GENERAL OBSERVATIONS AND CONCLUSION
It is the office of the courts to administer written laws enacted
from time to time in response to the popular mood. They also--and it
is the more important function--discover and declare the principles
of natural justice which, in the absence of written law, govern the
decision of a controversy. These deliverances, constituting the
common law, rely much upon precedents which, however, are not
followed slavishly, but are continually being modified--sometimes
abruptly--in harmony with prevailing sentiment. Thus, the law
expounded by the courts is ever changing and it slowly follows
public opinion.
Both the public opinion and the law of England were, for
generations, characterized by the quality of conservatism. The
various reform acts, starting in 1832, marked the advent of an epoch
of individualism which, lasting for over fifty years, made England
the land where personal liberty and private property were perhaps
safer than ever before in the world's history. It was a country
where government's chief concern was to furnish irreproachable
courts, competent police and few but honest civil servants, so that
each man might pursue happiness after his own fashion with the least
possible interference, yet with complete confidence that he could
assert his rights effectively when invaded. Hence it was that
America learned to look to England for precedents.
All this is changing. The substitution of the doctrines of
collectivism for those of individualism began in 1885 and it
proceeds rapidly in many directions. The socialistic harangues one
hears from vagabonds mounted on benches in Hyde Park are delivered
without interference by the police. The spreading of discontent by
paid agitators proceeds at the market crosses and in the taverns of
the villages between elections. Later the politicians appear and
solicit votes for impossible schemes, an ever increasing proportion
of which are actually adopted by Parliament and of which the laws
regulating liability for personal injuries, attacks upon land and
other forms of property, old age pensions and the methods of public
education, furnish typical examples.
[Illustration: SIDEWALK SOCIALISM--HYDE PARK]
The Workingmen's Compensation and Employers' Liability Act of 1906
was a tentative step, but seems likely to lead to extended liability
and reduced defences, particularly in the matter of contributory
negligence, which has almost ceased to be a factor. One of the
clauses of this Act shows that, even when it is proved that the
death or serious disablement of a workman is attributable to his own
wilful misconduct, compensation may yet be claimed on his behalf
from his employer. In addition, another and unheard of form of
liability for an employer, requiring him to compensate his servant
if the latter falls ill or dies of an "industrial disease" (a list
of which diseases was appended to the Act) and with the
extraordinary provision that, having paid the compensation, the
employer may sue any former employer for the amount, if he can prove
the servant actually contracted the complaint in the earlier service
and within ten years.
Of course universal accident liability insurance followed, the cost
of which must be borne by the proprietor, and, if he is a
manufacturer, eventually by the consumer. As may be imagined, such
laws give rise to surprising results. The report of one of the
great accident liability insurance companies, made shortly after the
passage of this law, exhibited, for example, the recovery of damages
by a domestic servant, who, while eating a meal, had swallowed her
own false teeth; another had contrived to swallow a curtain hook; a
third was burned by the bed clothes taking fire from a hot iron
which she had wrapped in flannel for the purpose of warming herself.
The manageress of a laundry had her hands poisoned by handling
copper coins. A footman was bitten while attempting to extract a cat
from the jaws of a dog; a nurse-maid was burnt by letting off fire
works in the back garden at a private celebration of the servants
during the master's absence, and a cook had her eyes scratched by
the house cat. Such absurdities show the trend of modern English
legislation on the subject.
A glance at an English landscape with its panorama of endless turf
and forest and comparatively small areas of cultivation, in marked
contrast with the minute utilization of every inch on the Continent,
and the reflection that England produces only a portion of the food
consumed in its crowded towns, should leave no one surprised at an
agitation to modify the existing conditions, which led to continued
assaults upon all forms of possession, whether of real or personal
property. Acts of Parliament followed each other in quick succession
depriving land owners of their holdings to inaugurate chimerical
building schemes; giving rent-payers power to condemn and forcibly
purchase dwelling houses; attacking property other than land by
taxing the inheritance of money so heavily (on a sliding scale of
percentages increasing with the size of the estate), as to approach
the socialistic ideal that two deaths shall mean the absorption by
the State of any large property and that no man shall enjoy a rich
grandfather's accumulations; levying upon the living wealthy by ever
increasing income taxes, with a like sliding scale, operating upon
them alone, while exempting the poor. To this almost confiscatory
taxation no limit seems to be in sight.
Old age pensions--one of the most startling novelties of the
collectivist--are doubtless economically impossible and morally
pernicious unless required to be contributory on the part of those
who may later claim them, so that they constitute a system of
compulsory saving and insurance, as is the plan in Germany where
socialism is at least somewhat scientific. But it remained for the
once conservative England to inaugurate the distribution of
universal alms without any comprehensive plan for raising the
money--the weekly dole to be inevitably increased and the age limit
lowered as the exigencies of vote-seeking politicians render
expedient.
No one now questions the propriety of a Government providing free
education for children, but in England a father, no matter how well
qualified, may now be prosecuted for educating his child himself
rather than sending him to a Government school to be fed as well as
taught.
At the Marylebone Police Court a well known journalist and writer on
education was summoned by the Education Department of the London
County Council some time ago for neglecting to send his four
children to school. He was, himself, an old and experienced teacher
with credentials from one of the colleges of Cambridge University.
He did not believe in sending his children to school until they
reached the age of ten or eleven, but meanwhile he taught them
himself, _viva voce_ in the open air, according to the system of
Froebel and Pestalozzi, and endeavored to make education a delight.
This was the father's chief occupation and he devoted as much time
as possible to training all the mental faculties, without exhausting
the nervous force or injuring the physical health, of his children.
The eldest, a boy of fourteen, had contributed an article to one of
the leading magazines which was pronounced by a competent editor of
another periodical to be an extraordinary effort for a boy of his
age. It appeared that he knew Shakespeare well and was in the habit
of quoting him and other poets, but that his brother, aged eleven,
preferred Wordsworth. He considered the English language "awkward,"
French "euphonious" and German "rationally spelt." It was rather a
relief to find another brother, aged nine, who was deep in "Robinson
Crusoe." A school-attendance officer, however, had reported that the
children did not attend the elementary schools and the magistrate
imposed fines upon the father, but, upon it appearing that he had no
property, he was sentenced to imprisonment for seven days in respect
of the Shakespearean, and five days each to cover the lover of
Wordsworth and the student of Defoe. A month later the father was
summoned before a different magistrate in the same police court who
fined him in respect of the youngest child and adjourned the hearing
in order that the other three might be examined by a government
inspector to ascertain whether they were being efficiently educated.
This episode may not have been typical, but that it was possible in
modern England illustrates how out of date is the old-fashioned
conception of the personal liberty and freedom from governmental
intrusion which once characterized that Island as distinguished from
the Continent.
These are but examples of a series of surrenders to the proletariat,
which have practically delivered over the general Government of
England to the collectivists; while the education and training of
many of the party managers who are responsible for it, renders
incredible the excuse that they may be only fanatics.
Simultaneously, municipal socialism has spread in a manner affecting
the public even more intimately. Over three fourths of the
Councils--County, Town, Urban District and Rural District--are
engaged in municipal trading of various kinds, operating
inefficiently and generally at a loss, such enterprises as golf
links, steamboats, concert halls, motor busses, markets, trams, bath
houses, gas works, libraries, telephones, milk depots, electric
lighting, lodging houses, building operations, insurance--and a host
of other undertakings heretofore left to private initiative.
All this means an ever increasing army of officials, agents and
inspectors. The interference of a paternal government is threatened
or felt in every detail of existence. The people have learned to
agitate collectively for advantages to be taken from some classes
and distributed to others. Without a constitution (for the so-called
English Constitution is but a misnomer for former laws and decisions
which are subject to constant repeal and alteration) and without a
Supreme Court capable of declaring wild legislation to be
unconstitutional--for every act of Parliament becomes a law which
can never be challenged in any court--there is no brake to retard,
and the politicians of all shades are left free to compete in
casting one vested right after another to the mob in quest of votes.
The most serious effect of all this is, probably, the tendency to
weaken that sturdy self-reliance upon individual effort which has
always characterized Englishmen, and the encouragement of an
attitude of leaning upon the Government and of looking to
legislation to remove all difficulties. No popular disturbance is
impending--it is unnecessary, for the revolution progresses smoothly
and the whole country is adjusting itself to the new order of
things. The possessors of property seem singularly resigned, or at
least inarticulate, and submit almost in silence to spoliation.
Such opposition as exists takes chiefly the form of party
controversy upon details, and criticism by each faction of the steps
of the other. Few seem to realize how far the country has departed
from its former standards or that the most moderate proposals of
to-day were radical yesterday.
It is a great race, this Anglo-Saxon, and it has shown wonderful
capacity to govern itself in the past. It may prove to be wisely
meeting half way an approaching avalanche of worldwide socialism
destined to modify the existing order of society. Or can it be that
England has seen its best days?
One thing, at least, is sure--the United States is at the moment
infinitely more conservative than England. Both are pure
democracies, and therefore if the people should be resolved to
abolish the rights of property as we at present know them, it would
inevitably be accomplished. That the majority are really of that
mind in either country is more than doubtful; but in England the
politicians seem to be destroying that which it has taken centuries
to build up, whereas in America this could not happen unless the
conviction was so widespread, determined and permanent, as to
accomplish what is apparently impossible--the radical amendment of
the Constitution.
This digression into the field of politics is only relevant in its
possible effect upon the courts. They, at present, necessarily exist
in an atmosphere of confusion and of constant annihilation of
rights. The head of the whole administration of law, the Lord
Chancellor, is a political appointee changing with the parties. He
appoints the other judges, the King's Counsel and, directly or
indirectly, he is the great source of legal advancement. True, he
has for a long time been selected from the leaders of the Bar so
that he has been professionally well qualified. But this was not
always the case and it is not necessarily a permanent condition,
especially in a country passing through such fundamental changes.
Time alone will show whether these violent shocks will disturb the
balance of the scales of justice. For the future, realizing that
England is no longer conservative, but is now the land of startling
experiment, it would be at least prudent to accept its political and
legal precedents with caution.
One sometimes hears it said that we have too many judges, and the
argument is apt to be urged by the assertion that the number in a
large city is as great as in all England. The natural inference is
that our judges work less effectively.
No statement could be based upon falser premises. The roll of judges
in the High Court is, indeed, a limited one and, as they try small
as well as large cases, the impression might follow that they
constitute the whole judicial force of England. The fact, however,
is quite the reverse.
Taking at random the daily Official Cause List for London there will
be found on a given day sitting at the Law Courts in the Strand
alone, twenty-one judges of the High Court, eight masters, seven
Chancery registrars, twelve masters in Chancery, three official
referees, two registrars in bankruptcy and one official presiding
over "companies winding up"--exactly fifty-four men simultaneously
performing judicial duty in one building. Each of these is holding
what is practically a separate court and his title is of no
significance. When one remembers that at the same time the House of
Lords is sitting at Westminster, the Judicial Committee of the Privy
Council in Downing Street, the four Criminal Courts at the Old
Bailey, more than twenty police magistrates at Bow Street and
elsewhere, and County Courts, at Bloomsbury, Clerkenwell, Edmonton,
Marylebone, Shoreditch, Southwark and Westminster, some idea may be
formed of the number of judges and courts always at work in the
metropolis.
Innumerable courts are also sitting in the provinces, which, if less
important, serve to relieve the metropolitan judges. The justices of
the peace number in many counties three or four hundred and in one
county about eight hundred, although most of them never attend and
the work is done by comparatively few. They sit singly as committing
magistrates and in groups at petty sessions and at quarter sessions.
There are also a large number of borough criminal courts presided
over by a recorder. Besides, the county courts are over five hundred
in the aggregate, though there are not so many county judges, for
the smaller courts are grouped into circuits. Finally, there are the
Assizes of the High Court coming down periodically from London to
try causes, both criminal and civil, all over England.
Thus the little Island fairly bristles with tribunals and teems with
judges and any criticism of American judges or of American judicial
methods by such comparison would only be possible in ignorance of
the facts.
* * * * *
In America, litigation begins in the court room; in England, it ends
there. American proceedings tend to be somewhat formal,
conventional, diffuse and dilatory. Pitfalls and traps are
occasionally laid by astute practitioners, which embarrass the side
really in the right and delay a conclusion upon the merits. Much is
incomprehensible to the laymen concerned except the result.
English legal proceedings on the contrary are colloquial, flexible,
simple and prompt, thoroughly in touch with the spirit of the times
and with the ordinary man's every-day life.
The legal decisions of the two countries are probably of equal
value, and are held in mutual respect. Neither, perhaps, could claim
any superiority over the other in its legal results, but in methods,
England at present is far in advance.
This was not always so. Up to 1875 the English courts were most
slow, expensive and unsatisfactory. But in these thirty-five years,
reforms in methods have so progressed, step by step, that the most
important action can be tried, a judgment given, appeal taken,
argued and orally decided as counsel sit down--all in ninety days.
The details of these improvements are too technical for the present
occasion; suffice it to say that they are characterized by the
utmost simplicity, and many of them are capable of adaptation with
modifications to American conditions.
In America, the Bar is almost unorganized. It has little voice in
the selection of the judges, of whose qualifications the politicians
have no knowledge; it is weak in disciplining and purging itself and
in commanding public respect for its rights; its standards of
professional propriety are not clearly enough established, although
great improvement is noticeable in all these respects. In England,
the Bar is well organized and governs the whole administration of
the law, jealously resenting any interference with its ancient
prerogatives and preserving its own professional honor.
Thus, a close observation of professional life in England will prove
instructive and suggestive to the ever-alert American. Nevertheless
he will depart with a feeling that, while at home there is room for
progress, yet, upon the whole, the old profession in the New World
well maintains its proud position.
INDEX
Absence of "leader" in trial, 32
Accident cases, "tender of damages" in, 122
Admiralty, Probate, Divorce and Admiralty
Division of High Court, 93
Trial, 104
Advocates, solicitors as, 174
"Agency business" of solicitors, 169
American law books in Middle Temple library, 14
Members of English Bar, 12
Appeal, Courts of, 107
to Judicial Committee of Privy Council, 113
to House of Lords, 111
in criminal cases, 163
of colonial cases, 114
Appellation of judges, 173
Appointment of judges, 96
Aromatic herbs in criminal courts, 133
Assizes, 170
"Associate" or clerk of court, 3
Attorney or solicitor, 49
Bags of barristers, 47
of solicitors, 55
Bailey, Old, 131
"Bands" of K. C.'s dress, 40
Bar, American members of English, 12
Calling to, 26
Discipline of, 67
English, size of, 37
English, division of, 39
Make up of, 12
Parliamentary, 40
Women not eligible to, 26
Barnard's Inn (Chancery), 23
Barrister, "Associate," 3
"Blue and red" bags of, 47
Begins by becoming "devil," 30
Chambers of, 14
Chancery, 40
Common law, 40
Desks of, 3
Dress of, 44
Fees of, 58
Formerly lived in Inns, 18
Joining circuit, 171
"Juniors," 31
"Leader," 4
"Locals," 172
Master, 117
Member of Inns of Court, 24
Partnerships forbidden, 61
Practice of, 57
Selection of, 50
Serjeants-at-law, 23
Training of, 25
"Twelve Dinners" of, 25
Upon becoming K. C., invited to join Benchers, 21
Voices of, 6
Wig of, 5, 45
Benchers govern Inns, 21
Black Cap, 156
Briefs, 50
Briefs, endorsed with fees, 62
Butler's livery at Old Bailey, 135
Calling to bar, 26
Cambridge students exempted, 25
Censors, 68
Chambers of barristers, 18
Chancery Bar, "Specials," 41
Barrister of, 40
Division of High Court, 93
Inns, 16
Inns formerly connected with Inns of Court, 22
Inns, history of, 22
Lane, 15
Lane, Serjeants' Inn, 23
"Leaders," 34
Chief Justice, salary of, 95
Circuits of High Court, 171
Clement's Inn (Chancery), 23
Clerk of Court or "associate," 3
Clifford's Inn (Chancery), 23
Colonial appeals, 114
Colors of bags, "blue and red" for barristers, 47
Common juries, 92
Serjeant criminal judge, 132
Law barrister, 39
"Consolidated regulations," 22
Contingent fees not permitted, 59
Corridors of the court, 1
Costs, 97
Council of Bar, general, 67
of legal education prescribes course of studies for
barrister, 25
Counsel in a cause, 4
County courts, jurisdiction of, 94
procedure, 173
judges of, 173
salaries of judges of, 173
Court Appeal, 107
Central Criminal (Old Bailey), 131
Civil, 87
Common Pleas, practice formerly limited to
Sergeants-at-law, 23
County, 94-142
Criminal, 131
Divisional, 113
Enumerated, 188
High, 88
Police, 125
Registrar's, 95
Room described, 2
Room, Criminal Court, described, 132
Vacation of, 73
Criminal Law, 39
Trials, 136
Trials, appeals in, 163
Trials, comparison with American, 164
Criminal Court, Aromatic herbs in, 133
Central (Old Bailey), 131
Customs in, 133
Dock of, 133
Judges of, 132
Police, 125
Recorder, 132
Room described, 132
Devil may conduct trial, 32
"Devilling," 30
Dhingra's Trial, 145
Disbarment, 67
Discipline of bar, 67
of solicitors, 67
Divisional Court, 113
Divorce, Probate and Admiralty Division of High Court, 93
Dock, in Criminal Court, 133
Dress of Barristers, 44
of Butlers at Old Bailey, 134
in Criminal Court, 134
of Footmen at Old Bailey, 135
Judges, 3
Judges (Chancery), 93
King's Counsel, 44
Solicitors, 3-46
Education, Council on Legal, governs training of
barristers, 25
Employers' Liability Acts, 179
English Bar, size of, 37
Entrances to court room, 1
Equity Trials in Chancery Division High Court, 93
Ethics of profession, 68
Etiquette of dress enforced, 40
Fees of Barrister, 58
of Sir Charles Russell, 60
of Sir Frank Lockwood, 60
Must not be contingent, 59
Paid by law students, 26
of solicitors, 64
of solicitors, sometimes divided, 170
First impressions, 1
Fleet Street--"Old Bailey," 131
Footman's livery--"Old Bailey," 135
Furnival's Inn (Chancery), 23
General Council of Bar, 67
Observations, 177
"Gentleman," defined by Sir Thomas Smith, 10
Gray's Inn, 13-15
Hearings in Police Courts, 125
Herbs used in Criminal Court, 133
High Court, of Justice, 88
Circuits of, 139
Division of, 88
House of Lords, Appeals, 111
Impressions on entering Law Courts' Building, 1
Incorporated Law Society, 27-67
Inns of Chancery, 13
Formerly connected with Inns of Court, 22
History of, 22
"Staple's," "Barnard's," "Clifford's," "Clement's," "Lyon's,"
"Furnival's," "Thavie's," "New Inn," "Strand," 23
Inns of Court, 13
Date of origin, 21
Government of, 21
Origin of, 21
Position of, 20
Uniformity of, 21
Inns, Gray's Inn, 13
Inner Temple, 13
Lincoln's Inn, 13
Middle Temple, 13
Serjeants', 23
Interior of barristers' chambers, 18
Journals, law, reports of, 72
Judges, 3
Actively conduct trials, 102
Appellation of, 142
Appointment of, 96
Chancery Division, robes of, 93
Formerly in holy orders, 19
Of County Courts, 173
Of County Courts, salaries of, 173
Of Criminal Courts, 132
Robes of, 3
Salaries of, 63-95
Judicial Appointments, 96
Committee Privy Council, 113
"Junior" barrister "opens pleadings," 31
tries case, 32
Jury, Common and Special, 91
Only in King's Bench, 88
Qualifications of, 92
Situation and arrangement of, 3
Trials, 100
King's Bench, 88
Counsel, 4, 31
Counsel, robes of, 44
Counsel, routine of, 36
Counsel, "Taking Silk," 33-34
Law Courts Building on Strand, 1
Journals, 72
Society, Solicitors' Incorporated, 28
Lawyer's training, 9
"Leader," 4
King's Counsel, 31
List of, 42
Absence of, 32
Leading questions, 140-160
Lincoln's Inn, 13-15
Livery of Footman, Criminal Court, 135
Local Barristers, 172
Solicitors, 169
Lockwood, Sir Frank, fees of, 60
London Times, law reports of, 72
Long vacation, 73
Lord Chancellor, appointments by, 173
Salary of, 95
Lord Chief Justice, 132
Lyon's Inn (Chancery), 23
Magna Charta fixed position of courts, 20
Masters, 117
Trinity, 94
"Mess" of Circuits, 171
Middle Temple, described, 13
American law books in, 13
Models much used, 104
Murder Trial of Madar Lal Dhingra, 145
Newgate Prison, 131
New Inn (Chancery), 23
Newspapers, Law reporting in, 72
Trial of cases in, 73
Nisi Prius, sittings frequent, 105
Offices of barristers in Inns, 18
Old age pensions, 181
Old Bailey (Central Criminal Court), 131
Oxford students, exemptions of, 25
Parliamentary Bar, 40
Partnerships of barristers forbidden, 61
Pensions, old age, 181
Police courts, 125
Porter's Horn, 17
Practice of barristers, 58
before masters, 117
Rules of, 89
Preliminary hearing in Police Courts, 125
Preparation of case by solicitor, 4
"President" of Probate, Divorce and Admiralty Division, 88
Prison fever, 131
Privy Council, judicial committee of, 113
Probate, Divorce and Admiralty Division of High Court, 93
Procedure in county courts, 173
Provincial courts, 169
Reading of English law student, 25
Recorder, a criminal judge, 132
Registrars' courts, 174
Registrar, a solicitor, 175
Reports of cases, 72
Robes, Judges', 3
of Judges' Chancery Division, 93
of King's Counsel, 44
Rules of practice, 89
Russell, Sir Charles, fees of, 60
Salaries of judges, 63-95
of Judges, County Courts, 173
of Masters, 117
Serjeants-at-law, 23
Common, a criminal judge, 132
Inn, 13-23
Inn, present use of, 23
Shakespeare, production of "Twelfth Night" in Temple, 14
Sheriffs, duties in Criminal Court, 132
"Silk," "taking of," 33
Smith, Sir Thomas, definition of "gentleman," 10
Socialistic legislation, 184
Solicitors, 49
"Agents," 169
Bags of, 55
Become registrars, 175
Develop into advocates, 174
Discipline of, 67
Dress of, 55
Fees of, 64
Have no Inn of Court, 27
Incorporated Law Society governs training of solicitors, 27
Prepare cases, 4
Sphere of, 50
Training of, 12-27
"Well," 3
Special Juries, 92
"Specials" in the Chancery Courts, 40
List of, 42
Staple's Inn (Chancery), 23
Strand Inn (Chancery), 23
Students, training of, 25
Supreme Court of Judicature, 87
"Taking Silk," 33
Templars, Knights; use of land of, by Inns of Court, 13
Temple, Church of, 14
Inner, 13
Library of, 14
Middle, 13
Tender of damages in tort cases, 122
Thavie's Inn (Chancery), 23
Trade Guilds organized, 19
Treasurer, executive officer of Inn of Court, 21
Term of, 21
Trial, 31-74
Absence of "Leader" in, 32
In Admiralty, 104
Before Master, 118
Of criminal cases, 136
"Trinity Masters," 94
"Twelfth Night," produced in Temple, 14
Vacations of courts, 74
"Weepers," 44
"White Book," 68
Wigs, 45
Barristers' described, 5
Witness Box, situation of, 3
Witnesses, demeanor of, 6
Women, not eligible to Bar, 26
Workingmen's Compensation Acts, 179
Transcriber's Notes:
The spelling "Sergeant" appears once in this text on page 134,
otherwise the word is spelled and indexed as "Serjeant."
There is a separate transcriber's at the end of the Table of
Counsel that appears in Chapter IV.