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Title: A Philadelphia Lawyer in the London Courts
Author: Thomas Leaming
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Language: English
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[Illustration: THE CORRIDORS OF THE COURTS]
A PHILADELPHIA LAWYER
IN THE LONDON COURTS
BY
THOMAS LEAMING
_Illustrated by the Author_
SECOND EDITION, REVISED
NEW YORK
HENRY HOLT AND COMPANY
1912
COPYRIGHT, 1911,
BY
HENRY HOLT AND COMPANY
Published May, 1911
PREFACE
The nucleus of this volume was an address delivered before the
Pennsylvania State Bar Association which, finding its way into
various newspapers in the United States and England, received a
degree of favorable notice that seemed to warrant further pursuit of
a subject heretofore apparently overlooked. Successive holiday
visits to England were utilized for this purpose.
As our institutions are largely derived from England, it is natural
that the discussion of public questions and the glimpses of
important trials afforded by the daily papers--usually murder trials
or divorce cases--should more or less familiarize Americans with the
English point of view in legal matters. American lawyers, indeed,
must keep themselves in close touch with the actual decisions which
are collected in the reports to be found in every library and which
are frequently cited in our courts.
Nothing in print is available, however, from which much can be
learned concerning the barristers, the judges, or the solicitors,
themselves, whose labors establish these precedents. They seem to
have escaped the anthropologist, so curious about most vertebrates,
and they must be studied in their habitat--the Inns of Court, the
musty chambers and the courts themselves.
The more these almost unknown creatures are investigated, the more
will the pioneer appreciate the difficulty of penetrating the highly
specialized professional life of England, of mastering the many
peculiar customs and the elaborate etiquette by which it is governed
and of reproducing the atmosphere of it all. He will find that he
can do little but record his observations.
It was not unknown to him that some lawyers in England are called
barristers, some solicitors, and he had a vague impression that the
former, only, are advocates, whose functions and activities differ
from those of the solicitor; but he was hardly conscious that the
two callings are as unlike as those of a physician and an
apothecary. It requires personal observation to see that the
barristers, belonging to a limited and somewhat aristocratic corps,
less than 800 of whom monopolize the litigation of the entire
Kingdom, have little in common with the solicitors, scattered all
over England. The former are grouped together in their chambers in
the Inns, their clients are solicitors only, they have no contact,
perhaps not even an acquaintance, with the actual litigants and a
cause to them is like an abstract proposition to be scientifically
presented. The solicitors, on the other hand, constitute the men of
law-business, whose clients are the public, but who can not
themselves appear as advocates and must retain the barristers for
that purpose.
Again, it is difficult to grasp fully the influence exercised
through life by the barrister's Inn--that curious institution, with
its five hundred years of tradition--voluntarily joined by him when
a youth; where he has received his training; by which he has been
called to the Bar and may be disbarred for cause, and upon the
Benchers of which Inn he must naturally look as his exemplars,
although the Lord Chancellor may be the nominal creator of King's
Counsel and the donor of judge-ships. The impulse of these Inns is
still felt at the American Bar, despite more than a century's
separation, for, about the time of the Revolution, over a hundred
American law students were in attendance, not only acquiring, for
use in the new country, a sound legal training, but absorbing the
spirit of the profession which has been transmitted to posterity,
although its source may be forgotten.
Nor will anything he has read prepare the American for the abyss
which separates the common law barrister, who spends his days in
jury trials, from the chancery man, who knows nothing but equity
courts; nor for the complete ignorance, if not contempt, with which
they seem to regard each other.
K. C.'s, indeed, are afforded their title in the reports--even in
the newspapers--but nowhere does it appear that "Leaders" are
appointed by the judge of a particular equity court to "take their
seats" and practice before him exclusively, being associated in each
case with "Juniors," who in turn have "Devils" to prepare their
cases; or that a leader may sever this relation and thereafter "go
special"; yet all these, and many other peculiar and inviolable
customs, are handed down from one generation to another to be
followed as if by instinct: and the profession would no more trouble
the busy world with such matters than a dog would feel it necessary
to explain that he turns thrice before lying down, simply because
his wolfish ancestor did so in order to make a bed in the grass.
In this environment of ancient custom, however, the American is
surprised to find the most up-to-date courts in the world and an
administration of law which is so prompt, so colloquial, so simple,
so free from formality and so thoroughly in touch with the ordinary
man's every-day life, as to provoke a blush for the tribunals of the
vaunted New World, still lagging in their archaic conventionality
and their diffuse and dilatory methods.
At home, the American has been perplexed by the threadbare assertion
that we have as many judges in a large city as has all England, but
he shortly learns that such comparison considers only the few judges
of the High Court, and ignores the others and the officials
performing judicial functions, so numerous that the little Island
fairly teems with its justiciary and that the implied criticism is
due to ignorance of the facts.
The trials, both civil and criminal, will reveal the complete
triumph of common sense and the Englishman will appear at his best
in his court, for there he leads the world. The hearty good humor,
alacrity and crispness of the proceedings, the absence of
declamation but the avoidance of monotony by the proper distribution
of emphasis, all combine to delight the practised observer.
The disciplining of the profession by means of a body to whom may
be privately submitted questions of morals and manners, mostly
solved by gentle admonition and rarely by severe action, will
suggest that our single punishment--disbarment--is so drastic as
rarely to be invoked and hence largely fails as a corrective.
From the "bobby" in the street, to the Lord Chancellor on the
Woolsack, from a hearing by a registrar to collect a petty debt, to
the donning of the black cap in order to sentence a murderer; all
will prove suggestive to the alert American who will nevertheless
depart with a feeling that, while there is room for improvement at
home, yet, upon the whole, there is much of which to be proud in our
administration of the sound old law of our ancestors.
The kindly aid of a number of English judges, barristers and
solicitors, by way of suggestion and criticism, is gratefully
acknowledged.
The occasional illustrations are photographic reproductions of
original oil sketches.
Philadelphia, April, 1911.
PREFACE TO THE SECOND EDITION
In accordance with the kind suggestions of a well-known barrister, a
number of corrections have been adopted in the text of this edition.
Some of them it had been the intention of the Author to make before
his death and others have seemed necessary in order to secure
greater accuracy and to preserve the value of the book for purposes
of reference.
May 18, 1912.
CONTENTS
CHAPTER PAGE
I. FIRST IMPRESSIONS 1
The Law Courts Building on the Strand.--A Court
Room.--Participants in a Trial.--Wigs and Gowns.
--Colloquial Methods.--Agreeable Voices.--
Similarity to American Trials.
II. THE MAKING OF LAWYERS 9
Classes from which Barristers and Solicitors are
Drawn.--The Inns of Court.--Inns of Chancery.--
American Students at Period of Revolution.--A
Barrister's Chambers.--Training of Barristers in
an Inn.--Being Called to the Bar.--Training of
Solicitors.
III. BARRISTERS 29
Waiting for Solicitors as Clients. "Devilling."
--Juniors.--Conduct of a Trial.--"Taking Silk."
--Becoming a K. C.--Active Practice.--The Small
Number of Barristers.
IV. BARRISTERS--THE COMMON LAW AND CHANCERY BARS 39
Bar Divided into Two Parts. No Distinction Between
Criminal and Civil Practice.--Leaders.--"Taking
His Seat" in a Particular Court.--"Going Special."
--List of Specials and Leaders.--Significance of
Gowns and "Weepers." "Bands."--"Court Coats."--
Wigs in the House of Lords.--Barristers' Bags,
Blue and Red.
V. SOLICITORS 49
Line Which Separates Them from the Bar.--Solicitor
a Business Man.--Family Solicitors.--Great City
Firms of Solicitors.--The Number of Solicitors in
England and Wales.--Tendency Toward Abolishing the
Distinction Between Barrister and Solicitor.--
Solicitors Wear no Distinctive Dress Except in
County Courts.--Solicitors' Bags.
VI. BUSINESS AND FEES 57
Influential Friends of Barrister.--Junior's and
Leader's Brief Fees.--Fees of Common Law and
Chancery Barristers.--Barrister Partnerships not
Allowed.--English Litigation Less Important than
American.--Clerks of Barristers and Solicitors
Haggle over Fees.--Solicitors' Fees.
VII. DISCIPLINE OF THE BAR AND OF SOLICITORS 67
The General Council of the Bar.--The Statutory
Committee of the Incorporated Law Society.
--Rulings on Various Matters.--Lapses from Correct
Standards.
VIII. THE CIVIL COURTS 87
The General System.--Different Courts.--Rules of
Practice Made by Lord Chancellor.--Juries, Common
and Special.--Judges and How Appointed.--Judges'
Pay.--Costs. Court Notes.--Some Differences in
English and American Methods.
IX. COURTS OF APPEAL 107
The Court of Appeal.--House of Lords.--Divisional
Court.--Judicial Committee of the Privy Council.
X. MASTERS--THE TIME SAVERS 117
Current Hearings.--Minor Issues Threshed out.
XI. THE POLICE COURTS 125
Current Hearings.
XII. THE CENTRAL CRIMINAL COURT--THE OLD BAILEY 131
Current Trials
XIII. AN IMPORTANT MURDER TRIAL 145
XIV. LITIGATION ARISING OUTSIDE OF LONDON 169
Local Solicitors.--Solicitors' "Agency Business."
--The Circuits and Assizes.--Local Barristers.
--The County Courts.--The Registrar's Court.
XV. GENERAL OBSERVATIONS AND CONCLUSION 177
INDEX 195
ILLUSTRATIONS
THE CORRIDORS OF THE COURTS _Frontispiece_
FACING PAGE
CROSSING THE STRAND FROM TEMPLE TO COURT 36
A JURY TRIAL 100
A SUBJECT FOR THE POLICE COURT 128
THE SENTENCING OF DHINGRA 156
SIDEWALK SOCIALISM--HYDE PARK 178
A PHILADELPHIA LAWYER IN THE LONDON COURTS
CHAPTER I
FIRST IMPRESSIONS
THE LAW COURTS BUILDING ON THE STRAND--A COURT
ROOM--PARTICIPANTS IN A TRIAL--WIGS AND GOWNS
--COLLOQUIAL METHODS--AGREEABLE VOICES--
SIMILARITY TO AMERICAN TRIALS.
Leaving the busy Strand at Temple Bar and entering the Law Courts
Building, one plunges into that teeming hive where the disputes of
millions of British subjects are settled by law. Here the whole
kingdom begins and ends its legal battles--except the cases on
circuit, those minor matters which go to the County Courts, and the
very few which reach the House of Lords.
The visitor, strolling through the lofty Gothic hall and ascending
one of the stair-cases to the second floor, finds himself in a long,
vaulted corridor, sombre and quiet, which runs around the building.
There are no idle crowds and there is no smoking, but, curiously
enough, frequent refreshment bars occupy corners, where drink as
well as food is dispensed by vivacious bar-maids.[A] Here and there,
a uniformed officer guards a curtained door through which may be had
a glimpse of a court room; but no sound escapes, because of a second
door of glass, also draped with curtains. Groups of litigants and
witnesses await their turns or emerge with flushed faces and discuss
their recent experiences before returning to the roar of London.
Barristers pace up and down in wig and gown, or retire to a
window-seat for conference with their respective solicitors.
A mere sight-seer, having thus visited the courts, passes on his
way, but as the administration of law, from the Lord Chancellor to
the "bobby," is the thing best done in England and commands the
admiration and imitation of the world, the courts deserve more than
a casual visit.
Passing the officer and the double-curtained doors, one enters the
court-room, which is usually small and lofty, with gray stone walls
panelled in oak, subdued in color and well lighted from above. The
admirable arrangement of seats sloping steeply upward on all sides,
instead of resting upon a level floor, brings the heads of speakers
and auditors near together; and the bright colors of the judges'
robes--scarlet with a blue sash over the shoulder in the case of the
Lord Chief Justice, and blue with a scarlet sash in the case of most
of the others, together with various modifications of broad yellow
cuffs--first strike the eye.
The judge's bewigged head, as he sits behind his desk, is about
twelve feet above the floor. On his left, at the same level, stands
the witness, who has reached the box by a small stairway. At the
judge's right are the jury, seated in a box of either two rows of
six or three rows of four, the back row being nearly on a level with
the judge. In front of the judge, but so much lower as to oblige him
to stand on his chair when whispering to his lordship, sits his
"associate," a barrister in wig and gown, whom we should designate
as the clerk of the court.
Facing the associate is the "solicitors' well," at the floor level,
where, on the front row of benches, sit the solicitors in ordinary
street dress. Then come the barristers--all in wig and gown--seated
on wooden benches, each row with a narrow desk which forms the back
of the seat in front. The desks are supplied with ink wells, and
with the inevitable quill pen. The barristers keep their places
until their cases are reached and then try them from the same seats,
so that there is always a considerable professional audience. For
the public there is little accommodation--usually only a few benches
back of the barristers and a meagre gallery above.
The solicitor, whose client may be the plaintiff or the defendant,
has prepared the case and knows its ins and outs as well as the
personal peculiarities of the parties and witnesses who will be
called, but he is unable to take any part in the trial and can only
whisper an occasional suggestion to the barristers he has retained,
by craning his neck backward to the leader behind him. This leader
is a newcomer into the case. He is a K. C. (King's Counsel) who has
been "retained" by the solicitor upon payment of a guinea followed
by a large "agreed fee," and he leaves the "opening of the
pleadings" to the junior immediately back of him, while the latter,
in turn, has handed over the preparation to his "devil" who is
seated behind him.
Thus, the four men engaged on a side, instead of being grouped
around a counsel table, as in America, are seated one in front of
the other at different levels, rendering a general consultation
difficult when questions suddenly arise. The two men on each side of
the case who know most about it have no voice in court, for the
devil is necessarily as mum as the solicitor, and the name of the
former does not even appear in the subsequent report of the trial.
How this comes about requires some acquaintance with the different
fields of activity of barristers and solicitors, which will be
referred to later.
In thus glancing at an English court, an American's attention is
sure to be arrested by the wig. The barrister's wig, for his
ordinary practice in the High Court, has a mass of white hair
standing straight up from the forehead, as a German brushes his;
above the ears are three horizontal, stiff curls, and, back of the
ears, four more, while behind there are five, finished by the queue
which is divided into tails, reaching below the collar of the gown.
There are bright, shiny, well-curled wigs; wigs old, musty, tangled
and out of curl; some are worn jauntily, producing a smart and
sporty effect, others look like extinguishers. So grotesque is the
effect that it is difficult to realize that these men are not
mummers in some pageant of modern London, but that they are serious
participants in grave proceedings.
Not only the eye, but the ear will convey novel and favorable
impressions to the observer. He will be struck by the cheerful
alacrity and promptness of the witnesses, by the quickness and
fulness of their responses, by a certain atmosphere of complete
understanding between court, counsel, witnesses and jury, and more
than all, by the marked courtesy, combined with an absence of all
restraint, and a perfectly colloquial and good-humored interchange
of thought. It is hard to define this, but it certainly differs from
the air of an American tribunal where the participants seem almost
sulky by comparison. The Englishman in his court is evidently in his
native element and appears at his best.
The voices, too, are most agreeable, although many barristers
acquire the high-pitched, thin tone usually associated with literary
and ecclesiastical surroundings. Besides superior modulation, the
chief merit is in the admirable distribution of emphasis. In this
respect both the dialogue and monologue in an English court room are
far less monotonous than in an American.
Passing the superficial impression and coming to the underlying
substance, there is extraordinarily little difference between law
courts on both sides of the Atlantic. Not only is the common law
the same, and the legislation of the two countries largely parallel,
but the method of law-thought--the manner of approaching the
consideration of questions--is precisely identical, so that, upon
the whole, the diversity is no greater than that which may exist
between any two of the forty-six states. Indeed, so complete is the
similarity that an American lawyer feels that he might step into the
barristers' benches and conduct a current case without causing the
slightest hitch in the proceedings, provided he could manage the wig
and that the difference of accent--not very marked in men of the
profession--should not attract too much attention.
That the law emanating from the little Island, which could be tucked
away in a corner of some of our States, should have spread over the
vast territory of America and control such an enormous population
with its many foreign strains, and that, as the decades roll on, it
should thrive, improve, and successfully grapple with problems never
dreamed of in its origin, indicates its surprising vitality and
stimulates interest in the methods now in vogue in its native land.
FOOTNOTE:
[A] Very recently these bars have been moved to restaurants on the
lower floor.
CHAPTER II
THE MAKING OF LAWYERS
CLASSES FROM WHICH BARRISTERS AND SOLICITORS ARE
DRAWN--THE INNS OF COURT--INNS OF CHANCERY--
STUDENTS AT PERIOD OF REVOLUTION--A
BARRISTER'S CHAMBERS--TRAINING OF BARRISTERS IN
AN INN--BEING CALLED TO THE BAR--TRAINING OF
SOLICITORS.
To young Englishmen possessing neither fortune nor influence, the
profession of the law has long been an open road to advancement in a
country notable for orderly and constitutional methods, where the
ultimate appeal is always to reason. Perhaps the worship of money,
which characterizes modern England, has somewhat lessened the
prestige of success at the Bar there, as it has done in America,
where a millionaire, upon urging his son to enter the profession,
was met by the young hopeful's reply: "Pooh, father, _we_ can hire
lawyers." Nevertheless, the law still draws its recruits from the
flower of the youth of both countries and, in England, it appeals to
two types of men: to those who would become barristers, and to
those whose ambition soars no higher than the solicitor's calling;
moreover the classes from which the candidates are generally drawn,
differ as do their training and the future functions.
Traditionally, indeed, the sons of gentlemen and the younger sons of
peers were restricted, when seeking an occupation, to the Army, the
Navy, the Church and the Bar. They never became solicitors, for that
branch, like the profession of medicine, was somewhat arbitrarily
excluded from possible callings, but this tradition, as is the case
with many others, has been gradually losing its force of late years.
It must always have been a little hazy in its application, owing to
the difficulty of ascertaining accurately the status of the parent,
if not a peer; and Sir Thomas Smith who, more than three centuries
ago, after describing the various higher titles, attempted a
definition of the word "gentleman," could formulate nothing more
definite than the following: "As for gentlemen they be made good
cheap in this kingdom; for whosoever studieth the laws of the realm,
who studieth in the universities, who professeth the liberal
sciences, and, to be short, who can live idly and without manual
labor, and will bear the port, charge and countenance of a
gentleman, he shall be called master and shall be taken for a
gentleman." The ancient books, too, afford a glimpse of a struggle
on the part of the Bar to demand a certain aristocratic deference,
for an old case is reported where the court refused to hear an
affidavit because a barrister named in it was not called an
"Esquire."
That the struggle was not in vain, is evidenced by the reply of an
old-time Lord Chancellor, who, when asked how he made his selection
from the ranks of the barristers when obliged to name a new judge,
answered: "I always appoint a gentleman and if he knows a little
law, so much the better."
Naturally, the solicitor (who was formerly styled an attorney,
except when practicing in an equity court) was sensitive about his
own position, for the passage of a now-forgotten Act of Parliament
was once procured, decreeing that attorneys should thereafter be
denominated as "gentlemen."
But times have changed in the law, as in other fields of activity,
and sons of good families, as well as those of less degree, now
enter both branches of the profession. Hence, representatives of the
best names in England are to be found on the barristers' benches
side by side with self-made men, some of whom have become ornaments
of the Bar, and with men of divers races, such as swarthy East
Indians, and Dutch South Africans. One or two barristers may even be
found, who, although members of the Bar and necessarily of one of
the Inns, nevertheless, remain, as born, American citizens. The Bar,
in short, although a jealously close and exclusive organization, has
become a less aristocratic body and is now a real republic where
brains and character count.
The same diversity of origin exists amongst the solicitors, for, as
has been stated, they are now, in part, recruited from those who
formerly would have condescended to nothing less than the Bar. A
constant improvement in training, too, in the promulgation of rules
of professional conduct, in the enforcement of a firm discipline and
in the nursing of traditions, all tend to raise and maintain a
higher standard and a better tone than formerly existed in the ranks
of the solicitors. Thus, the modern tendency is that there should be
less difference in the personnel of those entering either branch of
the profession.
Candidates for the Bar are mostly University men, more mature in
years, perhaps, than our graduates--for boys commence and end their
college courses late in England--and they are, as a rule, more
broadly cultivated than those who intend to become solicitors. Some,
indeed, take a full course of theoretical law at Oxford or Cambridge
before beginning practical training as a student in one of the Inns
of Court, which are peculiarly British institutions, having no
counterpart elsewhere.
Physically, an Inn of Court is not a single edifice, nor even an
enclosure. It is rather an ill-defined district in which graceful
but dingy buildings of diverse pattern and of various degrees of
antiquity, are closely grouped together and through which wind
crooked lanes, mostly closed to traffic, but available for
pedestrians. Unexpected open squares, refreshed by fountains,
delight the eye, the whole affording the most peaceful quietude,
despite the nearness of the roar of surrounding London. The four
Inns of Court (as distinguished from the Inns of Chancery and
Serjeants' Inn, all of which have ceased to exist) are, the Middle
Temple, the Inner Temple, Lincoln's Inn and Gray's Inn, but the last
is of minor importance in these modern days, having fallen out of
fashion.
The Middle Temple and the Inner Temple acquired, by lease in the
XIV Century, and by actual purchase in 1609, the lands of the
Knights Templar, consisting of many broad acres situated on the
south side of the Strand and Fleet Street, opposite the present Law
Courts Building, and the whole space is now occupied by an intricate
mass of structures--the great Halls, the Libraries, the quaint
barristers' chambers--and by the beautiful Temple Gardens, sloping
to the Thames, adorned with bright flowers and shaded by fine trees.
There is no line of demarcation between the two Temples--one simply
melts into the other. They own in common the Temple Church, part of
which dates from 1185, with its recumbent black marble figures of
Knights in full armor and, in the churchyard, its tomb of Oliver
Goldsmith.
The wonderful Hall of the Middle Temple, where the benchers,
barristers and students still eat their stated dinners, was built
about 1572, and is celebrated for its interior, especially for the
open-work ceiling of ancient oak. Shakespeare's comedy, Twelfth
Night, was performed in the Hall in 1601, and it is believed that
one of the actors was the author himself. The Library is a great
one, but an American lawyer may be surprised at the incompleteness
of the collection of American authorities. The Hall of the Inner
Temple, on the other hand, is quite modern, although most imposing
and in the best of taste.
Lincoln's Inn became possessed about 1312 of what was once the
country-seat of the Earl of Lincoln, which, running along Chancery
Lane, adjoins the modern Law Courts Building on the north and
consists of two large, open squares surrounded by rows of ancient
dwellings, long since converted into barristers' chambers, and shady
walks leading to a fine Hall of no great antiquity, however. An old
gateway, with the arms of the Lincolns and a date, A. D. 1518, is
considered a good example of red brick-work of a Gothic
type--probably the only one left in London. The Library, which has
been growing for over four hundred years, contains the most complete
collection of books upon law and kindred subjects in England,
numbering upward of 40,000 volumes.
These three Inns of Court are the active institutions; the fourth,
Gray's Inn, which probably took its name from the Greys of Wilton
who formerly owned its site, has long since ceased to be of much
importance, although the old Hall and the classic architecture of
some of the Chambers, still attracts the eye. It happens, however,
that a Philadelphia student, who attended this ancient Inn nearly
two hundred years ago, was responsible for the phrase still
proverbial on both sides of the Atlantic, "that's a case for a
Philadelphia lawyer." The unpopular Royal judges of the Province of
New York had, in 1734, indicted a newspaper publisher for libel in
criticising the court and they threatened to disbar any lawyer of
the Province who might venture to defend him. But, from the then
distant little town on the Delaware, the former student of Gray's
Inn, although an old man at the time, journeyed to Albany and, by
his skill and vehemence, actually procured a verdict of acquittal
from the jury under the very noses of the obnoxious court; the fame
of which achievement spread throughout not only the Colonies but the
mother-country itself.
Names great in the law, in literature, in statecraft and in war are
linked with each of these venerable establishments, to record which
would mean to review much of the history of England as well as of
America; for, besides the early Colonial students, a large number
were entered in the different Inns during the period immediately
preceding the Revolution. Of these, South Carolina sent forty-seven,
Virginia twenty-one, Maryland sixteen, Pennsylvania eleven, New York
five and New England two. The names of many of them are later to be
found amongst the leaders of the Bar of the new country, on the
bench as Chief Justices and even as signers of the Declaration of
Independence.
The Halls of the Inns were once the scenes of masques and revels,
triumphs and other mad orgies, in which the benchers, barristers and
students took part; including, as mentioned, the production of
Shakespeare's plays during his lifetime.
In these halls also occur the stated dinners--to which, in the
Temple, at least, the porter's horn still summons. The members and
students of the Inn, arrayed in gowns, attend in procession and,
entering the hall, seat themselves on long benches before oaken
tables; the governing body--the benchers--being placed at one end
where the floor is elevated. It is pleasant to record that, during
the last year or two, the daily contact of the barrister with his
Inn has been increased by the innovation of a luncheon which is
served in the hall at the hour when the courts take a recess. On
this occasion the most noted English advocates may be seen,
strolling in without removing their silk hats, sometimes without
even having dispensed with wig and gown, when, seating themselves on
the uncompromising oak, they call for a chop and beer and relax into
jolly sociability.
At one time barristers actually lived in the Inns of Court, but this
practically ceased about the time of the reign of Elizabeth. All of
them now have their "chambers" in the obsolete little dwelling
houses, facing upon the open squares or narrow lanes of the Inns,
which are merely offices, but very unlike those of an American
lawyer in one of our "skyscrapers."
Entering the front door by a low step, or climbing two or three
flights of a rickety staircase in one of these houses, the visitor
finds a door on which, or on a tin sign, are painted the names of
one or more gentlemen, without stating their occupations, which
would be superfluous in this small world of barristers. A summons by
means of the old iron knocker, discloses the barrister's clerk,
whose habitat is an outer room, and whose business it is to receive
visitors--perchance the clerks of solicitors with briefs and fees.
Ushered into the barrister's sanctum, one finds a meagrely
furnished room, the walls masked with rows of books, the table,
chairs and window-sills littered with papers. Amidst all this, a
modern telephone looks quite out of place, and the American tries to
avoid detection when his eye unconsciously steals to a wig hanging
on a hook back of the barrister's chair and to a round tin box,
lying on the floor, which is for the transportation of the tonsorial
armor when its owner travels on circuit. The otherwise uninviting
aspect of the place is redeemed, however, by a cheerful fire blazing
on the hearth and by a restful outlook upon a shady garden, and a
splashing fountain, where the sparrows sip the water and take their
dainty baths. Here the barrister remains when not in court; but when
the day's work is done, if he be prosperous, his motor car whisks
him to the more elegant surroundings of a home in the West End, or,
perhaps a humble bus and suburban train carry him far from town.
The Inns of Court began their existence about 1400, nearly
cotemporaneously with the Trade Guilds, and both, doubtless, took
their rise from the instinct of men engaged in a common occupation
to combine for mutual protection. All lawyers were once men in holy
orders and the judges were bishops, abbots and other Church
dignitaries, but in the XIII Century the clergy were forbidden to
act in the courts and, thereupon, the students of the law gathered
together and formed the Inns. Much concerning their origin is
obscure, but the nucleus of each was doubtless the gravitation of
scholars to some ancient hostelry, there to profit by the teachings
of a master lawyer of the day--just as the modern London club had
its beginning in the convivialities of a casual coffee house. In
time these loose aggregations developed into strong and elaborate
organizations which acquired extensive real property, now of
enormous value, and have long wielded a powerful influence.
In order to enjoy the quiet of what was then the country, and yet to
retain the advantage of the city's protection at a time when rural
localities were far from safe, the Inns were mostly located close to
the west wall of the City, although the Inner Temple, as its name
implies, is just within the line of that vanished wall, and thus
they were convenient to Westminster, where the courts were
permanently located by a provision of Magna Charta. During the
present generation, however, the principal courts (except the House
of Lords and the Judicial Committee of the Privy Council) have
returned to a situation actually contiguous to the old Inns, whilst
the vast town, during the centuries, has not only engulfed
Westminster but has spread miles beyond it. Thus, all the Inns were
grouped in a section, perhaps a square mile in extent, bounded on
the east by Chancery Lane, which roughly follows the old City wall
and between the Thames on the south, and the district called Holborn
on the north.
Looking now to the functions of these ancient institutions, an Inn
of Court may be defined as an unincorporated society of barristers,
which, originating about the end of the XIII Century, possesses by
immemorial custom the exclusive privilege of calling candidates to
the Bar, and of disciplining, or when necessary, of disbarring
barristers.
The governing body is composed of the benchers, who are either
Judges or King's Counsel and prominent junior barristers, but it is
usual to invite a member to join the benchers of his Inn when, and
only when, a vacancy occurs. The executive officer is the treasurer,
who is selected annually, and the members consist of the barristers
and students.
All the Inns are alike in authority, and in the privileges which
they enjoy and the regulations of each, governing the admission,
education and examination of students and the calling to the Bar of
those who are qualified, are precisely uniform; any differences
which may have existed having been abolished by the adoption in 1875
of a code of rules known as the "Consolidated Regulations." While
there is thus complete equality and no official precedence, yet each
Inn has its own history, traditions and ancient customs. The choice
of which Inn to enter, thus becomes a matter of individual
preference, depending upon sentiment, or upon family or social
surroundings.
The former Inns of Chancery should also be mentioned before leaving
the subject, although they have no present interest for the modern
lawyer. Their origin, too, is buried in obscurity, but they arose
about the same time as the Inns of Court, with one of which each was
connected, and were at first places of preparatory training for
young students later to be admitted to the particular Inn. These
youthful apprentices, however, were gradually ousted by the
attorneys and solicitors--who have always been excluded from the
Inns of Court--whereupon the Inns of Chancery fell out of fashion
and deteriorated, so that by the middle of the Eighteenth Century
they had disappeared and their names are now mere memories. During
the period of activity of the Inns of Chancery, Staple Inn (perhaps
the best known) and Barnard's Inn, were attached to Gray's Inn;
Clifford's Inn, Clement's Inn and Lyon's Inn were intimately related
to the Inner Temple; Furnival's Inn and Thavie's Inn to Lincoln's
Inn; the New Inn and Strand Inn to the Middle Temple. One block only
of quaint Elizabethan buildings, with gables of cross timber and
plaster, still overhangs the great thoroughfare of Holborn and marks
what is left of Staple Inn.
Likewise Serjeants' Inn vanished in 1876, when its valuable realty
was sold--for Serjeants-at-law had long ceased to be created--and
the proceeds were divided amongst the few survivors; a proceeding
much criticized at the time, although one of them gave his share to
charity. The serjeants-at-law were once a class of barristers who
had in some manner acquired the exclusive right of audience in the
Court of Common Pleas and had also secured a monopoly of the then
profitable art of pleading. Upon attaining this degree, a serjeant
severed his relations with his Inn of Court and attached himself to
the Serjeants' Inn. After having occupied several sites since the
Sixteenth Century, Serjeants' Inn was finally located on Chancery
Lane, and to it belonged all of the Serjeants, and all of the judges
of the Common Law Courts, for they, necessarily, had been serjeants
before being elevated to the bench. The buildings, which are small
and have no pretensions to architectural beauty, have for many years
been occupied as offices, chiefly those of solicitors.
Thus, of the many Inns of Chancery, of the Serjeants' Inn (and the
once powerful societies which they housed), there remain none but
the four great Inns of Court, through one of which must pass every
barrister called to the English Bar.
This brief sketch may convey some idea of the extent to which the
young law student unconsciously absorbs tradition, and is moulded,
when plastic, by the pressure of centuries of custom and etiquette.
Whatever may have been his forebears, he is more than likely, when
turned out as a full-fledged barrister, to answer pretty nearly to
the old definition, for he has, indeed, been one "who studieth the
laws of the realm" and he is apt to "bear the port, charge and
countenance of a gentleman."
To the embryo barrister, however, the existing Inns possess
interests far livelier than those referred to, for he must enter one
of them, and not only thus gain access to the Bar, but must ally
himself to his choice unless he elects, by going through certain
formalities, to emigrate to another Inn. Formerly he had only to
attend a single function--a dinner--during each term and, having
"eaten twelve dinners," he, ipso facto, became entitled to be called
to the Bar, no matter how inadequate might be his knowledge of the
law. In these less aristocratic and more prosaic days, however, he
is obliged diligently to apply himself to study, and to pass, from
time to time, regular and strict examinations, prescribed by the
Council of Legal Education, so that his equipment is no longer left
to chance, but is really measured with cold accuracy. The term of
study is not less than three years, and twelve terms, four in each
year, must be "kept" at the Inn, the evidence of which is still the
fact of dining in the hall six days during each term, although
members of the Universities of Oxford and Cambridge need dine but
three days in each term.
An English student's reading is much like that pursued in one of our
own law schools, the chief difference being that he devotes more
time to mastering general principles than to the consideration of
reported cases from which our students are presumed to extract the
underlying principle. Much has been said in favor of each method,
and the true course probably lies between the extremes, but the
average result of an English law training, superimposed upon a
generally superior prior education, is perhaps somewhat better than
the average American result, while, as to the few on both sides of
the water destined to attain real eminence, no superiority could
fairly be claimed by either.
The total fees payable by a student amount to about £140. and women,
be it observed by progressive ladies, are not eligible for the Bar
in England.
Having passed the necessary examinations, the young barrister is
finally "called to the Bar," a ceremony which takes place in the
Hall of his Inn, at the close of dinner on "Grand Day," which is the
day appointed for a banquet, to which a score or more of
distinguished guests are invited by the "Treasurer and the Masters
of the Bench." The Students, wearing gowns over evening dress, are
grouped together, below the dais on which the benchers' table
stands. The Steward of the Inn calls out the names in order of
seniority. Each Student, as his name is called, advances to the high
table and halts there, facing the Treasurer, who, standing up, says
to him: "Mr. ----, by the authority and on behalf of the Masters of
the Bench, I publish you a barrister of this Honorable Society."
Then the Treasurer shakes hands with the new barrister and the
latter walks away to join his comrades.
Solicitors are created by entirely different methods, as there are
no Inns nor any similar organizations for students. There is a
preliminary examination to determine whether the boy who desires to
become a solicitor, has sufficient general education. If so, he is
apprenticed, for a period of five years, to some practitioner, for
which privilege he pays a sum of money, say from 100 to 400 guineas;
the amount chiefly depending upon the solicitor's standing. There
are official fees, too, amounting to about £130, so that, as he
receives no compensation during his five years' apprenticeship, and
meantime must be supported by his people, the cost of entering the
solicitor's calling is not inconsiderable. He begins by copying
papers and performing minor services in the public offices and, at
the same time, pursues his legal studies, which have steadily become
more arduous. His progress as a law student is ascertained by an
intermediate examination, held under the direction of the
Solicitors' Incorporated Law Society, and a final one determines
whether he has acquired sufficient knowledge of the law to be
admitted to practice. If shown to be qualified, he is admitted by
the courts, and is thereafter subject to the discipline of the
Society and to that of the courts themselves, usually prompted by
the Society. The marked difference, therefore, that distinguishes
the solicitor's training from that of the barrister, is the absence
of any Inn of Court--with its _esprit de corps_--as a commanding
influence in shaping his development and governing his whole career.
Nevertheless, while the whole body of solicitors is, perhaps, not as
liberally educated nor as polished as the Bar, the higher grade of
solicitors are lawyers quite as well equipped, and gentlemen equally
accomplished, as members of the Bar itself.
Some glimpses of the separate roads which the barrister and the
solicitor travel after their student days, will be reserved for
later chapters.
CHAPTER III
BARRISTERS
WAITING FOR SOLICITORS AS CLIENTS--"DEVILLING"
--JUNIORS--CONDUCT OF A TRIAL--"TAKING SILK"
--BECOMING A K. C.--ACTIVE PRACTICE--THE SMALL
NUMBER OF BARRISTERS.
Having been called to the Bar, the question first confronting the
young barrister is whether he really intends to practice. He may
have read law as an education, meaning to devote himself to
literature, to politics or to some other pursuit, or he may have
embraced the profession in deference to the wishes of his family and
to fill in the time while awaiting the inheritance of property.
Supposing him, however, to be one of the minority determined to rise
in the profession, he is confronted with formidable obstacles, for
he can not look to his friends to furnish him with briefs. He can
never be consulted nor retained by the litigants themselves. The
only clients he can ever have are solicitors, whose clients, in
turn, are the public. He never goes beyond his dingy chambers in
the Inns of Court, where, guarded by his clerk, he either wearily
waits for solicitors with briefs and fees, or, more likely still,
gives it up and goes fishing, shooting or hunting. And this
furnishes the market for the alluring placards one sees at the old
wig-makers' shops in the Inns of Court: "Name up and letters
forwarded for £5 per annum."
The early ambition of the young barrister is to become a "devil" to
some junior barrister, who always has recourse to such an
understudy, and, if the junior is making over £1,000 a year, he
continuously employs the same devil. This term is not applied in a
jocular sense, but is the regular and serious appellation of a young
barrister who, in wig and gown, thus serves without compensation and
without fame--for his name never appears--often for from five to
seven years. The devil studies the case, sees the witnesses, looks
up the law and generally masters all the details, in order to supply
the junior with ammunition.
Before the trial the junior has one or more "conferences" with the
solicitor, all paid for at so many guineas; occasionally he even
sees the party he is to represent, and, more rarely, an important
witness or two. The devil is sometimes present, although his
existence is, as a rule, decorously concealed from the solicitor.
If the solicitor, or the litigating party, grows nervous, or hears
that the other side has employed more distinguished counsel, the
solicitor retains a K. C. as leader. Then a "consultation" ensues at
the leader's chambers between the leader, junior, solicitor, and,
occasionally, the devil.
At the trial, the junior merely "opens the pleadings" by stating in
the fewest possible words, what the action is about--that it is,
perhaps, a suit for breach of promise of marriage between Smith and
Jones, or to recover upon an insurance policy for a loss by
fire--and then resumes his seat, whereupon the leader--the great K.
C.--really opens the case, at considerable length and with much more
detail and argument than would be good form in an American court. He
states his side's contention with particularity, reads documents and
correspondence (none of which have to be proved unless their
authenticity is disputed--points which the solicitors have long ago
threshed out) and he even indicates the position of the other side,
while, at the same time, arguing its fallacy. Having done this, he
leaves it to the junior to call the witnesses--more often he
departs from the court room to begin another case elsewhere, and
returns only to cross-examine an important witness on the other
side, or to make the closing speech to the jury. In this way a busy
leader may have several trials going on at once. The junior then
proceeds to examine the witnesses with the help of an occasional
whispered suggestion from the solicitor, who is more than ever
isolated by the departure of the leader, and the devil is proud when
the junior audibly refers to him for some detail.
If the leader is absent, which frequently happens notwithstanding
his fee has been paid, inasmuch as no case is deferred by reason of
counsel's absence, the junior takes his place, while the solicitor
grumbles and more devolves upon the devil.
Occasionally, indeed, both leader and junior may be elsewhere and
then is the glorious opportunity of the poor devil, who hungers for
such an accident, for he may open, examine, and cross-examine, and,
if neither his junior nor his august leader appear, he may even
close to the jury. The solicitor will be white with rage and
chagrin, wondering how he shall explain to the litigant the absence
of the counsel whose fees he has paid, but the devil may win and so
please the solicitor that the next time he may himself be briefed as
junior. This is one of the things he has read of in the Lives of the
Lord Chancellors.
The devil is in no sense an employee or personal associate of the
junior--which might look like partnership, a thing too abhorrent to
be permitted. On the contrary, he often has his own chambers and
may, at any time, be himself retained as a junior, in which event
his business takes precedence of his duties as a devil, and he then
describes himself as being "on his own."
Having gained some identity, and more or less business "on his own"
from the solicitors, a devil gradually begins to shine as a junior,
whereupon appears his own satellite in the person of a younger man
as devil, while the junior becomes more and more absorbed in the
engrossing but ever fascinating activities of regular practice at
the Bar.
Reaching a certain degree of prominence, a junior at the common-law
Bar may next "take silk;" that is, become a K. C., or King's
Counsel, which has its counterpart at the Chancery Bar, as will be
explained later when dealing with the division between the law and
equity sides of the system. Whether a barrister shall "apply" for
silk is optional with himself and the distinction is granted by the
Lord Chancellor, at his discretion, to a limited, but not
numerically defined, number of distinguished barristers. The phrase
is derived from the fact that the K. C.'s gown is made of silk
instead of "stuff," or cotton. It has also a broad collar, whereas
the stuff gown is suspended from shoulder to shoulder.
Whether or not to "take silk," or to become a "leader," is a
critical question in the career of any successful common law or
chancery barrister. As a junior, he has acquired a paying practice,
as his fee is always two-thirds that of the leader. He has also a
comfortable chamber practice in giving opinions, drawing pleadings
and the like, but all this must be abandoned--because the etiquette
of the Bar does not permit a K. C. or leader to do a junior's
work--and he must thereafter hazard the fitful fancy of the
solicitors when selecting counsel in important causes. Some have
taken silk to their sorrow, and many strong men remain juniors all
their lives, trying cases with K. C.'s much younger than themselves
as their leaders.
They tell this story in London: A certain Scotch law reporter
(recently dead), noted for his shrewdness and good judgment, having
been consulted by a barrister whether to "apply for silk," advised
him in the negative, but declined to go into particulars. The
barrister renewed his inquiry more than once, finally demanding the
Scot's reason for his advice. The latter reluctantly explained that
the barrister had a good living practice which he would be foolish
to give up. Being further pressed, he finally said: "In many years'
observation of the Bar I have learned that success is only possible
with one or more of three qualifications, that is, a commanding
person, a fine voice, or great ability, and I rate their importance
in the order named. Now, with your wretched physique, penny-trumpet
voice, and mediocre capacity, I think you would surely starve to
death." The barrister did not "apply," but never spoke to the
Scotchman again.
The anecdote illustrates the crucial nature of the step when taken
by any barrister, and even if taken with success, yet there are
waves of popularity affecting a leader's vogue. Solicitors get vague
notions that the sun of a given K. C. is rising or setting--that the
judges are looking at him more kindly or less so, therefore K. C.'s
and leaders who were once overwhelmed with business, may sometimes
be seen on the front row with few briefs.
A successful K. C. leads a strenuous life, as may well be
appreciated if he be so good as to take his American friend about
with him in his daily work, seating him with the barristers while he
is actually engaged. One very eminent K. C., who is also in
Parliament, rises in term time at 4 a.m., and reads his briefs for
the day's work until 9, when he breakfasts and drives to chambers.
Slipping on wig and gown at chambers and crossing the Strand, or
arraying himself in the robing room of the Law Courts, he enters
court at 10:30, and takes part in the trial or argument of various
cases until 4 o'clock, often having two or three in progress at
once, which require him to step from court to court, to open,
cross-examine, or close, having relied upon the juniors and
solicitors to keep each case going and tell him the situation when
he enters to take a hand. From 4 to 6:30 he has consultations at his
chambers, at intervals of fifteen minutes, after which he drives to
the House of Commons, where he sits until 8:30, when it is time for
dinner. If there is an important debate, he returns to the House,
but tries to retire at midnight for four hours' sleep. Naturally the
Long Vacation alone makes such a life possible for even the
strongest man.
[Illustration: CROSSING THE STRAND FROM TEMPLE TO COURT]
His success, however, means much, for there lie before him great
pecuniary rewards, fame, perhaps a judgeship, or possibly an
attorney-generalship, both of which, unlike their prototypes in
America, mean very high compensation, to say nothing of the honor
and the title which usually accompany such offices.
The English Bar is small and the business very concentrated, but no
statistics are available, for many are called who never practice. By
considering the estimates of well-informed judges, barristers and
solicitors, it seems that the legal business of the Kingdom is
handled by so small a number as from 500 to 800 barristers, although
the roll of living men who have been called to the Bar now includes
9,970 names.
We have no Bar with which to institute a comparison, for each county
of every State has its own and all members of county Bars,
practicing in the appellate court of a State, constitute the Bar of
that State, which is a complete entity. Great commercial centres
have larger ones and have more business than rural localities, but
no Bar in America is national like that of London.
It would be interesting, if it were possible, to compare the
proportion of the population of England, which pursues the law as a
vocation, with that of the United States, but no figures exist for
the purpose. The number of barristers includes, as already stated,
those who do not practice, while an enumeration of the solicitors'
offices would exclude individual solicitors employed by others, as
will be explained hereafter. The aggregate of these two uncertain
elements, however, would be about 27,000. The legal directories give
the names of something like 95,000 lawyers in America of whom about
27,000 appear in fifteen large cities--New York, for example, being
credited with over 10,000, Chicago with over 3,500 and San Francisco
with about 1,500--leaving about 69,000 in the smaller towns and
scattered throughout the land. These tentative, and necessarily
vague, suggestions rather indicate that the proportion of lawyers
may not be very unequal in the two countries.
CHAPTER IV
BARRISTERS--THE COMMON LAW AND THE CHANCERY BARS
BAR DIVIDED INTO TWO PARTS--NO DISTINCTION BETWEEN
CRIMINAL AND CIVIL PRACTICE--LEADERS--"TAKING
HIS SEAT" IN A PARTICULAR COURT--"GOING SPECIAL"
--LIST OF SPECIALS AND LEADERS--SIGNIFICANCE OF
GOWNS AND "WEEPERS"--"BANDS"--"COURT COATS"--
WIGS IN THE HOUSE OF LORDS--BARRISTERS' BAGS,
BLUE AND RED.
The Bar is divided into two separate parts--the Common Law Bar
and the Chancery Bar; for a barrister does not try cases of both
kinds as in America. The solicitor knows whether he has a law or
equity case in hand, and takes it to the appropriate barrister.
Common law barristers have their chambers chiefly in the Middle
Temple and Inner Temple; chancery men, largely in Lincoln's Inn,
and the two kinds of barristers know little of, and seem even
to have a kind of contempt for, each other. Thus a common law
barrister passes his life in jury trials and appeals; whereas a
chancery man knows nothing but courts of equity, unless he follows a
will case into a jury trial as a colleague of a common law man to
determine an issue of _devisavit vel non_. And there are further
specializations--although the divisions are not so marked--into
probate, divorce or admiralty men. Besides, there is what is known
as the Parliamentary Bar, practicing entirely before Parliamentary
committees, boards and commissions. It is, however, curious that in
England no apparent distinction exists between civil and criminal
practice and common law barristers accept both kinds of briefs
indiscriminately.
At the Chancery Bar there is a peculiar subdivision which has
already been mentioned. Having reached a certain degree of success
and become a K. C., a barrister may "take his seat" in a particular
court as a "leader" by notifying the Judge and informing the other
K. C.'s who are already practising there. Thereafter he can never go
into another, except as a "special," a term which will be explained
presently. For three pence, at any law stationer's, one can buy a
list of the leaders in the six chancery courts, varying in number
from three to five and aggregating twenty-five, and if a solicitor
wishes a leader for his junior in any of these courts he must
retain one out of the limited list available or pay the "special"
fee. Hence, these gentlemen sit like boys in school at their desks
and try the cases in which they have been retained as they are
reached in rotation.
But even for a leader at the Chancery Bar, one more step is
possible, a step which a barrister may take, or not, as he pleases,
and that is: he may go "special." This means that he surrenders his
position as a leader in a particular court and is open to accept
retainers in any chancery court; but his retainer, in addition to
the regular brief fee, must be at least fifty guineas or multiples
of that sum, and his subsequent fees in like proportion. The printed
list also shows the names of these "specials," at present only five
in number. The list of leaders and specials in 1910 reads as
follows:
A LIST OF HIS MAJESTY'S COUNSEL
USUALLY PRACTICING IN THE CHANCERY DIVISION
OF THE HIGH COURT OF JUSTICE.
---------------
THE FOLLOWING COUNSEL ARE NOT ATTACHED
TO ANY COURT, AND REQUIRE A SPECIAL FEE:--
Mr. Levett: Mr. Astbury: Mr. Upjohn: Mr. Buckmaster.
---------------
COUNSEL WHO HAVE ATTACHED THEMSELVES TO PARTICULAR COURTS,
ARRANGED IN THE ORDER IN WHICH THEY ARE ENTITLED TO MOVE:--
--------------------+-------------+------------------------+-----------
Mr. Justice Joyce | Date of | Mr. Justice Warrington | Date of
Lord Chancellor's | Ap'ointment | Chancery Court 2 | Ap'ointment
Court | | |
--------------------+-------------+------------------------+-----------
Mr. T. R. Hughes | 1898 | Mr. Henry Terrell | 1897
Mr. R. F. Norton | 1900 | Mr. T. H. Carson | 1901
Mr. R. Younger | 1900 | Mr. George Cave | 1904
| | Mr. A. C. Clauson | 1910
--------------------+-------------+------------------------+------------
Mr. Justice Eve | Date of |Mr. Justice Swinfen Eady| Date of
| Ap'ointment | Chancery Court 1 | Ap'ointment
--------------------+-------------+------------------------+------------
Mr. P. O. Lawrence | 1896 | Mr. W. D. Rawlins | 1896
Mr. Ingpen | 1900 | Mr. E. C. Macnaghten | 1897
Mr. Dudley Stewart- | | Mr. N. Micklem | 1900
Smith | 1902 | |
Mr. A. H. Jessel | 1906 | Mr. Frank Russell | 1908
Mr. E. Clayton | 1909 | |
====================+=============+========================+============
Mr. Justice Melville| Date of | Mr. Justice Parker | Date of
| Ap'ointment | Chancery Court 4 | Ap'ointment
--------------------+-------------+------------------------+------------
Mr. Bramwell Davis | 1895 | Mr. W. F. Hamilton | 1900
Mr. J. G. Butcher | 1897 | Mr. M. L. Romer | 1906
Mr. C. E. E. Jenkins| 1897 | Mr. E. W. Martelli | 1908
Mr. A. F. Peterson | 1906 | Mr. A. Grant | 1908
Mr. F. Cassel | 1906 | Mr. J. Gatey | 1910
====================+=============+========================+============
NOTE--Counsel attached to the above Courts usually also practice before
the Judge to whom the Companies winding-up matters are attached.
Printed and Published by
THE SOLICITORS' LAW STATIONERY SOCIETY, LIMITED, 22.
CHANCERY LANE, W. C., 29, WALBROOK, E. G., 6, VICTORIA STREET, S. W.
---------------
Chancery forms of all kinds kept in stock.
---------------
Price Threepence.
[Transcriber's Note: In the original text, the section for M.
Justices Melville and Parker appears on the following page, across
from the section for M. Justices Joyce and Washington.]
The dress of barristers is the same for the Common Law Bar as for
the Chancery Bar, but the details of both gown and wig signify to
the initiated much as to the professional position of the wearer.
The difference between the junior's stuff gown and the leader's silk
one has already been referred to, but it is not true that a
barrister having "taken silk," that is, having become a K. C. or a
leader, always wears a silk gown, for, if he be in mourning, he
again wears a cotton gown, as he did in his junior days, but, to
preserve his distinction, he wears "weepers"--a six-inch deep, white
lawn cuff, the name and utility of which originated before
handkerchiefs were invented. Moreover, when in mourning his
"bands"--the untied white lawn cravat, hanging straight down, which
all barristers wear--have three lines of stitching instead of two.
Under his gown, a K. C. wears a "court coat," cut not unlike an
ordinary morning coat, though with hooks and eyes instead of
buttons, while the junior wears the conventional frock coat. On a
hot day, a junior wearing a seersucker jacket and carelessly
allowing his gown to disclose it, may receive an admonition from the
court, whispered in his ear by an officer.
Wigs, which were introduced in the courts in 1670, and have long
survived their disappearance in private life, were formerly made of
human hair which became heavy and unsanitary with repeated greasing.
They required frequent curling and dusting with powder which had a
tendency to settle on the gown and clothing. About 1822, a
wig-maker, who may be regarded as a benefactor of the profession,
invented the modern article, composed of horse hair, in the
proportion of five white strands to one black; this is so made as to
retain its curl without grease, and with but infrequent recurling,
and it requires no powder.
The wig worn by the barrister in his daily practice has already been
described, but, when arguing a case in the House of Lords he has
recourse to an extraordinary head-dress, which is precisely the
shape of a half-bushel basket with the front cut away to afford him
light and air. This, hanging below the shoulders, has an advantage
over the Lord Chancellor's wig in being more roomy, so that the
barrister's hand can steal inside of it if he have occasion to
scratch his head at a knotty problem, whereas his Lordship, in
executing the same manoeuvre, inevitably sets his awry and thereby
adds to its ludicrous effect.
To the unaccustomed eye, the wig, at first, is a complete disguise.
Individuality is lost in the overpowering absurdity and similarity
of the heads. Then, too, there is an involuntary association of gray
hair with years, making the Bar seem composed exclusively of old
gentlemen of identical pattern. The observer is somewhat in the
position of the Indian chiefs, who, having been taken to a number of
eastern cities in order to be impressed with the white man's power,
recognized no difference between them--although they could have
detected, in the deepest forest, traces of the passage of a single
human being--and reported upon returning to their tribes that there
was only one town, Washington, and that they were merely trundled
around in sleeping cars and repeatedly brought back to the same
place.
By degrees, however, differences between individuals emerge
from this first impression. Blond hair above a sunburned neck,
peeping between the tails of a queue, suggests the trout stream
and cricket field; or an ample cheek, not quite masked by the
bushel-basket-shaped wig, together with a rotundity hardly concealed
by the folds of a gown, remind one that port still passes repeatedly
around English tables after dinner. But it must be said that,
while the wig may add to the uniformity and perhaps to the
dignity--despite a certain grotesqueness--of a court room, yet it
largely extinguishes individuality and obliterates to some extent
personal appearance as a factor in estimating a man; and this is a
factor of no small importance, for every one, in describing another,
begins with his appearance--a man's presence, pose, features and
dress all go to produce prepossessions which are subject to revision
upon further acquaintance. One thing is certain, the wig is an
anachronism which will never be imported into America. For the Bar
to adopt the gown (as has been largely done by the Bench throughout
the country) would be quite another matter and it seems to work well
in Canada. This would have the advantage of distinguishing counsel
from the crowd in a court room, of covering over inappropriateness
of dress and it might promote the impressiveness of the tribunal.
The bag of an English barrister is also an important part of his
outfit. It is very large, capable of holding his wig and gown, as
well as his briefs, and suggests a clothes bag. It is not carried by
the barrister himself, but it is borne by his clerk. Its color has a
deep significance. Every young barrister starts with a _blue_ bag
and can only acquire a _red_ one under certain conditions. As
devil, and as junior, it is not considered _infra dig._ to carry his
own bag and he has ever before him the possibility of possessing a
red bag. At last he succeeds in impressing a venerable K. C. by his
industry and skill in some case, whereupon one morning the clerk of
the K. C. appears at the junior's chambers bearing a _red_ bag with
his initials embroidered upon it--a gift from the great K. C.
Thereafter he can use that coveted color and he may be pardoned for
having his clerk follow him closely for awhile so there may be no
mistake as to the ownership. Custom requires him to tip the K. C.'s
clerk with a guinea and further exacts that the clerk shall pay for
the bag, which costs nine shillings and sixpence, thus, by this
curious piece of economy, the clerk nets the sum of eleven shillings
and sixpence and the K. C. is at no expense.
CHAPTER V
SOLICITORS
LINE WHICH SEPARATES THEM FROM THE BAR--SOLICITOR
A BUSINESS MAN--FAMILY SOLICITORS--GREAT CITY
FIRMS OF SOLICITORS--THE NUMBER OF SOLICITORS IN
ENGLAND AND WALES--TENDENCY TOWARD ABOLISHING THE
DISTINCTION BETWEEN BARRISTER AND SOLICITOR--
SOLICITORS WEAR NO DISTINCTIVE DRESS EXCEPT IN
COUNTY COURTS--SOLICITORS' BAGS.
The line which separates solicitors from the Bar--the barristers--is
difficult for an American to fully appreciate, for in our country it
does not exist. The solicitor, or attorney, is a man of law
business--not an advocate. A person contemplating litigation must
first go to a solicitor, who guides his conduct by advice in the
preliminary stages, or occasionally retains a barrister to give a
written opinion upon a concrete question of law. The solicitor
conducts all the negotiations or threats which usually precede a
lawsuit and if compromise is impossible he brings a suit and
retains a junior barrister by handing him a brief, which consists
of a written narrative of the controversy, with copies of all papers
and correspondence--in short, the facts of the case--and which
states on its back the amount of the barrister's fee. The brief is
engrossed or type-written on large-sized paper with very broad
margins for notes, and is folded only once and lengthwise so as to
make a packet fifteen by four inches.
All Englishmen of substance, and all firms and corporations, have
their regular solicitors and the relation is frequently handed down
from generation to generation. It is, of course, unusual except in
large corporations to have a permanent barrister, because the
solicitor selects one from time to time, as the occasion requires,
and the client is rarely even consulted in the choice. When an
Englishman speaks of his lawyer, he always means his solicitor and
if he wishes to impress his auditor with the seriousness of his
legal troubles, he adds that his lawyer has been obliged to take the
advice of counsel--perhaps of a K. C.
Hence, the solicitor, unlike the barrister, is not ambitious
for fame, nor does he worry because he can not become the
Attorney-General or a judge; his mind is intent upon the pounds,
shillings and pence of his calling. He may seek business, which
the barrister can not do, and he is something of a banker, often
a promoter. Some solicitors, especially those practicing at
Liverpool, are admiralty men, others are adepts in the organization
of corporations and in litigation arising concerning them and
there are many other specialties. Some are men of the highest
grade--particularly those employed by big companies or by families
with large estates.
The venerable family solicitor of the novel and stage--that
custodian of private estates and secrets who appears in all domestic
crises, warning the wayward son, comforting the daughter whose
affections are misplaced and succoring the gambling father, is
sufficiently familiar. The worldly experience, which this kindly old
gentleman brings from his musty office, is invaluable to his
clients.
The large City firms of solicitors, on the other hand, occupy
spacious suites of offices and maintain elaborate organizations like
modern banks, with scores of clerks distributed in many departments,
whose duties are so specialized that no one of them has much grasp
of the business as a whole. The name of such a firm, appearing as
sponsor for an extensive financial project, carries weight in the
business world and its heads enjoy generous incomes, besides being
men of much importance upon whom the honor of knighthood is
sometimes conferred.
In all England and Wales only about 17,000 solicitors took out
annual certificates last year. This indicates the number of offices
and does not include clerks (many of whom have been admitted to
practice as solicitors), nor those who, for one reason or another,
do not practice. Instead of being concentrated, like the barristers,
in the Inns of Court in London, solicitors are scattered all over
the town and throughout the Kingdom itself. Some, especially in the
minor towns or poorer quarters of London, are in a small way of
business and must earn rather a precarious living. Others are of a
still lower class and seek business of a more or less disreputable
character by devious methods, but all are supposed to have been
carefully educated in the law and are answerable to their Society
and to the courts for questionable practices.
The division of the profession between the solicitors and the Bar is
no doubt a survival in modern, or socialistic, England of
aristocratic conditions which it is the tendency of the times to
weaken, if not eventually to abolish. It is somewhat hard upon the
solicitor of real ability to be confined to a limited field and to
feel that, no matter how great his powers and acquirements, it is
impossible to rise to the best position in his profession without
abandoning his branch and beginning all over again in the
barrister's ranks.
In associating with solicitors, one can not fail to be struck by
their attitude towards barristers, as a class, which is hardly
flattering to the latter; they frequently allude somewhat lightly to
them as though they were useless ornaments and as if such a division
of the profession were rather unnecessary. Upon asking whether the
distinction exists in America, they receive the information that it
does not with evident approval.
The advantages, however, of the separation of the functions of the
solicitor from those of the barrister are distinctly felt in the
superior skill, as trial lawyers, developed by the restriction of
court practice to the limited membership of the Bar, which would
hardly exist if the practice were distributed over the whole field
of both branches of the profession. Then, too, the small number of
persons composing the Bar enables greater control by the benchers
over their professional conduct, and helps to maintain a high
standard of ethics and the feeling of _esprit de corps_. Moreover,
the Bar is not distracted from the science, by contact with the
business, of the law and it is saved from the contaminating effect
of participation in the sordid details of litigation. At the same
time, this very condition may be calculated to develop in the
average barrister, as distinguished from one of real ability, an
attitude approaching dilettanteism.
If the division of the profession ever ceases to exist, the change
will no doubt come about by the gradual encroachment of the
solicitors' branch upon the Bar. Already solicitors possess the
right of audience in the county courts, the limit of whose
jurisdiction is constantly being increased, with the result of
developing a species of solicitor-advocate, whose functions are very
similar to those of the barrister. The more this progresses, the
greater will be the number of solicitors who will become known as
court practitioners, and whose services will be sought by the public
and even by other solicitors, providing an existing act forbidding
the latter is repealed.
While such is the drift in England, there is at the same time a
tendency in America to approach English conditions in the evolution
of the law firm composed of lawyers of whom some are known as
distinctively trial lawyers, while the other members devote
themselves to the business the science, by contact with the
business, of the law and it is saved from the contaminating effect
of participation in the sordid details of litigation. At the same
time, this very condition may be calculated to develop in the
average barrister, as distinguished from one of real ability, an
attitude approaching dilettanteism.
If the division of the profession ever ceases to exist, the change
will no doubt come about by the gradual encroachment of the
solicitors' branch upon the Bar. Already solicitors possess the
right of audience in the county courts, the limit of whose
jurisdiction is constantly being increased, with the result of
developing a species of solicitor-advocate, whose functions are very
similar to those of the barrister. The more this progresses, the
greater will be the number of solicitors who will become known as
court practitioners, and whose services will be sought by the public
and even by other solicitors, providing an existing act forbidding
the latter is repealed.
While such is the drift in England, there is at the same time a
tendency in America to approach English conditions in the evolution
of the law firm composed of lawyers of whom some are known as
distinctively trial lawyers, while the other members devote
themselves to the business of the law, and indeed one now
occasionally hears of such partnerships designating one of their
number as "counsel" to the firm--which is, perhaps, an affectation.
Solicitors often become barristers--sometimes eminent ones, for they
have an opportunity to study other barristers' methods, and have
acquired a knowledge of affairs. Of course they must first retire as
solicitors and enter one of the Inns for study. The late Lord Chief
Justice of England began his career as an Irish solicitor.
Solicitors wear no distinctive dress (except a gown when in the
county court, as will be explained hereafter) but attire themselves
in the conventional frock or morning coat and silk hat which is
indispensable for all London business men. They all, however, carry
long and shallow leather bags, the shape of folded briefs, which are
usually made of polished patent leather.
CHAPTER VI
BUSINESS AND FEES
INFLUENTIAL FRIENDS OF BARRISTER--JUNIOR'S AND
LEADER'S BRIEF FEES--FEES OF COMMON LAW AND
CHANCERY BARRISTERS--BARRISTER PARTNERSHIPS NOT
ALLOWED--ENGLISH LITIGATION LESS IMPORTANT THAN
AMERICAN--CLERKS OF BARRISTERS AND SOLICITORS
HAGGLE OVER FEES--SOLICITORS' FEES.
An American lawyer will be curious concerning two things, about
which he will get little reliable information, viz., how legal
business comes and what are its rewards.
The barrister supplements his reading, sometimes by practical
service for a short time in a solicitor's office and nearly always
by the deviling before described, and thus, in theory--and according
to the traditions of the Bar--may pass years awaiting recognition.
Finally, briefs begin to arrive which are received by his clerk with
the accompanying fee, in gold, as to which the barrister is presumed
to be quite oblivious. This, however, is not always the experience
of the modern barrister, who may have some relative occupying the
position of chairman of a railway, or of a large City company, the
solicitors of which will be apt to think of this particular man when
retaining counsel. In such fashion and other ways, while he can not
receive business directly from an influential friend or relative,
but only through the medium of a solicitor, yet such connections are
often definitely felt in giving the young barrister a start. His
eventual success, however, as in every other career, depends upon
how well he avails himself of his opportunities.
When briefed as a junior, without a leader, in a small action, his
fee may be "3 & 1," meaning three guineas for the trial and one
guinea for the "conference" with the solicitor. When briefed with a
leader, however, his fee, which is always endorsed on the brief, may
read:
"Mr. J. Jones 35 guineas
1 guinea
36 guineas
"With you
SIR J. BLACK, K. C."
The leader's brief will be endorsed:
"Sir J. Black, K. C. 50 guineas
2 guineas
52 guineas
"With you
MR. J. JONES."
The fee is not always sent by the solicitor with the brief, but a
running account, with settlements at intervals, is not uncommon.
Contingent fees are absolutely prohibited, the barrister gets his
compensation, or is credited with it, irrespective of the result.
All speculation as to professional earnings of a barrister must be
vague, for there can be little accurate knowledge on such a subject.
Chancery men seem to earn much less than common law barristers and
their business is of a quieter and less conspicuous character. At
the fireside in chambers in Lincoln's Inn, if the conversation
drifts to fees, one may hear a discussion as to how many earn
£2,000, and a doubt is expressed whether more than three men average
£5,000, but the gossips will add that they do not really know the
facts.
The fees of common law men, while larger, are equally a matter of
guess-work. One hears of the large earnings of Judah P. Benjamin a
generation ago, and R. Barry O'Brien, in his life of Sir Charles
Russell, quotes from his fee book yearly showing that the year he
was called to the Bar he took only £117, while thirty-five years
later--in 1894--just before he was elevated to the bench, his fees
for the year were £22,517. For the ten years preceding he had
averaged £16,842, and, for the ten years before that, £10,903. The
biographer of Sir Frank Lockwood, a successful barrister, relates
that he earned £120 his first year and that this increased to £2,000
in his eighth year, but he was glad to accept during his
twenty-second year the Solicitor Generalship, paying about £10,000.
The Attorney General, who, although his office is a political one,
is generally a leading barrister, receives a salary of £7,000 and
his fees are about £6,000 more.
The clerk of a one time high judicial officer now dead, is authority
for the statement that the year before he went upon the bench his
fees aggregated 30,000 guineas. It seems to be the general opinion
of those well informed that the most distinguished leader may, at
the height of his career, take 20,000 to 25,000 guineas. All such
estimates must, however, be received with the greatest reserve, and
no one could undertake to vouch for them.
Barristers' fees are, of course, for purely professional services
and do not come within the same category as the immense sums one
occasionally hears of being received by American lawyers--not,
however, as a rule, for real professional services in litigation,
but for success in promoting, merging or reorganizing business
enterprises. The fees of English barristers are practically all
gain, as there are no office expenses worth mentioning. No suit can
be brought by a barrister to compel the payment of a fee although
the services have been performed, nor is he liable for negligence or
incompetence in his professional work.
Partnerships, which are common between solicitors, are unknown to
barristers and anything approaching them would be the subject of
severe discipline. This is a fundamental law of the profession,
never questioned, as to which the rulings of the governing body of
the Bar (some of which will be quoted in a later chapter) relate
only to the application of the principle to different circumstances.
In order to appreciate the abhorrence of partnerships, it is
necessary to bear in mind the fact that the great science of the law
is to the barrister strictly a profession, having no affinity to a
business or a trade. No barrister can have the slightest personal
concern in the interests which he advocates, his fee being never
contingent, nor is he ever permanently retained by salary or
otherwise. He is a purely intellectual ally of the court in the
consideration of questions, more or less abstract, as to which he
merely supports the view he has undertaken to urge.
Upon the whole, professional rewards do not strike an American as
particularly large, remembering that the recipients are at the top
of the profession in London, which means the Kingdom.
One can not escape the impression that litigation in England deals
with minor matters as compared with that of America. There are no
American data for comparison with the admirable judicial statistics
of England, but, in listening to the daily routine of the London
courts, in the tight little Island with its dense population and
well-settled rights, there seems to be a complete absence of those
far-reaching litigations which arise in America, involving enormous
sums, or conflicting questions concerning a whole continent, with
its railroads and rivers extending as avenues of commerce for
thousands of miles and with ramifications of trade running into many
States, each with its separate sovereignty.
One circumstance rather indicates that the popular estimate of fees
is above the truth, and this is the acceptance of judgeships by the
most eminent barristers; still, judicial salaries in England are
high--£5,000 at the least--not to speak of the compensation of the
Chief Justice and Lord Chancellor, which are more.
Solicitors' clerks occasionally haggle and bargain with barristers'
clerks in an undignified manner--but of this their masters are
supposed to be in ignorance. And it seems that the matter of fees is
sometimes abused. In the case of a celebrated barrister, now dead,
it is whispered that his clerk would receive a retainer of 500
guineas on behalf of the K. C. who would be missing upon the cause
being reached. The clerk would then tell the solicitor's clerk that
the K. C. was overcrowded, and he did not believe he could get him
into court unless 250 guineas were added to the fee. After
grumbling and protesting, the addition would be forthcoming,
whereupon the clerk would readily find the K. C. strolling in the
Temple Gardens, and fetch him to court. This, however, was not
regarded as honest and the story itself is doubted.
In the case of solicitors, the acquirement of a practice is
apparently much like establishing a mercantile business. The
majority doubtless begin as clerks in existing firms, and, if men of
ability, either rise in the firm or form their own associations.
They are not hampered by the same considerations of delicacy and
etiquette as the barrister, but may seek employment, although, of
course, the one guarantee of real success is the honest and
efficient handling of affairs with which they may be entrusted.
The profits of a large firm of solicitors are very great. Much of
the money, however, is made in the transaction of business which is
not of the profession at all, such as the promotion of enterprises,
the flotation of companies, just as there is a class of American
lawyers pursuing the same lines.
A solicitor's compensation, called "solicitor's costs," is not a
matter of discretion, but is regulated by a recognized scale,
although he may make a special agreement with his client in
advance, but it must be in writing and is subject to review by a
Master as to its reasonableness. For an appearance in court the
charge runs from 6s. 8d. to £1. 1s. 0d., according to the nature of
the business and the time consumed. A charge reading, "To crossing
the street to speak to you and finding it was another man, 1s. 3d.,"
has been ruled out.
A solicitor's compensation for services other than litigation is
obtained by rendering to the client a regular bill, minutely
itemized. The writing of a post card will justify a charge of three
shillings and sixpence, but, for a letter the demand may be five
shillings and sixpence with a half-penny for the stamp. Each
interview at the office, and every visit to the client's town or
country house, is charged for; while incidental outlays and expenses
are carefully detailed, including the fees paid the barrister for
his opinions, for the drafting of pleadings and for appearance in
court. If the matter has involved proceedings in court in which the
solicitor's client has been successful, then various costs are
allowed as part of the judgment to be recovered from the opposite
side, although they do not necessarily equal the charges to be paid
by the client, as will be explained when dealing with the subject
of costs. Solicitors, unlike barristers, may sue for their
compensation and are liable for negligence, although not for
mistaken opinions upon questions of law.
CHAPTER VII
DISCIPLINE OF THE BAR AND OF SOLICITORS
THE GENERAL COUNCIL OF THE BAR--THE STATUTORY
COMMITTEE OF THE INCORPORATED LAW SOCIETY
--RULINGS ON VARIOUS MATTERS--LAPSES FROM CORRECT
STANDARDS.
The discipline of the Bar--the maintenance of correct standards of
professional conduct--is everywhere a difficult problem. In England,
with the experience of centuries, good results are obtained, upon
the whole, considering that human nature is alike the world over.
The General Council of the Bar governs the Bar; the Statutory
Committee of the Incorporated Law Society governs the solicitors.
These two bodies occasionally confer together--or rather exchange
views--in matters concerning the relations of the two branches of
the profession.
The General Council of the Bar, having heard a complaint against a
barrister, reports its findings with recommendations--perhaps of
disbarment in exceptionally serious cases--to the Benchers of the
barrister's Inn. They alone have the power to act and nearly always
follow the recommendation. Probably little difference exists in
their deliberations, methods and actions in serious cases and that
of corresponding disciplinary agencies in the United States, whether
called a Bar Committee or a Committee of Censors. Disbarment is an
extreme penalty in both countries, inflicted only for moral
turpitude amounting usually to crime.
But the General Council of the English Bar renders an even greater
service to the profession in establishing standards of professional
conduct, not only in respect of morality, but in questions of
propriety and good taste. This is accomplished by resolutions upon
submitted questions which seem to fall into two classes: those which
are found contrary to a "Rule of the Profession" and those which are
pronounced to be "Undesirable Practices". These rulings (without
names or other particulars which might lead to identification) are
all reported in the "White Book", an annual book of practice in
general use, and constitute a code of ethics and etiquette.
An examination of these rulings shows very few findings upon
rudimentary morals; it apparently is taken for granted that lawyers
are familiar with such commandments as "Thou shalt not steal." They
deal chiefly with the more refined questions of professional conduct
which often present difficulties even to men of honest instincts but
who lack natural delicacy or experience.
An example of a course contrary to a rule of the profession is the
following:
"_County Court Judge's Sons_: It should be recognized as a
'Rule of the Profession' (the quotation marks are the
Council's) that no barrister should habitually practice in
any county court of which his father, or any near relative,
is the judge." An. St. 1895-1896, p. 6.
It is not necessary to discuss whether this would be applicable in
America. Here the principle is probably recognized in the larger
cities by the best element, whereas in the country, with only one
county judge, it would prevent a son's following his father's
profession. The ruling merely illustrates that in England there is
an authoritative body which could be asked to declare how the
profession regards such a difficult question as, whether suitors
should be obliged to see their cases won or lost by the arguments of
a son addressed to his father, or whether the son should be
excluded from the only court of his vicinity.
That a kind of sporting magnanimity is desirable but not required by
any 'rule of the profession', is shown in the following, which
refers to revenue laws requiring receipts and other papers to be
stamped in order to constitute evidence:
"_Stamps_: It is undesirable that counsel should object to
the admissibility of any document upon the ground that it
is not, or is insufficiently, stamped, unless such defect
goes to the validity of such document. It is also
undesirable that counsel should take part in any discussion
that may arise in support of any objection taken on the
ground aforesaid unless invited to do so by the court." An.
St. 1901-1902, p. 5.
The next point has been the subject of judicial rulings in America
to the same effect:
"_Damages_: _Mentioning in Court Amount claimed_: There is
a general understanding that it is irregular for
plaintiff's counsel to mention during the trial the amount
claimed by way of damages." An. St. 1898-1899, p. 11.
A series of rulings hold that a barrister occupying the office of
town clerk, or clerk of any similar public body, "ought not" to
practice at the Bar and that it is "undesirable" for such an
official to be called to the Bar. (An. St. 1896-1897, p. 9,
1898-1899, p. 10, 1899-1900, p. 5.) Again it has been held that
there is a generally understood "Rule of the Profession" that a
barrister should not practice at Quarter or Petty Sessions in the
county of which he is a magistrate, but he may practice at the
Assizes for his county. (An. St. 1901-1902, p. 6.)
The following illustrates the aversion to anything approaching
advertising:
"_Photographs in Legal Newspapers_: It is undesirable for
members of the Bar to furnish signed photographs of
themselves for publication in legal newspapers." An. St.
1900-1901, p. 8.
Likewise the following:
"_Names of Counsel giving Opinions: Publication of_: The
practice of certain newspapers publishing the names of
counsel in connection with opinions printed in their
columns has been altered to meet the wishes of the
Council." An. St. 1896-1897, p. 9.
This is a little obscure and furnishes no information as to what
alteration was effected. The daily papers invariably print the names
of all counsel and solicitors engaged in any reported litigation and
the object of this ruling is probably to prevent indirect
advertising by writing opinions upon current topics.
In this connection it may be remarked that the law reports of the
leading papers are far superior to similar reports in most American
journals. The chief difference is that, instead of disjointed
fragments throwing the sensational into disproportionate relief and
thus conveying little idea of the whole, the reports are really
accurate and symmetrical, the drama, however, losing none of its
interest. The perusal of these reports, instead of leaving a desire
to know what really occurred, gives a feeling of being fully
informed. Brevity is served by admirable condensation of the
evidence, arguments and rulings, and by the use of the third person
in narration. By occasional recourse, too, to the first personal
pronoun, and a verbatim report of graphic passages, the important
and interesting phases of the case are emphasized. These reports
indicate that the authors are men trained both in the law and in
writing. So well done are those of the London _Times_ that they are
generally used in court for the citation of recent decisions, and,
when collected and issued periodically, are universally employed for
reference.
The English Courts scrupulously guard against the trial of cases in
the newspapers rather than in court. In the recent trial of Dr.
Crippen for murder, the proprietor of a provincial newspaper which,
in printing the news of the arrest, had speculated upon the
probability of Crippen's guilt, was summoned before the court after
the trial had been concluded and was fined £100 on the ground that
the article was calculated to interfere with the cause of justice. A
prominent London daily newspaper was likewise fined £200 for
relating that Crippen had confessed his guilt, while a London
evening paper was fined a like sum because, during the course of the
trial, it published a statement not contained in the evidence.
Many of the resolutions of the General Council of the Bar deal with
the rights and privileges of the profession. One is thus reminded
that the Inns of Court, which came into existence with the ancient
London Trades Guilds, were founded originally for a like
purpose--the protection of a particular occupation. During the
established vacations many junior barristers take only a few days'
holiday and particularly on the Chancery side, quite a number of
them and also a few K. C.'s are at work in their chambers or attend
the weekly sittings of the Vacation Court during the greater part of
the Long Vacation. It appears, however, that some young devil once
attempted to obtain a ruling that another devil should not devil in
vacation, but the Council declined to sustain his contention as
follows: "_Devilling in Vacation_: There is no 'Rule of the
Profession' against it." An. St. 1900-1909, p. 8.
A few years ago, there was a newspaper agitation against the Long
Vacation which had always extended from August 12th to the first
Monday of November. The result of the discussion was to shorten it,
by making it begin--as it now does--on August 1st and end on the
12th of October. There are also liberal vacations at Christmas,
Easter and Whitsuntide.
One resolution of the Council illustrates the fact, already referred
to, that barristers are not nearly so intimately identified with
litigation conducted by them as are American lawyers and that their
cases are more or less like abstract propositions placed in their
hands to be advocated. The resolution is as follows:
"_Briefs, Obligation to Accept_: The general rule is that a
barrister is bound to accept any brief, in the courts in
which he professes to practice, at a proper professional
fee. Special circumstances may justify his refusal to
accept a particular brief. Any complaint as to the
propriety of such refusal, if brought to the attention of
the Council and by them considered reasonable, would be
transmitted by them to the Benchers of the Inn of which the
barrister is a member." An. St. 1903-1904, p. 15.
Conversely; a barrister can not offer inducements for briefs, as was
held in the following:
"_Commissions or Presents from Barristers_: Any barrister
who gave any commission or present to any one introducing
business to him would be guilty of most unprofessional
conduct which would, if detected, imperil his position as a
barrister." An. St. 1899-1900, p. 6.
Again:
"_Fees to Barrister's Clerk_: The clerk of Mr. A. informed
the clerk of Mr. B. that the latter (Mr. B.) had received a
brief on circuit because he had recommended the solicitor
to Mr. B. (as was the fact) and suggested that Mr. B.
should give him the clerk's fees which he would have
received on it, had Mr. A. been on circuit and so able to
accept the brief. Mr. B., considering that such a practice
might lead to serious abuses, if it were countenanced,
requested a pronouncement of the Council on the matter.
The Council expressed the opinion that the practice
referred to is absolutely improper." An. St. 1904-1905 VII,
p. 11.
A number of rulings serve to define the limitations or partial
exceptions to the rule that a barrister's clients are exclusively
solicitors and that he must never be in direct contact with
litigants themselves.
For example:
"_Non-contentious Business_: There is no rule against a
barrister advising in non-contentious business without the
intervention of a solicitor, but it is an undesirable
practice. If fees should be taken for such opinion, such
fees must be marked and paid in the usual way, and on the
ordinary scale, not by way of annual payment or salary."
An. St. 1896-1897, p. 11.
Also:
"_Counsel advising on Case submitted by Colonial
Advocates_: A counsel does not commit any breach of
etiquette in advising, without the intervention of an
English solicitor, on a case submitted to him by a colonial
advocate in a colony where the professions of barrister and
solicitor are combined." An. St. 1902-1903, p. 11.
On the other hand, it was held that a barrister "should not" appear
as spokesman for a deputation of contractors waiting upon a public
body, nor on behalf of an application for a license, without the
intervention of a solicitor.
The preservation of the barrister's dignity in his relations with
the solicitor seems to have induced this:
"_Conferences at a Solicitor's Office_: The Council have
expressed an opinion that as a general rule it is contrary
to etiquette and improper for a barrister to attend
conferences at a solicitor's office, but that under
exceptional circumstances the rule may be departed from."
An. St. 1904-1905, p. 10.
The complicated subject of one barrister assisting another, usually
in the capacity of a devil, while avoiding quasi-partnerships, has
been the occasion for frequent resolutions by the General Council of
the Bar, of which the following are a few:
"It is not permissible, or in accordance with professional
etiquette, for a counsel to hand over his brief to another
counsel to represent him in court as if the latter counsel
had himself been briefed; unless the client consents to
this course being taken.... In the Chancery Division it is
not the practice for one junior to hold a brief (other
than a mere formal one) for another and the same is true of
King's Counsel."
"In the King's Bench Division, in the case of juniors, it
is not uncommon for one counsel to devil a brief for
another: but in the case of King's Counsel it is very
seldom done."
"There is no rule or settled practice governing the
remuneration for devilling, or assistance given by one
counsel to another, in the cases above referred to."
"With regard to juniors, it is a common practice in the
Chancery Division for the one counsel to remunerate the
other by paying him an agreed proportion, generally one
half, of the fees the former receives in respect of
opinions or drafting. In the King's Bench Division,
remuneration for devilling of briefs or assistance in
drafting opinions is not common. In both Divisions
occasionally such work is remunerated either by casual or
periodical payments."
"An arrangement of this kind is also not unfrequently made
in the case of a King's Counsel who desires regular
assistance from a junior in the perusal and noting of his
briefs."
"So far as the Council are aware, there is no practice to
pay any remuneration in the rare cases where one King's
Counsel holds a brief for another."
"In conclusion the Council desires to say that no practice
in the least resembling a partnership is permissible or (so
far as they know) practiced between Counsel: and they are
of opinion that the etiquette of the profession forbids the
handing over of work by one counsel to another, outside of
the conditions above stated." An. St. 1902-1903, p. 4.
A large number of resolutions deal with the subject of fees and
refreshers. Thus, it is held that while the Council is not a
debt-collecting body, yet, where it is "in the interest of the whole
profession" that solicitors who default in payment should be
"exposed and punished" assistance may be given by the Council to a
barrister in taking proceedings before the Statutory Committee of
the Law Society--the solicitor's governing body. (An. St. 1901-1902,
p. 13.) Again it was resolved that a junior Chancery man was not
precluded by the etiquette of the Bar from accepting a refresher
less in amount than two-thirds or three-fifths of the refresher
accepted by the leader. (An. St. 1903-1904, p. 14.)
Somewhat in the same line is the following: "A King's Counsel should
refuse all drafting work and written opinions on evidence as being
appropriate to juniors only; but a King's Counsel is at liberty to
settle any such drafting and advice on evidence in consultation with
a junior. A King's Counsel in accordance with a long-standing 'Rule
of the Profession' cannot hold a brief for the plaintiff on the
hearing of a civil cause in the High Court, Court of Appeals or the
House of Lords, without a junior. It is the usual practice for a
King's Counsel to insist on having a junior when appearing for the
defendant in like cases and when appearing for the prosecution or
the defence on trials of criminal indictments". An. St. 1901-1902,
p. 4.
The following is more general than most of the resolutions as it
states a fundamental rule rather than its refinements:
"_Junior and Leader._ _Proportion of Fees._
_Refreshers_:--By long-established and well-settled custom
a junior is entitled to a fee of from three-fifths to
two-thirds of the leader's fee, and, although there is no
rigid rule of professional etiquette which prevents him
from accepting a brief marked with a fee bearing a less
proportion to his leader's fee, it is in accordance with
the practice of the profession that he should refuse to do
so in the absence of special circumstances affecting the
particular case and that he should be supported by his
leader in such action. An. St. 1900-1901, p. 8. (The
Council of Incorporated Law Society dissent from the view
expressed in this resolution). The same rule applies to
refresher". An. St. 1896-1897, p. 11.
The necessity for a barrister upon accepting a brief in a circuit of
which he is not a member, to see that the solicitor retain a junior
belonging to the circuit, which will later be explained, is
recognized in the following resolution:
"_Special Fees at Assizes_:--The universal practice of the
circuits since June 1876 (when the matter was considered by
a Joint Committee of all the Circuits) is that a counsel
going special on to one circuit from another circuit
should, if a King's Counsel, have a special fee of 50
guineas in addition to the brief fee, and that one member
of the circuit should be employed on the side on which the
counsel comes special." An. St. 1899-1900, p. 8.
A resolution provides for the settlement of disputes between
barristers and solicitors by their entering into an agreement to
leave the questions to arbitration, the board to be composed of the
chairman of the General Council of the Bar (or some member of that
Council to be named by him) and the President of the Incorporated
Law Society (or some member thereof to be selected by him). An. St.
1897-1898, p. 9.
The following is a curious resolution:
"_Barrister Recommending another Barrister as his Leader or
Junior_: A barrister ought not to recommend another as his
leader or junior. And such questions as, who is the best
man for a witness action in such a court? Which leader is
_persona grata_ in such a court? Do you get on all right
with X--as your leader? are improper questions and should
not be answered." An. St. 1902-1903, p. 3.
Illustrative of this ruling was a recent investigation of the charge
that a barrister, about to leave town, had recommended another
barrister to a solicitor--the objections being that such an act
would not only violate the etiquette which forbids any barrister to
laud or decry another barrister to a solicitor, but also that it
might savor of co-operation in the nature of a partnership which
would never be tolerated. The defence was successful, however, in
showing that they were old Eton schoolmates and the solicitor knew
them equally well.
The above extracts show how broad in scope and minute in detail are
these authoritative rulings on every phase of professional life and
daily practice in England. Many of them would be totally
inapplicable to American conditions, and, beyond affording a glimpse
of peculiar customs and an elaborate etiquette, possess little value
here. They do, however, show that the experience of the best Bar in
the world justifies the existence of such a body ready to declare
the standards of professional propriety.
It should not be inferred that in England there is no lapse from
such standards. It requires some diligence to discover individual
shortcomings, but inquiry will develop that even "ambulance
chasing" is not unknown--although greatly reprehended and despised.
If the American observer, on watching the trial of an action,
perhaps against an omnibus company for personal injuries, will
cautiously comment upon the array of solicitors and counsel
representing a plaintiff apparently not possessed of a sixpence,
and express wonder that he is able to afford it, the information
will be forthcoming that some solicitor's clerk was probably in a
neighboring "pooblic" and, hearing of an accident, had followed the
injured man, perhaps to the hospital, and got the case for his
master, whose remuneration would depend upon the result. Pressing
the inquiry further as to whether the solicitor advances the
barrister's fees, it will reluctantly be admitted that some
barristers have relations with solicitors that should not be looked
into too closely--in other words that their fees are contingent. But
it will also be added that they are taking great risks of exposure.
Any one who has sat on a Bar Committee, or on a Committee of
Censors, in America must have been struck by the frequent instances
where practitioners have fallen into error from sheer ignorance, due
to inexperience or to the fact that they had not been born and bred
to the best traditions. This is especially true in these days when
law schools are grinding out members of the Bar who have had no real
professional preceptors. As disbarment or suspension is too severe a
penalty, such lapses pass unreproved and the standards sink, a
result much more deplorable than the failure of individual
discipline. Many a young lawyer would be induced to mend his ways if
privately and fraternally informed of professional disapproval and
some would be glad to seek the judgment of such a body if it could
be had without exposing names or particulars.
In this way, too, a body of rulings on the professional proprieties
applicable to American conditions would be steadily forced upon the
attention of the whole profession, instead of being locked in the
breasts of the more reputable members to govern merely their own
conduct.
CHAPTER VIII
THE CIVIL COURTS
THE GENERAL SYSTEM--DIFFERENT COURTS--RULES OF
PRACTICE MADE BY LORD CHANCELLOR--JURIES, COMMON
AND SPECIAL--JUDGES AND HOW APPOINTED--JUDGES'
PAY--COSTS--COURT NOTES--SOME DIFFERENCE IN
ENGLISH AND AMERICAN METHODS.
The general system of the English courts may be indicated without
detailing the exact limitations of jurisdiction which would be too
technical for present purposes.
Prior to 1873 there were a large number of courts with various
titles, which had grown up through centuries of custom and
legislation. But they were nearly all abolished by an Act of
Parliament, or rather their functions were merged into the present
far simpler system. In this radical re-arrangement, however, two
courts--the highest and the lowest--survived; the House of Lords and
the County Courts remain as they were.
Thus came into being the Supreme Court of Judicature, composed of
two branches--the High Court of Justice and the Court of Appeal. The
High Court is the one of immediate interest because here are begun
all litigations of every description, excepting the minor matters
which go to the County Courts, or, perhaps, to the Registrar's
Court.
The High Court is separated into three parts known as the King's
Bench Division, devoted to jury trials which constitute the great
bulk of business, the Chancery Division, where equity suits are
considered, and the Probate, Divorce and Admiralty Division which
deals, as its name implies, with the estates of deceased persons,
with divorce, and with marine matters.
Each of these three divisions has a chief; the Lord Chief Justice of
England presides over the King's Bench Division and the Lord
Chancellor over the Chancery Division, while the head of the Probate
and Admiralty Division, enjoys no higher title than that of
"President." The number of judges in the different divisions is
fixed by legislation and is determined by the extent of the business
in each. In every court, except appeal courts, the evidence is heard
by a single judge--of course in a separate court room--with the
assistance of a jury in the King's Bench Division, but, except in
divorce cases, usually without any jury in the other tribunals which
are equity courts.
It was the evident intention of Parliament to fuse equity and common
law practice, but experience has not proved that this is very
feasible, so that the line which separates the two is nearly as
distinct as it ever was. Nevertheless, a certain amount of progress
has been made in this direction--probably all that would be
wise--particularly in the admission of equitable defenses in common
law actions and in the facility with which, on the other hand, an
equity court is enabled to obtain the verdict of a jury upon
disputed facts without the old and cumbersome method of remitting
the whole case to a common law court for a trial upon a special
issue.
The rules of practice are established and can be changed by the Lord
Chancellor with the approval of a majority of the judges. It is
provided, however, that such changes must be submitted to Parliament
and that they become void if either House passes a resolution of
veto within forty days. The consequences of this very sensible
arrangement are that the vast improvements in practice which have so
greatly facilitated and accelerated English litigation, have been
effected by the courts and the Bar of their own initiative without
the necessity to rely upon the action of a legislative body largely
incapable of dealing with such technical and important questions.
This experience should be borne in mind in the present movement to
lessen the law's delays in America, and the existing power of the
courts should be utilized, or, if necessary, broadened, rather than
permit Congress and the legislatures to attempt to deal with details
which they can not in the nature of things fully understand. It will
be recalled that the executive head of the American Government has
not scrupled recently to designate our methods as, in some respects,
"archaic and barbarous," and has directed attention to the present
equity practice of the United States Courts. In them, testimony upon
disputed facts is still elicited by an examiner--a method long since
abandoned in progressive communities. Such an official, temporarily
appointed by the court, possessing but limited power and often with
little experience, merely presides, while a stenographer notes the
oral evidence subsequently to be reproduced in typewriting or print.
Thereafter, in some instances, a Master is appointed to consider the
testimony and report his conclusions, while later the court itself
does the same thing over again. All lawyers know how weak in effect
is evidence when reduced to cold type, as compared with that which
falls from the lips of living witnesses, and how faint and
inaccurate are the impressions produced by the former upon the mind
of a judge, no matter how industrious and able he may be. Hence, in
enlightened systems of jurisprudence, the witnesses are called
directly before the tribunal which is to decide the facts upon their
testimony--exactly as they would be brought before a jury.
The power to bring about such a salutary change inheres in the
Supreme Court of the United States which, by the simple promulgation
of an order to that effect, without any further legislation, can
forever abolish the obsolete system now in vogue. This was
accomplished years ago in England and has also been brought about in
some American States--such as Pennsylvania, Vermont and others--with
the result that equity proceedings have been much shortened in
duration and lightened in cost, to the infinite relief of court,
counsel and litigants.
In the King's Bench Division--the only court holding jury trials
except the County Courts--the jury of twelve men may be either a
"common" jury or a "special" jury. Common juries are composed of
men having practically no property qualification, it being required
only that they shall occupy realty the rental of which is equivalent
to £10 a year. The result is to exclude those merely who are
practically homeless, as such a rental represents less, perhaps,
than the hire of a single room. The requirements therefore for
service on an ordinary jury would seem to be little more than that
the juror should have a known place of residence. His compensation
for services is but one shilling a day.
Special juries, on the other hand, which may be claimed as a right
by either party and whose services are paid for by the litigants
rather than by the Government, receive one guinea a day and the
members must occupy premises renting for not less than £50 a year,
or a farm worth £300 yearly, or they may be bankers, merchants, or
persons upon whom minor titles have been bestowed. The employment of
special juries is increasing in frequency at the expense of ordinary
juries and it seems that the facility to obtain them is also cutting
down the number of trials which the law permits to be conducted by
the judges without any jury at all, provided the parties so agree.
The Chancery Division, as stated, is the tribunal for equity trials
where juries are rarely employed, but the judge determines both the
law and the facts. Into this court therefore comes all the equity
litigation of England, although, for very limited sums, there is a
concurrent jurisdiction in the County Courts. The separation which
exists between practice in this court, and the barristers who
practice therein, as compared with the common law courts, has
already been described at length. The judges in the equity courts
never wear gowns containing any colors except black.
The Probate, Divorce and Admiralty Division of the High Court of
Justice is, like the Chancery Division, a court of equity, as
distinguished from a court of law, in which the trials are conducted
by a judge without a jury. Here are considered all matters
concerning decedent's estates, but the Chancery Division has to do
with the construction of wills and the distribution of property.
Divorces occupy much time of this Court and furnish sensational
material for English newspapers. They form an exception to the
general rule in the Probate, Divorce and Admiralty division in the
presence of a jury and in the submission of the facts to them.
The Admiralty Court is of course confined to maritime matters and
the room is adorned by a gilt anchor fixed upon a shield hung upon
the wall behind the presiding judge, who is assisted in the
technical matters by two Trinity Masters--retired sea captains.
The County Courts number about 500, not confined to London but
dotted all over England, the districts of which are much smaller
than counties, notwithstanding they are called County Courts. One
judge suffices for a number of these courts which are grouped into
circuits. In most courts the judge is allowed to decide both facts
and law, but a jury of eight men can be had at the instance of
either party. The jurisdiction is at present limited, in common law
cases, to £100 and, in equity actions, to £500; while there is no
jurisdiction whatever in the matters of divorce, libel or slander.
In these courts, as will be explained later, barristers rarely
appear but solicitors are allowed to act as advocates. The County
Courts were established in 1846 and, as mentioned, were not
disturbed in the reorganization of the courts in 1873, the idea
being to bring the administration of justice closer to the people's
homes and to reduce its cost. The County Courts no doubt serve to
relieve the High Court of a great mass of petty litigation, and in
that respect are extremely useful, if rather uninteresting. An
appeal lies from the County Court to the High Court on points of law
but it is not often exercised. For very small matters--chiefly the
collection of trifling debts--the Registrar's Court, which is
likewise not confined to London, performs useful functions which
will hereafter be described more particularly.
Besides the courts above mentioned, the Lord Mayor's Court in the
City of London and the Palatine Court and Court of Passage, in the
north of England, are local courts which transact a great deal of
business.
Such, briefly, is the English arrangement of courts for the disposal
of civil as distinguished from criminal business.
The judges of all courts are appointed--not elected--and their terms
of office are for life with provisions for retirement and pension.
Judicial salaries are much higher in England than in America.
Ordinary judges of the High Court get £5,000, the Lords of Appeal,
£6,000, the Chief Justice, £8,000, and the Lord Chancellor, £10,000.
The appointing power--nominally the crown--is really the Lord
Chancellor, who, unlike the Lord Chief Justice and all the other
judges of England, is a political incumbent changing with the
Government. It might be supposed from this fact that the Lord
Chancellor would yield to a natural temptation in making judicial
appointments and that his selections would constitute a distribution
of political patronage. There appears to be nothing in the law to
prevent this, and formerly judges were largely appointed for
political considerations or by reason of personal or social
influences.
At present, however, the least observation will convince any one
that the great majority of judicial appointments in England are made
solely out of consideration for character and professional
attainments. With few exceptions the judges appointed in modern
times--no matter what party may have been in power--have been
selected from amongst the leading barristers of the day, and a
person who has been in the habit for years of frequenting the courts
at intervals, is almost sure, when he misses an eminent barrister
from the front row, to find him on the bench, if alive. While this
is the general rule, it is true that in rare and exceptional cases
one hears of the appointment of a judge who is regarded by the
profession as not being well qualified and his selection is
attributed to influence. The just admiration which Americans
entertain for the English judiciary as a body will in such
instances not be reflected by the views of the English Bar, with
opportunities for observation at closer range. Barristers will
remark that a given judge is not a lawyer at all, but merely had the
gift of gaining cases before juries, and that the political
influence he acquired induced the government to give him an office
for which he is ill equipped. And one may even hear the statement
made concerning some judge, "I can not say he is venal; I can not
say he can be bought for money; but he has naturally a dishonest
mind and can not perceive the truth."
A stranger is left to speculate how far such views may reflect some
past grudge and he will probably come to the conclusion that the
high standing of the English judiciary, in the opinion of all the
world, is fully deserved, but that there are some few exceptions to
this general excellence.
Costs play an important part in all English litigation. The tendency
since the time of the Stuarts has been constantly to increase them.
By costs--as understood in England--is not meant the official fees
payable to the court officers, but a sum which the unsuccessful
party is condemned to pay to the successful party, the aim being to
indemnify the side whom the event proves to have been in the right.
If a litigant has incurred expense to obtain a judgment for a sum of
money, then he must be reimbursed by the other side who occasioned
his outlay by refusal to pay. On the other hand, if an unjust claim
has been made against him, the claimant must repay his expenses in
resisting it.
Part of these costs are taxed as the case proceeds. Thus, if one
party summon another before a Master prior to trial, to obtain an
order for the production of some document, the Master imposes
costs--say £2. 10s. 0d.--upon the party who refused to produce, or
upon the party who, the Master finds, has unwarrantably demanded the
production. The theory here is to discourage unnecessary and
harassing interlocutory proceedings.
But the principal costs "await the event"--follow the course of the
final judgment. They include an allowance for counsel fees, which,
however, is not always as much as the amount paid by the litigants.
For, if a litigant has indulged in the luxury of an unusual array of
counsel, he must do so at his own expense, and the Master allows
only what he should have laid out in fees. Thus, in a petty action,
caused by some personal pique, the plaintiff may have insisted that
his solicitor retain a K. C. at fifty guineas and a junior at
thirty-five guineas, involving a total expense, with three guineas
for the consultation, of eighty-eight guineas. The defendant,
however, has been content with a junior at "3 & 1." If the plaintiff
succeeds, the Master will not allow him the eighty-eight guineas,
but will decide that the more modest armament of the defendant would
have been sufficient.
Costs are, upon the whole, very high. In an ordinary action to
recover a moderate sum--say £200--the costs will generally amount to
£50. In a recent action to recover £60, the balance of the purchase
price of a motor car, costs were claimed of over £400, and actually
allowed in a sum over £200. Though this was exceptional, owing to
the unreasonable stubbornness with which a just claim was resisted,
and is by no means typical, yet it illustrates the possibilities of
the system.
In theory it seems reasonable that the party in the wrong
should reimburse the party in the right for having vexatiously
put him to expense in obtaining his due. In practice, however,
the prospect of large costs may stimulate unjust suits by
impecunious plaintiffs--unable themselves to respond in costs if
defeated--against richer defendants vulnerable for whatever the
chances of war may have in store for them. To this criticism English
lawyers can only answer that if the plaintiff is unable to give
security for costs, he may, in actions of tort, at least, be
remitted to the County Courts, where the costs are much lighter.
This, however, is merely a mitigation of the evil.
The general opinion seems to be that high costs discourage
litigation. This may be true, but if they tend as well to obstruct
the assertion of just rights and to stimulate fictitious claims,
they are not to be desired by the profession or by the laity.
A jury trial strikes one as more cut and dried in an English than in
an American court. Apparently, through the exchange of documents and
otherwise, so much is known to the opposing counsel, solicitors and
judge, that the element of surprise is largely eliminated. If all
the litigants were honest, and the law were an exact science, this
might conduce to a deliberate consideration of the questions
involved. But what American advocate, having confronted a
disingenuous witness with his own letter, utterly at variance with
his testimony, could say that the cause of justice would have been
better served if the witness had known that the letter was to be
produced and had had the chance to regulate his evidence
accordingly?
[Illustration: A JURY TRIAL]
And what American lawyer would not feel that half the fun of life
were gone?
During the examination of witnesses, notwithstanding the rapidity
of articulation, an American ear is struck by a certain lack of
snap and by the great deliberation and long intervals between
questions, which afford--especially for a dishonest witness under
cross-examination--too much time for reflection. This impression may
be due to differences in national temperament, and the examination
may seem even rapid to an English listener. Perhaps the chief cause
of the hesitancy is the fact that the examiner has obtained his
information at second hand, from his client the solicitor, or his
junior or devil, and has to feel his way. A kind of confidence in
the veracity of witnesses appears to pervade the court; and they
are, indeed, as a rule, uncommonly frank.
English barristers do not know their cases as well as American
lawyers. They have not conducted the preliminaries, nor become
acquainted with and advised the parties they are to represent; in
other words, they have not "grown up with the case," and the facts
are more like abstract propositions lately placed in their hands to
be presented. It is not unusual during the trial, when some
unexpected situation arises, to see evidence of a lack of
familiarity with the circumstances which requires instant reference
to the solicitor.
The judges take a larger part in trials than in most American
courts--a practice which has much to commend it, and which is
increasing on this side of the water. An American lawyer will say,
"I tried a case before Judge So-and-so"--an English barrister says:
"I conducted a case which Lord So-and-so tried." The English judge
restrains counsel, often examines the witnesses, and his influence
is quite openly exerted to guide the jury and cause them to avoid
absurdities and extremes. Yet, the crucial questions of fact really
to be determined--of which there are usually but one or two--are
left absolutely to the jury's unfettered decision.
Objections to questions by opposing counsel, which cut so large a
figure in an American trial, are rarely made. One is told that the
barristers know the rules of evidence too well to ask improper
questions and that they have too much respect for the court to
hazard a rebuke. This is a very pretty, but hardly a satisfactory,
explanation. Observation of many trials gives the impression,
rather, that great laxity prevails as to what is a proper question
and that the party aggrieved by an objectionable one prefers to rely
upon the reaction in his favor in the judge's mind, which will be
shown when his influence comes to be exercised upon the jury.
That this laxity prevails, the least experience will show. Upon
direct examination leading questions, which in America would bring a
storm of objection, pass unnoticed, and even hearsay evidence is not
unknown. The absence of the element of surprise in trials, may make
those concerned more tolerant of counsel leading in a story known to
all beforehand. The occasional element of hearsay is more difficult
to explain unless, indeed, the French view gains in England, which
justifies the admission of hearsay on the ground that in the most
important questions of life--for example, in respect to the
reputation of a man whom one contemplates trusting, or of a woman
one thinks of marrying--men act exclusively upon hearsay and never
upon direct evidence. But, of course, the law of evidence remains in
England as it always has been: all that is here meant is that a
degree of tolerance prevails and upon careful observation, the real
cause of this tolerance will be found in the fact that both sides
rely on the influence of the judge to eliminate from the minds of
the jury the effect of evidence wrongly introduced.
In England, mistress of the seas, with much the greatest merchant
marine in the world, and with a large insular population living in
close touch with the water, one finds, as might be expected, the
best Admiralty Courts and Bar in the world.
The chart used by counsel in examining witnesses is pinned to a
sloping table, among the barrister's benches and facing the Court.
In collision cases, small models of steamers and sailing vessels, as
well as arrows to indicate winds and tides, are employed. All of
these may be veered and shifted as the trial progresses, by means of
thumb pins projecting beneath and capable of being pressed into the
table which has a cork top. The Admiralty trials are beautifully
conducted and great familiarity with the affairs of the sea is
displayed by the participants.
Models are very much used in all English Courts. In land
condemnation, nuisance injunction and accident cases, one frequently
sees elaborate models reproducing the _locus in quo_. In actions
concerning floods or other occurrences affecting considerable areas,
models many square feet in size, reproducing the whole locality,
are employed.
The Chief Justice sits at nisi prius more often than upon appeal. It
seems odd, during the trial of an action for damage caused by a
flood due to the alleged improper construction of a bridge, to see
the Lord Chief Justice of England reaching far down with a long
white, lath-like stick, into the solicitors' well to point out some
feature of a model while interrogating a witness, and afterwards
charging the jury stick in hand. It is still more strange to hear a
judge, whose name is known the world over, gravely charging a jury
as to the value, as evidence of identity, of a wart under the tail
of a costermonger's donkey, the ownership of which is in dispute.
Yet, like every feature of an English court, it is eminently
practical and free from form or affectation.
The highly paid judges of the High Court, sit in the smallest case;
the idea seems to be that if a man desires to assert his rights,
however insignificant, it is the duty of the Government to afford
him the opportunity. In the Divisional Court (an appeal court of
limited jurisdiction) the Lord Chief Justice of England and two
famous colleagues did not grudge, upon a recent occasion, to hear an
appeal involving nominally £22. 11s. 6d., payment on account having
reduced the actual amount in controversy to £2. 11s. 6d. As the
salaries of the occupants of the Bench were not less than £20,000 a
year--to say nothing of those of the court attendants, and the fees
of the barristers and solicitors on both sides--the economy of such
an employment of human effort is not apparent. Some one, however,
thought his rights had been invaded, which justified the waste,
while the costs furnished a small stake upon the result.
CHAPTER IX
COURTS OF APPEAL
THE COURT OF APPEAL--HOUSE OF LORDS--DIVISIONAL
COURT--JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
The Court of Appeal--the last resort except for occasional cases
which reach the House of Lords and Colonial appeals which go to the
Privy Council--is, perhaps, the most perfectly working tribunal for
the adjustment of conflicting rights which the wit of man in any age
has devised. It is divided into two parts of three judges each,
sitting simultaneously. The Lord Chancellor, the Chief Justice, or
the Master of the Rolls presides over the respective parts and two
associate Lord Justices of Appeal compose the court.
Printed briefs are not used, though the advantage of this omission
is not apparent. There is no bill of exceptions and the appeal is in
name, as well as in fact, a motion for a judgment the reverse of
that rendered below or, in the alternative, for a new trial, and
everything which transpired is open to review. Three barristers--the
leader, junior and devil--together with the solicitors, are usually
found on either side.
The leader for the appellant opens, stating the case with great
particularity, and reads from the evidence, documents and charge to
the jury at great length. Much time is thus spent because, for no
discoverable reason, but probably due to ancient custom and lack of
enterprise, the material is all in manuscript, often illegible and
with occasional errors in the copies of the Court and opposing
counsel. The result is tedious and prosy and an American auditor
gets an unfavorable impression at this stage of the argument; an
impression, however, which is later dispelled.
During the irksome opening, the court has been getting a grasp of
the case, as becomes apparent when the argumentative stage is
reached, for then there ensues a good tempered, courteous, informal
debate between the several gentlemen, comprising the court and
counsel. There is no "orating" and no declamation. The positions of
the opponents are stated rapidly and smoothly. Each, as enunciated,
is taken up by one or more members of the court and distinct
intimation given whether the court agrees with the speaker. In case
it does, he may pass on. On the other hand, deferential dissent may
warn him to strengthen his position, or a frank expression of doubt
may be accompanied by a friendly invitation to the other side to
contribute suggestions.
At the conclusion, judgment is rendered orally, in nine cases out of
ten, by the presiding Lord Justice, as the last speaker resumes his
seat. Then follow the opinions of the associate Lord Justices of
Appeal, concurring or dissenting, all expressed with the utmost
frankness and spontaneity. These are taken down stenographically,
and, after revision, sometimes by the judge himself, find their way
into the books to become authorities. Occasionally a "considered
judgment" is reserved to be delivered within two or three days.
The contrast presented by these methods (for the system is not
essentially different) to the average American appeal is very great.
In America, only the ablest men know by a kind of intuition upon
what points their cases will turn, and one often hears a more or
less stereotyped speech delivered to a court sitting like silent
images, without the slightest intimation to the speaker whether he
is wasting effort upon conceded points, or slighting those upon
which he may discover by the written opinion--delivered months
afterwards--he has won or lost.
Sometimes these friendly debates in an English court of appeal are
witty, and they are often rather amusing. In a case recently argued,
the defendant, a real estate owner, appealed from a judgment for
£300. against him for wrongfully evicting his tenant, the plaintiff,
and putting his sick wife and furniture out on the sidewalk in the
rain. There was not much to be said in his favor upon the merits of
his act, but his counsel argued that plaintiff's advocate had used
inflammatory language in his speech to the jury.
The judgment was immediately affirmed, the Lord Chancellor
delivering an opinion to the effect that the control of the language
used was a matter of discretion for the court below and could not be
examined by the appellate court. Both of the associate Lord Justices
concurred, but one proceeded to give quite different reasons. With
the preliminary words: "Speaking only for myself, but not for his
Lordship," and with a slight inclination of his head towards the
Lord Chancellor, he said he was for affirming for an entirely
different reason--not because he could not examine the language used
below, but rather that he had done so. He then proceeded to rehearse
the brutal conduct of the defendant, and wound up by declaring, "If
it had been my sick wife and my furniture which had been set out in
the rain under the circumstances described, I do not think the
English vocabulary contains the language I should wish my counsel to
use in addressing the jury." This was received, as is not uncommon
in England, but unheard of in America, with frequent laughter and
even subdued applause, and the "London _Times_" in its regular legal
column the next day, reported the opinions and indicated the
"laughter" and "loud laughter" in brackets. The opinions in the
books, after being toned down by the reporter, often bear but faint
resemblance to the actual utterances.
In the House of Lords appeals are equally informal and colloquial,
an impression that is heightened by the absence of wigs and gowns,
so far as the bench is concerned, and by the very casual manner in
which the half dozen gentlemen composing the court are seated. The
house itself is a large, oblong chamber with steep tiers of seats,
upholstered in red leather, which rise high up the side walls and
upon which the peers sit when legislating, but which are, of course,
empty when the court only sit. At the far end is an unoccupied
throne, while, at the near end, raised above the floor, is a kind of
box from which counsel address the court. It is much like the rear
platform of one of our street cars. Counsel, of course, are in wig
and gown, and if K. C.'s, in full bottomed wigs, but one may
occasionally see a litigant actually arguing his own case _in
propria persona_. On either side of the counsel's box is a very
narrow standing place for reporters and the public.
The court, consisting of the Lord Chancellor in gown and full
bottomed wig, and perhaps of five judges, in ordinary clothing, sit
at the floor level, and therefore considerably lower than counsel in
the elevated box. They are not placed in a row nor behind any bench
or table. On the contrary, though the presiding Lord Chancellor is
vis-a-vis to the counsel box, the others sit where they please.
Sometimes this is on the front row of benches and sometimes on one
of the higher tiers, with a foot propped up, perhaps, on the bench
in front, and their thumbs hitched to the armholes of their
waist-coats, and, necessarily, with their sides to the speaker. The
members of the court often have portable tables in front of them,
piled with books and papers. During the course of an argument they
constantly debate with each other across the House, or walk over to
one of their colleagues with some document or a book and talk of the
case audibly and perfectly freely. One may hear one of them, in a
salt and pepper suit, call across the floor to another Lord of
Appeal who has interrupted a barrister's argument, "I say, can't you
give the man a chance to say what he's got to say?"
These little circumstances show that judges and counsel in the
appellate courts of England behave as natural men without the
slightest restraint, formality or self-consciousness. Arguments are
delivered with surprising rapidity of utterance, in a conversational
tone, and with a crispness of articulation altogether delightful to
the ear. The drawling style of speech sometimes heard on the stage
as typical of a certain kind of Englishman, seems to have
disappeared in real life; it certainly is not to be found in the
Courts. An American stenographer reporting an English argument,
would have to increase his accustomed speed at least one-third.
The methods of the Divisional Court are the same as those of the
Court of Appeal, but the low limit of its jurisdiction renders it of
little interest.
The Judicial Committee of the Privy Council--or, as it is
colloquially described by the lawyers, "The Privy Council"--is
doubtless the most interesting court in England because of the
variety of the questions there considered and owing to the fact
that, geographically, the litigations originate in nearly every
quarter of the civilized world, for, as noted above, this is the
court of last resort for all of the British Colonies. It should not
be confused with the Privy Council itself--a political adviser of
the Crown--for the Judicial Committee's functions are purely
judicial and its personnel consists of the Lord Chancellor and the
other Law Lords, a few paid members, and some Ex-Colonial Judges.
Historically, indeed, it was but a sub-committee of the Privy
Council, which circumstance gives the Court its name and explains
why its judgments always conclude with the phrase that the Committee
"humbly advises His Majesty" to affirm or reverse the judgment
rendered in the Colony, instead of pronouncing the conclusion in
direct language, as do other courts.
This extraordinary body sits in a large second story chamber, not in
the least resembling a court room, of a building in Downing Street,
and rarely is there any audience other than the professional men
whose business takes them there.
Of course, most of the Colonies are equipped with their own court of
appeals--usually called the Supreme Court--but, nevertheless, an
appeal lies from their decisions to the Privy Council in certain
circumstances, although to define exactly the scope of this
jurisdiction would be too technical for present purposes.
Here are to be found, arguing their cases, lawyers from Colonies in
every corner of the globe in some of which the division of the
profession into barristers and solicitors hardly exists, or at
least, the line separating them is quite hazy--but they must all
appear in wig and gown.
Bearing in mind the fact that the Colonies of Great Britain are
scattered over the whole world and that it has always been the
policy, so far as possible, to accept the existing law of each and
graft it upon the English law system, the diversity and broadness of
this court's deliberations may be imagined.
The succession to an Indian Principality, to be determined under the
ancient law of that far Eastern land, will be followed by a question
of the legality of the adoption of a child in South Africa, to be
considered under the rules of Dutch law. The next case will,
perhaps, involve the effect upon an area much greater than that of
all England, of the diversion of a river in the Canadian North-West.
And the court may next turn its attention to the problem whether the
widow of a Scotchman who left two wills--one intended to operate at
home and the other to take effect in Australia--can take her thirds
against the will in Scotland but accept the benefits of the other
will as to property in Australia.
The Court of Appeal and the House of Lords deal with domestic
matters of the little Island, which, however important the
principles involved and however critical the issues to the litigants
themselves, seem almost petty in comparison with the broad field of
the Privy Council. Little as the average man knows of it, and rarely
as it figures in news of the day, no American lawyer can fail to
perceive in this great court something of the tremendous scope of
his own Supreme Court of the United States, to which tribunal only
is the Privy Council secondary.
CHAPTER X
MASTERS: THE TIME SAVERS
CURRENT HEARINGS--MINOR ISSUES THRESHED OUT.
The numerous motions and interlocutory applications, supported
by affidavits and urged by argument, which consume so much of
the time of an American court, are disposed of in England by
Masters--competent barristers appointed by the Courts, who are paid
salaries of about £3,000 a year.
At a certain hour the Master takes his seat at a desk with a printed
list of "applications without counsel" or "applications with
counsel." He nods to the uniformed officer at the door who admits
the solicitors engaged in the cause which happens to be first on the
list of cases "without counsel." The solicitors stand before the
Master with a shelf upon which to rest books or papers; one side
then states its demand and the other its objection in the briefest
and most direct manner. The Master's immediate oral decision,
accompanied by imposition of the costs and a few scratches of his
pen on the back of the summons, indicates to the officer the opening
of the door to admit the next case. By actual count twenty-seven
cases may thus be disposed of in one hour and thirty-two minutes--an
average of a little more than three minutes each. Of course there is
a right of appeal, which, however, is rarely exercised.
As the door opens two solicitors hurry in. There are no salutations
nor introductory remarks and the business proceeds abruptly:
_Plaintiff's solicitor_: "Master, we claim £50 judgment for
rent."
_Master to defendant's solicitor_: "Do you admit the
amount?"
_Defendant's solicitor_: "Yes, but we claim a set-off."
_Master_: (endorsing a few words on the summons) "Judgment
for rent £50 with stay of execution until counter claim is
tried."
_Defendant's solicitor_: "If you please, Master."
This expression is the universal vernacular with which the defeated
party accepts the judgment of a master or judge in all courts. The
expression is not an interrogation but is equivalent to "as you
please."
Out they go and the next enter; here the defendant asks for delay,
and gets seven days which is endorsed on the summons and requires a
minute.
Then comes an application under "order XIV" for judgment for £1,000.
Defendant requires four days' delay.
_Master_: "What is the defence?"
_Defendant's solicitor_: "Master, I don't know--a recent
agreement has been made between the parties which I have
not yet seen."
_Master_: "I'll give you four days, but you must pay the
costs of the adjournment; thirteen shillings and
fourpence."
_Defendant's solicitor_: "If you please, Master."
The next summons for judgment. As this is denied, the parties agree
to try it before the Master on the following Thursday without a
jury.
Then follows a summons by defendant upon plaintiff for particulars
of goods sold and delivered. Both parties are dealers in Japanese
bulbs, and the sale was made subject to arrival in England safe and
sound. The defendant demands particulars of the plaintiff as to who
were his customers. The plaintiff objects to disclosing his business
and the written summons, containing the request for particulars, is
gone over rapidly by the Master. Such parts of the request as, in
his opinion, ought not to have been demanded, because they pry into
the plaintiff's private affairs, are eliminated by a stroke of the
Master's pen and an order is made at the bottom in an abbreviated
form, imposing the costs of the summons upon the plaintiff. This
means that the plaintiff is obliged to furnish the defendant, in so
many days, all the particulars which the Master did not strike out,
and must pay the defendant the costs of the application.
A moment is consumed in giving judgment in an uncontested case for
£1,800 with costs of £8. 16s. 0d.
Then comes a breach of promise case. The defendant asks for an order
upon the plaintiff for a statement of claim and discovery of
correspondence, which is granted. As most of the witnesses are in
London, the defendant wants to try the case here, but the plaintiff
wishes to try it in Manchester where the parties live. The Master
thinks it is easier to bring two people up from Manchester than to
take a dozen down from London.
Next is a summons for directions:
_Master_: "Statement of claim in ten days."
_Plaintiff's solicitor_: "Yes, Master."
_Master_: "Defence in ten days."
_Defendant's solicitor_: "Yes, Master."
_Master_: "No counter claim?"
_Defendant's solicitor_: "No, Master."
_Master_: "Documents?"
_Both solicitors_: "Large number."
_Master_: "All parties in London?"
_Both solicitors_: "Yes."
_Master_: "Any question of law?"
_Both solicitors_: "No."
_Master_: "Next case."
And he at once endorses a few words on the bottom of the summons.
Then a defendant appears in person:
_Master_: "Do you owe the £26?"
_Defendant_: "Yes, sir."
_Plaintiff's solicitor_: "We only want judgment for £21
because this morning he paid £5 on account, and he agrees
to pay £3 a week, so that we will not issue execution if he
does this."
_Master_: "I'll give you judgment generally for £21, but
you write defendant a letter stating that you will not
issue execution as you have just stated."
Another defendant appears in person:
_Defendant_: "I've got no defence, all I want is time."
_Plaintiff's solicitor_: "We'll do nothing until Monday as
we think he means to pay."
_Master_: "All right, it is understood you will do nothing
until Monday."
The details of practice before these Masters would be beyond the
scope of the present writing, suffice it to say that rules have been
promulgated from time to time, and are constantly being improved
upon, having for their object the simplification of procedure, the
rapid despatch of business and the settling of all minor questions
which may arise in a case before actual trial. Thus, "Order XIV,"
just referred to, enables a Master to enter judgment when the
defence averred, even if true, would not be effectual, or when the
defence is obviously frivolous, although, of course, the rights of
the defendant are preserved by the privilege of appeal, the
judgment, meantime, binding his property. Again, the "summons for
directions" is to enable the Master to give general directions as to
how the parties shall proceed, the intervals of time to be allowed
for exchange of copies of documents, taking foreign testimony and
what not.
One of the cleverest contrivances in the practice before Masters is
the "tender of damages in tort without admitting liability." A
defendant may tender, say, £500. If plaintiff does not accept it,
the trial ensues--the jury, of course, being in ignorance of the
tender. If the judgment be for defendant, or for more than the
tender, that is the end of the matter. But if the judgment be for
less than the tender, a large deduction for costs is made from the
judgment, and inures to the defendant's benefit. This has enormously
reduced the volume of accident cases and has also curbed the often
wildly extravagant demands and unjust results in such actions
generally recognized as evils difficult to deal with.
In short, the system of Masters in England works admirably. It is
entirely adaptable to American courts, the details and modifications
which might prove necessary being fitted to local conditions, but in
any such adaptation, the general purpose should be kept in view,
namely, that when a case appears upon a trial list it shall have
already been pruned of all non-essential preliminary details and is
forthwith to be actually tried upon its merits; the court's time
being too precious to be expended upon the subsidiary side issues.
CHAPTER XI
THE POLICE COURTS
CURRENT HEARINGS.
Upon arrest, a preliminary hearing is first held at a police station
where, as in most English proceedings, the testimony, with anything
the prisoner may say (after he has been warned of the consequence of
self-incrimination) is carefully reduced to longhand writing and
plays an important part at the subsequent stages of the prosecution.
The next step is the hearing before a Police Magistrate at Bow or
Marlborough Streets, or at any one of the like courts in London
which, although of minor importance, are dignified tribunals. The
court room is entered by two small doors, one for the witnesses and
audience, the other for officials and solicitors, and there is
another passage leading from the cells through which the prisoners
are brought to a dock. This dock, as in all criminal courts, is at
the far end of the room from the magistrate. The prisoner is thus
isolated and can only communicate with his solicitor, if he has been
able to retain one, by scrawling a note and passing it on to an
officer.
The magistrate, appointed by the Crown or the Lord Chancellor acting
in its behalf, is almost invariably a man of standing and repute,
always a barrister, whose ready dispatch of business shows great
experience with crime, and whose kindness to the merely unfortunate
testifies to his charitableness of heart. He wears no wig nor gown
and is called in court, "Your Worship"; whereas judges of the High
Court are called in court, "My Lord," and those of the County
Courts, "Your Honor." All judges, however, are addressed in private
life as "Mr." or, if they have one, by a title. A Judge of the High
Court is always knighted on appointment and in private life is
addressed as "Mr. Justice ----" unless he is a Peer. Solicitors act
for the more important prisoners but barristers are rarely seen and
appear in ordinary street dress if at all.
The early morning run of business consists chiefly of the "drunks",
divided nearly equally as to sex, and of persons arrested for
begging and minor misbehavior. These cases are disposed of with
great rapidity.
A woman, looking very silly, and with her millinery somewhat awry,
is ushered into the dock charged with being "drunk and disorderly."
_Magistrate_: "Do you admit it?"
_Woman_: "Hi hadmit hi 'ad a little too much, but deny
being disorderly, Your Worship."
_Police Constable_: (sworn) "She was banging on the door of
the Black Horse at 2 A.M. screamin' for drink. I cautioned
her and then saw her repeat this at another closed
'pooblic', so I took her in charge."
_Magistrate_: (To an officer with a book of records) "Is
she known?"
_Officer_: "No, Your Worship, she was never here before."
_Magistrate_: "Five shillings or five days."
As she is rapidly conducted through the passage and disappears in
the direction of the cells, one hears called from official to
official the words: "Five or five."
The next is an intelligent, elderly, but very shabby, man charged
with begging. The police officer had testified that a lady gave the
prisoner money and that he immediately entered the nearest
"pooblic". The prisoner's explanation was that he had been given the
shilling without his having asked for it, and that he had gone to
the tavern to get bread and cheese, which he greatly needed, and a
glass of beer. The magistrate rather rebuked the policeman for
referring to the visit to the public house as counting against the
man, adding that anybody had the perfect right to do as he had.
Then, addressing the prisoner, he said, kindly, that he was by no
means sure that actual solicitation by words was essential to
constitute begging and that his mere appearance was an appeal. It
seemed as though the man was about to get off, when the inevitable
question "Is he known?" brought the information that he had been in
Court upon the same charge on February 19th, on March 5th and again
the month following. The magistrate's manner quickly changed, as he
recognized an old offender, "Three months hard labor," he said, and
"three hard" was repeated like an echo down the corridor as the
prisoner slunk back to the cells.
The next was a well-dressed young man, apparently a clerk, charged
with being drunk and disorderly.
_Prisoner_: "It's quoite roight what the constable says."
_Magistrate_: "Seven shillings and sixpence or six days."
_A voice down the corridor_: "Seven and six or six."
[Illustration: A SUBJECT FOR THE POLICE COURT]
After the early business, which is dispatched with great rapidity,
come the more serious cases, which, if well-founded, are to be held
for trial. An American was charged with obtaining money and goods by
false pretence. Soliciting advertisements from tradespeople for a
book intended for Americans visiting London, which never was
published; he had obtained money on account and at the same time,
procured millinery and garments for a woman whom he introduced as
his fiancée. He was represented by a barrister who would try his
case if he were held for trial. The witnesses consisted of milliners
and dressmakers who detailed the method of his operations. The
magistrate referred frequently to the memoranda of their evidence,
taken at the police station, and questioned them so as to elicit
their testimony, which he wrote down in longhand. The defendant's
barrister cross-examined and the magistrate added the substance of
the cross-examination to the deposition which was finally signed by
the witness, to be used by the trial judge as his guide, if the
grand jury should find a true bill. During the examination, one was
struck by the alacrity, and glibness of the replies, as in all
London courts of whatever degree. An American ear is impressed by
the thought that possibly these people, living in a densely packed
community of five millions, all speaking one language, are
particularly facile in the use of the mother tongue, unlike the
English rustic who is apt to be taciturn and awkward of speech. One
is also struck, as in all courts, by a certain ring of sincerity, an
attitude of respect for the administration of law and the quick and
cheerful co-operation of all concerned. The Englishman truly appears
to the best advantage in his court, where he leads the world.
If the accused be held for trial by the magistrate, the next step,
as with us, is the presentation of the charge to the grand jury. The
grand jury either throw out the indictment or find a true bill, in
which event a jury trial follows at the Central Criminal Court.
CHAPTER XII
THE CENTRAL CRIMINAL COURT;--THE OLD BAILEY
CURRENT TRIALS.
At the corner of Newgate and Old Bailey streets, near Fleet street
and not far from Ludgate Hill, stands a modern building, officially
known as the Central Criminal Court, but popularly called "the Old
Bailey." It occupies the site of the ancient Newgate Gaol and Fleet
Prison, where, for nearly seven centuries the criminals of London
expiated their crimes. There they were tried and, if convicted,
hanged on the premises, or--a scarcely better fate--thrown into
Newgate Prison, which, from time immemorial, was so overcrowded, so
ill-ventilated and so poorly supplied with water that it was the
hot-bed of diseases designated as "prison fever." At a single
session of court the fever had been known to carry off fifty human
beings; not only prisoners, but such august personages as judges,
mayors, aldermen and sheriffs.
The present fine structure is exclusively a court house to which
prisoners are brought for trial and confined in sanitary cells
beneath the court rooms only while awaiting the call of their cases.
There are three courts: two presided over by judges called,
respectively, the Common Serjeant and the Recorder, together with
the Lord Chief Justice of England, or such other judge of the High
Court as may be designated for the month, who comes from his civil
work in the Strand Law Courts to try criminal cases at the Old
Bailey. Each month, also, two or three Aldermen and Sheriffs of the
City of London are scheduled for the complimentary duty of attending
their Lordships and entertaining them at luncheon.
The court rooms are rather small and nearly square. Like every
London court, they have oak panelled walls, and excellent
illumination from above by skylights; they are arranged with a high
dais--on which are the chairs and desks for the presiding judge, the
sheriffs, or for any guest--and they have the usual steep upward
slope of the benches for barristers on the one side and for the jury
on the other. Only the solicitors' table is at the floor level. This
arrangement brings all the participants in a trial more nearly
together than if they were distributed over a flat floor. At the
end of the room farthest from the judge is the prisoners' dock, a
large square box, elevated almost to the judge's level. This the
prisoner reaches by a stairway from the cells below (invisible
because of the sides of the dock), accompanied by officers, and he
stands throughout the trial--unless invited by the judge to be
seated--completely isolated from his barrister and from his
solicitor and can only communicate with his defenders by scrawling a
lead pencil note and passing it to an officer. A small area of
sloping benches, together with a very inadequate gallery, are the
only accommodations for the public.
If the visitor happens to be a guest of the Court, he will be
ushered in by a door leading to the raised dais and will sit at a
desk beside the judge. His eye will first be arrested by a small
heap on his desk of dried aromatic herbs and rose leaves and, while
speculating as to the purpose of these, he will discover similar
little piles on the desks of the presiding judge and sheriffs. He
will also observe that the carpet of the dais is thickly strewn with
the same litter. Vaguely it is suggested that the court room has
been used over night for some kind of a horticultural exhibition and
that the sweeping has been overlooked. Later, his astonishment,
however, is redoubled when enter the sheriffs and the judge each
carrying a bright colored bouquet of roses or sweet peas bound up in
an old-fashioned, stiff, perforated paper holder. The visitor
ventures to whisper his curiosity and he is then informed that, in
the former times, these herbs, and the perfume of fresh flowers,
were supposed to prevent the contagion of prison fever; and that the
ancient custom has survived the use of disinfectants and the modern
sanitation of prisoners and cells.
The opening of court in the morning and after luncheon is a curious
ceremony. The Bar and audience rise and, through a door
corresponding to the one by which the visitor has reached the
dais, enter the two sheriffs gowned in flowing dark blue robes
trimmed with fur. Then comes the under-sheriff in a very smart black
velvet knee breeches suit, white ruffled shirt, white stockings,
silver buckled shoes, cocked hat under arm and sword at side. The
sheriffs bow in ushering to his seat the judge, who is arrayed in
wig and robe, which, in the case of the Lord Chief Justice, or one
of the judges of the High Court, is of brilliant scarlet with a dark
blue sash over one shoulder, or in the case of the Common Sergeant,
is of sombre black. Each member of the court carries the bouquet
referred to and the whole group afford a dash of color strong in
contrast with the dark setting. The judge, having seated himself in
a chair--so cumbersome as to require a little track to roll it
forward sufficiently close to the desk--the sheriffs dispose
themselves in the seats not occupied by the judge or his guest, and,
later, they quietly withdraw. They have no part in the proceedings,
their only function being to usher in and out the judges, and to
entertain them at luncheon--the judges being by custom their guests.
The judge having taken his seat, the Bar and public do the same and
the business begins. There are usually two such courts sitting at
the Old Bailey--sometimes three of them.
At lunch time the sheriffs again escort the judges from their seats,
and all the judges, sheriffs and under-sheriffs, and any guests they
may invite, assemble in the dining-room of the court house for an
excellent, substantial luncheon served by butler and footman in blue
liveries with brass buttons, knee breeches and white stockings. The
luncheon table looks odd with the varied costumes, the rich blues,
the bright scarlets and the wigs of the party, who, no longer on
duty, relax into jolly sociability. Indeed one can not escape the
impression that he has in some way joined a group of "supes" from
the opera who are snatching a light supper between the choruses.
These are some of the picturesque features of the Old Bailey which,
at the same time, is the theatre of the most sensible and
enlightened application of law to the every day affairs of the
largest aggregation of human beings the world has ever seen.
While enjoying a cigar after luncheon with one of the
under-sheriffs, the voice of the Common Serjeant or Recorder is
heard at the door of the smoking room. Robed and armed with his
bouquet, he smilingly inquires if there are no sheriffs to escort
him into court. A hasty buckling on of sword, a snatching up of his
bouquet and a little dusting of cigar ashes from his velvet knee
breeches, prepares the under-sheriff for the function, and, preceded
by the sheriffs in their blue gowns, his Lordship bringing up the
rear, the little procession starts along the corridor and enters the
door leading to the judges' dais. The under-sheriff shortly returns
to finish his cigar but the guest tarries beside the judge.
The first case was a minor one--a charge of breaking and entering a
shop and stealing some goods. His name having been called, the
prisoner suddenly popped up into the dock at the far end of the
room with police officers on either side of him. Asked if he
objected to any of the jurors already seated in the box, he replied
in the negative and the trial began. The junior barrister opened
very briefly, merely stating the name, date, locality and nature of
the charge. Following him the senior barrister gave the details at
much greater length. These barristers were not, as with us, district
attorneys or state prosecutors. They are either retained by the
Treasury or, as the case may be, represent private prosecutors. The
judge was fully conversant with the evidence, as he had before him
the depositions taken at the Magistrate's Court.
In an English court, when counsel has finished the direct
examination of a witness, he does not say, as we do, "cross-examine"
or "the witness is yours", he simply resumes his seat as the signal
for the other side to cross-examine. Sometimes, a pause of the voice
simultaneously with a stooping of the barrister's head for a word of
suggestion from the solicitor below, leads his opponent to believe
he is seating himself and to begin to cross-examine prematurely.
Although in this case the plea was "not guilty," the charge was
practically undefended, and a prompt verdict of "guilty" followed.
Then came the important query from the judge to the police as to
whether the prisoner "is known"--was there a record of former
convictions? Learning that there was not, a sentence to eighteen
calendar months at hard labor followed a caution that if he should
be brought again before the court, he would be sent to penal
servitude. With a servile "If your Lordship pleases" he turned to
dive down the stairs, and, as he did so, with a grinning leer,
seized his left hand in his right and cordially shook hands with
himself--a bit of a gesticular slang which led one to think that the
police were not very well informed as to his previous experiences.
The next was a more important case. A clever but sinister-looking
Belgian, the master of several languages, was charged with obtaining
a valuable pair of diamond earrings by an ingenious swindle. Having
a slight acquaintance with a dealer in stones, he telephoned that a
friend of his was coming over to London from Paris to join his wife
and desired to present her with a pair of earrings. If the dealer
had suitable stones and would allow a commission, the Belgian said
he would try to effect a sale for him. He, therefore, arranged that
the dealer, at a fixed hour the following day, should bring the
stones to his lodgings for the Frenchman's inspection. The
appointment was kept and the two men waited for some time for the
Frenchman. Finally the latter's wife appeared and explained to the
Belgian in French--which the Englishman did not understand--that her
husband had been detained but would come by a later train, whereupon
she withdrew, and the conversation was interpreted to the
disappointed dealer.
Then the Belgian suggested that, if the dealer cared to leave the
stones, he would give a receipt for them and would either return
them or the money by half-past four. The dealer replied that
although he was quite willing to do so, he had partners whose
interest he must consult. The Belgian then produced a certificate of
stock in some Newfoundland Company, saying that it was worth as much
as the diamonds. The dealer consented to receive this as security
and he then left. Just before half-past four he was called up on the
telephone and told by the Belgian that he had made the sale and had
received the money in French notes which he would have changed into
English money. The dealer told him to bring the French notes, which
would be acceptable to him. That, of course, was the last he ever
saw of the money, the diamonds or the swindler, until the latter
was arrested some months later.
The leading nature of the direct examination, so marked in all
English courts, was conspicuous in such questions as the following:
_Q_: "Did the defendant telephone you about 4.15?"
_A_: "Yes, sir."
_Q_: "Did you recognize his voice?"
_A_: "Yes, sir."
_Q_: "Did you send an assistant to the defendant's flat
with a letter and was it returned to you unopened?"
_A_: "Yes, sir."
The Secretary of the Newfoundland Company having been called,
was asked: "Were the shares in defendant's name formerly in the name
of John Smith?" _A_: "Yes." _Q_: "Was there an order of court
forbidding their transfer?" _A_: "Yes."
Two pawnbrokers testified that, shortly after four o'clock, the
prisoner had brought the earrings to their shops and asked how much
would be loaned upon them and that, the sum offered being apparently
unsatisfactory, the Belgian took the earrings away.
_Defendant's barrister_: "My Lord, I submit, I've no case
to answer."
_The Court_: "Oh, yes, you have."
_Barrister_: "Well, if your Lordship thinks so."
The defence was cleverer than the original swindle in that it did
not attempt to deny the overwhelming evidence, but merely made the
story tally with an ostensibly innocent explanation. The Belgian
averred that he had himself been robbed by the Frenchman, with whom
he had but a slight acquaintance gained at the Paris races. He said
that the Frenchman had kept the deferred appointment and, though he
admired the stones, he thought them hardly worth the price,
whereupon the two had set off in a cab to obtain an opinion as to
their value. If thus assured, he was to make the purchase and
together they were to take them to his wife in a hotel near
Piccadilly. As it was late in the day, they failed to find a
French-speaking jeweller whom they sought, and it was suggested
that, as pawnbrokers were very cautious in loaning, two opinions of
that fraternity should be had. On stopping at the pawnbrokers'
shops, the Frenchman, being ignorant of English, said there was no
use of his going in as he would have to rely upon his companion's
interpretation and might as well sit in the cab. Thus, the visits
by the Belgian alone to the two pawnshops and the inquiry as to the
amount procurable as a loan, were duly accounted for.
According to the prisoner's story, the Frenchman, being satisfied,
proposed to pay in French notes and the Belgian entered a public
telephone booth to enquire of his principal if that would be
satisfactory, leaving the jewels with the Frenchman in the cab. When
he returned the cab was gone.
His intention having been to leave for the Continent the following
day, the Belgian said he had already notified the landlord of his
flat--which was apparently true--and had dispatched his effects in
advance. So, supposing that the Frenchman had gone to Paris, he
immediately followed on the evening train in the hope of identifying
him en route, or of finding him somewhere in that city. He swore he
did find him a few days later and caused his arrest, and that the
French magistrate declined to hold him because the crime had been
committed in England where there was no warrant out, and, hence, no
demand for extradition.
The weakest point in this ingenious fabrication was the prisoner's
failure to communicate with the owner of the diamonds during the
ensuing five months. This, and other discrepancies, having been
easily laid bare on cross-examination, a verdict of guilty was
quickly rendered.
The judge had hardly uttered the usual query whether the prisoner
was known, before an alert police inspector replied, "He is an
international swindler, well-known all over the Continent, wanted in
Berlin for a job of 20,000 marks, in Paris for another of 30,000
francs and elsewhere."
_Judge_: "Suppose we give him a few months and allow the
foreign police to apply for extradition?"
_Inspector_: "Well, Your Lordship, the trouble is that he
claims to have been born in Paris of English parents and
that he is, therefore, a British subject, and the French
police will jolly well accept his statement."
_Judge_: "That's very awkward. We'll give him twelve
calendar months and see what transpires."
CHAPTER XIII
AN IMPORTANT MURDER TRIAL
Amongst the murder trials on the "Calendar of Prisoners" appeared
"No 38; Madar Lal Dhingra, 25, Student, wilful murder of Sir William
Hutt Curzon Wyllie and Dr. Cowas Lalcaca." This referred to the
cowardly assassination of an English gentleman who had devoted his
life to Indian administration and to benefiting the native races of
that country, and to the murder of an Indian doctor, who lost his
life in an effort to save him. The tragedy, the news of which had
profoundly shocked the world less than three weeks before, occurred
during an evening reception at the Imperial Institute. The prisoner,
a fanatical Indian student, was believed to have borne no personal
animosity to his victim.
No one knew exactly when the case would be reached, but it had been
expected for several days when, one morning, the Old Bailey, in
view of a possible disturbance by Indian sympathizers, was found to
be carefully guarded by detectives. Except a small audience admitted
by cards which were doubtless hard to procure and not transferable,
the public, clamoring at the doors, were excluded from the Court,
although one American lady, who appeared in one of the back seats,
seemed to have had information and influence necessary to gain an
entrée.
The barristers' benches, however, were so full that there was an
unusual array of bewigged heads on that side of the court. The jury,
already in place, and the small audience, waited in quiet but tense
expectation. While one was idly noting the usual dried herbs and
rose leaves on the desks and carpet of the judges' dais, the Lord
Chief Justice seated himself and rolled his chair forward, a shaft
of soft sun rays from the skylight accentuating his scarlet robe.
The sheriffs bowed and took their seats at the side, and Dhingra's
name was called.
Into the dock at the far end of the room popped the prisoner,
guarded by two imperturbable policemen. He was a little, yellow
youth with a Semitic or Oriental countenance, silky black hair much
dishevelled and badly in need of the scissors, and eyes, so far as
they were discernible under his gold-rimmed spectacles, of
glittering black. He wore an ordinary gray suit and stood with his
right hand thrust into the breast of his coat, suggesting that he
had concealed there some weapon or, perhaps, poison; but of course
he had long since been disarmed and under careful guard. His was a
meagre figure, by no means conveying to an observer his own
conceited estimate of his personality. When he spoke, though posing
as a hero and martyr, he revealed only a sullen, sulky and venomous
disposition and the ferocity of his character was attested by the
premeditated and treacherous murder which he had committed.
The Clerk of Arraigns having asked whether the prisoner pleaded
guilty or not guilty, his reply was at first not understood because
of his broken English and his quick, spasmodic utterance. So his
answer had to be repeated, as follows:
_Prisoner_: "First of all, I would say these words can not
be used with regard to me at all. Whatever I did was an act
of patriotism which was justified. The only thing I have
got to say is contained in that statement, which I believe
you have got."
_The Clerk_: "The only question is whether you plead
guilty or not guilty to this indictment."
_Prisoner_: "Well, according to my view I will plead not
guilty."
_The Clerk_: "Are you defended by counsel?"
_Prisoner_: "No."
There were three barristers for the prosecution, including the
Attorney General who chiefly conducted the case. The Lord Chief
Justice volunteered leave to the prisoner to sit down, which he did,
appearing more diminutive than ever, in contrast with his guardians.
The junior barrister having stated the names, the date and locality
of the crime very briefly, the Attorney General opened the case for
the prosecution in great detail, consuming a third of the ninety
minutes which elapsed before sentence of death. In his opening, as
is usual in England, he produced exhibits and read letters not yet
offered in evidence.
In substance it was related that Dhingra came to England about three
years before to study engineering and fell into the association of
India House, a rendezvous in London of Indians of seditious
proclivities. He lived in lodgings where he had few visitors and
where, after the murder, was found a letter from Sir Curzon Wyllie
which was read in the opening speech and which stated that the
prisoner had been commended to the writer's protection and offered
to be of service to him while in England. The story was told of his
procuring a license to carry a weapon, of his purchase of a Colt's
automatic magazine revolver and another revolver, of cartridges and
of a long dagger--all of which were produced by the speaker and the
triggers of the empty pistols snapped to show the jury how they
worked.
An account of his frequent practice at a pistol gallery for three
months and up to the very afternoon of the day of the tragedy and
the use of a target the size of a man's head, preceded an exhibition
of the last paper target used, when four bullets out of the five had
pierced the bull's eye. The speaker described how Dhingra had called
his victim aside into a vestibule while Lady Wyllie proceeded down
the staircase, how he fired four shots pointblank, which passed
through Sir Curzon's head; how Dr. Lalcaca had tried to intervene
and was shot for his temerity, and how, finally, an elderly English
baronet had grappled with the murderer and succeeded in wresting the
revolver from him and bearing him to the floor.
The witnesses were then called and examined with great rapidity, the
judge restricting their testimony to essentials and checking both
counsel and witness from the slightest digression. This seemed to be
carried almost to an extreme, as an untrained witness often brings
forth an important fact amid much irrelevant verbosity. At the end
of the direct examination of the first witness, his Lordship asked
Dhingra if he wished to cross-examine. The latter growled a negative
but added that he had something to say, whereupon he was informed
that he would have an opportunity for that later. Thereafter, when
asked the same question at the conclusion of each witness' evidence,
he merely shook his head.
The prosecution having rested, Dhingra was asked if he had any
witnesses and replied that he had not. The Lord Chief Justice then
informed him that if he had anything to say, now would be his
chance, and asked whether he desired to speak where he was--from the
dock--or from the stand. The judge of course referred to the
difference between a mere unsworn statement which might be in the
nature of a plea to the jury to add a recommendation for mercy to
their verdict, or, sworn testimony which might go to the merits of
guilt or innocence. It was apparent that the prisoner, as he was
without counsel, did not understand this question and, as well, that
the judge did not comprehend his inability to grasp a distinction
indicated in the question. Doubtless, as the prisoner was bound to
be hanged--and he richly deserved it--the misunderstanding made not
the slightest difference in this case, but one could not help
feeling that the failure to provide counsel was a serious defect in
the administration of justice.
Dhingra elected to remain in the dock and stated that he was unable
to remember all he wanted to say, but that he had committed it to a
writing which was in the possession of the police. This was then
read by the Clerk but so falteringly owing to the manuscript being
illegible, that the effect of the revolutionary diatribe was largely
lost. The London _Times_, however, printed it the next day as
follows:
"I do not want to say anything in defence of myself, but simply to
prove the justice of my deed. For myself I do not think any English
law court has got any authority to arrest me, or to detain me in
prison, or to pass sentence of death upon me. That is the reason why
I did not have any counsel to defend me. I maintain that if it would
be patriotic in an Englishman to fight against the Germans, if they
were to occupy this country, it is much more justifiable and
patriotic in my case to fight against the English. I hold the
English people responsible for the murder of eighty millions of my
countrymen in the last fifty years, and they are also responsible
for taking away £100,000,000 every year from India to this country.
"I also hold them responsible for the hanging and deportation of my
patriotic countrymen, who do just the same as the English people
here are advising their countrymen to do. An Englishman who goes out
to India and gets, say, £100 a month, simply passes the sentence of
death upon one thousand of my poor countrymen who could live on that
£100 a month, which the Englishman spends mostly on his frivolities
and pleasures.
"Just as the Germans have got no right to occupy this country, so
the English people have no right to occupy India, and it is
perfectly justifiable on our part to kill an Englishman who is
polluting our sacred land.
"I am surprised at the terrible hypocrisy, farce, and mockery of the
English people when they pose as champions of oppressed humanity
such as in the case of the people of the Congo and of Russia, while
there is such terrible oppression and such horrible atrocities in
India. For example, they kill 2,000,000 of our people every year and
outrage our women. If this country is occupied by Germans and an
Englishman, not bearing to see the Germans walking with the
insolence of conquerors in the streets of London, goes and kills one
or two Germans, then, if that Englishman is held as a patriot by the
people of this country, then certainly I am a patriot too, working
for the emancipation of my Motherland. Whatever else I have to say
is in the statement now in the possession of the court. I make this
statement, not because I wish to plead for mercy or anything of that
kind. I wish the English people will sentence me to death, for in
that case the vengeance of my countrymen will be all the more keen.
I put forward this statement to show the justice of my cause to the
outside world, especially to our sympathizers in America and
Germany. That is all."
His Lordship then asked the prisoner if he wished to say anything
more.
The prisoner at first said "No", but just as the Lord Chief Justice
was commencing to sum up the case to the jury, Dhingra said there
was another statement on foolscap paper.
_His Lordship_: "Any other statement you must make now
yourself."
_Prisoner_: "I do not remember it now."
_His Lordship_: "You must make any statement you wish to
the jury. If there is anything, say it now."
_Prisoner_: "It was taken from my pocket amongst other
papers."
_His Lordship_: "I do not care what was in your pocket.
With what you had written before, we have nothing to do.
You can say anything you wish to the jury. What you have
written on previous occasions is no evidence in this case.
If you wish to say anything to the jury in defence of
yourself, say it now. Do you wish to say anything more?"
_Prisoner_: "No."
The Lord Chief Justice then summed up the case to the jury in a
charge occupying but six minutes. He said that the evidence was
absolutely conclusive; that the jury had no concern with any
political justification for the crime, for if anything of the kind
were considered it would be in the carrying of the sentence into
effect--with which the jury had nothing to do--that this was an
ordinary crime by which a blameless man, who had devoted himself to
the public service and had done much for the natives of India, had
lost his life, and that it was quite plain there had been
premeditation. His Lordship added that there was nothing which could
induce the jury to reduce the crime from murder to manslaughter, nor
was it suggested that Dhingra was insane, so that if the jury
believed the uncontradicted evidence the only possible verdict was
one of wilful murder.
Without leaving the box the jury put their heads together and, in
less than a minute, the foreman arose and uttered the fateful word
"Guilty."
There are no degrees of murder in England, but in cases where a weak
intellect or greatly extenuating circumstances render hanging too
severe a penalty, the Home Secretary may exercise a power of
commutation. Thereupon Dhingra having been ordered to stand up, the
clerk addressed him as follows: "You stand convicted of the crime of
wilful murder. Have you anything to say for yourself, why sentence
of death should not be passed on you according to law?"
_Prisoner_: (with a snarl) "I have told you once I do not
acknowledge the authority of the Court. You can do whatever
you like with me--I do not care. Remember, one day we
shall be all-powerful, and then we can do what we like."
Then followed absolute silence for two minutes--a silence in which
the breathing of persons near was audible.
Slowly the Lord Chief Justice lifted from his desk a piece of black
cloth. It was the "Black Cap." One naturally thinks, from its name,
that this is a kind of headgear corresponding to the shape of a
man's head. On the contrary, it looks like a piece of plain limp
cloth, a remnant from a tailor's shop, about a foot square, which
the judge places on the top of his wig, letting it rest there quite
casually and perhaps at a rakish angle, the four corners hanging
down and the whole producing a somewhat ludicrous effect. Neither
judge, jury, nor audience, rose when sentence was about to be
pronounced, but all remained seated, except the prisoner, who stood
in dreary isolation, flanked by his stalwart guard, at his elevated
station in the dock. His Lordship, the dignity of whose
well-modulated voice contrasted strongly with his comical head
covering, slowly addressed the prisoner as follows:
[Illustration: THE SENTENCING OF DHINGRA]
"Madar Lal Dhingra, no words of mine can have the slightest effect
upon you, nor do I intend to say anything more than to point out to
you that you have been convicted upon the clearest possible evidence
of the brutal murder of an innocent man. The law enforces upon me to
pass the only possible sentence in such a case."
The sentence was that the prisoner should be hanged by the neck
until he was dead and be buried at the place of execution.
The Chaplain, in his robes, having somehow appeared at his
Lordship's side, added: "Amen. And may God have mercy upon your
soul."
Immediately after the dread words had been uttered, the prisoner
saluted the grave judge by a salaam, bringing the back of his hand
to his forehead, and said in a manner, the impertinence of which
deprived his words of dignity: "Thank you, my Lord. I am proud to
have the honor of laying down my life for my country. I do not
care."
Counsel representing the relatives of the condemned man then arose
and said that he was instructed to say that they viewed the crime
with the greatest abhorrence and wished to repudiate in the most
emphatic way the slightest sympathy with the views and motives which
had led to it, adding, on behalf of the father and family, that
there were no more loyal subjects of the Empire than themselves.
His Lordship replied that, while the course might seem somewhat
unusual, yet, having regard to the wicked attempt at justification
in some quarters, he was glad for what had been said on behalf of
the members of the family.
Dhingra and his guards then disappeared from the dock and in a few
moments the Lord Chief Justice and his escort, as well as the small
audience, had withdrawn, leaving the court room deserted except for
a newspaper reporter who was completing his notes. And so the drama
closed.
One was told that the youthful student would probably be hanged in a
fortnight from the following Tuesday--the trial having taken place
on a Friday--as ancient custom entitled the condemned man to three
Sundays of life after sentence.[B]
The spectacle of this little, lonely, misguided, yellow man,
prompted partly by fanaticism but largely by vanity, having braved
the whole power of mighty Britain in its proud capital to exploit
his chimerical views, caught in the meshes of a law he hardly
understood and hemmed in on all sides by its remorseless ministers,
was deeply interesting and somewhat calculated to excite sympathy,
until one's reason summoned the significance of the treacherous
murder and the picture of a fair Englishwoman going out into that
London night a widow.
While the result of this trial was justice, swift and unerring, to
an American observer it seemed odd and scarcely a fair practice for
a man to be tried for his life unrepresented by counsel learned in
the law. Although the case was plain, nevertheless, with great
respect for the admirable administration of the law in England, it
must be remarked that innocent persons,--who, even if not mentally
defective, may none the less be far from clever and who are
necessarily inexperienced, and may perhaps lack the intelligence or
means to retain counsel--ought not to be permitted by the court to
pit their wits against an able officer of the crown, the stake being
their own necks. To excuse the omission on the ground of the obvious
guilt and callousness of the prisoner, is not a satisfactory
solution, because it would involve prejudging the issue to be tried.
The proper and humane course is followed in the United States--the
appointment by the court of counsel for an undefended prisoner--for
it guards against the possibility of terrible mistakes.
From a technical point of view, the "leading" nature of the direct
examinations, so noticeable in English courts, was especially
conspicuous in that this was a murder trial where no departure from
the recognized customs would have been permitted. One's ear grows
accustomed to questions which put the answer into the mouth of the
witness and require merely a monosyllabic assent; and one waits in
vain for the objection which, at home, would follow such infractions
of the rules of evidence as thunder succeeds lightning. In the
Dhingra trial, for instance, the Attorney General did not scruple to
ask such questions as the following:
_Q_: "Did you happen to look through the doorway and into
the vestibule and see the prisoner speaking to Sir Curzon
Wyllie and did you see him raise his hand and fire four
shots into his face, the pistol almost touching him?"
_Q_: "Did you see Sir Curzon Wyllie collapse?"
_Q_: "Then, was there an interval of some seconds and then
more shots?" (These killed Dr. Lalcaca.)
Nor did he hesitate to put such questions to another witness as:
_Q_: "Did you hear the noise of four shots and did you then
look and see the prisoner and did you see him shoot again?"
A police officer was asked:
_Q_: "Did you examine the pistol and find one undischarged
cartridge only?"
_Q_: "Had the other pistol six undischarged cartridges in
it?"
_Q_: "Did you find two bullets similar to these in the
wall?"
To such an extent was leading carried in the Dhingra trial that
occasionally the answer did not follow the lead, thus:
_Q_: "Did you ask him 'What is your name and where do you
live?'"
_A_: "I can't remember what I asked him."
The probable reason for the great latitude in this regard is
the fact that apparently nothing in an English trial is a
surprise--except to the jury. The court and counsel, knowing
practically all the evidence beforehand, are extremely lenient.
Not only are leading questions common but also questions asking for
conclusions--not for facts from which the jury may draw their own
deductions. Thus, in the Dhingra trial, a doctor, who was sent for
after the murder, was asked: "Did the prisoner seem calm, quiet and
collected?" A plaintiff, perhaps, will be asked: "How came the
defendant to write this letter and what was its object? Did he
consider himself remiss?" Of course an American lawyer would
successfully contend that a letter speaks for itself, while a man's
estimate of his own position could only be put in evidence by
repeating his admissions in that regard--not by asking his opponent
how he regarded himself.
In favor of the practice of asking witnesses for conclusions--a
practice which many American lawyers have found invalidates parts of
testimony taken in England for use here--much may be said. To ask a
witness the mental attitude of a person, whom he heard talking a
year before--whether he was angry, or joking, for example--is to ask
an answerable question; but to require him to repeat the exact
words, is to demand an impossibility. In replying to either form of
inquiry the witness may be honest or the reverse, so that the
chances of intentional misinformation are equally balanced, but an
attempt at verbatim repetition nearly always requires, consciously
or unconsciously, a draft upon the imagination. It seems that our
rules of evidence in this regard might, perhaps, be cautiously
relaxed with advantage, to accord more with practical experience.
An English criminal trial is quick, simple and direct. Dhingra, for
example, whose crime was committed on July first, was sentenced on
the twenty-first of that month and was hanged on August
seventeenth--all in forty-seven days. The simplicity and directness
of such trials is due to the absence of irrelevant testimony and
imaginative arguments; these, counsel scarcely ever attempt to
introduce--so certain is their exclusion by the judge. Thus, the
real object of all punishment--its deterrent effect upon others--is
greatly enhanced because it is swift and sure. The public, moreover,
are usually spared the scandal and demoralizing effects of
prolonged, spectacular and sensational trials.
Until a short time ago any person convicted in an English court was
without appeal--the rulings and sentence of a single judge were
final--but this manifest injustice has lately been cured by a law
granting the right of appeal. It is too soon to estimate the effect
of this change, but the prediction may be ventured that the ancient
habit of regarding criminal judgments as conclusive, together with
the saving common sense which characterizes all English courts,
will probably prevent any radical departure from the present
methods, which have much to commend them.
Comparison with American conditions is most difficult because,
besides the United States courts extending for certain purposes over
the whole country, there are forty-six absolutely separate
sovereignties whose administration of criminal law, unless in
conflict with the Constitution of the United States, is as
independent of the rest of the world as that of an empire.
Consequently, while differences exist in methods and results, the
remarkable fact is that they are, upon the whole, so similar, when
only a common tradition and a fairly homogeneous public opinion
serve to keep them from drifting in diverse directions.
The administration of criminal law by the United States Courts deals
chiefly with the trial of persons accused of murder on the high
seas, counterfeiting, forgery, smuggling or postal frauds,
defaulting bank officials and, very lately, corporation managers
charged with favoritism in freight rates, or with the maintenance of
monopolies affecting interstate commerce. Throughout the length and
breadth of the land it is prompt, thoroughly dignified, vigorous and
fair; indeed, its excellence, as a whole, suffers little if at all
by comparison with the best English standards, which have been
perfected only by centuries of experience in the highly concentrated
population of a small Island.
But turning to the individual States, all comparisons must depend
upon locality. New York, the landing place, that threshold of real
America, with a predominating foreign population; the western
frontiers of civilization, and the South, with its peculiar racial
conditions, suffer by comparison with British standards far more
than would one of the orderly communities composing the greater part
of the Republic.
Recent mal-administration of criminal law in New York constitutes a
subject of national mortification, but the existence of this
sensitiveness is the best of reasons for believing that time will
bring an improvement. Unfortunately for the good name of the
country, foreigners do not comprehend, and can hardly be made to
appreciate, that the instances of private assassination in that city
followed by trials, which, whether owing to a vicious system of
practice or to judicial incompetency, excite the indignation and
ridicule of the world, are not typical of America but are
expressions of purely local and probably temporary conditions.
Foreign critics should be told that New York is not America, as
many of them assume, and that temporary and local lapses do not
prove a low standard. They may also be reminded, as showing that
human justice is fallible, that even in London if a man walks into
an Oxford Street department store, lies in wait for the proprietor
against whom he has a grievance and blows out his brains, although
he will be convicted in a trial occupying but three hours, yet the
Home Secretary may intervene and prevent his hanging, upon a
petition signed by tens of thousands of sentimentalists moved by the
rather illogical fact that his wife contemplates an addition to a
thus celebrated family.
In the far West, criminal practice is probably neither better nor
worse than in any other rough frontier of civilization where men
must largely rely upon their own resources, rather than upon the
government, for the protection of their lives and property.
Conditions in the South are so peculiar, owing to the sudden
elevation to a legal equality of an inferior race which is in the
majority, that no comparison with any other community is possible.
Without in the least condoning existing conditions, it may even be
said that lynching, unlike private assassination, involves some
degree of co-operation and is the expression of public, rather than
of individual, vengeance. The theatre of these outrages is,
moreover, sparsely settled, beyond large cities or centres of
education, and still retains some of the features of a frontier.
Throughout much the largest area, however, constituting the solid
civilization and containing the bulk of the population of this
immense country, no such conditions exist. On the contrary, crime is
met with that steady and impartial justice, inherited from England,
which neither partakes of the police oppression of continental
countries, nor lapses into the barbarism of the exceptional
localities above referred to. To commit deliberate murder in one of
the eastern States, such as Pennsylvania, or Massachusetts, or in
one of the great commonwealths of the middle West, means sure and
reasonably speedy hanging.
But, bearing in mind the difficulty of accurate comparisons between
such diversified sections and a compact unit like England, and
endeavoring to arrive at a general estimate, it must be conceded
that America, as a whole, has even more to learn from England's
criminal, than from her civil, courts.
FOOTNOTE:
[B] He was hanged three weeks from the following Tuesday.
CHAPTER XIV
LITIGATION ARISING OUTSIDE OF LONDON
LOCAL SOLICITORS--SOLICITORS' "AGENCY BUSINESS"
--THE CIRCUITS AND ASSIZES--LOCAL BARRISTERS
--THE COUNTY COURTS--THE REGISTRAR'S COURT.
As has been said, solicitors are to be found in every town in
England, whereas barristers, with minor exceptions to be noted, all
hail from the London Inns of Court. People living in the country or
in provincial towns, especially the larger ones, such as Liverpool
and Manchester, of course consult local solicitors. If litigation is
contemplated, the solicitor advises his client and conducts the
sparring and negotiations which usually precede a lawsuit. But when
actual warfare opens, the provincial solicitor generally associates
himself with a London solicitor who is known as his "agent"; and
hence "agency business" constitutes a considerable portion of the
practice of a large firm of town solicitors. The Manchester or
Liverpool solicitor does all the work and receives the fees up to
the time he sends the "proofs" to the agent--that is, the documents,
statements of witnesses reduced to affidavits, and the other items
of evidence--and dispatches the witnesses to the trial in London,
which usually however, he does not attend himself, although, of
course, he sometimes does so. The London solicitor retains the
barristers, and is thereafter in complete charge of the case. The
newspaper reports of trials of cases from the provinces, after
giving the names of the barristers, always mention the London
solicitor as agent for the country solicitor whose name also
appears. The fees are shared from the time of association; one-third
to the country, and two-thirds to the town solicitor. This is not
unlike the manner in which our lawyers handle business in States
other than their own--but it is much more systematized. If, however,
the provincial solicitor prefers to await the Assizes (which he may,
except in divorce, probate, equity and some other kinds of business)
he may bring his action in the High Court, sub-offices of which are
available throughout the country for the issuance of writs, and,
having retained a barrister, may try the case in his own town when
the judge of the High Court comes down from London thrice a year on
circuit.
These Circuits of the High Court are arranged with regard to the
volume of business and the contiguity of centres of population,
without reference to county boundaries, and the same judge is rarely
designated to repeat his visit to a circuit until it is reached
again in regular rotation. To some circuits, like the Northern,
where the business is very heavy, two judges are sent. At these
Assizes, both civil and criminal business is handled, and, if there
be two judges, one court room is devoted to the former and the other
to the latter.
Every London barrister, early in his career, joins a circuit. He
usually selects one where he may be somewhat known to the
solicitors, and where, perhaps, his family have property or
associations. Formerly and, in fact, long after the advent of steam,
judge and counsel "rode the circuit"--as was done in the early days
of our own county Bars--and indeed, within the memory of barristers
still in middle life, a horse van used to stand in one of the Temple
squares to receive the luggage, papers and books of court and Bar
for the circuit. Each circuit has its "mess" with interesting
traditions of midnight carousals and records of fines of bottles of
port inflicted upon members for various delinquencies. The modern
mess, besides procuring special rates at the hotels, constitutes a
sort of itinerant club; rendering possible a discipline for breaches
of professional propriety by expulsion or denial of admission, which
is the most drastic punishment short of disbarment.
A few barristers, and their number is increasing, reside in large
towns other than London and practice exclusively at the Assizes and
in the county courts--of which something will be said later. They
are known as "locals". If successful, however, they gravitate to the
source of the High Court--London. Thus the local solicitor, if he
decide to eschew London and an agent and await the Assizes, has a
considerable Bar from which to pick his man.
A barrister never accepts a brief in a circuit other than his own
unless the solicitor has also briefed, as his associate, a junior
who is a member of the circuit. To do so would be a gross breach of
etiquette. But if this unwritten law be duly observed, the barrister
who is a stranger here, although a daily colleague in the London
courts, is immediately received with open arms and made an honorary
member of the mess.
Court and Bar having reached and disposed themselves in an Assize
town, as a flock of birds settle in a convenient cover, a
transplantation of a London court is effected until the disputes of
the neighborhood are resolved. An observer can find no difference in
personnel or general aspect, except perhaps, that the provincial
policemen at the doors are not so polite and patient as the London
"bobby"--that marvel which excites the envy, admiration and despair
of conscientious ministers of authority in the rest of Christendom.
If an action involve no more than £100, a solicitor may seek the
County Courts--for there are seven of such courts for the county of
London. The advantage in so doing is chiefly in the smaller costs,
which are a serious matter to all English litigants, and almost
prohibitive to the poor. The judge of a county court must be a
barrister of at least seven years standing and generally hails from
London. He is appointed by the Lord Chancellor and receives a salary
of £1,500. His title in court is "Your Honor", as distinguished from
a judge of the High court, who is addressed as "My Lord" or "Your
Lordship," and from a magistrate, who is called "Your Worship."
In the county courts, solicitors "have audience", that is, they
may, equally with barristers, address the court and jury; in other
words, they may be the actual trial lawyers, whereas, in the High
Court barristers alone are heard. In addressing the court, they must
wear a black gown, but no wig. Barristers, except locals, are
infrequently seen in the county courts; the amounts involved
scarcely warrant retaining them. But, for some years, the tendency
has been to increase the limit of jurisdiction of these courts and
their importance is steadily growing. In this connection it may be
mentioned, too, that agitation appears to be making some progress
for removing all limitation of the jurisdiction of the county courts
with, however, a right to the defendant to remove a cause to the
High Court when more than a certain sum is involved, thus creating a
sort of solicitor-advocate. But the outcome of all this is, at the
moment, problematical. At present, to prevent solicitors developing
into pure advocates even in the county courts, a law forbids one
solicitor retaining another to conduct the actual trial.
The Registrar's Court in a great town, like Birmingham, will be
found in the county court building. The court room is large, but
usually contains only a few people, of the lower class, and the
registrar, in black gown and wig, sits on a raised dais. In the High
Court, the American observer has been accustomed to associate a gown
only with the barrister--never with the solicitor. In the county
courts, however, he has seen solicitors practicing as advocates, in
minor cases, and wearing gowns; but until he visits a registrar's
court he has never seen a wig except upon the head of a barrister or
of a judge; and all judges have once been barristers. He is
therefore surprised to learn that, notwithstanding his attire, the
registrar is a solicitor, appointed to his position by the county
judge.
Beside the registrar stands a man who very rapidly passes to him
numerous printed forms upon which the registrar places a figure or
two, such as "4/6" or "7/6". This is done almost as fast as one
would deal a pack of cards. Occasionally, there is a pause, a name
is called and some one from the audience steps forward; whereupon
brief testimony is taken as to some small debt, claimed upon one
side and denied upon the other. Judgment for plaintiff follows in
nine cases out of ten, and then inquiry is made by the registrar
whether the defendant--or her husband, if she be a woman--has work
or is unemployed. A figure is then placed on the printed form which
is added to the pile.
The business dispatched is that of some large retail tradesman. Upon
payment of a small fee in the clerk's office, summonses have been
obtained which have been served on the debtors by a policeman, and,
in most cases, the defendants have signed their names admitting the
debt. The figures 4/6, 7/6, etc. signify the order of the court,
that 4 shillings and 6 pence, or 7 shillings and 6 pence, shall be
paid monthly until the debt is liquidated. In this way, the time of
a defendant who admits the debt is not diverted from his work to
attend court. The claims are fixed for hearing in batches of 100
every half hour of the court's sitting, when, if not admitted in
writing, a short trial of the contested cases ensues. In this way
about 400 cases a day are readily disposed of.
Payments are made in the clerk's office and each payment is endorsed
on the summons. If the debtor falls out of work, an application is
made, invariably with success, to suspend the payment until idleness
ceases. The costs are trifling and the whole system works admirably.
It is a prompt and businesslike manner of enforcing small
obligations with a minimum of loss and delay.
CHAPTER XV
GENERAL OBSERVATIONS AND CONCLUSION
It is the office of the courts to administer written laws enacted
from time to time in response to the popular mood. They also--and it
is the more important function--discover and declare the principles
of natural justice which, in the absence of written law, govern the
decision of a controversy. These deliverances, constituting the
common law, rely much upon precedents which, however, are not
followed slavishly, but are continually being modified--sometimes
abruptly--in harmony with prevailing sentiment. Thus, the law
expounded by the courts is ever changing and it slowly follows
public opinion.
Both the public opinion and the law of England were, for
generations, characterized by the quality of conservatism. The
various reform acts, starting in 1832, marked the advent of an epoch
of individualism which, lasting for over fifty years, made England
the land where personal liberty and private property were perhaps
safer than ever before in the world's history. It was a country
where government's chief concern was to furnish irreproachable
courts, competent police and few but honest civil servants, so that
each man might pursue happiness after his own fashion with the least
possible interference, yet with complete confidence that he could
assert his rights effectively when invaded. Hence it was that
America learned to look to England for precedents.
All this is changing. The substitution of the doctrines of
collectivism for those of individualism began in 1885 and it
proceeds rapidly in many directions. The socialistic harangues one
hears from vagabonds mounted on benches in Hyde Park are delivered
without interference by the police. The spreading of discontent by
paid agitators proceeds at the market crosses and in the taverns of
the villages between elections. Later the politicians appear and
solicit votes for impossible schemes, an ever increasing proportion
of which are actually adopted by Parliament and of which the laws
regulating liability for personal injuries, attacks upon land and
other forms of property, old age pensions and the methods of public
education, furnish typical examples.
[Illustration: SIDEWALK SOCIALISM--HYDE PARK]
The Workingmen's Compensation and Employers' Liability Act of 1906
was a tentative step, but seems likely to lead to extended liability
and reduced defences, particularly in the matter of contributory
negligence, which has almost ceased to be a factor. One of the
clauses of this Act shows that, even when it is proved that the
death or serious disablement of a workman is attributable to his own
wilful misconduct, compensation may yet be claimed on his behalf
from his employer. In addition, another and unheard of form of
liability for an employer, requiring him to compensate his servant
if the latter falls ill or dies of an "industrial disease" (a list
of which diseases was appended to the Act) and with the
extraordinary provision that, having paid the compensation, the
employer may sue any former employer for the amount, if he can prove
the servant actually contracted the complaint in the earlier service
and within ten years.
Of course universal accident liability insurance followed, the cost
of which must be borne by the proprietor, and, if he is a
manufacturer, eventually by the consumer. As may be imagined, such
laws give rise to surprising results. The report of one of the
great accident liability insurance companies, made shortly after the
passage of this law, exhibited, for example, the recovery of damages
by a domestic servant, who, while eating a meal, had swallowed her
own false teeth; another had contrived to swallow a curtain hook; a
third was burned by the bed clothes taking fire from a hot iron
which she had wrapped in flannel for the purpose of warming herself.
The manageress of a laundry had her hands poisoned by handling
copper coins. A footman was bitten while attempting to extract a cat
from the jaws of a dog; a nurse-maid was burnt by letting off fire
works in the back garden at a private celebration of the servants
during the master's absence, and a cook had her eyes scratched by
the house cat. Such absurdities show the trend of modern English
legislation on the subject.
A glance at an English landscape with its panorama of endless turf
and forest and comparatively small areas of cultivation, in marked
contrast with the minute utilization of every inch on the Continent,
and the reflection that England produces only a portion of the food
consumed in its crowded towns, should leave no one surprised at an
agitation to modify the existing conditions, which led to continued
assaults upon all forms of possession, whether of real or personal
property. Acts of Parliament followed each other in quick succession
depriving land owners of their holdings to inaugurate chimerical
building schemes; giving rent-payers power to condemn and forcibly
purchase dwelling houses; attacking property other than land by
taxing the inheritance of money so heavily (on a sliding scale of
percentages increasing with the size of the estate), as to approach
the socialistic ideal that two deaths shall mean the absorption by
the State of any large property and that no man shall enjoy a rich
grandfather's accumulations; levying upon the living wealthy by ever
increasing income taxes, with a like sliding scale, operating upon
them alone, while exempting the poor. To this almost confiscatory
taxation no limit seems to be in sight.
Old age pensions--one of the most startling novelties of the
collectivist--are doubtless economically impossible and morally
pernicious unless required to be contributory on the part of those
who may later claim them, so that they constitute a system of
compulsory saving and insurance, as is the plan in Germany where
socialism is at least somewhat scientific. But it remained for the
once conservative England to inaugurate the distribution of
universal alms without any comprehensive plan for raising the
money--the weekly dole to be inevitably increased and the age limit
lowered as the exigencies of vote-seeking politicians render
expedient.
No one now questions the propriety of a Government providing free
education for children, but in England a father, no matter how well
qualified, may now be prosecuted for educating his child himself
rather than sending him to a Government school to be fed as well as
taught.
At the Marylebone Police Court a well known journalist and writer on
education was summoned by the Education Department of the London
County Council some time ago for neglecting to send his four
children to school. He was, himself, an old and experienced teacher
with credentials from one of the colleges of Cambridge University.
He did not believe in sending his children to school until they
reached the age of ten or eleven, but meanwhile he taught them
himself, _viva voce_ in the open air, according to the system of
Froebel and Pestalozzi, and endeavored to make education a delight.
This was the father's chief occupation and he devoted as much time
as possible to training all the mental faculties, without exhausting
the nervous force or injuring the physical health, of his children.
The eldest, a boy of fourteen, had contributed an article to one of
the leading magazines which was pronounced by a competent editor of
another periodical to be an extraordinary effort for a boy of his
age. It appeared that he knew Shakespeare well and was in the habit
of quoting him and other poets, but that his brother, aged eleven,
preferred Wordsworth. He considered the English language "awkward,"
French "euphonious" and German "rationally spelt." It was rather a
relief to find another brother, aged nine, who was deep in "Robinson
Crusoe." A school-attendance officer, however, had reported that the
children did not attend the elementary schools and the magistrate
imposed fines upon the father, but, upon it appearing that he had no
property, he was sentenced to imprisonment for seven days in respect
of the Shakespearean, and five days each to cover the lover of
Wordsworth and the student of Defoe. A month later the father was
summoned before a different magistrate in the same police court who
fined him in respect of the youngest child and adjourned the hearing
in order that the other three might be examined by a government
inspector to ascertain whether they were being efficiently educated.
This episode may not have been typical, but that it was possible in
modern England illustrates how out of date is the old-fashioned
conception of the personal liberty and freedom from governmental
intrusion which once characterized that Island as distinguished from
the Continent.
These are but examples of a series of surrenders to the proletariat,
which have practically delivered over the general Government of
England to the collectivists; while the education and training of
many of the party managers who are responsible for it, renders
incredible the excuse that they may be only fanatics.
Simultaneously, municipal socialism has spread in a manner affecting
the public even more intimately. Over three fourths of the
Councils--County, Town, Urban District and Rural District--are
engaged in municipal trading of various kinds, operating
inefficiently and generally at a loss, such enterprises as golf
links, steamboats, concert halls, motor busses, markets, trams, bath
houses, gas works, libraries, telephones, milk depots, electric
lighting, lodging houses, building operations, insurance--and a host
of other undertakings heretofore left to private initiative.
All this means an ever increasing army of officials, agents and
inspectors. The interference of a paternal government is threatened
or felt in every detail of existence. The people have learned to
agitate collectively for advantages to be taken from some classes
and distributed to others. Without a constitution (for the so-called
English Constitution is but a misnomer for former laws and decisions
which are subject to constant repeal and alteration) and without a
Supreme Court capable of declaring wild legislation to be
unconstitutional--for every act of Parliament becomes a law which
can never be challenged in any court--there is no brake to retard,
and the politicians of all shades are left free to compete in
casting one vested right after another to the mob in quest of votes.
The most serious effect of all this is, probably, the tendency to
weaken that sturdy self-reliance upon individual effort which has
always characterized Englishmen, and the encouragement of an
attitude of leaning upon the Government and of looking to
legislation to remove all difficulties. No popular disturbance is
impending--it is unnecessary, for the revolution progresses smoothly
and the whole country is adjusting itself to the new order of
things. The possessors of property seem singularly resigned, or at
least inarticulate, and submit almost in silence to spoliation.
Such opposition as exists takes chiefly the form of party
controversy upon details, and criticism by each faction of the steps
of the other. Few seem to realize how far the country has departed
from its former standards or that the most moderate proposals of
to-day were radical yesterday.
It is a great race, this Anglo-Saxon, and it has shown wonderful
capacity to govern itself in the past. It may prove to be wisely
meeting half way an approaching avalanche of worldwide socialism
destined to modify the existing order of society. Or can it be that
England has seen its best days?
One thing, at least, is sure--the United States is at the moment
infinitely more conservative than England. Both are pure
democracies, and therefore if the people should be resolved to
abolish the rights of property as we at present know them, it would
inevitably be accomplished. That the majority are really of that
mind in either country is more than doubtful; but in England the
politicians seem to be destroying that which it has taken centuries
to build up, whereas in America this could not happen unless the
conviction was so widespread, determined and permanent, as to
accomplish what is apparently impossible--the radical amendment of
the Constitution.
This digression into the field of politics is only relevant in its
possible effect upon the courts. They, at present, necessarily exist
in an atmosphere of confusion and of constant annihilation of
rights. The head of the whole administration of law, the Lord
Chancellor, is a political appointee changing with the parties. He
appoints the other judges, the King's Counsel and, directly or
indirectly, he is the great source of legal advancement. True, he
has for a long time been selected from the leaders of the Bar so
that he has been professionally well qualified. But this was not
always the case and it is not necessarily a permanent condition,
especially in a country passing through such fundamental changes.
Time alone will show whether these violent shocks will disturb the
balance of the scales of justice. For the future, realizing that
England is no longer conservative, but is now the land of startling
experiment, it would be at least prudent to accept its political and
legal precedents with caution.
One sometimes hears it said that we have too many judges, and the
argument is apt to be urged by the assertion that the number in a
large city is as great as in all England. The natural inference is
that our judges work less effectively.
No statement could be based upon falser premises. The roll of judges
in the High Court is, indeed, a limited one and, as they try small
as well as large cases, the impression might follow that they
constitute the whole judicial force of England. The fact, however,
is quite the reverse.
Taking at random the daily Official Cause List for London there will
be found on a given day sitting at the Law Courts in the Strand
alone, twenty-one judges of the High Court, eight masters, seven
Chancery registrars, twelve masters in Chancery, three official
referees, two registrars in bankruptcy and one official presiding
over "companies winding up"--exactly fifty-four men simultaneously
performing judicial duty in one building. Each of these is holding
what is practically a separate court and his title is of no
significance. When one remembers that at the same time the House of
Lords is sitting at Westminster, the Judicial Committee of the Privy
Council in Downing Street, the four Criminal Courts at the Old
Bailey, more than twenty police magistrates at Bow Street and
elsewhere, and County Courts, at Bloomsbury, Clerkenwell, Edmonton,
Marylebone, Shoreditch, Southwark and Westminster, some idea may be
formed of the number of judges and courts always at work in the
metropolis.
Innumerable courts are also sitting in the provinces, which, if less
important, serve to relieve the metropolitan judges. The justices of
the peace number in many counties three or four hundred and in one
county about eight hundred, although most of them never attend and
the work is done by comparatively few. They sit singly as committing
magistrates and in groups at petty sessions and at quarter sessions.
There are also a large number of borough criminal courts presided
over by a recorder. Besides, the county courts are over five hundred
in the aggregate, though there are not so many county judges, for
the smaller courts are grouped into circuits. Finally, there are the
Assizes of the High Court coming down periodically from London to
try causes, both criminal and civil, all over England.
Thus the little Island fairly bristles with tribunals and teems with
judges and any criticism of American judges or of American judicial
methods by such comparison would only be possible in ignorance of
the facts.
* * * * *
In America, litigation begins in the court room; in England, it ends
there. American proceedings tend to be somewhat formal,
conventional, diffuse and dilatory. Pitfalls and traps are
occasionally laid by astute practitioners, which embarrass the side
really in the right and delay a conclusion upon the merits. Much is
incomprehensible to the laymen concerned except the result.
English legal proceedings on the contrary are colloquial, flexible,
simple and prompt, thoroughly in touch with the spirit of the times
and with the ordinary man's every-day life.
The legal decisions of the two countries are probably of equal
value, and are held in mutual respect. Neither, perhaps, could claim
any superiority over the other in its legal results, but in methods,
England at present is far in advance.
This was not always so. Up to 1875 the English courts were most
slow, expensive and unsatisfactory. But in these thirty-five years,
reforms in methods have so progressed, step by step, that the most
important action can be tried, a judgment given, appeal taken,
argued and orally decided as counsel sit down--all in ninety days.
The details of these improvements are too technical for the present
occasion; suffice it to say that they are characterized by the
utmost simplicity, and many of them are capable of adaptation with
modifications to American conditions.
In America, the Bar is almost unorganized. It has little voice in
the selection of the judges, of whose qualifications the politicians
have no knowledge; it is weak in disciplining and purging itself and
in commanding public respect for its rights; its standards of
professional propriety are not clearly enough established, although
great improvement is noticeable in all these respects. In England,
the Bar is well organized and governs the whole administration of
the law, jealously resenting any interference with its ancient
prerogatives and preserving its own professional honor.
Thus, a close observation of professional life in England will prove
instructive and suggestive to the ever-alert American. Nevertheless
he will depart with a feeling that, while at home there is room for
progress, yet, upon the whole, the old profession in the New World
well maintains its proud position.
INDEX
Absence of "leader" in trial, 32
Accident cases, "tender of damages" in, 122
Admiralty, Probate, Divorce and Admiralty
Division of High Court, 93
Trial, 104
Advocates, solicitors as, 174
"Agency business" of solicitors, 169
American law books in Middle Temple library, 14
Members of English Bar, 12
Appeal, Courts of, 107
to Judicial Committee of Privy Council, 113
to House of Lords, 111
in criminal cases, 163
of colonial cases, 114
Appellation of judges, 173
Appointment of judges, 96
Aromatic herbs in criminal courts, 133
Assizes, 170
"Associate" or clerk of court, 3
Attorney or solicitor, 49
Bags of barristers, 47
of solicitors, 55
Bailey, Old, 131
"Bands" of K. C.'s dress, 40
Bar, American members of English, 12
Calling to, 26
Discipline of, 67
English, size of, 37
English, division of, 39
Make up of, 12
Parliamentary, 40
Women not eligible to, 26
Barnard's Inn (Chancery), 23
Barrister, "Associate," 3
"Blue and red" bags of, 47
Begins by becoming "devil," 30
Chambers of, 14
Chancery, 40
Common law, 40
Desks of, 3
Dress of, 44
Fees of, 58
Formerly lived in Inns, 18
Joining circuit, 171
"Juniors," 31
"Leader," 4
"Locals," 172
Master, 117
Member of Inns of Court, 24
Partnerships forbidden, 61
Practice of, 57
Selection of, 50
Serjeants-at-law, 23
Training of, 25
"Twelve Dinners" of, 25
Upon becoming K. C., invited to join Benchers, 21
Voices of, 6
Wig of, 5, 45
Benchers govern Inns, 21
Black Cap, 156
Briefs, 50
Briefs, endorsed with fees, 62
Butler's livery at Old Bailey, 135
Calling to bar, 26
Cambridge students exempted, 25
Censors, 68
Chambers of barristers, 18
Chancery Bar, "Specials," 41
Barrister of, 40
Division of High Court, 93
Inns, 16
Inns formerly connected with Inns of Court, 22
Inns, history of, 22
Lane, 15
Lane, Serjeants' Inn, 23
"Leaders," 34
Chief Justice, salary of, 95
Circuits of High Court, 171
Clement's Inn (Chancery), 23
Clerk of Court or "associate," 3
Clifford's Inn (Chancery), 23
Colonial appeals, 114
Colors of bags, "blue and red" for barristers, 47
Common juries, 92
Serjeant criminal judge, 132
Law barrister, 39
"Consolidated regulations," 22
Contingent fees not permitted, 59
Corridors of the court, 1
Costs, 97
Council of Bar, general, 67
of legal education prescribes course of studies for
barrister, 25
Counsel in a cause, 4
County courts, jurisdiction of, 94
procedure, 173
judges of, 173
salaries of judges of, 173
Court Appeal, 107
Central Criminal (Old Bailey), 131
Civil, 87
Common Pleas, practice formerly limited to
Sergeants-at-law, 23
County, 94-142
Criminal, 131
Divisional, 113
Enumerated, 188
High, 88
Police, 125
Registrar's, 95
Room described, 2
Room, Criminal Court, described, 132
Vacation of, 73
Criminal Law, 39
Trials, 136
Trials, appeals in, 163
Trials, comparison with American, 164
Criminal Court, Aromatic herbs in, 133
Central (Old Bailey), 131
Customs in, 133
Dock of, 133
Judges of, 132
Police, 125
Recorder, 132
Room described, 132
Devil may conduct trial, 32
"Devilling," 30
Dhingra's Trial, 145
Disbarment, 67
Discipline of bar, 67
of solicitors, 67
Divisional Court, 113
Divorce, Probate and Admiralty Division of High Court, 93
Dock, in Criminal Court, 133
Dress of Barristers, 44
of Butlers at Old Bailey, 134
in Criminal Court, 134
of Footmen at Old Bailey, 135
Judges, 3
Judges (Chancery), 93
King's Counsel, 44
Solicitors, 3-46
Education, Council on Legal, governs training of
barristers, 25
Employers' Liability Acts, 179
English Bar, size of, 37
Entrances to court room, 1
Equity Trials in Chancery Division High Court, 93
Ethics of profession, 68
Etiquette of dress enforced, 40
Fees of Barrister, 58
of Sir Charles Russell, 60
of Sir Frank Lockwood, 60
Must not be contingent, 59
Paid by law students, 26
of solicitors, 64
of solicitors, sometimes divided, 170
First impressions, 1
Fleet Street--"Old Bailey," 131
Footman's livery--"Old Bailey," 135
Furnival's Inn (Chancery), 23
General Council of Bar, 67
Observations, 177
"Gentleman," defined by Sir Thomas Smith, 10
Gray's Inn, 13-15
Hearings in Police Courts, 125
Herbs used in Criminal Court, 133
High Court, of Justice, 88
Circuits of, 139
Division of, 88
House of Lords, Appeals, 111
Impressions on entering Law Courts' Building, 1
Incorporated Law Society, 27-67
Inns of Chancery, 13
Formerly connected with Inns of Court, 22
History of, 22
"Staple's," "Barnard's," "Clifford's," "Clement's," "Lyon's,"
"Furnival's," "Thavie's," "New Inn," "Strand," 23
Inns of Court, 13
Date of origin, 21
Government of, 21
Origin of, 21
Position of, 20
Uniformity of, 21
Inns, Gray's Inn, 13
Inner Temple, 13
Lincoln's Inn, 13
Middle Temple, 13
Serjeants', 23
Interior of barristers' chambers, 18
Journals, law, reports of, 72
Judges, 3
Actively conduct trials, 102
Appellation of, 142
Appointment of, 96
Chancery Division, robes of, 93
Formerly in holy orders, 19
Of County Courts, 173
Of County Courts, salaries of, 173
Of Criminal Courts, 132
Robes of, 3
Salaries of, 63-95
Judicial Appointments, 96
Committee Privy Council, 113
"Junior" barrister "opens pleadings," 31
tries case, 32
Jury, Common and Special, 91
Only in King's Bench, 88
Qualifications of, 92
Situation and arrangement of, 3
Trials, 100
King's Bench, 88
Counsel, 4, 31
Counsel, robes of, 44
Counsel, routine of, 36
Counsel, "Taking Silk," 33-34
Law Courts Building on Strand, 1
Journals, 72
Society, Solicitors' Incorporated, 28
Lawyer's training, 9
"Leader," 4
King's Counsel, 31
List of, 42
Absence of, 32
Leading questions, 140-160
Lincoln's Inn, 13-15
Livery of Footman, Criminal Court, 135
Local Barristers, 172
Solicitors, 169
Lockwood, Sir Frank, fees of, 60
London Times, law reports of, 72
Long vacation, 73
Lord Chancellor, appointments by, 173
Salary of, 95
Lord Chief Justice, 132
Lyon's Inn (Chancery), 23
Magna Charta fixed position of courts, 20
Masters, 117
Trinity, 94
"Mess" of Circuits, 171
Middle Temple, described, 13
American law books in, 13
Models much used, 104
Murder Trial of Madar Lal Dhingra, 145
Newgate Prison, 131
New Inn (Chancery), 23
Newspapers, Law reporting in, 72
Trial of cases in, 73
Nisi Prius, sittings frequent, 105
Offices of barristers in Inns, 18
Old age pensions, 181
Old Bailey (Central Criminal Court), 131
Oxford students, exemptions of, 25
Parliamentary Bar, 40
Partnerships of barristers forbidden, 61
Pensions, old age, 181
Police courts, 125
Porter's Horn, 17
Practice of barristers, 58
before masters, 117
Rules of, 89
Preliminary hearing in Police Courts, 125
Preparation of case by solicitor, 4
"President" of Probate, Divorce and Admiralty Division, 88
Prison fever, 131
Privy Council, judicial committee of, 113
Probate, Divorce and Admiralty Division of High Court, 93
Procedure in county courts, 173
Provincial courts, 169
Reading of English law student, 25
Recorder, a criminal judge, 132
Registrars' courts, 174
Registrar, a solicitor, 175
Reports of cases, 72
Robes, Judges', 3
of Judges' Chancery Division, 93
of King's Counsel, 44
Rules of practice, 89
Russell, Sir Charles, fees of, 60
Salaries of judges, 63-95
of Judges, County Courts, 173
of Masters, 117
Serjeants-at-law, 23
Common, a criminal judge, 132
Inn, 13-23
Inn, present use of, 23
Shakespeare, production of "Twelfth Night" in Temple, 14
Sheriffs, duties in Criminal Court, 132
"Silk," "taking of," 33
Smith, Sir Thomas, definition of "gentleman," 10
Socialistic legislation, 184
Solicitors, 49
"Agents," 169
Bags of, 55
Become registrars, 175
Develop into advocates, 174
Discipline of, 67
Dress of, 55
Fees of, 64
Have no Inn of Court, 27
Incorporated Law Society governs training of solicitors, 27
Prepare cases, 4
Sphere of, 50
Training of, 12-27
"Well," 3
Special Juries, 92
"Specials" in the Chancery Courts, 40
List of, 42
Staple's Inn (Chancery), 23
Strand Inn (Chancery), 23
Students, training of, 25
Supreme Court of Judicature, 87
"Taking Silk," 33
Templars, Knights; use of land of, by Inns of Court, 13
Temple, Church of, 14
Inner, 13
Library of, 14
Middle, 13
Tender of damages in tort cases, 122
Thavie's Inn (Chancery), 23
Trade Guilds organized, 19
Treasurer, executive officer of Inn of Court, 21
Term of, 21
Trial, 31-74
Absence of "Leader" in, 32
In Admiralty, 104
Before Master, 118
Of criminal cases, 136
"Trinity Masters," 94
"Twelfth Night," produced in Temple, 14
Vacations of courts, 74
"Weepers," 44
"White Book," 68
Wigs, 45
Barristers' described, 5
Witness Box, situation of, 3
Witnesses, demeanor of, 6
Women, not eligible to Bar, 26
Workingmen's Compensation Acts, 179
Transcriber's Notes:
The spelling "Sergeant" appears once in this text on page 134,
otherwise the word is spelled and indexed as "Serjeant."
There is a separate transcriber's at the end of the Table of
Counsel that appears in Chapter IV.
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