tions, and exercise the discretion which must be invested somewhere. That such a jurisdiction would be difficult and embarrassing there can be no doubt, and most difficult and embarrassing at the outset; but it should not be denied. Experience would diminish these incidents, and suggest the limitation of interference. Nothing can be so bad as the present position of affairs, which in the delusive expectation of protecting creditors, opposes hindrance to the best and most prudent means of enterprise, because in a proportion of cases there may be failure or fraud; instead of counteracting such tendencies by special means, that will not defeat the main object, and contrary to the general policy of the English law, which is to allow free action, and to visit irregularity by punishment or retribution. Doubtless the parties, by whose fraud or negligence or want of skill, the interference of the court is rendered necessary, ought to bear all the costs and other consequences; but it is on all grounds unwise and unjust to establish a system of denial of justice on account of the incompetence of the court and its machinery, rather than to remove, by continual efforts, the causes of incompetence, the best means of which cannot be discovered but by continual struggling with difficulties.

In supplying such a special tribunal it is not necessary that new functionaries should be created. Some of the existing functionaries might be put in a new attitude; so organised and so disposed that their attention and their efforts may be concentrated upon the subject matters of their jurisdiction, and that the proceedings may not only be fully and distinctly recorded in an accessible shape, but the attention of the public may be directed to them.

The work', the title of which is prefixed to this article, contains striking remarks on the importance of the Partnership en commandite, and an appendix, comprising copious statements of the views upon the subject entertained by leading commercial men, bankers, and lawyers, together with full details of the requirements of a law for realising this description of partnership. Its illustrations of the necessity

ED.

We are indebted for this work, we believe, to Dr. Shelton Mackenzie. —

of some remedial process by which small people may make head against the monopolising tendency of powerful firms, and of the suicidal results of such monopolies, examples of which are familiar, in the recent bankruptcies of merchant princes, who were wont to be our boast and our pride, fortify the principal suggestions, and deserve peculiar attention. In truth our strength lies not in a few splendid houses absorbing all trade, but in the multitude of smaller energies and industries pervading the nation and its dependencies. The opening of trade since the war has had the effect of paralysing the established houses of the provinces, whose fixed engagements rendered them unfit to cope with the freer enterprise of fresher and more active competitors. If the law of partnership en commandite had existed, they might have transferred these fixed engagements to commanditaires and encountered the competitor with greater strength and ability the strength of established credit, and the ability resulting from better experience of the field of enterprise. As it is, one after another has fallen, and hundreds are destined to fall, if the legislature do not interpose by relaxing the severities of our system of partnership. To us the consequences appear appalling. We cannot but look upon the destruction of houses of good credit with the fear that our middle class may lose much of its respectability. A succession of hot adventurers, starting without capital, character, or credit, dashing on for a few years in a showy run of business, and flying at last to the Court of Bankruptcy for relief from overwhelming obligations to begin again in a like career, will go far to destroy our commercial position, and our political position also, for with the loss of personal credit must come a spirit of adventure in public affairs which will render all things unstable.

The rapid processes for the recovery of debts, and for the relief of insolvents and bankrupts, together with the fast doings of all kinds, make it peculiarly necessary that all honest and well-intentioned houses, that are not yet despoiled by the ruthless and unscrupulous course of competition, should be enabled to protect themselves, as best they may, by proper partnership arrangements. The laissez faire principle applies

here with peculiar force. It is not asked that the legislature should create new rights or abrogate old ones, but simply to enable the public to make what conventions it can or will, and then to afford the proper judicial and administrative means of realising and enforcing these conventions, even although it should be to fly in the face of some doctrines or practices of Courts of Equity.

It matters, however, very little to the commercial people what the cause may be; they find their energies trammelled, and are struggling to escape. It pleases them to think that by reducing the State to their own poor condition of helplessness they will obtain their object; but probably, after having weakened their institutions, they will discover that they should have strengthened where they have crippled, and that it would have been better to tax themselves to find the means to unloose their legal trammels than to spend so much effort in destroying the consequences of past abuses universally admitted, universally repudiated, and suffered to exist, only for the life of present possessors, for the sake of that principle of security with which we have hitherto invested, not only the rights of property, but the rights of industry. We believe that the amendment of the law of partnership, and the means of administering that law, would, having reference to its effects on the energies of the people of this kingdom and its dependencies, be of far more importance than even any reduction of taxation and expenditure which we can make during the present generation. We say the Law of Partnership, and the means of administering that law-not a dry act of parliament, but the practical sanction which it obtains by the aid of Courts of Judicature acting promptly and wisely upon principles founded on the nature of the engagements, as determined by the exigencies, of the people. The legislation of the past session has given practical means of working such matters to some and a great extent, but the principle is either wanting or not yet declared ; and we repeat, till partnerships (partnerships en commandite) can be freely made, with the full sanction and recognition of the legislature and the courts, this well-spring of wholesome commercial energy will not flow rightly.

ART. VI.—THE PROVINCE OF THE BAR IN ENGLAND.

[The present forms but one of a series of articles which we hope on future occasions to resume, on the subject of the Laws, Regulations, and Usages practically affecting the English Bar.]

UNLIKE the system that prevails in most of the states on the Continent', the institution of the Bar in England is for the most part based on no positive law. There are not even, as in the case of other vocations in this country, acts of parliament prescribing any particular qualification for a barrister; nor are the Inns of Court, with which the order is so closely identified, legally regarded in any other light than as voluntary societies, the origin of which it has been said no where precisely appears.2

Our common law is deemed to confer on the presiding officers of all Courts of Justice the right of regulating the admission to practise in them3, in accordance with which general authority the Superior Courts at Westminster have for many ages given exclusive audience in all proceedings before them, not conducted by the parties in person, to members of the Inns of Court of the degree of barrister or apprentice'; and the legal recognition of barristers of the Inns of Court, as a privileged order, can be traced in numerous statutes, authorities, and text-books, which, in the course of these observations, we shall have occasion to refer to; and there is evidence of the direct interference of the Crown in furtherance of the system in early times, in the instance of the precept directed to the Judges at Westminster as to the selection of apprentices and attornies in the reign of Edward I. 5, and in the case of the rules from time to time made

1 See as to this Domat, Droit. Publ., liv. ii. tit. 6.

2 Per Lord Mansfield in Rex v. Grays Inn, Dougl. 354.

3 Collier v. Hicks, 2 B. & Ad. 663.

4 Per Lord Tenterden, 2 B. & Ad. 663.

5 Precept de Attornatis et Apprenticiis, 1 Rot. Parl. 84.

by the Chancellor, Privy Council, and Judges, for the regulation of the Inns of Courts, of which the Judges at Westminster Hall are ex officio the visitors.

The concurrence of barristers in the Superior Courts appears to have been at a very early period required, not only in the advocacy of causes vivâ voce in Court, but also in drawing the written pleadings when they ceased any longer to be delivered ore tenus.1 We know, indeed, that in all the institutions from which our own have been imitated, similar regulations prevailed: the rights, privileges, and duties of advocates being laid down both in the code of Justinian2, and in the records of those northern tribes whence our forefathers are said to have migrated. In our own statute book, barristers, as a recognised order of practitioners, are repeatedly mentioned under the term of conteurs et sages gents, narratores, pleaders, apprentices, &c.4, the most eminent of whom were, agreeably to the genius of the feudal institutions of the Normans, enrolled as officers of the Crown, under the name of servientes ad legem.5 Whether, however, as serjeants, or merely as barristers or apprentices, the class of whom we speak have for many ages been known as the Bar of England, whose well-established privileges arise in their character of advocates, chamber counsel, or draftsmen, which privileges may perhaps now be regarded as confirmed by statute law, the 9 & 10 Vict. c. 54., which put an end to the exclusive privilege of the serjeants, having distinctly recognised the right of barristers-at-law to "practise, plead, and be heard," in all the Courts at Westminster Hall.

The province of barristers in the Courts at Westminster, as recognised by the statute just alluded to, consists at the

1 See the authorities cited in Stephen, on Pleading, Appendix, note 8.

2 Lib. iii. tit. i. c. 14. § 1.

3 Heinec. El. Jur. Germ. lib. iii. tit. 2. sect. 82, 83.

4 33 Ed. 1. st. 3. See Bract. 372 b. 412 a.

5 See Manning's Serjeant-at-Law, 192., and cases there cited.

6 Though advocates in the Ecclesiastical and Admiralty Courts at Doctors' Commons, and the Courts of the two Universities may, by their acquirements, talents, and worth, be justly entitled, in common parlance, to rank as Members of the English Bar, our observations are necessarily confined to the Bar of Westminster Hall, i, e. of the four Inns of Court.