in this matter, be sufficient to do two things-1st, define facilities to include the safe and secure carrying of traffic, and, 2nd, to make it obligatory on the Board of Trade, in case of a contravention of the Act, to apply to the Railway Commissioners? These are slight changes but they would, we feel convinced, result in momentous consequences, in the safety of the public, in the security of human life, in overflowing work at the Railway Commission Rooms, and in the sale of these two works by Messrs. Lely and Junner.

V. THE INNS OF COURT AND THEIR

THE

MONOPOLY.

NEATE V. DENMAN.

HE case of Neate v. Denman, recently decided by ViceChancellor Hall, is in truth more remarkable for its opportunity than its novelty. At a time when the training for the Bar, and the discipline to which it is or ought to be subject, are attracting a good deal of public attention, and are likely soon to occupy the legislature, it is a matter of much interest to know what is the constitution and government of the Inns of Court, their position in relation to the Courts of Law, the grounds on which they claim the monopoly of conferring the qualification of a barrister, the mode in which they exercise it, and the means by which they assert, so great a privilege.

The decision in the case referred to throws but little light directly on the two last mentioned questions, though of course the claim to such a monopoly, in the eyes at least of the Legislature, which may either allow or extinguish it, depends very much on the constitution of the bodies which claim it; but the Vice-Chancellor, acting only in the

capacity of a judge, refused, no doubt very properly, to consider any question except that of jurisdiction, until he was satisfied that he had jurisdiction; and he decided that he had not.

In order fully to understand the reasons of that decision and the extent to which it goes, we shall first see what were the circumstances of the case as brought before the Court.

Mr. Neate being sued at law upon his bar bond for arrears by the representatives of the surviving obligee of those to whom he had bound himself in the year 1832, filed his bill against the plaintiffs at law joining with them as defendant the present Treasurer of the Inn, offering to pay the amount demanded of him, upon having his bond delivered up to him, without signing the delaration invariably required by the Inn, as a condition of release from the bond, that the petitioner, as the person wishing to withdraw from the Inn is called, does not intend to practise as a barrister, either in the United Kingdom or the Colonies. Mr. Neate's objection to this declaration being that it was either unnecessary if continued membership of an Inn of Court was by law a necessary condition for practising at the bar; or if it were not so that such a declaration was against public policy as being in restraint of trade, or which is the same thing the exercise of a profession. Upon these grounds Mr. Neate prayed for the delivery up of the bond upon his payment of the arrears and the costs of the plaintiff at law, but exclusive of the further sum claimed by the Inn as a fine on composition or withdrawal.

To this bill the defendants put in a general demurrer for want of Equity, not expressly alleging the want of jurisdiction.

The Vice-Chancellor, however, considering that the question of jurisdiction, whether raised or not by the pleading, was by the facts of the case brought under his judicial notice, refused to enter into the grounds of equity set up by the plaintiff, on the ground that he had no jurisdiction to interfere in any controversy such as this was between the Inn

and one of its members, the jurisdiction in such a case belonging exclusively to the Common Law judges, as the visitors of this and the other Inns of Court, in their character of private societies.

So far the judgment of Vice-Chancellor Hall would appear to be entirely justified, if not necessitated, by the previous decisions of higher tribunals, such as the Lord Chancellor in Equity and the Court of Queen's Bench at Law. But it was urged with some plausibility by the plaintiff in Equity that on one point the decision in this case went further than the others, for in the cases cited as excluding the jurisdiction, the first proceedings had always been taken by the individual member as plaintiff, whereas in this case, the Inn, though it was defendant in Equity, had in the first instance been plaintiff-at-law, and that as the Inn, or its representatives, had gone beyond the limits of their domestic forum to sue him at law, he had the same right against them, as he would have had against any other parties to set up an equitable defence. In another point, however, the Vice-Chancellor seemed disposed to recede from the extravagant length to which the exemption had been carried in the case of Cunningham v. Webb, 2 Bro. C.C. 241, in which the Lord Chancellor decided that he had no right to interfere in a question of contract as to the rent of chambers between the Inn and one of its members.

The question of jurisdiction in this case was raised by plea, which alleged the jurisdiction to be not in the judges. alone, as the Queen's Bench have considered it to be, but in the Lord Chancellor and the Judges.

But even supposing that the case is questionable upon this ground, or had gone too far, as the Vice-Chancellor seemed to think it had, in excluding questions of "property," between the Inns of Court and their members from the cognizance of the ordinary tribunals, it still may be good law, and is not contrary to reason, that all questions of personal status arising out of the call of the bar, or upon the construction of the bond, which is a necessary preliminary to

that call, should belong in each case to the cognizance of the particular Inn, that is, to that of its governing body, subject to the control of the judges or visitors. The Courts have at any rate repeatedly decided that there is such a visitorial power in the judges, without defining what its limits are, and the judges themselves have in matters relating both of calls to the bar, or to exclusion from the bar, by compulsion from the Inn, or to election to the bench of any particular Inn, repeatedly exercised the power acknowledged to be in them.

Whether such a power can properly be called visitorial in the sense in which that word is used in reference to private foundations may be reasonably doubted. The power of a visitor in such cases is the right of jurisdiction or control belonging to the founder himself or transmitted or delegated by him to his heirs or nominees, of enforcing, or it may be of modifying the statutes or private laws by which the private body is both constituted and bound; but such a power supposes both an endowment and a corporate character, both of which are wanting in the case of the Inns of Court, and though these are possessed by means of a renewable trust of very considerable property the result of long accumulation which they would not think themselves at liberty to apply to their own private purposes, and are probably well aware that they would not be allowed to do so, they are careful to exclude, so far as they can, the right of the Attorney-General to interfere by information in the management of their affairs. Nor can we advise Mr. Neate to renew his singlehanded contest with the Benchers in the character of a Relator.

There is indeed another sort of visitorial power or jurisdiction, so called by analogy, which is exercised by the Court of Queen's Bench over civil corporations, whether municipal or quasi municipal, like the Universities, or established for public purposes, like the Royal College of Physicians; but that jurisdiction is exercised by the Queen's Bench as a Court, and by the legal process of mandamus,

and it only attaches to the bodies which are subject to it by reason of their public character, which the Inns of Court have studiously disclaimed, and that with the sanction of the Queen's Bench.

Whether such a disclaimer has been properly allowed, as it has been, to the extent of giving the Inns of Court absolute discretion as to whom they should admit to membership as students, as was decided in the case of the King against the Benchers of Lincoln's Inn (4, Barn and Cres 853), is a point to which we shall presently revert. But let us first consider a little further what are the legal grounds, and what is the legal security of the privilege, which, whether they be private or public societies, they undoubtedly in fact possess, of designating or recommending exclusively to the judges, both of Law and Equity, those whom they shall admit to practice before them as barristers, and of determining the right so conferred, either by themselves or on their designation, by exclusion from the membership to which it was in its origin attached, for an exclusion or expulsion from an Inn of Court is what is meant by disbarring.

These privileges have existed for a long time by the allowance of the judges, both of Law and Equity, subject only to an appeal to the Common Law judges, as visitors, in the case either of a refusal to call to the bar or of subsequent expulsion. It is not easy to see why the judges of Courts of Equity should be excluded from all share in a jurisdiction, on the right use of which they have an equal interest with their brethren of the Common Law (and as we have noticed before the visitorial power was by the plea in Cunningham v. Webb claimed for the Lord Chancellor as well as the twelve judges), but perhaps what we shall presently see as to the origin or first creation of a barrister, and as to his having in the first instance altogether a Common Law character, may throw some light on the question.

A more important question than this is, whether the privileges itself of exclusively conferring the qualification of a barrister is a legal monopoly exempted from the Statute 21