otherwise, is not only competent, but better adapted to the conduct of his case than a barrister ordinarily is; but, wherever he does so appear, he should consistently maintain his own proper character and position. An attorney has not, any more than an ordinary agent, a right de facto to act as advocute for his own client'; nor does any act of parliament that we are aware of confer this right. The Prisoners' Counsel Act, as we have seen, merely enables the attorney of the accused to examine the witnesses. The Small Debts Act only enables the attorney to appear for the suitor, qua attorney 2; and the provisions of the Bankruptcy Court Act on this subject we have seen are repealed.

If, then, an attorney or solicitor has not even a right to advocate the case of his own principal or client, his authority to act in the mere character of advocate rests on a much weaker foundation. We conceive, that, however for convenience sake the litigant or the defendant in an inferior court may on a given occasion have his case advocated by his attorney, and however the judges may by a peculiar indulgence hear at chambers a certificated special pleader on a summons which assumes to bring before them the party, his attorney or agent, it should never be lost sight of that the privileges, functions, and duties of advocates, pleaders and counsel, by the common and statute laws of this country, all come within the exclusive province of the Bar.3

1 See Lord Tenterden's observations in Rex v. Borron, 3 B. & Ald. 438. 29 & 10 Vict. c. 95. s. 91.

3 We have thus opened a subject which, if we mistake not, is likely to occupy much of the attention of the profession. There seems to be a conflict of judicial opinion in England and Ireland as to whether a barrister, after practising as such, by serving articles while a barrister, can become an attorney, although he was disbarred before the application. In England the Court of Queen's Bench has decided that he cannot. Exparte Bateman, 6 Q. B. 353. In Ireland there is a very recent decision to the contrary; and we are informed, while we are discussing this question on this side of the globe, it is curious that it is now occupying the attention of the bar and the public of New South Wales, where a bill for the amalgamation of the profession, as it is called, had on our last information (May 17.) all but become the law of that large colony. The debate in the Legislative Council on the second reading of this bill is not uninstructive to the mother country, as we find it reported in the Sydney "Morning Herald" of the 26th of April :

"Mr. Wentworth said, It would be remembered, the bill, of which he was

ART. VII. — ON THE RIGHTS OF PROPERTY
CONNECTED WITH RAILWAYS.

No. I.

WITHOUT giving in our adhesion to the doctrine that to railroads, and railroads alone, the great constitutional changes

about to move the second reading, was brought in last session pursuant to the recommendation of a sub-committee, to whom was referred a bill brought in by Mr. Brewster, the object of which was to, what has been termed, amalgamate the two branches of the legal profession. The Committee found that the bill opened up a much larger field of inquiry than they had time to go into, and they therefore confined themselves to one branch of the subject, and this bill was the result. Instead of amalgamating the profession, as had been proposed, the Committee recommended, that, as there was at times considerable difficulty in procuring the attendance of barristers at the Assizes and Quarter Sessions, attorneys should have the privilege of acting as advocates in these Courts; and the first clause of the Bill was framed in accordance with that recommendation, reserving, however, the privilege to criminal cases. It had been stated, when the Bill was previously before the House, that it was not the intention of the Committee that there should be this restriction, and that he had mistaken the intention of the Committee, who intended that attorneys should practise in civil as well as criminal cases. If this were so, it was an error that could be easily amended in committee, and the right extended to all classes. The second recommendation was, that youths educated in the Colony should have the power of being called to the Bar without going to England: this he considered the most important clause, and one highly conducive to the interest of the Colonial youths. The third object was, to give to attorneys admitted in the Colony, and who have hitherto had no power of electing to which branch of the profession they will belong, the right of being called to the Bar. The reason why this privilege was not given to English attorneys was, because they might, if they pleased, have elected to become barristers, and they did not do so, while the Colonial attorneys had no such advantages. The next clause referred to the examination persons were to undergo before being called to the Bar. Another feature in the Bill was, to render it competent for any barrister to be disbarred and admitted as attorney. It had been said that this was unjust, as English attorneys were not to be admitted to act as barristers, and he thought there was some force in the objection; as there was also in another that he had heard, that to admit attorneys to act as advocates in the Quarter Sessions would preclude barristers from acting there at all, for the attorney will be able to consult and look after his client, while the barrister can have no communication with the client except through the attorney, who may himself act as advocate. It would be seen that there was a great difference between the provisions of this Bill and one for amalgamating the profession. The principal argument that was made

which have happened on the Continent are to be ascribed, we think it highly probable that they have had some effect in

use of in supporting that Bill was, the great saving of expense there would be in consequence of its being only necessary to employ one person instead of two, and undoubtedly if this saving of expense would take place, it would be a reason for preferring that measure; but so far as the evidence of the older and more respectable members of the profession went, it was shown that no such benefits would accrue, and that when, as was formerly the case, the profession was amalgamated here, the bills of costs were as large as they are now. It was also shown by Sir Alfred Stephen, that in Van Diemen's Land, where the profession is not divided, the expenses are not smaller than they are here, and, in fact, there would be no such reduction in the expense as was anticipated. It did not follow, that because a person was competent to act in both divisions of the profession, he was to be paid for acting only in one, and the evidence showed that he would be invariably paid in both—he would be paid for the labour of himself and his clerks as an attorney, in preparing briefs and opinions, and then receive a fee for action as advocate in Court. The expense would not be diminished, but the efficiency of the profession would be curtailed. The standard of the profession would be lowered, and if there was any saving, it would be more than counterbalanced by the entanglements and evils in which suits would be involved from the inefficiency of the profession; and this was the opinion of the most talented and respectable witnesses that were examined, and of the judges of the land.

"Mr. Dangar would second the motion; but he did not feel that it went far enough; it did not touch the great evils of the present law system. The Committee, of which the honourable member was chairman, should have laid down some plan by which the enormous amount of bills of costs could be checked. The honourable member spoke at some length in favour of allowing attorneys to appear as advocates in civil as well as criminal cases on circuits, and advocated the general question of the amalgamation of the profession.

"The Attorney-general regretted that he could not altogether support the Bill which had been introduced, although a member of the Committee by whose direction it was framed; and he must take the opportunity of attesting the pains and assiduity with which the honourable member for Sydney, as Chairman, conducted the inquiry, particularly as to the possibility of diminishing costs; and on that point he would refer the honourable member for Northumberland to the last page of the Committee's Report, where he would find the following passage: —

"Your Committee, in reference to this subject, have only further to observe, that it is not by degrading the legal profession in the way proposed that the expense of litigation can be reduced. This evil, if it exists to the extent complained of, would not be mitigated, but increased, by the introduction of measures tending thus to degeneracy in the Bar and the Bench; since it is upon their learning, their character, and their integrity, that society is, and must ever be, mainly dependent for the vindication and conservation of all that is most dear and valuable in social estimation. The sure way of attaining this great end— the cheap, as well as the due dispensation of law, is, after making provision 'to

producing, at all events in hastening, these changes. The iron highways have effectually changed the face of the Continent,

secure,” in the words of that eminent jurist, Judge Storey, “the upright and enlightened administration of justice, by encouraging talented advocates to fit themselves for eminence at the Bar, and by supporting with liberal salaries the dignity, the virtue, and the independence of the Bench," is to cut down the oppressive fees which are exacted by the Government from suitors, -to get rid of the senseless jargon and prolixity of some of the forms of law, - to do away with those subtleties and niceties which are the groundwork of so much technical and expensive argument in Court on matters not at all, or but slightly, connected with the real merits of cases, — i -to abolish all useless forms, — to cut off all sources of delay, — to establish a larger summary jurisdiction in the Supreme Court in cases sounding in debt, — to regulate bills of costs in all departments of the law, and subject them in every instance to due taxation, to give the Judges a summary power of saddling the practitioners of the Court with the payment of all costs resulting to clients from negligence or ignorance, — and, above all, to thoroughly cleanse out that Augean sty, the Court of Equity, and, instead of the prolix, dilatory, and expensive system which prevails there at present, to introduce a concise, simple, and expeditious mode of proceeding, suited to the wants and means of the community at large.

"This would show that the Committee did endeavour to go to the root of the evil; but they did not believe that breaking down the barrier between the two branches of the profession would attain that object. If honourable members had read the evidence, particularly that of Sir A. Stephen, who had had experience where the profession is in theory amalgamated, they would see that to do away with the division would not cheapen law, but would be injurious in other respects. It was also shown, that in the United States, although the profession is not separated in theory, it is in practice. It might be recollected that Mr. Brewster quoted from Buckingham's America' to show that the profession is not divided there; but he had only read a portion of the passage, or he would have found, that in practice the profession is as much divided there as in England. In the Supreme Court of the United States, the same persons who act as attorneys do not act as counsellors, but in the state of New York there is no division in theory; but what was the practice? (The honourable member here read two extracts from Buckingham's “ America," showing, that when a young man is admitted as a lawyer, he does not at once commence acting as a counsellor or advocate, but confines himself to the duties of an attorney until he has acquired a standing in the profession, while some never practise as counsellors at all.) There are in New York seven hundred lawyers, none of whom have a less income than from 600l. to 7001. a year, and the smallest fee for a barrister is 100 dollars, or 201, and the largest in ordinary cases 500 dollars, or 100l., but in a special case, where a counsel had to go far from home, 25,000 dollars, or 5000l. has been given. This showed the amount of fees given in America, and he might mention, that when Sir A. Stephen arrived here, he was surprised at the small amount of fees that were given. It is quite certain, that the fees that barristers get now are much smaller than were given before the division of the profession, when attorneys had to mark their own briefs: and it was quite a mistake to suppose that the amalgamation of the profession had caused any

and certainly the present constitutions which have been given to most of the great German and Italian states, cannot more

diminution of expense. He did not think the recommendation, on the Report of the Committee, that attorneys should be allowed to practise in the Courts of Quarter Sessions and at Assizes was borne out by the evidence. He had never seen any want of barristers at the Assizes, but he had known a barrister employed from morning to night defending a prisoner, whose case he had undertaken at the request of the Judge, without any fee, and employing as much zeal as if he had received 100l. with his brief. But if attorneys have the proposed privilege, no barristers will go to the Assizes, the attorney and barrister will not be on fair terms; the attorney can go into the gaol and secure his client, and as he will not be likely to underrate his own services, he will seldom think the prisoner has more money than will remunerate him, and he will step into the barrister's shoes and conduct the case; and he would ask any Gentleman, who was conversant with the subject, whether he thought country attorneys could conduct their clients' cases as effectually as barristers could? At the Quarter Sessions, at present, if there are not two barristers present, attorneys can act as advocates, and, so far as the public is concerned, he did not think more was required. It was asked, if attorneys were admitted to act as advocates in criminal cases, why should they not do so in civil, and he could not see why the difference should be made; but if they were allowed in either, barristers would not go at all, and in the event of any heavy civil case in which barristers were required, they would have to be sent for and specially retained at a heavy expense. He was authorised to say that there had been a meeting of the Bar on this Bill, and they were unanimous in opposing the first, second, and seventh clauses: they entirely agreed with the principle that the Colonial youth should have the means of being called to the Bar, without going to England, but it had been suggested, that, instead of the mode proposed, their admission should be entrusted to something like an inn of court, to be composed of the judges, and some of the older members of the profession. Although he agreed to the principle, he would say, that any person who had the opportunity of sending his son home to be called, would be treating him with injustice if he did not do so; for, in the first place, as a British barrister he would be entitled to appear in any court in the British dominions, while he would have the advantage of those collegiate and scholastic establishments, we shall not have in this colony for a long period. He wished it to be understood, however, that the Bar were most anxious to assist in this matter in any way that they could. As for the clause allowing a barrister to be disbarred and become an attorney, it was repudiated by the profession as an insult, there was no one would accept it. He would be sorry to vote against the second reading of the Bill, for there was a principle in it he approved of; but in its present state he must do so, and he would put it to the honourable member whether it would not be better to withdraw the Bill until a clause respecting the admission of Colonial youth could be matured and brought in, which would only occupy a few days.

"Mr. Lowe (of the Colonial Bar) considered that it was impossible to legislate on this question, without having some principle on which to act, and on that principle the House had avoided giving any opinion. He was favourable to