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These rules are framed upon the same principles and with the same intent as the better part of the unwritten, half-known rules of our Bar, and are more strict only in the sense that they are better defined, and more carefully enforced. As such, they are well worthy of the consideration of our Bar.
It would be quite possible, and I believe advisable, to organize a council for the Bar of England upon a similar plan to that here described. Some difficulty might arise from the great number of members of which the Bar is now composed; but it must be recollected that though more than 4,000 names are inscribed as barristers in the Law List, and are members of the Inns of Court, no more than 1,500, at the outside, can be called practising barristers in the sense that they go circuit or occasionally attend the Courts with or without briefs.* Of these the larger half are at the Common Law Bar, and for the most part join a circuit. It would be feasible to form a council, the members of which should be chosen in part by barristers practising in the Chancery Courts, and in part by those attending each circuit-say, one or more representative from each circuit, from each Court of Chancery, from the Parliamentary Bar, from the Divorce Court, and from the Old Bailey, barristers having liberty to inscribe their names at which Court they prefer for the purpose of these elections.
A council thus formed, and electing its own president, should be entrusted with all the duties which are now in the hands of the Inns of Court, and should have absolute control over the admissions to the Bar and the discipline of its members, subject, as now, to an appeal to the judges. It would be proper that they should have definite times for meeting, and should be held responsible for the conduct and government of the Bar. They might, further, be entrusted with power to
* There are 4,260 names in the Law List; of these 1,501 are marked as members of circuits, or as having chambers near the Inns of Court; a further deduction of at least one-third must be made in respect of men who are not in earnest pursuing the profession; of the remaining 1,000, I doubt if there are more than from 400 to 450 who are making, by their practice at the Bar, an income, say, of £500 per annum ; of course many of these are making considerably more, and some few are realizing large fortunes.
ascertain what rules of etiquette are now in existence, and, at all events, their decisions might form precedents for the future. These rules should be as simple and as few as possible, as consonant with general principles of free action for barristers as is possible, having regard to their status. I venture to think that the council should not have power absolutely to disbar a member, but that this power should be vested in the judges on application and prosecution of the council; much as the power of striking attorneys off the rolls is now exercised by the various Courts; but that the council should have power to conduct a preliminary investigation, with a view to instituting such proceedings, and should have the power of calling witnesses and examining them on oath, of taking depositions, of causing production of documents, of questioning members called before them, and should have all the privileges of a subordinate court of justice. The council might be further assisted by smaller councils, chosen by the different Circuits and Courts, and presided over by the members representing the Circuit or Court in the head council, and reporting through them. These smaller councils should determine on all the minor cases, subject to an appeal to the head council.
It may be asked what right has the Bar, as a body, to enforce a discipline among its members, to inquire into their conduct, and to lay down rules for their guidance; the answer is, that it is not a right but a duty, which is founded on the privilege which the Bar enjoys of an exclusive audience in the Courts of Law, and of immunity from actions against their members for breach of contract, or for ignorance, negligence, or mistake. It is these on which the whole foundation of the Bar rests, and which render the profession so different from any other. As long as these are their privileges, it is their bounden duty to offer some guarantee to the public that honourable and trustworthy men only are members of the profession; that the further privileges of speech and cross-examination of witnesses will not be abused; that they are individually worthy of conf
dence; and that such rules as are necessary for the maintenance of the order and for protection of the public will be kept. I may go further, and say that they are bound to provide some test, so that ignorant and ill-educated men will be unable to obtain entrance to the profession. If it were not for these privileges and immunities there would be no such duty cast upon the members of the Bar.
Let it be remembered that there are not wanting those who consider that the organization of the Bar is, in itself, abnormal and unwarranted by true economical principles. It is urged that there is no good reason why the Bar should be separated as it now is from other professions, whether cognate to it, as that of attorneys, or not, protected by immunities, endowed with privileges, and intrusted with duties.
They would advocate throwing open to any person whatever the right of addressing the Courts, either on his own or any other person's behalf. That the feeling of the age and the Legislature, with regard to other professions and trades, is in favour of such a course. That the profession is of no greater importance than many others which are not protected. That there is no intelligible reason why barristers should not be responsible, for all other professional men are bound to possess the degree of skill necessary to manage the business they undertake with safety to their employers. That as to the question of payment, which is correlative to that of non-liability, there is no reason why the ordinary laws of supply and demand should not regulate it, and that a barrister is not degraded by making a bargain as to the fee to be paid him any more than any other professional man; and that practically it is so, and has been so ever since the Cincian law fell into disuse. That there is no fear of the business of the Bar falling into the hands of ignorant men, as it is work of the highest order, and it is only by great study and long practice that men can render themselves fit for it; and that the Bar rests on no such flimsy basis as that it is liable to have its business at any moment taken away from it by opening the doors of the profes
sion. That the public is the best judge in this, as in any other profession, of whom they will employ; and that the experience of other professions shows that the public will not employ either ignorant or dishonest men. That there is no reason why a dishonest man should be by public law prohibited from employing his talents in the way which he best can, so long as he can find persons who will employ him. That any rules for discarding dishonest men in a large profession become of necessity inefficacious, only tend to lull the public into a fancied security, and that it is impossible by artificial means to raise the tone of the morality in any particular profession above that of others in the same social order. That if there are men outside the present profession who are fit and able to perform the work, it is neither right nor beneficial to the public that they should be debarred from doing so. That any rules, such as those fixing a minimum rate of fee, or for confining barristers to certain Courts and circuits, are attempts to keep up the rate of wages and to prevent competition, which are unworthy of the age, opposed to all true economical doctrines, and as ineffectual as they are unnecessary. That the only true course is to leave it open to both the barrister and the public to make such bargains as shall seem good to them.
The answer to those whose views are thus briefly and baldly stated, and who, relying on the soundness of the general principles of political economy, are averse to all artificial restrictions on professional employments, is, that to render these general principles applicable, we must abandon the high ground upon which the profession of an advocate has been placed in most countries, both ancient and modern, which have reached a high degree of civilization. That not only in England, but in Rome, and in those countries which have derived their law from the Romans, the status of an advocate has not been merely that of a man selling his legal knowledge and eloquence to his litigatory customer, but the advocate has been regarded—to use a metaphorical expression—as a priest in the Temple of Justice-as having duties of a grave and elevated
character beyond the interests of his clients, the duty of promoting the great objects for which laws are established, the protection of right, the redress and punishment of wrongs. That the regulations which form the discipline of the Bar, however imperfect they may be, or however insufficiently administered, have been decreed for a high and noble purpose; to preserve the honest independence of the advocate ; to prevent him from being sullied by mercenary considerations; and to ensure that, in advising or defending his client, he should act as having a public as well as a private duty to perform. And further, in the words of Chief Justice Erle, “ Looking to the power and pri
, vileges entrusted to counsel, it is of the last importance that his sense of duty should be in active energy, proportioned to the magnitude of these interests. If the law is that the advocate is incapable of contracting for hire to serve where he has undertaken an advocacy, his words and acts ought to be guided by sense of duty; that is to say, duty to his client, binding him to exert every faculty, and privilege, and power, in order that he may maintain that client's right, together with duty to the Court and himself, binding him to guard against abuse of the powers and privileges entrusted to him, by a constant recourse to his own sense of right."
The whole question thus suggested is of the highest theoretic interest, but is, in a measure, beyond the present inquiry. It must be obvious, however, that the answer thus given to the theorist is insufficient, unless it can be shown that there is within the Bar itself a power of enforcing discipline of its members, and of carrying out its rules, sufficient to prevent it from relaxing into the state of absolute freedom so much dreaded, and to supply the place of the legal consequences which would follow in other professions which have no such privileges and immunities.
In conclusion, I have only to say that it must not be supposed, because I have pointed out some of the weak points in the organization of the Bar, and have had occasion to advert to the practices of some of its obscurer members, that I would