[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.