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.