For many years legal education remained, almost exclusively, in the hands of practicing lawyers. The law school, when it was first organized by a combination of the more capable of those already interested in this phase of professional activity, was essentially an advocate's training school, in which the neophyte was trained by the practitioner in the active duties of his calling. Of late the professional educator has begun to replace the advocate as an instructor upon the law. Approaching the subject of legal education from different view points, their conclusions aré inevitably conflicting. Each thinks he alone is entitled to speak authoritatively, while as a matter of fact they are talking at cross-purposes.

The modern university, which now finds its interest in those aspects, chiefly, which approximate the law more nearly to the allied branches of learning embraced in the curriculum, succeeded but quite recently in inducing the law school, through the supposed advantage of a university connection, to surrender its independence, and become what is now known as the university law department or school of jurisprudence.

The misleading analogy between law and medicine, largely responsible for this extension of the field of university activity, is also explanatory of the typical attitude of the university school of jurisprudence to the practicing bar. The law school was originally in the closest and most intimate touch with the latter, and but remotely affected by the methods, ideals, and habits of thought prevalent in purely educational circles.

The reverse is now the case. Training in the conduct of litigation is largely relegated to the post-graduate apprenticeship at the bar, as being of mere secondary importance; while investigation in the field of jurisprudence is, of the two, con

sidered the more dignified and least indispensible. The persistence of the old type of law school, conducted by a faculty of judges and practicing lawyers, surviving now principally as the night school, is greatly deplored by the professional educator of the university law faculty. It is the aim of what follows to call attention to what would seem to be the mistaken zeal of the latter in the effort to reform the old type school out of existence, the method employed for that purpose, and the duty of the practicing bar in the premises both to the general public and to its successors in the active duties of the profession.

By way of preface merely, it may be here said that tendencies rather than existing conditions will be discussed, and that in the present transition period of development, wherein the school of jurisprudence tries to combine training for actual practice, and the mere law school dabbles in jurisprudence, it is futile to attempt to discuss the relative merits of the university department of jurisprudence and the night law school. Moreover, the nonpracticing faculty of the school of jurisprudence will continue to believe that a knowledge of the science. in which they are skilled is of more fundamental importance to the student than a mere practical training in an art of which they are ignorant. The practicing lawyer, on the other hand, is in danger of under-estimating the practical utility of a science in ignorance of which he has himself succeeded well at the bar.

Certainly but little light is shed upon the relative importance of juridical science and of what Blackstone called "the municipal law," to insinuate, as did an English judge recently, that the jurisconsult is a man who knows something of the law of every country in the world except his own; or, on the other hand,

to refer contemptuously to the practitioner as a "mere bread and butter lawyer."

It is neither to the night school nor to the university school faculty that we, as practicing lawyers, wish primarily to address ourselves; but to the bar, which has no legitimate concern with the special view points of either, but which has been the recipient of so much kindly meant advice from the official representative of the university school idea, the Association of American Law Schools, that a little more from another equally interested quarter may not be ill received.

Jurisprudence and Advocacy.

The science of jurisprudence, like political economy, forms a part merely of the science of sociology. To the mere advocate, not attempting a more scientific definition, it appears to consist in those higher generalizations which are deduced from analyses of particular social activities, past and present, which, in the less advanced as well as in the more civilized communities, have crystalized into various systems of positive law. For the successful study of this science a firsthand acquaintance with ancient and modern systems of positive law may well be necessary, and the student should undoubtedly be possessed of an acquaintance with the languages of Europe, and perhaps Latin, Greek, Hebrew, and Sanscrit, wherewith to seek at the very sources and foundations in history the common beginnings of these now more or less divergent systems. Not only this, but a mind trained in scientific methods and philosophical speculation is needed. The science is a noble and important one and may do for various systems of positive law what a knowledge of the chemico-physical sciences have done for the industrial world and the biological sciences for the medical profession.

Moreover, even the most jealous practitioner must concede this distinct advantage to the jurisconsult over the adviser upon municipal law, that it is not necessary for the protection of his clients that the former should have drunk deep of the Pierian spring. Perhaps the fertility of resource in the active practice, which in some of these gentlemen seems to exist in inverse ratio to the learning displayed in their juridical writings, may be attributed to that barrenness, which, in the field of intellect, as in that of husbandry, is too often the result of over cultivation.

It is a hopeful sign that some of our better and older universities have given to this science a subordinate place in the university curriculum intended to cover, as far as may be, the entire field of human learning. Just what and how long a preliminary training in allied branches of science the student or instructor in the science of jurisprudence should have, in order to co-operate most fully with the facilities for knowledge and research offered by the university school of jurisprudence, is a matter upon which the writer feels that he is entitled to express no opinion. His familiarity with the science of jurisprudence is less even than the mere smattering of allied branches of science of which, in common with the average practitioner, he finds but dim traces after a few years' separation from the university and active devotion to the exactions of the profession. As a mere practicing lawyer he can feel only admiration for the cloistered scientist who devotes time and energy to the pursuit of learning and the discovery of great fundamental principles destined some day to react upon the practical administration of justice and the framing of wiser laws. While, of course, there is comfort in the thought that many valuable contributions

to the science of jurisprudence will continue to be made by those unconnected with any established seats of learning, just as similar contributions have been. made to physiological and chemico-physical science by investigators unconnected with the faculties of any of the continental or American universities, it is undoubtedly true of the one science, as of others, that these seats of learning will continue to be the center of organized activities in these directions, and that the prospective jurisconsult must seek preliminary equipment in the scientific schools of the university. Vacancies upon their faculties will inevitably be filled from the ranks of those who have achieved eminence in this science, or who have been fitted as teachers by successful preparation in the university schools of jurisprudence. Moreover, the faculties of such schools will be jurisconsults, legal scientists, juridical writers, not mere practicing lawyers, who have neither the preliminary training nor the time to devote to the pursuit of such studies. The school of jurisprudence forming an appropriate part of university education and research will be exclusively under university management, have a university faculty, conform to university standards, and aim at university ideals.

It might at first seem that all this, however much a matter of concern to the university educator,. is, except so far as it may from time to time avail itself of the fruit of his labors, of but secondary interest to the bar. This would indeed be so, but that the bar is being instructed by these gentlemen in its duty to the public, and as an antidote to its alleged present decadence, a persistent effort is gradually being made to have the bar impose upon candidates for admission to its own ranks the same requirements

thought to be indispensible in the matriculant at the university school of jurisprudence. It is to this action that your criticism is here invited.

There is at least one subject concerning which the practicing lawyer, but little qualified in the science of jurisprudence, can speak with an authority born of first-hand knowledge and experience not shared by the worthy college professor, that is, the art of advocacy in American courts of justice. To the practicing lawyer, the law is a living force employed in adjusting the quarrels and grievances between citizen and citizen, and is the bloodless substitute by which civilization has replaced self-help and the wager of battle. Our system of positive law, substantive or procedural, represents to him a growth more often injured than bettered by superficial efforts to improve upon those complex and but ill-understood natural laws, by the operation of which, in respect of municipal law as of commercial custom, a civilized people tend rapidly to adjust themselves to their changing social and industrial needs. Regarding positive law, courts of justice, and advocates as being, at best, an evil made necessary by the ignorance and passions of the community, the practitioner concerns himself but little with the law as a field for scientific research, but devotes his activities to performing well his subordinate though important part in the working of its machinery. He has but little time, for instance, to consider improvements upon the system whereby under the guidance of the moderator of its proceedings, and with the assistance of advocates who see to it that the most favorable aspect of each side of the controversy is presented to it, the jury are enabled to square their ultimate verdict with the felt sense of right of the community of which they form a part. It is

true that there are certain general principles of natural justice and even of expediency, which, in our system, as in all others, tend to become fixed as rules of positive law, but the practitioner will find a knowledge of comparative jurisprudence of little avail to restore to him his once important role as a moulder of precedent. As the customs of the people adapt themselves to newer and more complex industrial and social relations, the demand for the modification of existing law and procedure is responded to by the Legislature.

The phase of development by legal fiction is passing away. The Legislature is becoming the sole lawmaking power.

The people have had enough of the artificialities of judge-made law, whereby, for instance, they find themselves plundered through the instrumentality of fictitious beings existing only in contemplation of law, but which, in the contemplation of the laity, seem to exist, in many cases, only to provide immunity to the evildoer on a large scale.

It is then no longer the lawyer at the bar, but the lawyer in the Legislature, who guides and controls the current of legal progress and reform, and it has long been a grief to the judicious that any should be elected to legislative office who, in addition to a practical and firsthand acquaintance with the social and industrial needs of his constituents, has not also a profound knowledge of political science and jurisprudence. It were well indeed if some association of American schools of jurisprudence could persuade the state Legislatures and the Congress of the United States to bring about suitable constitutional amendments, whereby no candidate for a seat. in Congress, or in the state Legislature, should be eligible unless he held a degree in jurisprudence from one of the members of the association. For the mere

practitioner, in his humbler occupation of trying particular cases according to established rules of law, instead of blazing out broad policies to meet general conditions, his requirement is that demanded of others in practical walks of life, to know his business and be skillful and diligent in its performance. Beyond that acquaintance with the history of the law which the perusal of Blackstone and a few of the commentaries upon the English common law have given him, and that acquaintance with the particular rules of statutory or customary law which, in a particular instance, he has acquired in his search for precedent and the preparation of argument, the average practitioner has little acquaintance with or need for the science of jurisprudence. For the rules of law by which his particular case is to be decided, he consults his. statutes and the precedents; for the discussion of broad general principles, the text-book and the commentary. To him. analysis is far less important than synthesis. He does not spend his time in analyzing general principles, but in building up his particular case, with his pleadings and his evidence, with a view to bringing it under some established principle of law, or some analogous rule or exception to the rule, which will result in a disposition of the controversy favorable to his client. It remained for the distinguished laity of encyclopædic knowledge and universal attainment to discover a secret hidden from the bar and bench for six centuries, that is, that the advocate's duty is not to his client or his cause but to the general public. The advocate's school in this process of synthesis, like his school in forcible argument, whether upon the law or the fact, is neither the night school nor the university school of jurisprudence, but the law courts and the law of fice. His legal training bears to his after success as an advocate about the same

relation that a business training school or course in trigonometry does to the merchant or the sea captain. Nothing that he has learned in school is useless to him, either for the knowledge which it has given him, or for the mental training incidentally involved. On the other hand, most of the things that he knows, and which are of paramount value to him in his calling, he has learned by experience, and are such as, from their very nature, could not have been acquired in any school. The college of chemistry can make a first rate chemist because it has a chemical laboratory wherein the student may analyze and synthesize, with the same subject-matter for his experiments, as well in the college as in the laboratory of the manufacturer, who in after life engages his services. The young doctor, even, may dissect the human body in the college dissecting room and the college clinics at hospitals as well during his period of study as after; but the lawyer cannot exercise himself in the law school library, in building up a case from the fragmentary, and often contradictory, testimony of documents and human. witnesses. Wherever the school can provide a laboratory for the analysis or study of the inanimate world; or, in its biological laboratories, for the study of living animals and vegetable organisms; or, of human beings in the clinics or dissecting rooms, which are the doctor's laboratories; it can turn out students completely equipped for their life work. When the law school can provide a laboratory in which the average jury and the average judge will decide, according to their lights, real controversies between real litigants, then the law school will occupy to the practicing lawyer the relation that the university schools do to the practitioners of other arts and sciences. The law is largely empirical.

From what has gone before it will be seen that the mutual repugnancy between the university law school, its educational ideals, its faculty of nonpractitioners, its methods of instruction, the character and requirements of its student body, and the objects and methods of the night school conducted by practitioners, is as wide as that between the world of books and the world of realities that lie outside and beyond it.

Proposed Remedies for the Decadence of the American Bar.

It is, on the whole, not surprising that the practicing bar has heard, with some amusement, the story of its degeneracy, and, with some little indignation, the offer of these university gentlemen to lift it to their own level of academic morality.

The bar is told that its duty is to see to it that it exclude from its roll of attorneys the dishonest and incompetent. This is indisputable. The suggestion is then delicately thrown out that the undesirable of its members will be found chiefly among the graduates of night schools, conducted by judges and practicing lawyers, who were thus handicapped in the beginning by being deprived of the inspiration of personal contact with the nonpracticing faculties of association schools of jurisprudence. This is a rather cheering thought for the practicing lawyers and judges connected with the night law schools of the country.

Let us consider for a moment the alleged decadence of the bar, the remedies proposed by the Association of American Law Schools, and, lastly, the remedy, if any is needed, which lies in the hands of the bar, and its duty to itself and the public in this connection. Is it true that the American bar is degenerating because of the large number of noncollege men found among its membership? Where