Development of legal profession in England

In general terms this history of legal education can be divided into

three parts. The first period begins in 1292 and continues up to the
American Revolution. The focus is on the English system, since even
in the late colonial period, American legal education was dependent
on the English model. The next two periods are mainly American. Up
to at least 50 years or so after the Revolution, there was a lot of
experimentation in the United States. New institutions were
developing that were unknown to England. These institutions aimed
at removing the demerits of their English counterparts. The third
period, ending in 1895, begins with the appointment of United States
Supreme Court Justice Joseph Story to a professorship at the Harvard
Law School. This period results in the firm establishment of the study
of law as a science in the universities during the tenure of Dean
Christopher Columbus Langdell at the Harvard Law School.
Pre – Revolution Legal Education: England

In the late thirteenth century, the need to specially educate those who
had to appear before the increasingly professional courts of England
became obvious. The reforms of Henry II and the complex real
property law problems regarding feudalism required specialists.
Edward I’s royal directive
In 1292, Edward I issued a royal pronouncement to his judges of the
common bench. According to this, they were to find and select “apt
and eager” students representing each county in the area to learn the
business of the courts. These students were to be based at the seat of
the courts, Westminster. The earliest form of education focused on
simplicity. Attending court and discussing the cases heard was
considered sufficient.

Establishment of the Inns of Court

As time passed, the students, who spent their lives in that small area
of London dominated by Westminster, regularly gathered together at
a small number of dwelling places and began to organize. The present
day Inns of Court began to take shape when masters, men experienced
in litigation, were hired to give lectures to students where they lived.
Gradually, groups of practitioners started working at the dwelling
places, commonly known as Inns. A number of these lodgings
became known as the Inns of Court. Out of these, the four most
prominent ones were Gray’s, Lincoln’s, Middle Temple and Inner
Temple.

Development of hierarchy at the Inns

As might be expected, control of the Inns soon passed from the hands
of the true employers, the students, to those of the teachers, the
master. A hierarchy developed. This was bound to happen as England
was, and still is, a society which is class and status-conscious. The
masters became known as benchers while the students were classified
into three categories. Experienced students, known as readers,
acquired the status of modern day law school teaching assistants. The
second category of student, the outer barristers, was perhaps the
equivalent of today’s second year law school class and their studies
were dominated by participation in the moots. New students, who
were taught mainly by means of lecture and observation, were
assigned inner barristers. The method of legal education available and
prevalent at the Inns at any given time depended on whether or not
court was in session.
Imparting legal education at the Inns
When the courts were not hearing cases, the readers would give
lectures covering a variety of topics. They would conduct special
moots called bolts. When the court was in session, the Inns were
crowded with the judges and lawyers as well as the students. In the
evenings the Inn served in two ways. Those who dwelled there took
part in an educational exercise – the moot court. Practice courts were
held in which cases on current questions of law were presented and
argued by admitted and skilled litigators with help from the students.
After such practice courts, discussions were held. This joint and
instructional drawing together of the judges, lawyers and students was
of great importance at that time because law reports and legal
literature were in an extremely early stage of development.

Admission to the Bar

An important result of the development of the Inns of Court was the
profession of law becoming, a somewhat closed society. Culturally,
professionally and, obviously, geographically, the legal talent of
England rested in the great central courts. This gave a unique
“priesthood” aspect to the English bar which, along with its benefits
for England, was treated with suspicion by Americans.

Admission to the Bar was fully in the hands of the benchers and the
readers. Attendance at a required number of meals was the only
formal requirement, presumably to ascertain that some exposure to the
moots was experienced by the prospective barrister. It should not be
assumed, however, that a student’s intellectual abilities and
performance at the educational activities of the Inn were not
considered. Perhaps because methods for evaluation and assessment
were primitive and highly subjective, few records relating to academic
requirements have survived.

Several ancient principles slowed down the growth of the English

legal profession in its early stages. Litigation was very personal and,
since the theory of agency was just beginning to develop, the rule was
to plead legal matters personally. Moreover, procedure and the
swearing of oaths were very formal. They were so formal that at many
times, admission to the bar was denied if the exact words pleaded and
their pronunciation were incorrect. The idea was that if someone who
had sworn an oath lied, God would confuse his tongue and cause a
jumble of words or a mispronunciation. Under this view, it was unfair
and improper to have a professional pleader appear for a litigant.

Inns – Legal education combined with intellectual endeavours

Nevertheless, the legal profession brutishly increased in importance
and stature, and so did the Inns of Court, which achieved dignity
during the Tudor-Stuart period (1485-1637) similar to that of a third
university after Oxford and Cambridge. The Inns not only provided
legal education, but also exposed students to the arts and other
intellectual endeavours. It is interesting to note that the first
performance of William Shakespeare’s Twefth Night was performed
at Middle Temple Hall before an audience that included the Queen.
Attorneys to appear personally in Court
While the Inns of Court were schools to prepare the barristers, the
practitioners of the minor legal arts, the solicitors and attorneys, had
no organized educational institution. For a long time, attorneys were
admitted to the Inns with the status of outer barristers. The attorneys
developed partly because of the rule that a person was required to
appear personally at his lord’s court if there were any legal
proceedings involving him. If the various manorial courts (courts
through which a lord exercised jurisdiction over his tenants) met at
the same time of the year, this could be unpleasant if a person held
land of several lords, a common enough situation.

It was possible to obtain royal permission to send a surrogate (acting

on his behalf) to appear. There was no requirement that these
surrogates, soon called attorneys, have any legal education or skills
and many did not. Almost anyone, even a wife, could appear.
Appointment of attorneys – liberal approach
The Crusades, marked by the often permanent absence of the
interested parties, aggravated the problem of resolving disputes in
manorial courts. As a result, the approach towards granting
permission to appoint attorneys became liberal. Professional attorneys
– could be appointed, subject to the regulation of the courts. This is
how the modern rule that an attorney is an officer of the court and not
merely an employee of the client, originated. Attorneys could
however, deal, only with routine legal matters.

Solicitors and the Court of Chancery

The solicitors, who have always constituted the largest class of
English lawyers, developed as the Court of Chancery emerged and
grew in importance. In the beginning, the solicitors were clerks in
Chancery who helped litigants in drawing up papers. Because of the
demands of the market, a permanent professional class of lawyers
handling cases in chancery was established.

Legal apprenticeship and admission to the Bar

The attorneys and solicitors mainly obtained their legal education
through the apprentice method. Legally, these apprenticeships were
just like any other apprenticeship, for example, one with a baker or
cobbler. They were also governed by the same legal principles. They
were contractual agreements. If a person who was a party to the
agreement, they were liable to be taken to court.

Although the only requirement for admission to the bar by the

benchers of the Inns was proof that the student had kept twelve terms
by eating the required number of meals, some students were clerking
with established barristers. Even so, clerking with a barrister did not
necessarily mean a formal commitment to spend definite, verifiable
time in the barrister’s chambers. However, this formal commitment
was required while doing an apprenticeship with an attorney or
solicitor. The quality of an apprenticeship was, of course, not
evaluated.

Lord Mansfield’s contribution

Although student-barristers were expected to read certain standard
works, such as Littleton, Coke, Glanville and Bracton, as well as be
acquainted with the Year Books, the majority of a barrister’s legal
education was obtained at the courts. To provide for the needs of the
students, Lord Mansfield, a born teacher, gave the reasoning behind
his decisions and extensively cited cases in them. He even set aside a
portion of the courtroom which these students could use exclusively.
This became known as the “crib.” Incidentally, the modem phrase
“crib notes” has originated from this practice as the notes taken by
students were given some value as recordings of authority.
Decline of the Inns of Court
The Inns of Court, which attained maximum prominence and
educational effectiveness during the Tudor-Stuart period, began to
decline during the late sixteenth and early seventeenth centuries. This
was a result of the common lawyers gaining a foremost position in the
legal and governmental fields. By the eighteenth century, the readings
and moots had declined, and the students had the freedom to do what
they wished.

According to Abel-Smith and Stevens, by 1750, standards of the Inns

of Court were falling. They never completely recovered from this
decline. The Act of 1729 reorganized the legal education of the
attorneys and solicitors who, by 1700, had merged into one body, the
solicitor.

Training by apprenticeship was formally established. There was no

similar reorganization in case of the barristers. This left a serious gap
in English legal education because in 1750, the common law was not
being formally taught or studied in any institutional environment.

Reluctance in teaching common law

Oxford and Cambridge Universities had long taught canon law (the
body of officially established rules governing the faith and practice of
the members of a Christian church) and civil law, but had never
accepted the common law as worthy of being taught in a university.
Those running the ancient colleges did not differentiate between
theory and profession. They saw the common law as a trade not
worthy of serious academic consideration. This however, caused no
alarm among the practitioners of the common law, since they had
effective control of the High Courts and they had no desire to share
their control. In 1753 Blackstone commenced a series of lectures at
Oxford, and was subsequently appointed Vinerian Professor there. At
that point of time, it seemed that the common law would be accepted
at the great universities which would begin to provide, a ground for
research and discussion, though they should have done so much
earlier.

Unfortunately, the successors of Blackstone chose not to give

importance to common law. Perhaps this failure of the common law
to finally spread roots at the universities was masked in Blackstone’s
own words. These lectures were not designed for the legal profession,
but, as Blackstone said, for “gentlemen of all ranks and degrees.” The
sometimes staggering importance of Oxford and Cambridge as a
gentlemen’s right did not help academic innovation and progress.

Retarded growth of legal education

The 120 years that followed saw a good deal of turmoil in English
legal education, but little development. The Inns of Court attempted
to counter the increased power and status of the solicitors by revising
their entrance standards. The Inns also reduced the period between
admission to an Inn and the call to the bar from five to three years for
university graduates. The educational functions of the Inns were not
seriously revived during this period and in nature, they remained
mainly as social clubs. Admission to the bar still required no
significant educational activity or examinations.

Great advocates but no great teachers

Although the system of legal education for barristers had seriously
degenerated by the eighteenth century, and admission to the bar
tended to be on the basis of birth and money, Reed cites three reasons
why great barristers did develop. The first reason is that the wealth
needed to become a barrister often made it possible to get university
education as well as attendance at one of the Inns. Secondly, even
though a period of clerkship was not a required for admission to the
bar, it was an added edge when a barrister began to practice, and
many students clerked. Thirdly, the unique English system which
allowed for the solicitor, rather than the client, to select the barrister
served to prune the deadwood. Solicitors wanted to win cases as much
as anyone else, and they wisely channelled litigation toward the
competent barristers, and away from the incompetent.

As a result of six hundred years of English legal education

development, the profession, though often competent, was quite deep-
seated. For barristers in particular, exposure to general education was
often absent. Great advocates and judges emerged. However, there
were no great teachers except for Blackstone. An anti-academic bias
in the legal profession had finally established itself.
Reform

In 1846, a Parliamentary Investigating Committee examined the

education and training provided for persons who were to become
barristers. The Committee found the system to be inferior to the legal
education provided in Europe and the United States.
Recommendations were made for reform of the system. Among these
recommendations were including entrance examinations for
admission to the Inns and the bar. The establishment of a national law
college was proposed, as well as more imparting of knowledge in the
common law by the universities. The suggestions of this committee,
and the numerous other commissions that came after it, were not
followed. It was only in 1871 that Oxford, and in 1873, that
Cambridge reformed their law teaching faculties. Even then the best
law students stayed in the traditional system, as the established bar
did not accept a university degree as the equivalent of practical
experience.