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diff --git a/41034-8.txt b/41034-8.txt deleted file mode 100644 index 857e925..0000000 --- a/41034-8.txt +++ /dev/null @@ -1,5399 +0,0 @@ -The Project Gutenberg EBook of A Philadelphia Lawyer in the London Courts, by -Thomas Leaming - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: A Philadelphia Lawyer in the London Courts - -Author: Thomas Leaming - -Release Date: October 12, 2012 [EBook #41034] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK PHILADELPHIA LAWYER IN LONDON COURTS *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/American -Libraries.) - - - - - - -[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." - 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