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diff --git a/41034-0.txt b/41034-0.txt new file mode 100644 index 0000000..48aa190 --- /dev/null +++ b/41034-0.txt @@ -0,0 +1,5010 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 41034 *** + +[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. + + + + + +End of the Project Gutenberg EBook of A Philadelphia Lawyer in the London +Courts, by Thomas Leaming + +*** END OF THE PROJECT GUTENBERG EBOOK 41034 *** |