THE PROGRESS OF LEGAL EDUCATION IN ENGLAND

Por

SIR JOHN BAKER

Q.C., LL.B., Ph.D. (Lond.), M.A., LL.D. (Cantab.), Hon. LL.D. (Chicago), F.B.A.

Downing Professor Emeritus of the Laws of England

[email protected]

Revista General de Derecho Público Comparado 25 (2019)

ABSTRACT: Like much else about English law, legal education in England has developed in a distinctive way. The common law was disregarded by the university law schools, which until the nineteenth century taught only Roman law, and so common lawyers devised their own learning system. Law teaching was at first centred on the principal royal court in Westminster Hall, and then in the fourteenth century taken over by four colleges known as the inns of court. Lectures (‘readings’) were given on statutes, illustrated with imaginary examples or cases which could be made the subject of disputations. In addition, students took part in practical exercises called ‘moots’ in which they framed pleadings orally in French; performance in these led to graduation as a ‘barrister’. The system broke down in the 1640s, and for over a century there was no formal education in the common law. It was the universities which filled the gap, beginning with elementary lectures designed for laymen. William Blackstone was the first to offer university lectures in English law in 1753, at Oxford, and Cambridge followed suit later in the century. But it was London University which pioneered degrees in English law, and in the 1820s Andrew Amos introduced a combination of lectures, classes and examinations which has remained the norm ever since. Several public investigations into legal education, beginning in 1846, established a general agreement that it was best divided into two stages. The academic first stage would ideally be at a university, and the second or vocational stage would be organised by the profession. At both stages the age-old system of lectures, disputations based on imaginary cases, and the study of real cases in books, has remained central; but there is now more professional assistance given to students.

KEY-WORDS: English Legal History, Legal Education, Inns of Court.

SUMMARY: I. THE APPRENTICES OF THE BENCH AND THEIR INNS. – II. READINGS AND MOOTS. – III. REFORM OF ENGLISH LEGAL EDUCATION. – IV. ACADEMIC AND VOCATIONAL LEGAL EDUCATION IN MODERN TIMES.

EL PROGRESO DE LA LEGISLACIÓN DE EDUCACIÓN EN INGLATERRA

RESUMEN: Al igual que otras muchas la ley en Inglaterra ha tomado diferentes caminos en el desarrollo de la legislación educativa. El derecho consuetudinario fue ignorado por las escuelas universitarias de derecho, que hasta el siglo XIX solo enseñaban derecho romano, y los abogados comunes idearon su propio sistema de aprendizaje. La enseñanza de la ley se centró al principio en la Corte Real principal en Westminster Hall, y luego en el siglo XIV fue asumida por cuatro colegios conocidos como las posadas de la Corte. Se dieron conferencias ("lecturas") sobre estatutos, ilustradas con ejemplos imaginarios o casos que podrían ser objeto de controversias. Además, los estudiantes participaron en ejercicios prácticos llamados 'moots' en los que formularon de forma oral oraciones en francés; el rendimiento en estos llevó a que se graduaran como un "abogado". El sistema se rompió en la década de 1640 y durante más de un siglo no hubo educación formal en el derecho común. Fueron las universidades las que llenaron el vacío, comenzando con conferencias elementales diseñadas para laicos. William Blackstone fue el primero en ofrecer conferencias universitarias en derecho inglés en 1753, en Oxford, y Cambridge siguió su ejemplo a finales de siglo. Pero fue la Universidad de Londres la que fue pionera en leyes inglesas, y en la década de 1820 Andrew Amos introdujo una combinación de conferencias, clases y exámenes que ha seguido siendo la norma desde entonces. Varias investigaciones públicas sobre educación legal, comenzando en 1846, establecieron un acuerdo general de que se dividía mejor en dos etapas. Lo ideal sería que la primera etapa académica fuera en una universidad, y la segunda etapa o etapa profesional estaría organizada por la profesión. En ambas etapas, el antiguo sistema de conferencias, las disputas basadas en casos imaginarios y el estudio de casos reales en libros, ha permanecido en el centro; pero ahora hay más asistencia profesional dada a los estudiantes.

PALABRAS CLAVE: Historia legal inglesa, Legislación educativa, Inns of Court.

SUMARIO: I. LOS APRENDICES DEL BANCO Y SUS INNES. – II. LECTURAS Y MOOTS. – III. LA REFORMA DE LA LEY DE EDUCACIÓN INGLESA. – IV. LA LEY DE EDUCACIÓN ACADÉMICA Y VOCACIONAL EN TIEMPOS MODERNOS.

Fecha recepción: 23/04/2019

Fecha aceptación: 19/05/2019

The story of English legal education begins and ends with the universities, though for around five hundred years the law faculties played no part in the formation of secular lawyers. There was a law school at Oxford by the 1190s, and some quaestiones disputatae from that period have survived. Cambridge followed soon afterwards. Although both taught Roman civil law and canon law, it was canon law which drew the students. At Cambridge, the earliest statutes (dating from the 1240s) mention only students of canon law (decretistae); a doctor of civil law is mentioned in the 1250s.(1) There had also been a school of civil law in London, perhaps attached to St Paul’s Cathedral, though all we know of it is that it was closed down on the king’s orders in 1234.(2) But there is no need to dwell on these law schools, for two reasons. Firstly, their curriculum and methods of education were not significantly different from those used across Christendom, beginning perhaps in Bologna. Although there was a distinct English literature on local constitutions and procedure, the system as a whole was cosmopolitan. Secondly, and related to that, the universities took no notice of English law. The secular common law was just local custom and had no place in a university, to which students might come from all over Europe. The law faculties were therefore not schools of English law but of universal jurisprudence. Most of their law graduates did not have much to do with the law either. They went into the Church, and only a small proportion of the few who stayed the course long enough to take the doctorate went into practice as advocates. University-trained advocates could practise only in the Church courts, and the Court of Admiralty, because they had learned little or nothing at university about English law. The break with the Roman curia in the 1530s did not greatly alter this position, although the canon law faculties were closed and effectively merged with civil law. Oxford and Cambridge continued to teach Roman law, including some of the ecclesiastical law needed for practice in the Church courts. An Oxford D.C.L. or Cambridge LL.D. remained the only acceptable qualification for an advocate or judge in the Canterbury Court of Arches until Victorian times. But here we may leave aside the universities until the eighteenth century.

Practitioners of the law of England needed a different kind of education. It is possible that some, perhaps many, had spent a little time at a university. We have virtually no records of undergraduates from which we might check. But they would not have stayed long enough to read Law, which was a postgraduate discipline. The study of Law did not begin until around the age of 18, and so the years after grammar school were spent studying the liberal arts – principally grammar, logic, rhetoric and mathematics. There was no law in the Arts course until the nineteenth century, and there was no point staying on to read Law if the intention was to practise the law of the land. Indeed, the law student probably did not even trouble to graduate as a Bachelor of Arts. What the English lawyer needed to know was not to be found at Cambridge or Oxford. He needed to know the jurisdiction and procedure of the king’s courts at Westminster – and perhaps, as a preliminary, the workings of the lesser manorial courts which could be found in every village. He also needed to be inducted into the complex mysteries of land law. No doubt neither of these subjects began by being complicated. But by the mid-thirteenth century they had become elaborate and technical. A distinct lay profession had come into being soon after 1200, consisting of pleaders (who appeared in court as advocates) and attorneys (who were analogous to proctors in the Church courts and dealt with the routine of litigation and everyday affairs).(3)

I. THE APPRENTICES OF THE BENCH AND THEIR INNS

By the 1250s the lay profession had its own law school. Since it was not much later in origin than the university law schools, it is not surprising that in some ways the two systems resembled each other. They used both lectures and disputations as the methods of instruction, and their higher graduates were distinguished by long robes and hoods. Of this early law school, unfortunately, we know very little.(4) Unlike the universities, there were no endowments from benefactors and no statutes, and so there was nothing to record in writing. There do not seem even to have been distinct premises. The students were called ‘apprentices of the Bench’, the Bench (or Common Bench) being the principal court in Westminster Hall, and it is not improbable that the Bench was in a physical as well as metaphysical sense their university. There is mention in 1287 of an Irish student ‘residing in the Bench causa addiscendi’,(5) and in 1323 there is a maintenance agreement to support a young man for one year at Oxford ‘and the next four years at our lord the king’s court at the Common Bench, wherever the said bench shall be in England, among the apprentices’.(6) These apprentices watched the court in action, from an enclosure called ‘the crib’,(7) and presumably someone would explain to them what was happening. Indeed, sometimes the chief justice himself did so.(8) But the students also attended lectures and exercises. We know of this because some of the lecture-notes survive. They masquerade in the manuscripts as treatises; but, as Plucknett wrote of one of them, they positively reek of chalk and duster and ink.(9) Most of the lectures were on procedure, but there were also elementary lectures on land law. The interactive exercises were concentrated on pleading – that is, the oral process whereby an issue was framed for trial(10) – and enabled students to learn how to become advocates. Since most of the litigation for which they were training concerned landed property, they would also find that the pleading exercises tested their knowledge of the principles of land law. In what precise location these exercises were conducted is not recorded, but that may well be because it was the court itself, vacant after the mid-day dinner. The courts at Westminster did not sit in the afternoon.

By 1292 there were such large numbers of apprentices attending the court that an official attempt was made to reduce them, but it came to nothing.(11) The growing throng obviously could not sleep in the court, and so they all needed lodgings. That is what the maintenance grants paid for. Some might live alone; but it was more economical to share costs, and there were probably informal communities around Westminster in the early 1300s.(12) In 1326 we learn of a battle in London between the northern and southern apprentices of the Bench, which suggests that they congregated in ‘nations’ as in other universities.(13) In about 1340 more permanent housing was found in premises called ‘inns’ (hospicia), which from the beginning were not merely lodging-houses but had some of the characteristics of academical colleges. The immediate cause was the return of the legal profession en masse from York, to which it had been exiled for several years while the courts sat in York Castle. The incoming hordes of students and practitioners needed to find shared accommodation in a hurry.(14) But it can be no accident that this was the very period when colleges were beginning to proliferate at the universities, taking over the discipline and much of the teaching from the central studium.(15) In the case of the lawyers’ inns, any trace of a central studium or university disappeared completely, and from the 1340s until the present day the education and qualification of barristers has been the exclusive prerogative of the four principal inns. Two of these inns were located in the New Temple, an area on the north bank of the River Thames (between London and Westminster) which had been given to the Knights Hospitaller of St John of Jerusalem when the Templars were dissolved. The knights no longer required it themselves, but their two halls provided a convenient focus for two communities, known as the Inner Temple and Middle Temple.(16) A third, Gray’s Inn, was the former town-house of the Lords Grey of Wilton. The fourth, Lincoln’s Inn, was probably known as Strange’s Inn until Lord Strange resumed occupation in about 1417, when the society moved to its present site and had to change its name.(17) These four were known by the early fifteenth century as the hospicia hominum curiae, the inns of the men of court, a description which was soon shortened to ‘inns of court’. There were also about ten lesser inns, known as ‘inns of chancery’, which in educational terms were intermediate between school (or university) and the inns of court. Some of them were associated with Chancery clerks, and during the fifteenth century they all came under the supervision of the chancellor of England.(18) The whole collection of colleges, scattered between the city of London and the king’s courts at Westminster, housed a far larger community than the university law faculties; indeed, it was not much smaller than the entire university of Cambridge. In Tudor times it was unofficially called The Third University of England.(19) A large part of the gentry attended it, with varying degrees of commitment to legal study.

The preparation of a law student was supposed to begin at one of the inns of chancery, which he would join around the age of 18 before proceeding to an inn of court (if he proved suited for it and could afford the living expenses) around the age of 21. The lesser inns may have taken over some of the teaching from the earlier law school, giving elementary lectures on land law and on the formulae (known as original writs) by which actions were commenced. They were especially well placed to teach the learning of writs, since it was the Chancery clerks who drafted them, and many collections of precedents of writs contain notes of observations which were probably made at lectures.(20) Some of the statutes mention an exercise called ‘the reading of the writ’, though it is not clear whether this was a lecture on a writ or a recitation of the formula, so that the students would eventually know the wording by heart; perhaps it was both. This teaching is the origin of a book called the Natura Brevium, an early edition of which (1494) was printed at the instance of Strand Inn, one of the inns of chancery. The Harvard Law School has a copy of the 1537 edition, covered in annotations, which belonged to successive principals of Clement’s Inn.(21) The lectures on land law probably account for another student book, called the Old Tenures. They seem to have petered out around the fifteenth century, perhaps because it was thought sufficient to read the book. The students also learned how to recite the pleading formulae in French, using precedent books called Narrationes, and this enabled them to take part in elementary pleading exercises called moots. Reports of such moots from Lyons Inn in the 1490s show the participants using each other’s names as parties to the actions. Some guidance must have been needed, but there is no evidence that it was ever formalised by the appointment of tutors. Each generation somehow passed the expertise on to the next. This was a residential law school, and part of every day was spent listening to one’s seniors performing. It is not too much to suppose that another part of every day was spent asking questions about what on earth was going on.

The basic grounding in writs, pleadings and the principles of land law equipped a student to proceed to the more demanding intellectual environment of the inns of court. Not all did so. Probably most did not. Many became attorneys rather than advocates, and indeed the attorneys governed the inns of chancery in exchange for keeping the rooms from which they practised. Many of those who did go to the inns of court were not suited to the study, and were not intending to study. They were enjoying their youth in the metropolis, finding out about life and making contacts. The swashbuckling tradition recalled wistfully by Shakespeare’s aged Justice Shallow certainly began before Shallow’s fictional youth in the fourteenth century. As Professor Thorne quipped, borrowing from C. P. Snow, the students liked their life – but no one else did.(22) Even within the inns, the serious students had cause to complain of the noise made by ‘them that be no learners’.(23)

II. READINGS AND MOOTS

We are only concerned, of course, with the learners, the serious students. Their curriculum comes into focus in the fifteenth century, chiefly from the Black Books of Lincoln’s Inn, a precious series of administrative records beginning in 1422. As far as we can tell, however, all four inns had much the same routine, with its own technical vocabulary, resting on custom rather than statute.(24) There were two principal forms of exercise. First, there was the lecture. In the inns, lectures were called ‘readings.’ As in the universities, a lectura involved reading out an authoritative text and then providing a commentary or gloss on it, usually taking each word or phrase at a time. Since there was no text of the common law, the readings had to be upon the statutes, beginning with Magna Carta. However, since the statutes presupposed a body of unwritten law, it was usual for a lecturer to include some common law in his commentary. The earliest datable lectures on statutes are from the 1420s, but in Cambridge University Library there are two copies of a set of Quaestiones de statutis, starting with Magna Carta, and giving the names of the speakers, from which it may be deduced that they were distilled from lectures of a similar kind given in the 1340s.(25) Readings were given in the Lent and Summer vacations, which were known as the ‘learning vacations’. It may seem odd to have attended lectures in the vacations; but in term-time the students were expected to attend Westminster Hall and watch the courts in action. It was an all-the-year-round university, including even compulsory Christmas festivities, at which the old English traditions of carols, revels, lords of misrule, boars’ heads and holly were preserved. The lectures continued for at least a month, even if only a few sentences in a statute were glossed. The reason for the slow pace is that the readers illustrated their interpretations with strings of factual examples, or ‘cases’, and any of these could be taken up by the audience and made the subject of a disputation. Here was the closest analogy with the academical exercise, which consisted of a factual case (casus), the legal question which it raised (quaestio), the arguments for and against (disputatio), and an authoritative ruling (determinatio or solutio). The title of the Quaestiones de statutis from the 1340s betrays this academical parallel. Since the readings were attended by senior members of the inn, and even judges, the associated disputations were an important way of learning the common law.

The other form of exercise was the moot. There used to be some confusion over the original nature of moots, because nowadays a moot is a mock legal argument before an appellate tribunal. It was once thought that late-medieval moots were the disputations at readings, which were certainly closer to the moots of today. But this has turned out to be wrong. It can be shown that a moot, in its original sense, was a pleading exercise based on a given set of complex facts. There are manuscript moot-books containing the cases which were assigned for the purpose, some which appear to date from the mid-fourteenth century. The participants had to choose the right writ and draw up pleadings which would raise the questions in the problem. This was all done orally, as it had been in the royal courts in the days when the earliest moot-books were composed.(26) The hall of the inn was deemed for the purpose to be a real court – not any court, but specifically the Common Bench,(27) the former home of the apprentices – and was arranged with a bar and a bench. The mooters performed at the bar, and the senior members sat on the bench to make rulings when needed. There was no question of producing a final judgment, as in a modern moot; but that was equally true of a real case at the time, since the final determination belonged to the jury. The law came into play interstitially; and in a moot every legal aspect of the case had to be considered in framing the pleas. The cases were so involved that one moot could take up an entire vacation and involve most of the students in residence.

The old readings had been passed on over the generations, tried and tested in disputation, creating what has been called ‘a core of inherited learning’. But in the sixteenth century readers were given a free choice of subject, often taking a recent statute, and some readers were inevitably better at this than others. The readings therefore became variable in quality. Sir Edward Coke complained that they had become more like riddles than lectures, aimed at finding subtle evasions.(28) Coke’s own reading of 1592 was not a masterpiece of legal exposition, though that of his rival Francis Bacon in 1600 (on the same subject) was considered a masterpiece. Moots retained their original form, and in so far as they concentrated on writs and forms of pleading which were no longer in use must have seemed increasingly archaic, though some attempts were made to bring the cases up to date. There was no need for an examination in our sense, because performing adequately was a sufficient indication of expertise. And in this respect, too, the legal university was paralleled in the academical world. A degree was not originally a distinction conferred at a ceremony following a written examination, but was taken by performance in a disputation or (in the case of a master or doctor) by giving lectures; the graduate took the step, the gradus, himself. The inns developed an analogous graduation system in connection with moots. When a student performed to the requisite standard in a moot, by arguing at the bar of his inn, he became a master of the bar, or barrister.(29) When he had been a barrister long enough, and continued with the exercises, he was elected to read; and as soon as he had lectured he became a master of the bench, or bencher, so called because he could then sit on the bench at moots. To this day, graduation as a barrister is a qualification for practice as an advocate in the superior courts; but it now depends on written examinations. Promotion from barrister to bencher is no longer seen as a graduation; the benchers have become the elected governing bodies of the inns of court, responsible for educating barristers and calling them to the bar.

The old system of readings and moots continued in the inns of court and chancery until the English Civil War in the 1640s, which for a few years seriously depleted the resident membership to the point where the exercises had to be curtailed. The collapse was not greeted with alarm which it would have deserved had the system not already become obsolescent. It was governed by precedent, as if it were part of the common law itself, and carried on by the impetus of tradition alone. As in the universities, there were no paid lectureships. There were no funds for that purpose. Everyone wishing to proceed to the bench had to take their turn as a law teacher. It might have been better if someone with suitable inclinations and talent had been engaged to lecture on the principles of the common law, but that would have required some financial inducement, and no funds were forthcoming. The one attempt to modernise, by taking more recent statutes as texts for the lectures, had only led to confusion.

Although there was an attempt to revive the old system after the Restoration of the Monarchy in 1660, no one seems to have given any thought to changing it. Lawyers were not in a mood for change. It was a time for putting things back as they were. But the lectures now fell to be given, by seniority, men who thought they had escaped the duty in the 1640s. The performances were perfunctory, often just one or two lectures, accompanied by an expensive dinner to persuade the audience to come. Many of those whose turn came just refused and were fined. This seemingly gross dereliction of duty suited everyone. The fines probably cost the readers less than the dinners. And it did not take the inns of court long to realise that the fines were much more useful to them than the lectures. So, readers went on being elected and fined for not reading, while the principal form of education in the common law stopped for two hundred years. The inns of chancery ceased to function as educational institutions at the same time. Mooting limped on in what became an increasingly formalistic ritual, based on the pleading exercises of the fourteenth century. In 1778 the Inner Temple finally put an end to the last vestiges of the old exercise, still apparently performed in law French, in return for a fine. Not before time, one might say. But nothing was put in its place. The students were, in effect, fined for giving up the last remains of a formal education in law.

Of course, England still produced lawyers after the 1640s, and many of them were of a high intellectual calibre. Two of them, Sir Matthew Hale and Sir Jeffrey Gilbert, wrote the most lucid accounts of the common law in their time. Both of them, rather ungenerously, forbade publication; and so lawyers had to acquire their learning without their guidance and without formal instruction from the inns of court.(30) Publishers provided shelves full of reference books, including a growing body of reported cases, in which students could immerse themselves; and there were still wooden galleries at Westminster where they could sit and take notes. But some interchange with others was needed. We hear of informal gatherings in coffee houses, where cases were discussed, and moots arranged. The institution known as pupillage became more formalised, and in the mid-eighteenth century it took on the form which it has retained ever since. A student intended for the Bar would attach himself to a practising barrister, and in return for a fee of 100 guineas would be allowed free access to his master’s papers and precedent books, and follow him into court and take notes.(31) Some senior barristers had numerous pupils, who formed their own select clubs and discussion groups. The best form of pupillage, according to contemporary opinion, was not with a dazzling court-room advocate but with a good draughtsman. This was because it was still a vital first stage in a barrister’s education to understand the intricacies of pleading, now a written art rather than an oral one, and for Chancery barristers to master the arcane science of conveyancing. Much of the pupil’s time was therefore spent copying precedents and drafting documents, which a good pupil-master might perhaps find time to correct. One or two pupil-masters went so far as to provide lectures, and some of the lectures on conveyancing were so successful that numerous manuscript copies went into circulation. Attorneys and solicitors were trained in a similar way, by being ‘articled’ for five years as clerks to established practitioners,(32) often serving part of their articles in London – to acquaint them with the practice of the central courts – as well as in their own locality.

III. LAW TEACHING REVIVED: BLACKSTONE AND AMOS

Although consciences were occasionally stirred in the inns of court by the failure to fill the educational void, there was a general disinclination to spend their resources on students. Between 1758 and 1769 Gray’s Inn went so far as to pay a barrister £60 a year to give lectures, though bizarrely they stopped when he became a bencher. The experiment was not repeated. But this is where the story moves back to the universities. In 1753 a barrister called William Blackstone, bursar of All Souls College, Oxford, who had also taken the doctorate of Civil Law, started to lecture at Oxford on English law in the hopes of obtaining a new chair which was under consideration. He had really wanted to be Regius Professor of Civil Law, but in 1753 the Crown appointment had been given on political grounds to someone now long forgotten. Blackstone’s venture was very successful, and in 1758 the new chair was finally established, endowed from the profits of a legal reference book (Viner’s Abridgment).(33) Remarkable as it may seem, his 1753 lectures were the first attempt ever made to present English law to an audience as a rational structure, to explain in outline all its parts and show how they fitted into the whole. No doubt Blackstone’s training in Roman law had provided him with a model, and that is evident in the arrangement of the syllabus; but the content was purely English. The reason why the innovation was a success is, no doubt, to be found in the expansive nature of Blackstone’s project. The lectures were not designed solely for intending lawyers but to improve the education of ‘such other gentlemen as were desirous of some general acquaintance with the constitution and legal polity of their native country’.(34) They were not included in the Law curriculum but were ‘private’ lectures aimed at Oxford students who would typically become country parsons and squires, serving perhaps in due course as county magistrates and managing family estates. They were therefore free of technicality and were a far cry from the phase-by-phrase glossing of texts, let alone the alphabetical scheme of the book which had endowed his chair. The object was to reduce the laws of England to a plan ‘which the student might afterwards pursue to any degree of minuteness, and at the same time be so contracted that the gentleman might with tolerable application contemplate and understand the whole’.(35) It was, he said in his inaugural lecture, ‘an undeniable position, that a competent knowledge of the laws of that society in which we live is the proper accomplishment of every gentleman and scholar: an highly useful, I had almost said essential, part of liberal and polite education’.(36) True as that no doubt was, Blackstone had the more practical motivation of wishing the increase his lecture fees. In reality the future law student gained even more from this kind of outline even more than the accomplished gentleman.(37) It would not induct them very far into the mysteries of practice, but it would enable them to undertake pupillage with a reasonable understanding of basic principles. Blackstone thus set legal education on a new course, and incidentally altered the style and quality of law books for ever.

Blackstone’s lectures were delivered in a manner which did not appeal to all his hearers, and – although he had aimed them at the whole university – relatively few paid the six guineas for the privilege of listening. But when they were published, as Commentaries on the Laws of England (1765-8), they proved to be a best-seller. They were such a success, indeed, that oral legal instruction was driven back into obscurity.(38) It was enough to buy the book. In the 1780s Cambridge followed the Vinerian experiment with the Downing Professorship of the Laws of England, finally rescued from fifty years of Chancery litigation in 1800. But Cambridge was at first no more successful than post-Commentarian Oxford. Few if any of the early Downing professors made a significant mark on scholarship. Their position was admittedly eccentric. As at Oxford, the lectures were extracurricular and aimed at undergraduates, few of whom (it turned out) could be bothered to make the ten-minute walk to Downing College. They did not lead to a degree, and so there was no college teaching to back them up. Law degrees were still for postgraduates, and the only kind of law which counted in the Law Faculty was that of ancient Rome. The student sensible enough to take an interest in law, for his general education, might just as well read Blackstone.

When London University was founded in 1826, in what is now University College London, new possibilities were opened up for legal education.(39) The University was not far from the centre of the English legal world, and the new Law Faculty deliberately set out to attract law students, even to the extent of holding classes in the evenings. Two professors were appointed, one of English Law and one of Jurisprudence. The latter was John Austin, whose interest in universal legal theory resulted in lectures so abstract and convoluted that they were beyond his audiences. His inaugural lecture was given, appropriately but unwisely, on the difficulty of giving an introductory lecture on jurisprudence. It was delivered with much nervous hesitation, but the audience grasped the point about difficulty, and few came back. After four years of struggling with the lectures, and with neurotic illness, Austin resigned. On the other hand, the professor of English Law, Andrew Amos (a practising barrister), was extremely successful. He went to the other extreme. There was hardly a syllabus at all. He meandered from topic to topic, taking his lead from the issues of the day, and discussing cases in which he was engaged. He used visual aids, organised ‘legal conversations’ or tutorials, invited eminent guest speakers to talk on their specialities, encouraged the students to debate, and arranged voluntary examinations.

As in Blackstone’s case, Amos’s successors were mediocre. Even Amos himself, on becoming Downing Professor in 1850, found that his methods could not be transplanted successfully to Cambridge. But he, more than Blackstone, had invented modern legal education as it has obtained in England. As a combination of lecture, discussion and exercise it was an unconscious reincarnation of the earliest form of legal education, rediscovered for use in a different legal world. Looking back, we might think it inevitable that this was the way forward. Nevertheless, it met with numerous obstacles. For one thing, students were not easily convinced of its utility; and, if students were not attracted, there was no income for the professor. At Oxford and Cambridge, students planning to go to the Bar continued to read Mathematics and Classics, as in the past, if only because those subjects were the route to the fellowships which – if they distinguished themselves – would support them through pupillage. (Amos himself had been a first-class mathematician at Cambridge.) In London, they had to be persuaded not to go straight into pupillage or articled clerkships. The inaugural lectures of London professors were usually aimed at persuading the audience that law was not merely a vocational subject but a science, and that it was necessary to learn the science before turning to practice. One of them, in 1833, urged potential students to fight against nature and the pleasure-seeking habits of the age, or they would suffer remorse later from their neglected opportunities. Of the 200 who attended his first lecture, only five came to the second and none to the third. Another professor, in 1846, advocated submission to the ‘drudgery’ of lectures in order to avoid the ‘pain and difficulty, and shame, and humiliation’ of trying to acquire the same knowledge later in life.(40) Surprising though it may seem to those older and wiser, many young people were willing to take the risk of skipping the drudgery.

A greater challenge even than indolence came from the vocational courses set up piecemeal in the same period by the solicitors’ Law Society. The Law Society charged articled clerks as much as 100 guineas for 12 lectures, and yet the attendance is said to have exceeded 200. Most of the students willingly took the voluntary examinations, which required them to sit down at 10 o’clock in the morning and stay till tea-time, answering as many of the 75 questions as they could manage. The pass standard was low, and success was said to be no more than ‘a guarantee against absolute incompetency’. They were focused on practice rather than theory.

IV. REFORM OF ENGLISH LEGAL EDUCATION

By the 1840s there was considerable concern about the state of legal education. The Law Times drew attention to the flourishing Harvard Law School, and the Russian Imperial Law School at St Petersburg, lamenting that England had no law school at all worthy of the name. John Campbell (a future lord chancellor) asked, ‘Is it not strange that we should have degenerated from the wisdom of our ancestors in the age of the Tudors? – that the Inns of Court should have discharged their duty in the reign of Henry VII and should neglect it in the reign of Queen Victoria?’ The law reformer Lord Brougham joined in, and in 1846 the House of Commons appointed a Select Committee on Legal Education. The inns of court, thoroughly alarmed by this, rushed through reforms the same year under which four lectureships would be created.

The Select Committee reported a few months later. They concluded that a law student was left almost solely to his own individual exertions. Although they acknowledged that something had been done at University College London, their praise was in the past tense. The course they recommended was to separate the academic and the practical stages of legal education. The universities should be persuaded to make legal history and jurisprudence part of the Arts course, and the inns of court should operate as a kind of law university (in which the four inns would be constituent colleges) to provide more advanced instruction for intending barristers. The latter suggestion was in line with what the inns had already hurriedly decided, and it came to fruition in 1847, though without fusing the inns into a formal university. Within a few years both Oxford and Cambridge responded to the former suggestion by introducing jurisprudence into the B.A. syllabus, combined at first with other humane subjects, and in the 1860s it became possible to take a B.A. in Law.(41) The notion that there should be two stages in legal education has been accepted ever since, and was confirmed by the Ormrod Committee on Legal Education in 1971, though the further step was never taken in England of requiring a law degree before entering the profession. A degree in law remains to this day an optional extra, though it is one which many students choose.

Some Victorian reformers were not content with the 1846-47 reforms, and in 1854 there was a Royal Commission to investigate the study of law in the inns of court. The principal political concern was to know whether the revenues of the inns, chiefly from chamber rents, were being properly applied by institutions which were arguably educational charities. The more defensive concern of the inns was to find a way of satisfying the commissioners without giving up any of their privileges. To a large extent they succeeded in doing so. The resulting compromise did not go much further than 1846, and again the idea of a great imperial law school including the inns of court was shelved. London University twice proposed reviving the idea, but the inns and the Law Society were suspicious of any outside interference and nothing happened. In modern times, however, the inns have become increasingly aware of their educational responsibilities and now spend over £5M a year on scholarships and awards.

V. ACADEMIC AND VOCATIONAL LEGAL EDUCATION IN MODERN TIMES

The two professional bodies have kept control of the educational requirements for their professions, and that is as it must be. The main issue in the twentieth century was how far they could also dictate what university law schools teach. The universities adhere to Blackstone’s principle that the study of Law is ‘a liberal and polite education’, an important branch of the Humanities worthy of study even by those who do not intend to earn a living from legal practice. The professions, on the other hand, were afraid lest the formative stage in a lawyer’s education be handed over to philosophers in ivory towers whose esoteric interests were irrelevant to practice. That was not a real risk in the period before the expansion of universities in the 1980s, since the majority of law teachers then were members of the Bar and very few of them had Ph.D. degrees. Over the last 30 to 40 years that has changed, so that nearly all law teachers – and they have become a vastly more numerous profession(42) – have engaged in doctoral research, rather than professional training, before appointment. But the fears have not materialised, because a sensible settlement was reached. The profession would define what it regarded as the ‘core subjects’, or ‘foundational subjects’, required of anyone wishing to proceed to a vocational course. There are currently seven: Constitutional and Administrative Law, Criminal Law, Contract, Tort, Property Law, Equity and Trusts, and European Union Law. Anyone who passes all seven is deemed to have a Qualifying Law Degree for professional purposes. A university could in theory choose not to teach any of them, but then its graduates would be at a disadvantage should they wish to practise law. On the other hand, there was no objection to the universities offering whatever additional courses they wished. In practice, most of the optional courses have also proved to be purely legal, but the better universities offer a range of non-doctrinal subjects. For instance, Cambridge has well-attended classes in Roman Law (compulsory for most law students), English Legal History (not compulsory), Criminology and Jurisprudence. It has occasionally been proposed in recent times that universities should take on the vocational training as well, since the Law Society and the inns of court no longer employ law teachers themselves.(43) Only a few ordinary universities have taken on this role,(44) though a number of specialist law schools have been created to teach for the professional examinations, and in recent years some of these have been granted university status.(45) These law schools also offer courses leading to the Common Professional Examination, and a Graduate Diploma in Law, for those who do not possess a Qualifying Degree.(46) The G.D.L. is awarded after only one year of full-time study, compared with the three years normally required for a law degree (LL.B.), and usually means that the recipient has studied no more than the core subjects.

The system in operation today in academic law schools is an amalgam of the methods from the past which have been outlined in this paper.(47) Lectures are still given, and in an Age of Statute these are veering back towards the medieval practice of glossing statutory texts, explaining their context and how they are interpreted by the judges. The common law is also expounded in lectures, aided by textbooks. Both legislation and the unwritten common law are studied with the aid of reported decisions in real cases, and the main function of textbooks is to guide the reader towards finding and understanding the case-law on the subject in hand.(48) Attempts to introduce interactive lectures, on the Harvard Law School model, have not proved suitable to the reticent temperament of the English. Instead, most English universities have small-group teaching. In Cambridge they are called supervision classes, in Oxford tutorials. Depending on the university, there might be one or two students in a class, or six, or perhaps as many as twelve. These classes typically work from problem sheets, which contain imaginary sets of facts in problematic cases related to the topic being studied. The students are expected to be able to present arguments on both sides and come to a conclusion. It does not matter whether the conclusion is ‘right’. The purpose is to identify the legal questions and to marshal the relevant arguments and authorities. Their function, therefore, is the same as that of the late-medieval readers’ cases in the inns of court. The principal differences are that they are conducted in a less formal setting and with a smaller group, and also that the students will be asked to answer some of the questions in writing so that they can be marked by supervisors or tutors. This element of individual attention was missing from the medieval system, because there were no professional teachers, though it has the disadvantage of making education more costly. In addition to ordinary lectures and classes, the better law schools also provide extra-curricular education, such as talks from eminent visitors, judges and practitioners, and moots.

Mooting represents another continuity from earlier times, and resembles (even more closely than tutorials) the formal exercises at readings. Although arguing in moots is not a formal requirement for graduation, either in the universities or the inns of court, it is a valuable way of learning how to manage conflicting legal principles. Student counsel have to think not only of what their ideal solution to a problem might be, in the way that a judge might, but must try to foresee all the arguments which their opponents might deploy and make sure they can deal with them. This gives a deeper insight into problem cases than mere essay-writing, and if the moot is conducted before fellow students there is also the incentive of not wishing to appear stupid in public. A moot court was incorporated in the new Law Faculty building at Cambridge, and there are numerous mooting competitions in which students may take part, both in the universities and in the inns of court. Participation is not essential, but it counts as one of the qualifying activities in which Bar students must engage – the others include advocacy exercises, mock trials, ethics discussions and mediation training. When it comes to securing a place in chambers, which is highly competitive, prowess in mooting may be an important factor in an applicant’s favour. It is also desirable for solicitors, even if they do not have rights of audience in court, to be able to present legal arguments or summarise positions clearly.

Both branches of the legal profession require, in addition to examinations, a year or two of on-the-job training. In the case of barristers, this is the old pupillage system, though nowadays pupils are paid by the barristers under whom they study rather than the other way round. Pupillage is undertaken after call to the bar, and the minimum period is twelve months, though in the ‘second six’ the pupil may undertake some work for clients. In the case of solicitors, what used to be called articled clerkship has since 1990 been called ‘traineeship’,(49) and the trainees are paid a salary;(50) the usual period is now two years, served before admission.

In all these respects, English legal education is a product of long experience and practice. The formal division between an academic stage and a vocational stage has enabled the typical better student to learn law in a three-year course at the hands of professional law teachers, who these days will have been appointed by virtue of their proven research capabilities, and then to learn the practice (and some of the more technical branches of law) at the hands of those closer to that world. The principal point of contention is whether it is right that lawyers should be allowed to practise without having undertaken the academic stage at a university. It is not allowed in most other countries. While it is undoubtedly beneficial to have practitioners with degrees in other subjects, bringing broader perspectives, it is also detrimental to have practitioners who have studied law only to pass examinations in basic doctrine. However, given the cost of university education, it would no longer a realistic option in England to insist on two degrees (as in the United States). Perhaps in reality it does not matter too much. Many practitioners today are so specialised that they do not need to know much outside their own area, which is unlikely to have been taught in detail at any university. In the case of City solicitors, everything will be learned in-house. Where wider learning is needed, and an ability to think sideways, as in the upper reaches of the Chancery Bar or the Commercial Bar, a first-class degree in Law from a good university has in practice become de rigueur. The pragmatic solution, as in earlier centuries, has thus been to leave things as they are and let the market sort them out.

NOTAS:

(1). For this paragraph see J. H. Baker, Monuments of Endlesse Labours: English Canonists and their Work 1200-1900 (1998), pp. 1-5, and the works cited there.

(2). See J. Baker, Collected Papers on English Legal History (Cambridge, 2013), i. 271-3.

(3). For the early history of the profession see P. Brand, The Origins of the English Legal Profession (1992); J. H. Baker, The Order of Serjeants at Law (5 Selden Soc. Supplem. Series, 1984); ‘The Legal Profession’ in Collected Papers, I, pp. 19-139.

(4). For what follows see also J. Baker, ‘Legal Education’ (9 papers) in Collected Papers, I, pp. 255-410; Readings and Moots in the Inns of Court, II: Moots (105 Selden Soc., 1989) [hereafter Moots]; Readers and Readings in the Inns of Court and Chancery (13 Selden Soc. Supplem. Series, 2001); ‘The Education of Lawyers’ [1483-1558] (2003) in Oxford History of the Laws of England, VI (Oxford, 2003), pp. 445-72; ‘The Exercises of Learning’ in The Inns of Chancery 1340-1640 (19 Selden Soc. Supplem. Series, 2017), pp. 75-87; P. Brand, ‘Courtroom and Schoolroom: the Education of English Lawyers prior to 1400’ (1987) 60 Bulletin of the Institute of Historical Research [hereafter BIHR] 147-65; ‘Legal Education in England before the Inns of Court’ in J. A. Bush and A. Wijffels (ed.), Learning the Law: Teaching and the Transmission of Law in England, 1150-1900 (1999), pp. 51-84.

(5). Moots, p. xxvi n. 72.

(6). Manchester University John Rylands Library, Leigh of Lyme Muniments, Box M6/16; M. J. Bennett, ‘Provincial Gentlefolk and Legal Education in the Reign of Edward II’ (1984) 57 BIHR 203-208. Cf. an agreement of 1364 to support a student for seven years in the company of the men of law going to the king’s court (‘gentz de lei alantz a la court nostre seignour le roy’): Moots, p. xxvi.

(7). F. W. Maitland, 29 Selden Soc. xvi; G. J. Turner, 22 Selden Soc. xli (published after vol. 29); Baker, Collected Papers, i. 310.

(8). This is evident from the law reports. See Anon. (1312) YB Hil. 5 Edw. II (31 Selden Soc.), p. 90, per Bereford CJ (‘Et jeo die un chose pur les jeones qe sont environ ...’); Anon. (1316) Mich. 10 Edw. II (52 Selden Soc.), p. 96, per Bereford CJ (‘jeo di pur les juvenes qe cy sunt pur laprise ...’); Eyre of Northamptonshire 1329-30 (97 Selden Soc.), p. 478, per Scrope CJ (‘Jeo die pur vous apprentiz’).

(9). T. F. T. Plucknett, Early English Legal Literature (1958), p. 90, referring to the family of texts known as Casus Placitorum.

(10). Pleading was equivalent to the system of exceptiones and replicationes in Roman law, leading to a litiscontestatio (which English lawyers called an ‘issue’). In modern lay usage, ‘pleading’ has the entirely different sense of imploring or cajoling. In law, however, a plea was not an argument or a rhetorical mode of address but a formulaic assertion of facts.

(11). Baker, Collected Papers, I, pp. 112-13, 148-50.

(12). Note the petition to Parliament of the people of Westminster in 1337, after the courts had moved to York, that they had lost their principal means of support from lettings: Moots, p. xxvii.

(13). Calendar of Coroners’ Rolls of the City of London 1300-1378 (R. R. Sharpe ed., 1913), p. 157, no. 30; Chronicles of the Reigns of Edward I and Edward II (W. Stubbs ed., Rolls Series, 1882), p. 313; Baker, Collected Papers, I, p. 152.

(14). Baker, Collected Papers, I, pp. 153-7.

(15). E.g. at Cambridge (which had only one thirteenth-century college) King’s Hall (1317, dissolved 1540), Michaelhouse (1324, dissolved 1540), Clare College (1326), Pembroke College (1347), Gonville Hall (1348), Trinity Hall (1350) and Corpus Christi College (1352). The King’s Hall was founded to educate Chancery clerks, Trinity Hall to provide canon lawyers for the Norwich diocese (and many of them became judges in the Rota at Avignon); Gonville Hall was refounded in 1353 partly to encourage the study of Law.

(16). For the division of the Temple, and the mysterious Outer Temple see Baker, Collected Papers, I, pp. 173-84.

(17). The society moved to the bishop of Chichester’s inn in Chancery Lane. Strange’s Inn had once been the hospicium of Henry de Lacy (d. 1311), earl of Lincoln, and the lawyers reverted to the old name. See J. Baker, ‘The Origin and Early Character of Lincoln’s Inn’ in A Lincoln’s Inn Commonplace Book (G. S. Brown ed., 2016), pp. 36-49.

(18). J. Baker, The Inns of Chancery 1340-1640 (19 Selden Soc. Supplem. Series, 2017).

(19). See Baker, Collected Papers, I, p. 143 n. 1.

(20). Moots, p. xxxii.

(21). Moots, p. xxxii.

(22). Baker, Collected Papers, I, p. 275.

(23). ‘State of the Fellowship of the Middle Temple’ (c. 1539), printed in W. Dugdale, Origines Juridiciales (3rd edn, 1680), at p. 195.

(24). The inns of chancery were given statutes in the fifteenth century, and they included some disciplinary regulations about the performance of exercises, but they were more concerned with daily life than with academic matters and did not set out what exactly the exercises were.

(25). The texts are in French, as are all texts of readings, even in the seventeenth century. But this was the English lawyer’s shorthand. It is impossible to be sure at what point the lectures came to be given in English. See Baker, ‘The Three Languages of the Common Law’ in Collected Papers, II, pp. 515-36; Manual of Law French (2nd edn, 1990), introduction.

(26). The indications of a 14th-century origin are considered in 105 SS xxix-xlv.

(27). Moots, p. xlviii n. 223, and p. 50.

(28). E. Coke, Institutes of the Laws of England, vol. I (1628), fo. 280.

(29). In the sixteenth century the benchers achieved control by requiring permission to perform the effective moot. This was known as ‘call to the bar’. When moots disappeared, call to the bar became a graduation ceremony rather than a permission to graduate. Something similar happened in the universities.

(30). For the remainder of this paragraph see Baker, Collected Papers, I, pp. 281-8.

(31). The pupillage fee was still 100 guineas (£105) per annum when the writer was called to the Bar in 1966, but it has since been abolished.

(32). The ‘articles of agreement’ were a contract with a practising solicitor to serve as his clerk. Service as an articled clerk, prior to admission as a solicitor, was compulsory after 1730.

(33). See D. J. Ibbetson, ‘Charles Viner and his Chair: Legal Education in Eighteenth Century Oxford’ in Learning the Law (n. **, above), pp. 315-28. The impetus evidently came from Viner (whose first will was made in 1752) rather than Blackstone.

(34). W. Blackstone, preface to An Analysis of the Laws of England (Oxford, 1762 edn), sig. A2v (modernised).

(35). Ibid. (emphasis added). Blackstone went on to acknowledge his debt to Sir Matthew Hale’s Analysis of the Law.

(36). W. Blackstone, ‘Discourse on the Study of the Law’, prefixed to An Analysis of the Laws of England (Oxford, 1762 edn), sig. B2.

(37). In his will (ibid. 317), the founder of the chair (Charles Viner) lamented that when law students attended the courts at Westminster they were apt to ‘trifle away their time in hearing what they understand nothing of, and thereupon perhaps divert their thoughts from the law to their pleasures’.

(38). Blackstone’s successors, though respectable, did not add significantly to his achievement for over a century.

(39). For what follows see Baker, Collected Papers, I, pp. 290-307.

(40). Collected Papers, i. 297, 298.

(41). The first degree in Law at these universities is still a B.A. Other universities, following the lead of London, call it an LL.B. At the older universities the bachelor’s degree in Law (LL.B., now LL.M., at Cambridge, B.C.L. at Oxford) remains a postgraduate degree, though no longer in Roman law.

(42). This is partly because the number of universities has increased. There are now around 90 offering law degrees in England, compared with fewer than 20 in 1960. But older law faculties have also increased substantially in size over the same period. At present there are over 18,000 U.K. students (60 per cent. of them women) reading for a law degree, besides many more from overseas. Under half of them enter practice.

(43). The Inns of Court School of Law functioned under the aegis of the inns until 1977, when it was taken over by City University. The writer lectured on legal history in Lincoln’s Inn hall in the 1970s. The halls of the inns are now used only for special lectures and events.

(44). There are vocational law courses at Cardiff University, which has been a university since Victorian times, and at four former polytechnics (in Bristol, Manchester, Newcastle and Nottingham) which now have university status.

(45). The College of Law (1962), which had its origin in the old firm of Gibson & Weldon, specialised in preparing candidates for the Law Society’s examinations; it became a private university in 2012, called the University of Law Ltd, and claims to be the country’s largest law school. City University (1966), which took over the Inns of Court School of Law in 1977, became a constituent part of London University in 2016; its law department is now known as City Law School (though it is not in the City of London). BPP University Ltd became a private university in 2013 and teaches a number of professional courses, including law, in several university towns.

(46). The Law Society (with considerable opposition from the profession) has announced that it is going to replace this system with a new Solicitors Qualifying Examination, based on a modified syllabus, in 2020.

(47). For some discussions of the structure of legal education in the recent past see R. Abel, The Legal Profession in England and Wales (Oxford, 1988), pp. 261-81; A. Poon and J. Webb, ‘Legal Education and Training in England and Wales: Back to the Future?’ (2008) 58 Journal of Legal Education 79-118.

(48). English case-law and legislation is now available online, and that is probably how most younger people gain access to it for most purposes. But it is still more convenient to read law reports in physical form when pursuing trails of authority from one book to another and back again.

(49). This title, too, is soon to be abolished and replaced by less succinct ‘two years of qualifying work experience’.

(50). At the time of writing the recommended minimum trainee salary in London is £22,121, but the larger firms actually pay around £40,000. The recommended minimum pupillage award in London is £18,436, but the best sets of chambers pay £65,000-70,000. Trainee lawyers are therefore now paid more than university law lecturers.