mercy of every other man, both in the island and out of it. In short, one
man can arrest another simply by drawing up an imaginary account on a
common bit of paper, and handing it to the nearest lawyer, who will send
his clerk with the sheriff's man and imprison the unfortunate victim in
default of immediate payment. What is worse still, an arrest can be
carried into effect, by means of a simple letter sent through the post.
The exception in favour of land-owners of course includes the owners of
house property, an exception which mostly benefits Jersey-men, as few but
natives possess property in the island. It is only a proprietor who must
be sued _before_ he can be imprisoned. If the Jersey laws confined the
persons merely of strangers sued by the inhabitants of the island, in the
arbitrary manner described, the justice of such a practice might still be
defended on the plea of preventing them from leaving the island; but no
excuse can be found when the Jersey law is made an instrument in the hands
of strangers, living out of the jurisdiction of the island, and when it is
used to enforce payment of debts incurred in another place, and in which
no inhabitant of the island is interested, and when (as sometimes happens)
it is employed as a means of extortion. In the first case it can be urged
that, at least, it gives protection to the islander, which may be all
proper enough, though the system is liable to abuse. In the second, the
injustice and folly of the law is flagrant. By what right or reason ought
the Jersey code, without previous inquiry, to deprive one man of his
liberty at the demand of another, when both are strangers, and when the
dispute relates to matters wholly beyond its pale, and in reference to
which it has no means of obtaining information on oath? Yet such is the
case, and thus the Jersey law is converted into a mere tool of iniquity
and oppression. In speaking of this strange anomaly in Jersey law, I am
not referring to bills of exchange, or to securities of any sort, but
merely to simple debts, free from any acknowledgment or signature
whatever. In any other Court, such claims would not be entertained for a
moment. Surely the law is barbarous enough for the people of Jersey,
without its consequences being extended beyond its circumference. But, as
matters stand at present, the case stands thus: A and B fall out together.
Now B is a rogue. They go to law together, and B demands of A more than he
is entitled to. The courts in England are about to decide upon the merits
of the case. Meanwhile B learns that A is gone to Jersey for a short time
on business, perhaps connected with this very affair, such, for instance,
as looking up an important witness. What does B do? He immediately sends
off a letter enclosing his little account to a Jersey lawyer, instructing
him to demand payment or lock up A forthwith. The lawyer obeys, of course;
A storms--protests--all in vain. He is incarcerated, and is told he may
explain as much as he likes afterwards; but, in the meantime, must go to
prison, or _pay_. At last poor A, whose liberty is important to him,
wearied with the delays which it is the interest of the Jersey lawyers to
raise in his suit for judgment, pays the demand into court (au greffe) to
be adjudicated on--costs of law, costs of imprisonment and all. The latter
item includes 10s. every time the prison door is opened to let him pass on
his way to court--a journey he has too often to perform without much
approach to a _denoument_, and whither he is obliged to go under escort
like a criminal; and this process is repeated several times, without the
cause even being called on for hearing. Worst of all, when A comes out, he
has to decide upon the merits of the case. Meanwhile no remedy against B,
who, of course, being satisfied, withdraws his suit at home."
Another seeming anomalous process may be cited. An appeal lies from some
of the small Courts to the full Court, or _Nombre Superieur_, but the
jurats who sit in the Court of First Instance are not debarred from
sitting in the Full Court when an appeal from their own judgment is being
heard! All the proceedings are carried on in the French language, which is
again extremely inconvenient for the English residents. The Bailiff
comments on the evidence and on the arguments of the pleaders, collects
the opinion of the jurats, and delivers judgment. In Guernsey the
decisions are given in private. "Pleadings in these courts are very
simple," says Mr. Ansted. "The plaintiff must serve on the defendant a
summons or declaration, setting forth the nature of his claim, and in some
cases the reasons on which it is grounded are added. If not sufficiently
definite the declaration is sent back by the Court for amendment. If the
defendant means to plead any objections by way of demurrer or special
plea, these are at once heard and disposed of. If the parties join issue
on the merits of the case, the Court hears the parties, or their counsel,
and decides. If the case be intricate the parties are sometimes sent
before the Greffier--in Guernsey before one of the jurats,--who reports,
condensing the matter in dispute, and presenting the points to the court
for decision." Trial by jury does not exist in Guernsey. The court at
Alderney is subordinate to that of Guernsey. The jurisdiction in matters
of correctional police is final where the offence can be punished by a
month's imprisonment or a fine not exceeding L5; otherwise it is referred
to Guernsey for trial. The Court of Sark, which has undergone many strange
vicissitudes since its institution in 1579, consists of the seneschal, or
judge, the prevot and the greffier, all appointed by the feudal lord, or
seigneur. The seneschal is an absolute authority in small cases, but his
right of punishment is limited to the narrow bounds of inflicting a fine
of about four shillings, and of sentencing to three days' imprisonment.
All cases demanding severer treatment are relegated to the Guernsey
Courts. Enough has been said to show that Mr. Ansted was justified in
declaring that though the islanders were unfitted by their habits and
education for any radical change in their peculiar institutions, yet "the
practice of the law courts both in Jersey and Guernsey has long been felt
to be in many cases cumbrous, not to say objectionable. Indeed, where so
much that is personal interferes in the administration of justice, and
where personal and family influence cannot but be felt, it is not
astonishing that reasonable complaints are sometimes heard." Three times
during the present century Royal Commissions have enquired into Jersey
law, but their recommendations have been systematically ignored. No
remedies have been carried out, and the islanders cling with extraordinary
pertinacity to customs which are notoriously abused and to priveleges
which are opposed to fair-dealing. The Channel Islands and the Isle of Man
are standing evidence of the danger incurred by such independence of legal
authority as they have hitherto been permitted to enjoy.
The Little Inns of Court.
The origin of the decadent institutions located in certain grim and
dreary-looking piles of building dotting the district of the Inns of Court
proper, and known as the little Inns of Court, is involved in considerable
obscurity. They appear to have originally held a similar position to the
great seats of legal education as the halls of Oxford and Cambridge do to
the Universities. But at the present time their relation to the Inns of
Court proper is not very clear, and the uses they serve, otherwise than as
residential chambers, are just as hard to discover. This state of
mistiness concerning them has existed so long that no one now seems to
know anything about them, and the evidence taken more than forty years ago
by a Royal Commission did so little to clear away the dust and cobwebs
hanging about them that they still remain, in the words of Lord Dundreary,
"things that no fellow can understand."
Lyon's Inn has since that time been swept away to make room for the new
Courts of Law, without any person evincing the smallest interest in its
fate. Concerning this institution all that could be learned by the Royal
Commission was contained in the evidence of Timothy Tyrrell, who
"believed" that it consisted of members or "ancients," he could not say
which; he believed the terms were synonymous. There were then only himself
and one other, and within his recollection there had never been more than
five, and they had nothing to do beyond receiving the rents of the
chambers. There were no students, and the only payment made on account of
legal instruction was a sum of L7 13s. 4d. paid to the society of the
Inner Temple for a reader; but there had been no reader since 1832. He had
heard his father say that the reader "burlesqued the things so greatly"
that the ancients were disgusted, and would not have another. There was a
hall, but it was used only by a debating society; and there was a kitchen
attached to it, but he had never heard of a library.
New Inn appears to have been somewhat more alive than Lyon's, though it
does not seem to have done any more to advance the cause of legal
education. The property is held under the society of the Middle Temple,
by a lease of three hundred years from 1744, at a rent of four pounds a
year. Among the stipulations of the lease is one allowing the lessors to
hold lectures in the hall, but none had been held since 1846, in
consequence, it was believed, of the Middle Temple ceasing to send a
reader. The lectures never numbered more than five or six in a year; and
there is now no provision of any kind for legal education. Samuel Brown
Jackson, who represented the inn before the Royal Commission, said he knew
nothing concerning any ancient deeds or documents that would throw any
light on the original constitution and functions of the body. If any there
were, he "supposed" they were in the custody of the treasurer. The only
source of income was the rents of chambers, which then amounted to between
eighteen and nineteen hundred pounds a year; and the ancients have no
duties beyond the administration of the funds.
Concerning the origin of Clement's Inn, Thomas Gregory, the steward of the
society, was unable to afford full information, but he had seen papers
dating back to 1677, when there was a conveyance by Lord Clare to one
Killett, followed by a Chancery suit between the latter and the principal
and ancients of the society, which resulted in a decree under which the
property so conveyed became vested in the inn. Some of the papers relating
to the inn had been lost by fire, and "some of them," said the witness,
"we can't read." The inn, he believed, was formerly a monastery, and took
its name from St. Clement. It had once been in connection with the Inner
Temple, but he could find no papers showing what were the relations
between the two societies, "except," he added, "that a reader comes once a
term, but that was dropped for twenty years--I think till about two or
three years ago, and then we applied to them ourselves, and they knew
nothing at all about it; the under-treasurer said he did not know anything
about the reader, and had forgotten all about it." It was the custom for
the Inner Temple to submit three names to the ancients; and, said the
witness, "we chose one; but then they said that the gentleman was out of
town, or away, and that there was no time to appoint another." But no
great loss seems to have resulted thereby to the cause of legal education,
for it appears that all a reader had ever done was to explain some recent
Act of Parliament to the ancients and commoners, there being no students.
The inn had no library and no chapel, but as a substitute for the latter
had three pews in the neighbouring church of St. Clement, and also a
vault, in which, said the witness, "the principals or ancients may be
buried if they wish it."
Some remarkable evidence was given concerning Staples Inn, and the more
remarkable for being given by Edward Rowland Pickering, the author of a
book on the subject, which publication one of the Commissioners had before
him while the witness was under examination. "You state here," said the
Commissioner, "that in the reign of Henry V., or before, the society
probably became an Inn of Chancery, and that it is a society still
possessing the manuscripts of its orders and constitutions." "I am
afraid," replied the witness, "that the manuscript is lost. The principal
has a set of chambers which were burnt down, and his servant and two
children were burnt to death, seventy years ago; and I rather think that
these manuscripts might be lost." Where the learned historian of the inn
had obtained the materials for that work is a question which he does not
appear to have been in a position to answer; for when asked whether he
knew of any trace of a connection between the society and an Inn of Court,
he replied, "Certainly, I should say not. It is sixty years since I was
there, boy and all." A very strange answer considering the statement in
his book. During the sixty years he had been connected or acquainted with
the society, he had never heard of the existence of a reader, or of any
association of the inn with legal education or legal pursuits. The only
connection claimed for the inn by the principal, Andrew Snape Thorndike,
was that, when a serjeant was called from Gray's Inn, that society invited
the members of Staples Inn to breakfast. There is a singular provision
respecting the tenure of chambers in this inn by the ancients. "A person,"
said this witness, "holds them for his own life, and though he may be
seventy years of age, if he can come into the hall, he may surrender them
to a very young man, and if that young man should live he may surrender
them again at the same age." If a surrender is not made, the chambers
revert to the society.
Barnard's Inn is a very old one, and the property has been held on lease
from the dean and chapter of Lincoln for more than three hundred years.
The society consists of a principal, nine ancients, and five companions,
which latter are chosen by the ancients; but we fail to gather from the
evidence of Charles Edward Hunt, treasurer and secretary of the inn, by
what principles the ancients are guided in the selection. We learn,
however, that applications for admission by solicitors are not allowed.
Such a thing had occurred once, but it was as long ago as 1827, and "of
course," said the witness, "we refused him, and he applied to the court,
and after some difficulty he got a rule _nisi_ for a mandamus. It came on
to be tried before Lord Tenterden, and Lord Tenterden said it could not be
granted; that we were a voluntary association, and the court had no
jurisdiction." The applicant seems to have based his claim on the ground
that Barnard's was an Inn of Chancery, and that, as a solicitor, he had a
right to be admitted. The matter was scarcely worth contention, as the
privileges of the companions are confined to dining in hall and the chance
of being made an ancient, that favoured grade being entitled to "their
dinners and some little fees." The books of the society showed no trace of
there ever having been any students of law connected with the inn. "The
oldest thing I find," said the witness, "is that a reader came
occasionally from Gray's Inn to read; but what he read about, or who paid
him, there is no minute whatever." He did not know when a reader last came
from Gray's Inn; he thought it was about two hundred years ago. It only
remains to be told of Barnard's Inn that it has not even a library; there
had been a few books at one time, the witness told the Commission, but
they were sold as useless!
Concerning the remaining little inns--Clifford's, Symond's, and
Furnival's--no evidence was taken. They appear to be merely residential
chambers, much the same as some of those concerning which we have
information in the report of the Royal Commission and the evidence given
before it, and the chambers are far from being used exclusively by members
of the legal profession. Nearly sixty years ago the present writer found a
retired army officer occupying chambers in Clifford's, and on a later
occasion made at Symond's Inn, the acquaintance of a curate who resided
there with his wife and a young family! Concerning Furnival's Inn, it was
incidentally stated by Michael Doyle, who represented Lincoln's Inn
before the Royal Commission, that the latter society received L576 a year
under a lease of the former property granted to the late Henry Peto for
ninety-nine years, L500 being for rent, and the remainder in lieu of land
tax. The witness was, however, unable to give any information as to the
manner in which, or the date when, the property was acquired by Lincoln's
Inn.
The inquiry by the Royal Commission resulted in the recommendation of some
very important changes in the constitution of the little Inns of Court and
the administration of the several properties; but these, we learn, have
been modified so much in their adoption as to have been of very little
value. The societies have long outlived the purposes for which they were
instituted, though their principals and officials seem to attach
considerable importance to their continued existence. It is probable,
however, that their _raison d'etre_ being gone, they will all sooner or
later go the way of Lyon's Inn, and become things of the past.
Obiter.
BY GEORGE NEILSON.
The claims of the legal profession to culture were cleverly belittled by
Burns, when he made the New Brig of Ayr wax sarcastic over the town
councillors of the burgh:--
"Men wha grew wise priggin owre hops an' raisins,
Or gathered lib'ral views in Bonds and Seisins."
Bonds and seisins are certainly not the happiest intellectual feeding
ground. "I assure you," said John Riddell, a great peerage antiquary,
"that to spend one's time in seeking for a name or a date in a bit of
crabbed old writing does not improve the reasoning powers." Riddell was a
keen critic of Cosmo Innes, who subsequently had the happiness of passing
the comment upon Riddell's observation that "perhaps it is not in
_reasoning_ that Mr. Riddell excels." Yet the annals of the law shew many
splendid examples of the union of close textual study of manuscript, with
an enlarged outlook on first principles and with keen critical insight.
Perhaps Madox was a more permanently serviceable scholar than Selden. One
can see from Coke's margins, his infinite superiority to Bacon in exact
knowledge at first hand of older English law. But when all is said, we
could have done much better without Coke and Madox than without Bacon or
Selden. It is delightful to be able to appeal to Chaucer for perhaps the
most emphatic compliment to law, in respect to its capacity for
literature, that it has ever received. Amongst all the Canterbury
pilgrims, there was no weightier personage than the Man of Law:--
"Nowher so bisy a man as he ther nas,
And yet he semed bisier than he was.
In termes hadde he caas and domes alle
That from the tyme of King William were falle,
Therto he coude endyte and make a thing
Ther could no wight pinche at his wryting,
And every statut coude he pleyn by rote."
Yet it was this learned and successful counsel, alone of the party, who
knew the poet's works through and through, and had the list of them at his
finger-ends. Good Master Chaucer for this touch we offer hearty thanks!
Was it in Herrick's mind when he penned his fine tribute to Selden?
"I, who have favoured many, come to be
Graced, now at last, or glorified by thee."
* * * * *
Wits and poets have had many hard things to say in jest and in earnest
about the legal profession and its work. Herrick bracketed law and lawyers
with diseases and doctors, in a fashion hinting that the relation of cause
and effect existed between both pairs:--
"As many laws and lawyers do express,
Nought but a kingdom's ill-affectedness.
Even so those streets and houses do but show
Store of diseases where physicians flow."
* * * * *
It was an old story this linking of the practitioners of law and medicine
in one yoke of abuse. The reason given for both categories in early satire
is sufficiently curious. It was because they took fees! Walter Map
declared the Cistercian creed to be that no man could serve God without
mammon. Ancient satire equally objected to the service of man, either
legally or medically, under these conditions. "The Romaunt of the Rose"
has the traditional refrain of other strictures in verse, when it declares
that
"Physiciens and advocates,
Gon right by the same yates, _yates, gates_
They selle hir science for winning. _winning, gain_
* * * * *
For they nil in no maner gree _no kind of good will_
Do right nought for charitee."
The same idea, precisely, finds voice in the poem attributed to Walter
Map, wherein the doctor and the lawyer come together under the lash,
because no hope can be based upon either of them unless there be money in
the case. "But if the marvellous man see coin, the very worst disease is
quite curable, the very falsest cause just, praiseworthy, pious, true, and
pleasing to God." Perhaps these ancient sarcasms were keener on the leech
than the lawyer. "The Romaunt of the Rose" goes so far as to say that if
the physicians had their way of it,
"Everiche man shulde be seke,
And though they dye, they set not a leke
After: whan they the gold have take
Ful litel care for hem they make.
They wolde that fourty were seke at onis!
Ye, two hundred in flesh and bonis!
And yit two thousand as I gesse
For to encresen her richesse."
* * * * *
No doubt the men of medicine would have been much more vulnerable on
another line, for it was no satirist but a learned medical professor,
Arnauld de Villeneuve, who, in the beginning of the fourteenth century,
advised his students as follows:--"The seventh precaution," said he, "is
of a general application. Suppose that you cannot understand the case of
your patient, say to him with assurance that he hath an obstruction of the
liver." No legal professor surely was ever guilty of the indiscretion of
_saying_ such a thing as this!
* * * * *
The ineradicable public prejudice against legal charges as flagrantly
exorbitant is only a modified form of an older idea exemplified above that
lawyers should have no fees at all. And as to this day the plain man has
never fully reconciled himself to the doctrine that the lawyer is only an
agent, and not called upon to sit in the first instance in judgment on his
client, so in the past the professional defence of a criminal appeared a
very venal transaction.
"Thow I have a man i-slawe,
And forfetyd the kynges lawe
I sal fyndyn a man of lawe
Wyl takyn myn peny and let me goo."
* * * * *
How reprehensible a thing to take fees was long reckoned admits of curious
illustration. "Before the end of the thirteenth century," says that
never-failing authority, Pollock and Maitland's "History of English Law,"
"there already exists a legal profession, a class of men who make money
by representing litigants before the courts and by giving legal advice.
The evolution of this class has been slow, for it has been withstood by
certain ancient principles." Amongst these retarding influences lay the
half-religious scruple about the propriety of payment--men as usual
swallowing the camel first and straining at the gnat afterwards. Of course
the subject had to be illuminated by monkish tales and death-bed
repentances. There was, according to the Carlisle friar who penned the
"The Chronicle of Lanercost,"--writing under the year 1288,--a young clerk
in the diocese of Glasgow, whose mind "was given rather to the court of
the rich than to the cure of souls. He was called Adam Urri, and was
laically learned in the laic laws, disregarding the commands of God
against the Praecorialia [so in the printed text, but, query,
Praetorialia?] of Ulpian. He used the statutes of the Emperor in
litigating causes, for payment of money. But when he had grown old and
famous in this his wickedness, and was striving by his astuteness to
entangle the affairs of a poor little widow, the divine mercy laid hold on
him, assailing his body with sudden infirmity, and bringing his mind to
plead (_enarraret_) more for another life." Condemning utterly the
lawyer's court, he turned over a new leaf, predicted the day of his own
death, and died punctually conform to the prophecy, leaving an example
unctuously used by the friar to teach future generations "how wide was the
gulf betwixt the service of God and the vanity of this world." We shall
not be far wrong in regarding, as of more historic interest, the
indication of the immorality of fees, and the important reference to
Ulpian as an authority in the _forum causidicorum_ of thirteenth century
Scotland.
* * * * *
Amongst the amiable conceptions of the middle age was the notion that the
Evil One often manifested a particular zeal against sin. He was regarded
with a different eye from that with which we regard him, and he rewarded
faith with actual appearances such as only spiritualists can now-a-days
command. Some of them were not very engaging, however praiseworthy may
have been their object and occasion. Simeon of Durham, an eminently
respectable contemporary author, wrote of the death of King William Rufus
in the year 1100 that the popular voice considered the wandering flight of
Tyrell's arrow a token of the "virtue and vengeance of God." And he added
that about that time the Devil had frequently shewn himself in the woods
"and no wonder, because in those days law and justice were all but
silent." The logic of this _because_, not apparent on the surface, becomes
less obscure when it is remembered that in the mediaeval devil the
character of Arch-Enemy is so much subordinated to that of Arch-Avenger.
* * * * *
The direct relation of not only the Saints but of the Deity itself to
human affairs was a conception so clear to the mediaeval mind that it saw
nothing irreverent in a title deed being taken in the Supreme name, or in
marshalling "_Deus Omnipotens_" at the head of the list of witnesses to a
charter. This anthropomorphic practice gave occasion to one of the
sharpest of Walter Map's jokes against the Cistercians. Three abbots of
that order petitioning on behalf of one of their number and his abbey for
the restoration of certain lands by King Henry II. as having been
injuriously taken away from the claimant's abbey, represented to the King
in his court that for God's sake he ought to cause the lands to be
restored and they assured him and gave him God himself as their guarantor
(_fidejussorem_) that if he did, God would greatly increase his honour
upon earth. King Henry found it difficult to resist the appeal thus made
to him but called the Archdeacon Walter Map to advise. This he did
well-knowing that this counsellor did not love the Cistercians, and that
he might thus find a creditable way out of a tight corner. The Archdeacon
was equal to the occasion. "My lord," said he to the King, "they offer you
a guarantor; you should hear their guarantor speak for himself." "By the
eyes of God," replied Henry, "it is just and conform to reason that
guarantors themselves should be heard upon the matter of their guarantee."
Then rising with a gentle smile (not a grin, expressly says Giraldus
Cambrensis) the shrewd monarch retired leaving the disappointed abbots
covered with confusion.
* * * * *