"An arrangement of this kind is also not unfrequently made in the case of a King"s Counsel who desires regular a.s.sistance 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" a.s.sistance 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 ent.i.tled 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 circ.u.mstances 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 a.s.sizes_:--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.
Ill.u.s.trative 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 pract.i.tioners 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 pa.s.s 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 b.r.e.a.s.t.s 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 t.i.tles, 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 const.i.tute 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 t.i.tle 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 a.s.sistance 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 c.u.mbersome 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 pa.s.ses 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 t.i.tles 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 a.s.sisted 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 ma.s.s 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 Pa.s.sage, 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 inc.u.mbent 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 const.i.tute 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 doc.u.ment, 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 hara.s.sing interlocutory proceedings.
But the princ.i.p.al 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.