Diploma Privilege: Legal Education at the University of Melbourne 1857–1946 John Waugh Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy August 2009 School of Historical Studies University of Melbourne Abstract When Australian law teaching began in 1857, few lawyers in common-law systems had studied law at university. The University of Melbourne’s new course joined the early stages of a dual transformation, of legal training into university study and of contemporary common law into an academic discipline. Victoria’s Supreme Court immediately gave the law school what was known in America as ‘diploma privilege’: its students could enter legal practice without passing a separate admission exam. Soon university study became mandatory for locally trained lawyers, ensuring the law school’s survival but placing it at the centre of disputes over the kind of education the profession should receive. Friction between practitioners and academics hinted at the negotiation of new roles as university study shifted legal training further from its apprenticeship origins. The structure of the university (linked to the judiciary through membership of its governing council) and the profession (whose organisations did not control the admission of new practitioners) aided the law school’s efforts to defend both its training role and its curriculum against outside attack. Legal academics turned increasingly to the social sciences to maintain law’s claim to be not only a professional skill, but an academic discipline. A research-based and reform-oriented theory of law appealed to the nascent academic profession, linking it to legal practice and the development of public policy but at the same time marking out for the law school a domain of its own. American ideas informed thinking about research and, in particular, pedagogy, although the university’s slender financial resources, dependent on government grants, limited change until after World War II. In other ways the law school consciously departed from American models. It taught undergraduate, not graduate, students, and its curriculum included history, jurisprudence and non- legal subjects alongside legal doctrine. Its few professors specialised in public law and jurisprudence, leaving private law to a corps of part-time practitioner– teachers. The result was a distinctive model of state-certified compulsory education in both legal doctrine and the history and social meanings of law. iii Declaration This is to certify that 1. the thesis comprises only my original work towards the PhD except where indicated in the introduction; 2. due acknowledgement has been made in the text to all other material used, and 3. the thesis is less than 100,000 words in length. v Acknowledgements I gratefully acknowledge the help of the staff of the University of Melbourne Archives and the special collections reading room of the Baillieu Library, where much of the research for this thesis was carried out. My thanks go, too, to the staff of the University of Melbourne Law Library and the manuscripts and oral history sections of the National Library, James Butler at the Supreme Court Library, and Anne Ferguson, for Council of Legal Education minutes. I particularly thank my supervisors, Stuart Macintyre, John Chesterman and Fay Anderson, who have provided invaluable help and encouragement. vi Abbreviations ADB Australian Dictionary of Biography, online edition CM Council Minutes, UMA DP Sir David Derham Papers, UMA FLC Faculty of Law Correspondence 1932–77, UMA HCP Law School Historical and Centenary Papers, UMA LFM Law Faculty Minutes LIV Law Institute of Victoria LSS Law Students’ Society MLS Melbourne Law School Historical Collection NAA National Archives of Australia NLA National Library of Australia PROV Public Record Office Victoria RC Registrar’s Correspondence, UMA RMC Registrar’s Miscellaneous Correspondence, UMA SP United Kingdom, House of Commons, Sessional Papers UMA University of Melbourne Archives VPLA Victoria, Votes and Proceedings of the Legislative Assembly VPLC Victoria, Votes and Proceedings of the Legislative Council vii CONTENTS 1 THEMES AND SETTING Introduction 1 The setting: common-law legal education 6 The literature: themes and approaches 24 2 A SCHOOL OF LAW The university and the law course 34 Becoming a lawyer 38 A lecturer in law 42 Inauguration 48 The course and the admission rules 53 Conclusion 62 3 STUDY: STUDENTS AND SUBJECTS The law students 65 The early curriculum 82 The degree course to 1927 89 4 THE GATEKEEPER The admission rules 101 The climate of ideas 108 Ontario 114 The struggle for the curriculum 121 viii 5 THE FACULTY Lecturers in law 141 William Hearn 147 The Faculty of Law 149 Edward Jenks 156 Harrison Moore 162 Kenneth Bailey 166 Geoffrey Sawer 170 Other staff 172 Funding 173 6 IN CLASS The case method 178 Tutorials and correspondence 194 Town and gown: location 198 Conclusion 201 7 SCHOLARS AND AUTHORS Writing and research 203 Hearn 206 Jenks 210 The twentieth century 212 The library 217 Postgraduate study 223 8 CONCLUSION 230 BIBLIOGRAPHY 238 ix 1 THEMES AND SETTING Introduction The history of legal education shows two faces of Australian law. One is Australia as a former British colony that received much of its law from England and became part of a unified imperial legal system. In this guise, Australian legal education, like Australian law, was derivative. It looked to the metropolitan centre for its values and content, modelling itself, where it could, on the law and culture of its imperial parent. The other face is Australia as the antipodes, a place of opposites to Europe and difference from the Old World. In part, this is a consequence of the differentness of Australian society and the possibilities that were created or closed off by the colonial setting. It is also an expression of the liberal or reformist strain in Australian politics, particularly in the nineteenth and early twentieth centuries. Compared with Britain and North America, Australian legal education reveals both parallels and disjunctions, similarities and new departures. The main theme in the history of Australian legal education from the 1850s to World War II is one that is echoed, in varying forms, in other common-law jurisdictions: the rise of university law schools. In Australia, Britain, the United States and Canada, over differing periods, university study supplemented or replaced the long-standing training of lawyers through apprenticeship in the form of articles of clerkship or other kinds of pupillage, and the study of contemporary law became established as an academic discipline. 1 DIPLOMA PRIVILEGE Yet the trajectory of this development in Australia is distinctive. In parts of Australia, university study (if not initially a degree) became compulsory, and from an unusually early date. How this happened, and what it meant for the relationship between universities and the profession, are questions that help delineate the path followed in Australia in the dual transformation of common- law legal education in the nineteenth and twentieth centuries: the establishment of the common law as a university discipline, and the establishment of university study of law as a step towards entry to the profession. This thesis considers the development of legal education at the University of Melbourne against this background. It is a local study, empirical and comparative in method. Its guiding research questions are twofold. One concerns the university’s role as educator and examiner under the rules for admission to legal practice. Legal study at the University of Melbourne was recognised from the start as a qualification for entry to the profession. It was soon compulsory, and in 1905 it became the sole formal test of legal knowledge for new practitioners (serving as an articled clerk remained an additional requirement). In the United States the freedom of a university graduate to begin practice without passing a separate admission exam became known as ‘diploma privilege’. As the name implied, it was both unusual and a significant advantage for the universities whose qualifications were recognised in this way. For the University of Melbourne to gain and keep diploma privilege was itself distinctive, and for this to be coupled with compulsion from such an early date was highly unusual. Information about the circumstances of the initial recognition of the university’s law course is scanty, but maintaining its status under the admission rules became a theme of the law school’s later history. The university gained and kept a monopoly over teaching and examining for entry to the profession, a monopoly that came under attack from practitioners unhappy with the university’s role as gatekeeper. In the 1930s and 1940s, some of the leaders of the Law Institute of Victoria, the professional organisation that represented the state’s solicitors, 2 LEGAL EDUCATION AT THE UNIVERSITY OF MELBOURNE advocated a greater role for practitioners in training for the profession, and began to nibble at the university’s accreditation monopoly. Their ideas found acceptance, or at least toleration, among some of the barristers and judges most directly involved in determining the qualifications required for entry to the profession, but accommodation and adjustment by the university drew the teeth of their proposals. Nor was the Law Institute keen to bear the cost of providing its own teaching to would-be solicitors, as its more far-reaching proposals would have required. My second research