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This item is filmed at the reduction ratio checked below/ Ce document est filmA au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 26X 30X J 12X 16X 20X 24X 28X 32X Tha copy filmad h«r« has b«an reproduced thank* to tha ganaroaity of : . Saminary of QutlMc Library L'axamplaira film* fut raproduit grAca i la gtnAroait* da: * SIs, and le profes- >eated. :'se objcc* nd noth- lions on w wliich r to tho 1 hour's ivey in- giving a rofcssor -rsitjin d Dere- y, why I'poreal cry of Henry Deeds, ntrast- xeeu- )eeds ; so on majy, lyone t, and d the have much rgon, 5 and carry away tlic finest subtleties of tlio English Law in tlieir heads, in the Khort period of one liour. 'JMio impossibility is apparent, and hence, the faihiro of tho system, — the only wonder being, that tho acute penetia- tion of Englisii Lawyers passed over, without notice, so glaring an absuidity. Li Kngland, now-a-days, a di(rercnt ])lan is being adopted, as well at the I'niveisities, as at the Inns of Court, at the King's (Jollcge, and the Licorporated Law Society, viz : 'I'o publish a list of works on which tho Lecturer discourses during the hours of Lecture. And secondly, to hold public cxaniiniitions at the end of cuch Session upon the works treated of. In tho lirst system, the Student would scarcely be ablo to take down luilf-a-dozcn notes on the subjects treated of, In tho second, he has tho advantage of being ablo to pre- pare hiinselfi by reading tho text-book beforehand, so thatany difriculticsoncounteiod in the course of hisstudj', can be easily solved and removed by tho Lecturer. With ordinary care and ability, no Student could, un- der this system, fail to pass the requisite examinalion, and at the end of his three year's course, obtain his Degree of Bachelor of Laws, and tho benefit which such Degree confers. And while on this point, I may as well men- tion what such benefits are. Any Student articled to a practising Attorney before 1st March, 1860, will only bo required to serve three years, provided he takes a Degree either in Arts or Laws. If articled after 1st March, 1800, the Student must servo for three years after taking his Degree. And any person having taken a Degree, may be ad- mitted to practise at the Bar in Upper Canada, after having been on the Law Society's Books for three instead of five years, — which is required if no Degree has been conferred — and in case of Degrees conferred in Upper Canada, the Student may be admitted to the Bar at the end of three years, notwithstanding his having been en- i mi •Si' tered on the Law Society's Books before taking the Degree, — provided he was entered prior to 1st March, I860 — otherwise the Degree must be prior to the date of his admission. Having referred thus casually to the system about to be adopted here, and to the advantages which will accrue therefrom, I will now proceed to give a sketch of the dif- ference which exists between the Prpfession in England, in America, or the United States, and in this country ; offer a few remarks upon the different systems ; shall next endeavour to give a slight history of the rise and progress of Law and Lawyers in Canada, and conclude with a few suggestions on the Study of the Law, and the various advantages which belong to our profession. In England, the different branches of the profession are kept distinct and separate. There is no amalgamation between Barristers and Attorneys, as there is here. To a certain extent, the Barrister looks down upon the Attorney, — although in a vast measure he is dependant on him for his success. Indeed, in former days, I believe it was considered highly derogatory for a Barrister — espe- cially if he were young at his profession — to be seen con- versing with an Attorney, as it was considered to be symptomatic of *' touting for briefs." No better illustra- tion of this feeling can be given than by relating an anec- dote of the late Lord Norbury, who, being once applied to for a shilling subscription to bury a pauper Attorney, waggishly pulled out a guinea, and tendering it to the applicant, said : " What ! only a shilling to bury an Attorney ? Here's a guinea ! Go and bury one-and-twenty of 'em." The profession, — as in this country — is divided into, two classes, viz : Barristers and Attorneys, and Solicitors. The difference between these two last being that one practices at Common Law and the other in Equity. There are others who follow special branches of the profes- sion, such as'Prootors, Conveyancers, Special Pleaders, &c. taking the Jst March, tJie date of fn about to wi]I accrue of the dif- EngJand, country • nis; shall ' rise and conclude ■» and the ion. ssion are ?amation ere. a'o pon the idantou eheve it ' — espe- en con- to be Hustra- 1 anec- once )auper Bering to bury hg into, itors. one uitj. ofes- ,&c. la the United States there is no such distinction. The term Lawyer indicates one who practices all branches of the Law. Their practical minds and levelling spirit have wiped out all nominal distinctions in the profession. Their only qualification is live year's study in an office, and the passing of an examination. That accomplished, every avenue of distinction which the profession affords is open to the young candidate, without any questions being asked as to whether he studied as a Barrister or an Attor- ney, at Chancery, or at Common Law. In Canada, the distinctions between the Barrister and the Attorney or Solicitor, are recognised as in England, with this difference, that it is here permitted to practice all three and combine then together, so that the same person may be at once Barriiiier and Attorney and Solici- tor. The advantage of this system has been recognised by high legal authority in England, and strong opinions ex- pressed in favor of our Canadian plan. In a number of the Law Magazine, and Law Beview of last year, the following passage occurs. After referring to the practice of advertising as adopted by Lawyers in Canada, who in a plain straightforward way insert their names as Barristers, Attorneys, Solicitors, Conveyancers, &c., in the different local newspapers, the editor com- pares it to the English dodge of publishing a book, or an Act of Parliament, somewhat after this style : " The " Metropolitan House-maid's Window Cleaning Protection " Act, 1860, with Notes by Job Briefless, Esq., Barrister- " at -Law, Lincoln's Inn." The editor then goes on to say : " In Upper Canada it " will be seen the same men practise both as Solicitors and " Barristers, and form themselves into firms. The prac- " tice is recommended by good sense and reason. Tho " state of society no doubt favors the combination, and " much might be said for the system in England were it " openly adopted with us. A paper issued by the Law 1 8 " Amendment Society, published in 1852, on the relation " between the Bar, the Attorney and the Client, affords " ample evidence of what is the opinion among liberal " minded men in the profession on this subject." Indeed, the Canadian system has been to a certain ex- tent recognised in the High Court of Admiralty in Eng- land. This Court is divided into two Inferior Courts, the Instance Court and the Prize Court, in which Barris- ters and Attorneys practise with equal privileges. It is therefore a matter of great congratulation, as well to those practising the protession, as to those about to com- mence the study of it, that we have a system which in this respect combines the advantages of both the English and American plans — the dignity and learning of the first, with the practical utility and strong common sense of the second. However, on reflecting on the peculiar circumstances under which the practice of the Law was commenced in this country, it will be seen that it could hardly have been otherwise. Now-a-days there is scarcely a village of any note in Canada that does not contain one or two Lawyers, in whose offices some instruction can be obtained as to the practice and principles of the profession, and where suitors can obtain redress. But how different was the case some fifty or sixty years ago. At the com* mencement of this' century, I doubt if there were half-a- dozen Law Books in the country, and there were certainly not a dozen Lawyers. Litigation must have been slight ; but slight as it was, the number of Lawyers was insufficient to meet the demand for their services— so much so that in 1803 Par- liament passed an Act authorizing the Governor to license six individuals to practise Law, and these six, together with the other practitioners, were only too glad to transact any description of business, whether'as Barris- ters, Attorneys or Conveyancers. There was scarcely work enough to earn a livelihood by practising all the - mjfm.'-ni^^ ,*^e relation ent, affords ong liberal 'Certain ex- 'ty in Eng. «r Courts, 'ch Barris. ?es. It is s weJJ to '^ to com- which in 6 English ig of the OQ sense mstances enced in ^'j have lilage of or two 'btained ^H) and ent was B com* half-a. rtainJjr it Was, !t the Par- or to six, gJad arris- rcalj (the branches at once ; money was scarce, and necessity there- fore compelled the adoptiv:)n of the plan now universal in this country of combining them all together, leaving it optional to the practitioner to choose one or more as it pleased him. No doubt the same reasons, co nbiried with the republican element, produced the same result in the neighboring States. When Canada was finally conquered, — that is to say after the Treaty of Pari.: which was concluded on lOth May, 1763, the Englisli Grovernment granted to tne Can- adians, being then an entirely French population amount- ing to about 60,000 souls, the privilege of having their own Laws and Religion, and an Act was passed to that effect by the Imperial Parliament in 1774. At that time Upper Canada was little bettef than a wilderness, and the necessity for bringing English Laws i'nto this part of the Province did not cociir until long after. The Declaration of Independence in 1774, and the con- sequent . war between Great Britain and the United States, drove a great number of loyal British subjects to take-up their abode in that portion of Canada now known as Upper Canada. The population being entirely British, and having increased to a great and unexpected extent fpr the reasons above given, the application of the French Law was found irksome to a great degree, and it soon became necessary to effect a change. ' This was effected through the instrumentality of Lord Dorchester, in 1791, by dividing the Province of Canada into Upper and Lower Canada, and giving to the Upper Province a separate Constitution and Laws. The first Upper Canadian Parliament met in Niagara, then called Newark, on the 17th September, 1792, and at once passed an Act adopting the Laws of England as the rule for the decision of all controversies relative to property and civil rights, ^fhis was the first Act passed, and the second was equally important. It established Trial by Jury for the decision of all issues of fact. I 10 it was not however until the year 1794-, that a Court called the Court of King's Bench was established ; on this Ocurt was conferred "all such powers and authorities as by the Law of England are incident to a superior Court of Civil and Criminal Jurisdiction," and was to be pre- sided over by a Chief Justice and two puisne Judges. The' Legislature having now created a Court, next deemed it necessary to create Lawyers to practise in it, and accordingly passed an Act on the same day author- izing the Governor to grant Licenses under his hand and seal to such and so many of His Majesty's liege subjects, not exceeding sixteen in number, as he should deem from their probity, education and condition in life, best quali- fied to act as Advocates and Attorneys. The Lawyers however, did not increase in proportion as the litigation did, and this is not to be wondered at since there was not the slightest facility for the study of the Law. Consequently it became necessary in March,- 1803, for Parliament to authorize the Governor to create a fresh batch, and he accordingly was authorized to license six other persons to practise the profession of the Law, that is to say, six other individuals of the commu- nity who from thei? known integrity and standing, might safely be entrusted with the ticklish task of purveying Law for the million. This was done solely in consequence of the great dearth of Lawyers who were only increased in number by this means to twenty-two — bearing to the population which then numbered 40,000 about the same relation as Fal- staff 's penny-worth of bread did to his monstrous quan- tity of sack. These men were the germ of the legal profession in Canada, and left behind them descendants who followed it up with signal ability and distinction. I have but to mention the names of a few such as McDonnell, Kobinson, Hagerman, Sherwood, Powell and Baldwin, to verify my remarks. It was in the month of November of this same year I i 11 hat a Court 3 eel ; on this ithorities na 3erior Court 5 to be pre- ■ Judges. '«urt, next f'ctise in it, ii^y author- s hand and ••e subjects, deem from best quali- proportfon 3ndered at 3 study of in March, ' to create lorized to Ion of the CO nun u- •g, might ^rveying ; dearth by this which as Fal- quan- Jegal ?ndauts nctiou. ch as U and 5 year (1803) that a direful accident occurred on Lake Ontario, by which Mr. Justice Coclirane, Solicitor General De Grey, and several members of the Bar, perished. They embarked on board the Government Schooner Speedy^ Paxton, Master, and were all lost it\ a storm on their way from York to rrcsqu'ile. Tiiis further increased the . scarcity of members of the profession ; nor was this got over for several years afterwards. Indeed it was not until the year 1815, that the Bar of Canada obtained any real acquisition in the shape of Lawyers ; but from that date it may be said to have in- creased in nunibers and ability. In that year alone there were admitted to the Bar four gentlemen who all distin- tinguishod themselves in the profession and rose to emi- nence. They were Sir John Robinson, Mr. Justice McLean, Mr. Justice Jones and Mr. Justice Ilagerman. The war of 1812 retarded the progress of the profes- sion, as it did that of every thing else, and I believe all the above named gentlemen, as well as others who subse- quently achieved eminence in our profession, threw aside the gown for the sword, and distinguished themselves as much in the profession of Arms as in that of Law. Amongst them was the late lamented Chief Justice Sir James Macaulay. In those daj^s people in Canada laboured under what would be now esteemed terrible privations. There were no Kailroads, no Telegraphs, scarcely means of public com- munication, no public Colleges, no Universities, and but fe\\ *^chools, no means of obtaining a liberal education such as Canada is blessed with at the present da}^, com- munication with England, or the old country, as it was and is still fondly called, was scanty nnd uncertain. There were no public libraries in the country, at which the earnest aspirant after legal knowledge might slake his thirst, and it could only have been by the exer- cise of indomitable perseverance and application that ^he men above mentioned ev* • succeeded in attaining 12 their rank — but then there were giants in those days. As an instance of the difRculties in the way of obtaip- ing legal education, it may not be out of place here to mention that my own father, the present Chief Justice of the Court of Common Pleas, when a Student, had to walk ten miles of a mornirg to his office, and ten miles home again at night ; and for the first two years of his appren- ticeship, the only works he could obtain to study were a few musty volume?^ of Reports, and a volume or two on Practice, but not a single Text-book. This was in' 18-22, and it was not until this year that the Law Society, although duly authorized in 1797, became incorporated ; since which period it has gone on steadily increasing in wealth and numbers — and some idea of the progress made by the Society since that time, may be gathered from the facts that it possesses one of the handsomest buildings in Upper Canada — perhaps I migh* say in America — in which the highest Courts of the land hold their Sittings, that it posscwsses the finest library in Canada, and that the number of its members, exclusive of Students, amounts to nearly 40jO. Our country during the last half century has undoubt- edly made vast strides forward in the march of civiliza- tion, and it may be safely asserted that the profession of the Law has kept pace with the requirements of the age. Our Judges would be an ornament to the profession wherever their lot might be cast, whether we regard them as belonging to the superior Courts of Common Law and Chancery, or to the local County Courts. They need no eulogium at my hands, — their works speak for them- selves. Indeed, in this couiitr}'-, an incompetent Judge could not stand before the array of the Bar and the expo- sure and denunciation of a free and powerful Press. As for the members of the profession themselves, stim- ulated by such laudable examples as the Bench affords and the ample rewards in store for them, whether in the shape of ernoli^ment or places which alone can be filled 13 by professional men, and spurred on by that generous suirit of emulation to excel in all that is good and honor- aole, they hold as high and creditable a position in the land as their brethren in England and America, or as the members of any other profession in this country. Our system of Jurisprudence has within the last few years undergone some great and beneficial changes. Amongst the great reforms which have been effected, not the least is that accomplished by the Common Law Pro- cedure Act, 1856, and the subsequent amendments thereto ; the increased Jurisdiction of our County Courts, and the re-modelling of bur Municipal, Jury and Assess- ment Laws* The actions of Ejectment, Dower and Replevin have also been greatly iniproved. The passing or the Eject- ment Law, however, was the melancholy cause of putting t an end to the career of two eminent legal characters and cast a deep gloom over the minds of many older practi- tioners. I allude to the demise of those two most res- pectably litigious characters, Messrs. John Doe and Eichard Roe, whose apochryphal existence was by this means ruthlessly terminated. The only Law which has been varied for the worse, mejudice, during the last few years is the Law of Primo- geniture, by which the lands of a man instead of descend- ing at his death to his eldest son are now equally divided amongst all his children — and I greatly fear that, unless altered, future generations will have reason to curse the Dame of the man who took it into his head to tinker this old settled system. A more fruitful source of litigatioa can scarcely be conceived. The Common Law Procedure Act of 1856, has also effected great reforms in the way of reducing redundant pleadings, in affording speedier remedies on Notes and Bills of Exchange, in enabling parties to come before the Court with special cases without pleadings, in granting the power of Injunctions to the Superior Courts, and divers other mat- 14 ters too numerous to mention. Indeed were I to diverge here into tiiis well beaten track, there is no knowing where I should end, so I'll turn back. Having now cursorily discussed these various topics, let me recur to the last point of my lecture, viz., The Study of the Law, to which, in a degree, all these prior remarks have been tending. In former years admission to the profession was gained^ with but little dilBculty. The examinations wereconductedy in a loose, careless way, by the Benchers Occasionally, they were very strict, but more frequently the reverse. It, is quite different now and no child's play. The enormoua: numbers of applicants has compelled great caution to bo*, exercised in admitting Students to the Society and still^ more in admitting them to practise. Instead of leaving the matter of examination in the hands of the Benchers them- selves, there are now Examiners who look strictly after the Student's qualifications, both on entering the study of the profession, and on entering the profession itself. The practice of the profession was formerly carried on u a lax manner, whilst now, from the increased number ot practitioners, increased strictness in practice is required. < This strictness on the part of the Law Society in ad< mitting them, and of the Profession in their daily prac- tice, must necessarily entail increased exertion on the pari of the Student. The benefit however corresponds to the exertion. Ther( is no profession in this country which offers so many bril, liant prizes, — if I may so term them, — for free and fa competition as that of the Law. For instance there ar three Judgeships in the Qiieeus Bench, three Chancery * Judgeships and three in the Common Pleas. There are-^. thirty-one County Court Judgeships and as many County;.'^ Attorneyships. There are four offices of Recorder, severj^ ' Deputy Judgeships, besides the offices of Clerk of thd- J Peace, all of these with handsome salaries, and all must b«r' filled by Lawyers. ti 15 Let the Student commencing to learn his Profession, and gazing upon all this list of prizes, reflect strongly on the only mode by which they are attainable — industry and application. The studies by which a man may gain the summit of legal excellence are infinitely varied. There is scarcely a subject in the world, however rare or extraordinary, which may not become matter of investigation before a Court of Law. A Lawyer ought therefore, besides being well versed in the principles and practice of his Profession, to be well read on all subjects ; for it is impossible to say when his knowledge on some out of the way point may not be called for and useful. Industry and application, I need scarcely repeat, are among the chief qualities. If the Student cannot bring his mind down to habits of patient labour, he will never succeed at the Law. " To attain eminence in the Law," says Mr. Baithby, " is to achieve great honor, but the labour is pro- *' portionate." The facilities too which are now-a-days afforded to Law Students ought to stimulate them to far greater exertions in preparing for their Profession. As I said before, fifty or sixty years ago there was scarcely a Law-book in this country. Compare that with the advantages possessed by the Student of to-day, who has all the means and appliances to boot, for perfecting himself in his studies. Let the Student again reflect on the industry and appli- cation of the Lawyers of former days and the high and hon- orable positions which some of them now occupy, and here is an additional incentive to exertion. There is one qualification for the practice of Law as a Barrister which I must allude to before concluding. It is readiness, — the ability to encounter difficulty with quickness and generalship. This is a great test of fitness. An in- competent person is quickly detected, and is, as a matter of course, immediately deserted even by his most zealous friends. The Bar is a field of intense rivalry, of eager con- 16 test for distinction. Whoever adopts it for His Profession must take for his motto " Proprio Marte^^ and must rely entirely on his own mental exertions from the moment of starting till ho reaches the gaol — " If you give way " Or edge aside from the direct forthright, " Like to an entered tide they all rush by " And leave you hindmost." Patrotis are of little, value to a Lawyer. No Judge or friend can push him up beyond a certain point. He may rise lik^ a docket, but he will fall like a stick, unless supported by his own inherent powers. And now, in the words of the celebrated Sib Edward Coke, in his Commentary on Littleton, I will say, " And for a farewell to our Jurisprudent, I wish him the gladsome light of Jurisprudence, the lovelinesse of Temperance, the stabilitie of Fortitude, and the soliditie of Justice." February 4th, 1861.