reform will be, that it will lead to a desire on the part of the public to see the tenure of judicial offices likewise extended to a reasonable period. It ought to be much easier to pass a civil service reform bill in the legislature of our democratic country than it was, in 1855, for the British government to carry such a measure for England, where even commissions in the army have been bought and sold from the earliest times down to the last session of parliament. That preserve of the nobility, indeed, was so well hedged and protected by the house of lords, that Gladstone was obliged to have recourse to the somewhat unusual, and almost unconstitutional, measure of accomplishing the reform by means of a warrant under the queen's sign manual, and not by the more difficult process of a parliamentary bill. But, as regards almost the whole civil service of England and India, including customs, excise and the post-office, appointments in all these departments are now filled up by candidates who succeed in passing an examination in certain specified branches of knowledge. Other qualifications, indeed, besides mere literary ones, are necessary to constitute a good official. Still, proficiency in studies that require industry for their successful prosecution, raises a presumption that the best answerers in those departments of learning are the most likely to fill posts in the civil service with credit to themselves and advantage to their country. Mr. Boutwell is disinclined to attracting young men to the public service, and, for the same reasons, he is opposed to a long tenure of office. He is, however, we believe, in a minority in the cabinet on this point. At all events, a reform in our civil service, by commuting it from being a reward for political adhesion to a prize for merit, may be now regarded as a fait accompli. All that remains is to carry out the details of the change. POLICE COMMISSIONS. The question of local government by commissions, not chosen by popular vote, is now securing considerable attention in the public press, and is being discussed with less bitterness and more candor than at any time heretofore. In the discussion, we of to-day have one advantage which those of an earlier time did not, namely, that of experience. The system has been tried, and its good and evil qualities practically made evident. In the State of New York, where, if it did not originate, it has had the most ex tensive application, the residents of cities have become familiar with commissions of every name and nature; police, water works, health, park, etc., etc., have been set up. Some of them were appointed by the executive, some by the legislature, some by city or village officials and some by private corporations. But, however appointed, they had certain incidents in common. A long tenure of office, the probability of only a gradual change in membership, and an entire irresponsibility concerning any thing but criminal action to any person or body save the one by whom their appointment happened to be made, seemed to belong to all commissions. citizens. In the cities of New York and Brooklyn, one of these commissions preserved the public peace, with a single exception, from 1857 to 1870, during four years and more, of which time all the disorders incident to a civil war were present in the community. In the capital district a commission organized and maintained for five years, probably the best disciplined and most efficient police force ever seen upon the American continent. In other sections the experiment had a shorter probation, for the legislature of 1870 either destroyed wholly every State commission, or so modified the statute creating it, as to strip away most of its power. The old system of police management has not, however, been restored, but commissions appointed in other ways still control. These new bodies do not seem to accomplish all that was hoped and promised. They may do better after a while, but we have no great confidence in their ability to give the people of their respective localities as good a police force as existed under the previous system. REPORTS OF LAW CASES. These institutions, whether good, bad or indifferent, were aimed at the idea of popular government, or, perhaps, we should say, local government, by the local majority. That idea was, in the fundamental law of New York, carried to a point beyond that which the most radical democrats of the last century even contended for. Every office, legislative, judicial and executive, from the governor of the State to the town constable, was, by the last constitution, to be filled by the people. Experience, however, soon demonstrated ENTERPRISE OF AMERICAN JOURNALISTS. that in certain localities the majority of the people were not in favor of law and order, or, at least, of its enforcement in their own neighborhood, and that the officers chosen by them would be a terror to good instead of evil-doers. In the cities this trouble first appeared, and, of course, among the lowest grade of officials. The consequence was, that the right of suffrage was invaded, so to speak, and the management of the police, in certain sections, taken from the people. In this matter a certain difficulty arose. By the constitution all county officers, whose appointment was not fixed by that instrument, must be chosen either by the electors of the counties or by county authorities; and city, town and village officers of the same character by electors of such cities, towns and villages, or of some division thereof, or appointed by some of the authorities thereof. It was intended, evidently, that the officials in every locality must be chosen by some authority in that locality, which authority was chosen by local, popular vote. While provision was made for every political division in existence, the contingency of a different kind of division was not provided against, so that, when the legislature deemed it expedient to take away from a town, county or city all control over local officers, it was only necessary to unite it with some adjacent territory, and form a district, whose officers might be chosen as the legislature should direct. In that way was built up the metropolitan police district, and, afterward, other police districts in different sections. Whatever may have been the disadvantages and dangers of organizing an institution so radically antagonistic to the generally accepted theory of a democratic form of government, it cannot be denied that in the matter of police management, the commissions gave very general satisfaction to the better class of American newspapers often publish glorifications of themselves on the ground of their "enterprise." There is one department of news, however, in which England far outstrips us. The London Times, and, indeed, all the daily journals of that city, give copious reports of all the cases decided in the superior courts, and also brief sketches of every complaint before the city magistrates, if the matter is worth noting. The result is, that every legal practitioner in London takes The Times or some other British daily, in order to learn how the legal breeze blows, and also to see the state of the cause list. For the English newspapers apprise their readers not only of the past but also of what is to come. They contain a legal diary of the cases to be tried during the day. Now, we may look in vain in most of our daily contemporaries for any thing like a didactic narrative, with citations of cases, in any law suit that is not of a political character. Here surely is room for journalistic enterprise. The publisher has the news cut and dried for him if he only sends a reporter to take it down. Even if it is not interesting to the public in general, it will be so to that very numerous section of readers who are concerned in legal affairs. It is strange that this mine of wealth is so badly worked by our enterprising contemporaries. They compass sea and land for early intelligence, even though it be only the merest shadow of a coming event. They detail reporters, at considerable expense, to various districts of city and country in search of news. Their embassadors often have to return as ignorant as they set out. But in the courts there never can be any dearth of material for the journalistic compiler. We hope our suggestion will be acted upon. Newspaper accounts never can enable the legal reader to dispense with professional reports of law cases; on the contrary, the former stimulate the appetite to the latter, and can never in the least displace them. MODIFICATIONS OF THE LAW OF PRIVA- Some of our political cotemporaries have suggested that the visit of Duke Alexis is owing to a desire on the part of the Czar's government to arrange for the privateering of American citizens under Russian letters of marque, in case Russia shall be shortly involved in war. Russia, however, is not likely to be either plaintiff or defendant in an international suit for some time to come. The Czar is nephew of the emperor of Germany, and his heir is married to the sister of the princess of Wales. These "weird sisters" secure the integrity of the Scandinavian kingdoms, pro tempore. There can be nothing "rotten in the state of Denmark" while two such powerful patronesses reign in Russia and England. But even if the Czar to-morrow were engaged in a war either with England or Germany, he could not issue letters of marque. For, by the first clause in the treaty of Paris, 1856, "privateering is abolished." This manifesto, of course, only binds the signatures to it. The United States, therefore, if at war, on its own account, might issue letters of marque and reprisal. But, neither Russia, England, Germany, Austria, France or Turkey can, in their mutual internecine contests, send out privateers to prey on the enemy's commerce. Unless we are principals in a war with Europe, therefore, we are precluded from being accessories in the way our lay brethren anticipate. selves. If, however, the visit of Duke Alexis be in any way mixed up with the question of privateering, we hope that it will lead to its renunciation by us and not to its extension. Wars might be divided into two classes, cabinet and deadly. A war of the cabinet species, like an affair of honor, will be terminated whenever one of the belligerents has displayed unequivocal signs of superiority over his enemy. The Russian war of 1854-5 was of this description. If it was as deadly as the recent contest between France and Prussia, the Czar would have directed heavier blows against France at home than he did. All civil wars are deadly, and will not end until the original and real object of the war is attained by one side or the other. Now, privateering tends to put cabinet wars on the same level of ferocity as the deadliest contest, and this too on the wide and merciless ocean. Privateering, therefore, ought to be discountenanced by every nation that seeks to rob war of any unnecessary horrors. THE JURY SYSTEM ON ITS TRIAL IN IRE- Although a great part of Ireland has been "proclaimed" under the provisions of coercion acts, and the habeas corpus act has been suspended in the same districts, yet martial law, or the suspension of trial by jury, has not yet been resorted to by the Irish executive. It is not likely that so extreme a measure as the temporary abolition of jury trial will be adopted by Mr. Gladstone's government, which has already shown itself so very well disposed to remove the most inveterate of Irish grievances. Still, the acquittal of Kelly, in Dublin, on the charge of shooting HeadConstable Talbot is likely to induce the tories, in the coming session, to test the legislature on its willingness to abolish trial by jury in Ireland, until the conviction of a popular treason be a more easy matter in Dublin than it is at present. The abolition of privateering will, doubtless, be discussed in the councils of the White House before the Alabama commission has ended its labors. Our government refused to sign the Paris note in 1854, unless all private property at sea were rendered free from capture. This would be only to place property at sea on the same footing as property on land, It is to be remembered that Ireland is very free which, when it belongs to private individuals, is never from all crimes except those that are termed political considered fair prize for a belligerent. It appears or agrarian. Now, is it not likely that private malice that our government latterly has been indisposed to often gratifies itself under the cloak of public spirit. accept the Paris compromise, even with the addition An unpopular landlord, or head-constable, suppose, of the terms proposed by us as to the immunity of pri- has a secret enemy who shoots him. There is then a vate property at sea. Privateering is supposed to enable hue and cry against the disturbed state of the couna country, with a large mercantile marine, to enter upon try, and martial law is invoked by all who consider a maritime war without getting up a regular official their lives to be in danger. The evidence against navy on any great scale. A sail of the line, however, Kelly seems to be strong, but we may rest assured like Milton's fiend, is capable of annihilating many that the jury gave it due consideration. It is to be merchantmen. Our adhesion to the Paris note, there- hoped, therefore, that a ku-klux policy will not be fore, seems to be recommended as much by policy as further acted upon in Ireland. If suspensions of the by considerations of humanity. The only reason habeas corpus act, proclamations of martial law, and why enemy's property at sea has been regarded as hanging by wholesale, could render Ireland well lawful prize, which, if it were on shore, it would be effected toward England, that consummation would free from capture, is, the prize courts of the maritime have been reached long since. Instead of violent nations laid down rules that were favorable to them-remedies, therefore, the Irish government should try constitutional treatment, which is always the best for the body politic as for the body natural. CURRENT TOPICS. The city officials of New York are having a considerable experimental instruction in the law of arrest. The ex-controller seems to be so far the most unfortunate, as he has been put in a real jail. It seems likely that the remainder of the arrested will, in time, follow, as their bondsmen are becoming uneasy and wish to withdraw. It is probable that, in view of the manifest popular approval of such a course, the prosecutions already undertaken will be carried to the extent of the law. There seems to be in the The tenant act of 1870 has had a coach and four run through it by Lord Justice Christian. But the nature of that measure was so well considered that there ought to be no hesitation on the part of the courts to carry so beneficent a statute into complete and thorough effect. It is, indeed, in the abstract, undoubtedly a partial measure of the confiscation of property in land in favor of the tenant. But, as the legislature resolved to give this boon to the tenants, the judges ought not to put themselves in opposi- public mind, however, a very indefinite notion about tion to carrying out so laudable a policy. Ireland what has been really done, most of the people thinkwants something besides harsh constructions of olding that the arrests were made under criminal warand oppressive statutes. A DIFFICULTY SURMOUNTED. The constitutionality of an act of congress is a question that ought never to arise. On the other hand, so long as States have any rights, these must be protected against congressional encroachments. There is a way, however, for steering between this Scylla and Charybdis, which will leave congressional and State rights in the present status, and yet prevent the discussion of any act of congress before our federal tribunals, on the ground of unconstitutionality. If every bill, whose constitutional character might be open to question, were submitted to a majority of the judges of the supreme court of the United States before it received the president's sanction, and if the judges directed amendinents, which were adopted afterward by congress, there never could be any subsequent contention that the measure thus sanctioned was unconstitutional. Qui bono to litigate a point that had been already decided by the very court before whom it should be tried. rants. One of the New York dailies suggests the establishment of a tribunal of the nature of the French tribunal of commerce as a remedy for the evils of the referee system. The principal alleged evil in that system is, so far as we can discover, that the fees flowing from it are not divided between a sufficient number of persons, the several judges bestowing their favors on a limited number instead of scattering the same ad libitum. If there are abuses we cannot see how a new kind of court would do any thing more than change their character. It is claimed that, in mercantile matters, a mixed court, composed of merchants and lawyers, would do its duty better and more satisfactorily than one composed wholly of lawyers. If this is true the present system affords ample opportunity for such a court, the law making no limitation as to the calling from which the referee must be chosen. To be sure the selection is usually made among members of the bar, for the very good reason that a single referee is usually desired, and it would be a piece of folly to appoint, in such a case, a person unfamiliar with the rules of law. If a tribunal of commerce is established, we anticipate that it will be found about as valuable as the tribunal of conciliation some years ago set up in the sixth judicial district of this State. The separation of the judiciary from the legislative, which we have copied from England, is not carried in that country to the extent of shutting out the judges from advising parliament on the probable legal result of a contemplated measure. Judges and clergymen are excluded from the house of commons, because they are represented in the house of the lords by the superior members of their class. The lord chancellor, who is the head of the English law department, is, ex officio, chairman of the house of lords. He is placed there to see that no untechnical or unconstitutional measure is passed by the peers through accident or mistake. Why should not our constitutional judiciary, the judges of the supreme court of the United States, be publicly consulted upon all questions of constitutional law that may be involved in measures before congress. This would greatly simplify the work of legislation and prevent any heartburnings that may arise, as in the case of the legal tender act decisions, in respect to the adjudications of our ulti-cedure, though sometimes allowable in a border setmate court of appeal in constitutional causes. tlement, where the legitimate exercise of civil power Lynch law appears to have become chronic in Indiana. Every week or so we hear that a new victim has been offered as a sacrifice upon the altar of justice in an irregular manner. This mode of pro |