maintained his thesis is entitled to the diploma of doctor, and few persons who have been present at these doctorate examinations will be inclined to think that he gets it too easily.

The entire cost of the course for the licentiate's degree-qualifying, it will be remembered, for a call to the Bar-is a little under nine hundred francs, or £36, about a quarter of the cost in England. But it must not be forgotten that there can be no comparison of the bare class-rooms and small overcrowded library of the Ecole de droit with the grand halls, rich in oak carving and stained-glass windows, and the magnificent libraries of our Inns of Court,—a magnificence, it must be owned, which is unfortunately not incompatible with startling deficiencies in continental literature.

It will be noticed that the legal training at the French Schools of Law is precisely the same for all the students, no matter for what branch of the legal profession they may be ultimately destined. This is all the more curious, as the legal profession in France is subdivided into many more branches than in England. In France there are no less than four1 distinct classes-the avocats, the avoués, the agréés, and the notaries. The avocat corresponds, roughly speaking, to our barrister, although nearly all the conveyancing part of a counsel's work in this country is performed in France by the notaries, whose special province it is to draw wills, marriage-settlements, deeds of gift, sale, and the like. The avoués and agréés perform the litigious part of the work of our solicitors, the former before the civil, the latter before the commercial tribunals. Notwithstanding the diversity of their future functions, all students of law in France go first of all through the same training and imbibe from the universal alma mater of all branches of the profession their earliest instruction in the fundamental principles of law and jurisprudence.

An article on the French Schools of Law would be incomplete without some mention of the peculiar relation in which these institutions stand to the legal tribunals of the country. There is in France a standing conflict on innumerable points of law between the courts and the schools, between what is called doctrine and jurisprudence, and in most of these controversies it is the schools which triumph in the end. The Court of Cassation-the supreme tribunal of the country-has many times within the century

1 I have not included the huissiers, whose special attribute is the service of writs, executions and the like, for they are scarcely considered on a par with the other branches of the profession, although many of them are first-rate lawyers; in Paris nearly all licentiates, and some even doctors of law.

2 This word has a different signification in France to its ordinary acceptation here. In the former country it means the decisions of the courts, as a whole, on disputed points of law.

entirely altered its view of the law. That is to say, after deciding systematically for a number of years that a certain article meant one thing, it now decides that it means something totally different1, and these changes have almost always been due to the emphatic and oft-renewed protests of the Schools of Law, which never hesitate to boldly declare that the courts are wrong when such is their opinion. It need hardly be pointed out how widely different this is from what we are accustomed to in this country, where a writer who ventures to differ from a judge adopts in deprecation of his temerity an almost servile tone of humility 2.

Nor are the reasons for this difference far to seek. The judges in England are generally the most eminent lawyers of the day, men who have risen by their talents to be leaders of the Bar and who have ultimately been raised to the Bench as a fitting reward for their merits. In France it is far otherwise. The judges there are often nominated by the Government of the hour for purely political reasons, and except in the highest Courts are generally very far from being the best lawyers obtainable. They are frequently much younger men than the barristers who address them, for the salaries. are very low and a man of talent can earn far more money and gain much greater renown at the Bar than on the Bench. Indeed it is sometimes said that in the provinces the Bench is mainly recruited from among the men who have failed to distinguish themselves at the Bar. Until these conditions are understood nothing is more curious to an English lawyer than the small respect habitually entertained by French barristers for the judges they address; and under these circumstances it is hardly surprising that the Schools of Law, within the precincts of which are to be found most of the greatest lawyers in the country, should not hesitate to speak their minds when they consider that the decisions of the Courts are wrong.

There is yet another reason why this standing controversy between theory and practice, which is so marked a feature of French law, should be practically unknown here. We have in England scarcely any theory, as opposed to practice, at all. Though there may be

1 To take one example out of several; in France, as is well known, a certain proportion of a man's property is reserved by law to his children (Civil Code, art. 913). But a man's children are not bound to accept his succession; they may renounce it (Civil Code, art. 775). Now although it has always been admitted that a child who renounced the succession could not claim any share of this reserve fund, yet article 924 of the Civil Code has given rise to a celebrated controversy as to whether a child who had been advanced by his father during the latter's lifetime could retain this advancement, even though it should exceed in amount the sum which the ancestor had a right to dispose of, having regard to the number of his children. For many years the Court of Cassation decided that he had this right of retention. But the Schools of Law, with M. Demolombe at their head, have at length induced the Supreme Court to alter its opinion, and the contrary view is at present law.

2 [Of late years there are signs of change in this respect.-ED.]

occasionally differences of opinion between judges and writers as to the correct interpretation of a particular clause or section of a statute, by far the greater part of our law is and remains what the Courts have declared it to be. The life and soul of English law,' as Mr. Freeman1 tersely puts it, 'has ever been precedent.' Consequently it would be in the highest degree fatuous for any man or body of men to attempt to show that a precedent long established and acted upon by the Courts was wrong.

In French law, on the other hand, precedent has little or no place. The letter and spirit of the codes is alone important. That is always open to new interpretations, and those which have previously been placed upon it in no wise fetter, at any rate in theory, the decision of any Court called upon to deal with the point anew2. Article 5 of the Civil Code gives expression to its deeply-rooted hatred of the tyranny of precedent in the following enactment:-'Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises.' And the French Schools of Law, with their elaborate subtleties of doctrine, unceasing controversies, and ever-new legal discoveries of all kinds, are little likely ever to allow this principle to become a dead letter.

The Growth of the English Constitution, p. 85.

MALCOLM McILWRAITH.

The only theoretical exception to this principle is that when two different Courts of Appeal have decided a case in opposition to the practice of the Court of Cassation, and the latter has quashed ('cassé,' hence the name) their decisions as being contrary to law, the third Court of Appeal, to which the case is referred by the Supreme Court, is obliged to decide in conformity with the judgment of the latter. In practice, the decisions of the Court of Cassation do no doubt establish precedents upon which the minor courts usually act, for, as shown above, in the event of a conflict between the Courts of Appeal and the Supreme Court the latter necessarily triumphs in the end. But nevertheless these conflicts have frequently happened, and have often ultimately led to a change in the jurisprudence of the Supreme Court. And that is what is meant by saying that precedents, even of the Court of Cassation, do not in law bind the inferior tribunals.

THE

THE TRUSTEE ACT, 1888.

HERE are,' said the late Lord St. Leonards, few social questions of more importance than the relation between trustees and their cestuis que trust. Property could not be enjoyed in the way in which we, husband and wife, parents and children, succeed to it, unless men could be prevailed upon to assume the office and undertake the duty of trustees.'

True as these words were at the time they were written, they are, if possible, to-day doubly so. Year by year the amount invested in the names of trustees in the funds and other securities vastly increases. This fact was clearly brought out and forcibly put by Mr. Cozens Hardy, Q.C., in his recent speech in the House of Commons in support of the second reading of The Trust Investment Bill.' Seeing then that so large a portion of the wealth of the country is thus necessarily under our present social system, in the hands and under the control of trustees, it is clearly a matter of public interest that responsible men should be induced to undertake the office of trustee. The duties of a trusteeship are almost invariably undertaken out of pure friendship, and it certainly does not appear to be too much to expect that the law should not make those duties so arduous as to deter men of position from entering upon them. Courts of Equity, exercising their paternal jurisdiction over the creature of their creation, have by a long and almost unbroken course of decisions rendered the position of a trustee so onerous, and surrounded it by so many pitfalls, that it is with difficulty responsible persons can be induced to answer the call of friendship, and accept the office with all its attendant duties and liabilities. So long as a trustee acts honestly and to the best of his ability, legal ingenuity ought not to be exercised for the purpose of finding reasons for fixing him with liability 1.

If the office of trustee cease to be one of pure friendship, then two courses appear to be open:

1. A public trustee may be appointed, either in the shape of a state official, or of a public company.

2. The office of trustee may become a paid one.

With the object of giving legislative sanction to the first of these courses, there are at present no less than three bills before Parliament.

The Lord Chancellor has brought in a bill for the purpose of

1 See judgment of Jessel M.R. in Speight v. Gaunt, L. R. 22 Ch. D. 746.

appointing a ‘Public Trustee.' Lord Herschell also supports this course, so there appears to be every probability that the bill will at no distant date pass into law. A bill with the same object has been introduced in the House of Commons by Sir Albert Rollitt, Mr. Warmington, Q.C., and other members of widely divergent political views. The two bills are very similar in their provisions, and as there is very little doubt that if either pass into law it will be the measure brought in by the Government, we will briefly point out its main provisions. It proposes to establish the office of Public Trustee, who shall be a corporation under that name, with perpetual succession and an official seal, having power to hold land without license in mortmain, and may sue and be sued under the above name like any other Corporation sole1.

The appointment of the Public Trustee is to be purely voluntary on the part of the settlor or testator. He may be appointed either as an original or as a new trustee in the same cases and in the same manner as if he were a person and not a corporation, with this addition, that though the trustees originally appointed were two or more, the Public Trustee may be appointed sole trustee. Power is also given to the Court to grant to him Probate of a Will or Letters of Administration. The Consolidated Fund is made liable for the fraud of the Public Trustee or any official employed by him, and also for any liability in cases and under circumstances to be specified in rules to be made under the Act. The appointment is to be in the gift of the Treasury, subject to the approval of the Lord Chancellor. A scale of fees, by way of commission or otherwise,' is to be issued and charged. Any person aggrieved by any act or omission of the Public Trustee in relation to any trust may apply in Chambers to a Judge of the Chancery Division, and his decision shall be conclusively binding on all persons interested in the trust.

All past experience points to the fact that officialism is always attended by great expense, red tapeism, and unnecessary delay; it is therefore thought that if this or any similar bill pass into law its provisions will not be largely taken advantage of. Again, the bill does not require the holder of the office to have any special qualification for the post, and the great probability is that if such an office were created, some military or naval officer on half-pay would be appointed to it. In addition to these objections it must be remembered that a settlor or testator usually selects his trustees and executors either from his own relatives or from tried and trusted friends. And this he does because he desires that they should exercise a personal care and oversight not only over his

1 See section 1.