A P H ILAD ELPffl A tTaWYER IN THE LONDON COURTS A\00 QJornpll Ham ^rlynnl Bjtbrarjj Cornell University Library KD 7100.L43 1912 Cornell University Library ^ The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021724905 ft o CO O a cs K o O A PHILADELPHIA LAWYER IN THE LONDON COURTS BY THOMAS LEAMING lUustrated by the Author SECOND EDITION, REVISED NEW YORK HENRY HOLT AND COMPANY 1912 COPTBIOBT, 1911, BY HBNET HOLT AND COMPANY FabliBhed May, 1911 PREFACE The nucleus of this volume was an address delivered before the Pennsylvania State Bar As- sociation which, finding its way into various newspapers in the United States and England, received a degree of favorable notice that seemed to warrant further piu-suit of a subject hereto- fore apparently overlooked. Successive holiday visits to England were utihzed for this pm-pose. As our institutions are largely derived from England, it is natural that the discussion of pub- he questions and the ghmpses of important trials afforded by the daily papers — usually murder trials or divorce cases — should more or less famil- iarize Americans with the English point of view in legal matters. American lawyers, indeed, must keep themselves in close touch with the ac- tual decisions which are collected in the reports to be found in every library and which are fre- quently cited in our courts. Nothing in print is available, however, from which much can be learned concerning the bar- risters, the judges, or the solicitors, themselves. vi PREFACE whose labors establish these precedents. They seem to have escaped the anthropologist, so cu- rious 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 wiU the pioneer appre- ciate the difficulty of penetrating the highly spe- cialized professional hfe of England, of master- ing the many peculiar customs and the elaborate etiquette by which it is governed and of repro- ducing the atmosphere of it aU. 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 activi- ties differ from those of the solicitor ; but he was hardly conscious that the two callings are as un- like 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 monopo- hze the litigation of the entire Kingdom, have little in common with the solicitors, scattered aU over England. The former are grouped to- gether in their chambers in the Inns, their clients PREFACE vii are solicitors only, they have no contact, per- haps 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 pubhc, but who can not themselves appear as advocates and must retain the barristers for that purpose. Again, it is difficult to grasp fully the in- fluence exercised through life by the barrister's Inn — ^that curious institution, with its five hun- dred 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 6f King's Counsel and the donor of judge-ships. The impulse of these Inns is still felt at the American Bar, de- spite more than a century's separation, for, about the time of the Revolution, over a himdred 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 pos- terity, although its source may be forgotten. TUl PREFACE Nor will anything he has read prepare the ^American for the abyss which separates the com- mon law barrister, who spends his days in jury trials, from the chancery man, who knows noth- ing but equity courts; nor for the complete ig- norance, 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 "Jimiors," 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 fol- lowed as if by instinct : and the profession would no more trouble the busy world with such mat- ters than a dog would feel it necessary to ex- plain that he turns thrice before lying down, simply because his wolfish ancestor did so in or- der to make a bed in the grass. In this environment of ancient custom, how- ever, the American is surprised to find the most up-to-date courts in the world and an adminis- PREFACE ix tration of law which is so prompt, so colloquial, so simple, so free from formality and so thor- oughly 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 di- latory 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 perform- ing judicial fimctions, 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 trimnph of conmion 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 proceed- ings, the absence of declamation but the avoid- ance of monotony by the proper distribution of emphasis, all combine to delight the practised ob- server. The disciplining of the profession by means of X PREFACE a body to whom may be privately submitted questions of morals and manners, mostly solved by gentle admonition and rarely by severe ac- tion, 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 don- ning of the black cap in order to sentence a mur- derer; all will prove suggestive to the alert American who will nevertheless depart with a feeling that, while there is room for improve- ment 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 accu- racy and to preserve the value of the book for purposes of reference. May 18, 1912. CONTENTS I. First Impressions . . . . . 1 The Law Courts Building on the Strand. — A Court Boom. — Participants in a Trial. — Wigs and Gowns. — Colloquial Methods. — Agreeable Voices. — Similarity to American Trials. II. The Making op Lawyers .... 9 Classes from which Barristers and Solicit- ors are Drawn. — The Inns of Court. — Inns of Chancery. — ^American Students at Period of Revolution. — ^A Barrister's Cham- bers. — Training of Barristers in an Inn. — Being Called to the Bar. — Training of So- licitors. III. Barristers . 29 Waiting for Solicitors as Clients. " Devil- ling." — Juniors. — Conduct of a Trial. — " Taking Silk."— Becoming a K. C— Active Practice. — The Small Number of Barristers. IV. Barristers — The Common Law and Chan- cery Bars ...... 39 Bar Divided into Two Parts. No Dis- tinction Between Criminal and Civil Prac- tice. — Leaders. — " Taking His Seat " in a Particular Court. — " Going Special." — List of Specials and Leaders. — Significance of xiv CONTENTS CHAFTEB PAGB Gowns and " Weepers." " Bands." — " Court Coats." — Wigs in the House of Lords. — Barristers' Bags, Blue and Bed. V. Solicitors . ...... 49 Line Which Separates Them from the Bar. — Solicitor a Business Man. — Family So- licitors. — 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 Ex- cept 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 Litiga- tion Less Important than American. — Clerks of Barristers and Solicitors Haggle over Fees. — Solicitors' Fees. VII. Discipline of the Bar and op Solicitors . 67 The General Council of the Bar. — The Statutory Committee of the Incorporated Law Society. — Rulings on Various Mat- ters. — Lapses from Correct Standards. VIII. The Civil Courts 87 The General System. — Different Courts. — Eules of Practice Made by Lord Chancel- lor. — Juries, Common and Special. — Judges and How Appointed. — Judges' Pay. — Costs. Court Notes. — Some Differences in English and American Methods. CONTENTS XV CHAPIEB PAGH 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 Busi- ness." — The Circuits and Assizes. — Local Barristers. — The County Courts. — The Registrar's Court. XV. General Observations and Conclusion . 177 Index 195 ILLUSTRATIONS iThe Corridors of the Courts . . Frontispiece FACIXG 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— SIMILAR- ITY 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 mil- lions 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 cor- ridor, sombre and quiet, which runs around the building. There are no idle crowds and there is no smoking, but, curiously enough, frequent re- 2 FIRST IMPRESSIONS freshment bars occupy corners, where drink as well as food is dispensed by vivacious bar-maids.* 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 htigants and witnesses await their turns or emerge with flushed faces and discuss their recent experiences before re- turning 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 sohcitors. A mere sight-seer, having thus visited the courts, passes on his way, but as the administra- tion 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 usu- ally 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, in- *Very recently these bars have been moved to restaurants on the lower floor. FIRST IMPRESSIONS 3 stead of resting upon a level floor, brings the heads of speakers and auditors near together; and the bright colors of the judges' robes — scar- let with a blue sash over the shoulder in the case of the Lord Chief Justice, and blue with a scar- let sash in the case of most of the others, to- gether with various modifications of broad yel- low 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 — aU 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. 4. FIRST IMPRESSIONS 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 au- dience. For the public there is little accommoda- tion — 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 pajonent 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 f oiu* 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 consul- FIRST IMPRESSIONS 5 tation 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 dif- ferent fields of activity of barristers and sohc- itors, 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, stiflF 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 coUar of the gown. There are bright, shiny, well-curled wigs ; wigs old, musty, tangled and out of curl; some are worn jauntily, pro- ducing 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 mum- mers in some pageant of modern London, but that they are serious participants in grave pro- ceedings. 6 FIRST IMPRESSIONS 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 at- mosphere 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 col- loquial and good-humored interchange of thought. It is hard to define this, but it cer- tainly differs from the air of an American tri- bunal 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 eccles- iastical surroundings. Besides superior modula- tion, the chief merit is in the admirable distribu- tion of emphasis. In this respect both the dia- logue 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 extraor- dinarily little difference between law courts on FIRST IMPRESSIONS 7 both sides of the Atlantic. Not only is the com- mon 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 identi- cal, 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 com- plete is the similarity that an American lawyer feels that he might step into the barristers' benches and conduct a current case without caus- ing the slightest hitch in the proceedings, pro- vided he could manage the wig and that the dif- ference of accent — not very marked in men of the profession — should not attract too much at- tention. That the law emanating from the httle 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 enor- mous 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 sur- prising vitahty and stimulates interest in the methods now in vogue in its native land. CHAPTER II THE MAKING OF LAWYERS CLASSES FEOM WHICH BAERISTERS AND SO- LICITORS ARE DRAWN— THE INNS OF COURT — INNS OF CHANCERY — STUDENTS AT PERIOD OF REVOLUTION— A BARRIS- TER'S CHAMBERS— TRAINING OF BARRIS- TERS IN AN INN— BEING CALLED TO THE BAR— TRAINING OF SOLICITORS. To young Englishmen possessing neither for- tune nor influence, the profession of the law has long been an open road to advancement in a country notable for orderly and constitutional methods, where the ultimate appeal is always to reason. Perhaps the worship of money, which characterizes modem England, has somewhat lessened the prestige of success at the Bar there, as it has done in America, where a millionaire, upon urging his son to enter the profession, was met by the young hopeful's reply: "Pooh, father, we can hire lawyers." Nevertheless, the law still draws its recruits from the flower of the youth of both countries and, in England, it appeals to two types of men : to those who would become barris- 10 THE MAKING OF LAWYERS ters, and to those whose ambition soars no higher than the solicitor's calling; moreover the classes from which the candidates are generally drawn, differ as do their training and the future func- tions. Traditionally, indeed, the sons of gentlemen and the younger sons of peers were restricted, when seeking an occupation, to the Army, the Navy, the Church and the Bar. They never be- came solicitors, for that branch, like the profes- sion of medicine, was somewhat arbitrarily ex- cluded from possible callings, but this tradition, as is the case with many others, has been gradual- ly losing its force of late years. It must always have been a little hazy in its application, owing to the difficulty of ascertaining accurately the status of the parent, if not a peer; and Sir Thomas Smith who, more than three centuries ago, after describing the various higher titles, at- tempted a definition of the word "gentleman," could formulate nothing more definite than the following: "As for gentlemen they be made good cheap in this kingdom; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and, to be short, who can live idly and without ~ manual labor, and will bear the port. THE MAKING OF LAWYERS 11 charge and countenance of a gentleman, he shall be called master and shall be taken for a gentle- man." The ancient books, too, afford a glimpse of a struggle on the part of the Bar to demand a certain aristocratic deference, for an old case is reported where the court refused to hear an affidavit because a barrister named in it was not called an "Esquire." That the struggle was not in vain, is evidenced by the reply of an old-time Lord Chancellor, who, when asked how he made his selection from the ranks of the barristers when obliged to name a new judge, answered: "I always appoint a gentleman and if he knows a little law, so much the better." Naturally, the solicitor (who was formerly styled an attorney, except when practicing in an equity court) was sensitive about his own position, for the passage of a now-forgotten Act of Parliament was once procured, decree- ing that attorneys should thereafter be denom- inated as "gentlemen." But times have changed in the law, as in other fields of activity, and sons of good families, as well as those of less degree, now enter both branches of the profession. Hence, representa- tives of the best names in England are to be 12 THE MAKING OF LAWYERS found on the barristers' benches side by side with self-made men, some of whom have become ornaments of the Bar, and with men of divers races, such as swarthy East Indians, and Dutch South Africans. One or two barristers may even be found, who, although members of the Bar and necessarily of one of the Inns, never- theless, remain, as bom, American citizens. The Bar, in short, although a jealously close and ex- clusive organization, has become a less aristo- cratic body and is now a real republic where brains and character count. The same diversity of origin exists amongst the sohcitors, for, as has been stated, they are now, in part, recruited from those who formerly would have condescended to nothing less than the Bar. A constant improvement in training, too, in the promulgation of rules of professional conduct, in the enforcement of a firm discipline and in the nursing of traditions, all tend to raise and maintain a higher standard and a better tone than formerly existed in the ranks of the solicitors. Thus, the modern tendency is that there should be less difference in the personnel of those entering either branch of the profession. Candidates for the Bar are mostly University men, more mature in years, perhaps, than our THE MAKING OF LAWYERS 13 graduates — for boys commence and end their college courses late in England — and they are, as a rule, more broadly cultivated than those who intend to become solicitors. Some, indeed, take a full course of theoretical law at Oxford or Cambridge before beginning practical train- ing as a student in one of the Inns of Court, which are peculiarly British institutions, having no counterpart elsewhere. Physically, an Inn of Court is not a single edifice, nor even an enclosure. It is rather an ill-defined district in which graceful but dingy buildings of diverse pattern and of various de- grees of antiquity, are closely grouped together and through which wind crooked lanes, mostly closed to trafiic, but available for pedestrians. Unexpected open squares, refreshed by foun- tains, delight the eye, the whole affording the most peaceful quietude, despite the nearness of the roar of surrounding London. The four Inns of Court (as distinguished from the Inns of Chancery and Serjeants' Inn, all of which have ceased to exist) are, the Middle Temple, the In- ner Temple, Lincoln's Inn and Gray's Inn, but the last is of minor importance in these modern days, having fallen out of fashion. The Middle Temple and the Inner Temple 14. THE MAKING OF LAWYERS acquired, by lease in the XIV Century, and by actual purchase in 1609, the lands of the Knights Templar, consisting of many broad acres situated on the south side of the Strand and Fleet Street, opposite the present Law Courts Building, and the whole space is now occupied by an intricate mass of structures — the great Halls, the Libraries, the quaint bar- risters' chambers — and by the beautiful Temple Gardens, sloping to the Thames, adorned with bright flowers and shaded by fine trees. There is no line of demarcation between the two Temples — one simply melts into the other. They own in common the Temple Church, part of which dates from 1185, with its recumbent black marble figures of Knights in full armor and, in the churchyard, its tomb of Oliver Gold- smith. The wonderful Hall of the Middle Temple, where the benchers, barristers and students still eat their stated dinners, was built about 1572, and is celebrated for its interior, especial- ly for the open-work ceihng of ancient oak. Shakespeare's comedy. Twelfth Night, was per- formed in the Hall in 1601, and it is believed that one of the actors was the author himself. The Library is a great one, but an American THE MAKING OF LAWYERS 15 lawyer may be surprised at the incompleteness of the collection of American authorities. The Hall of the Inner Temple, on the other hand, is quite modern, although most imposing and in the Best of taste. Lincoln's Inn became possessed about 1312 of what was once the country-seat of the Earl of Lincoln, which, running along Chancery Lane, adjoins the modern Law Courts Building on the north and consists of two large, open squares surrounded by rows of ancient dwellings, long since converted into barristers' chambers, and shady walks leading to a fine Hall of no great antiquity, however. An old gateway, with the arms of the Lincolns and a date, A. D. 1518, is considered a good example of red brick-work of a Gothic type — probably the only one left in London. The Library, which has been growing for over four hundred years, contains the most complete collection of books upon law and kin- dred subjects in England, numbering upward of 40,000 volumes. These three Inns of Court are the active in- stitutions; the fourth, Gray's Inn, which prob- ably took its name from the Greys of Wilton who formerly owned its site, has long since ceased to be of much importance, although the 16 THE MAKING OF LAWYERS old Hall and the classic architecture of some of the Chambers, still attracts the eye. It happens, however, that a Philadelphia student, who at- tended this ancient Inn nearly two hundred years ago, was responsible for the phrase stiU pro- verbial on both sides of the Atlantic, "that's a case for a Philadelphia lawyer." The impopu- lar Royal judges of the Province of New York had, in 1734, indicted a newspaper pubhsher for libel in criticising the court and they threatened to disbar any lawyer of the Province who might venture to defend him. But, from the then dis- tant little town on the Delaware, the former student of Gray's Inn, although an old man at the time, journeyed to Albany and, by his skill and vehemence, actually procured a verdict of acquittal from the jury under the very noses of the obnoxious court; the fame of which achieve- ment spread throughout not only the Colonies but the mother-country itself. Names great in the law, in literature, in state- craft and in war are linked with each of these venerable establishments, to record which would mean to review much of the history of England as well as of America; for, besides the early Colonial students, a large number were entered in the different Inns during the period immedi- THE MAKING OF LAWYERS 17 ately preceding the Revolution. Of these. South Carolina sent forty-seven, Virginia twenty-one, Maryland sixteen, Pennsylvania eleven. New York five and New England two. The names of many of them are later to be found amongst the leaders of the Bar of the new country, on the bench as Chief Justices and even as signers of the Declaration of Independence. The Halls of the Inns were once the scenes of masques and revels, triumphs and other mad orgies, in which the benchers, barristers and students took part; including, as mentioned, the production of Shakespeare's plays during his lifetime. In these balls also occur the stated dinners — to which, in the Temple, at least, the porter's horn stiU summons. The members and students of the Inn, arrayed in gowns, attend in pro- cession and, entering the hall, seat themselves on long benches before oaken tables ; the govern- ing body — the benchers — ^being placed at one end where the floor is elevated. It is pleasant to record that, during the last year or two, the daily contact of the barrister with his Inn has been increased by the innovation of a luncheon which is served in the hall at the hour when the courts take a recess. On this occasion the most 18 THE MAKING OF LAWYERS noted English advocates may be seen, strolling in without removing their silk hats, sometimes without even having dispensed with wig and gown, when, seating themselves on the im- compromising oak, they call for a chop and beer and relax into jolly sociability. At one time barristers actually lived in the Inns of Court, biit this practically ceased about the time of the reign of EUzabeth. All of them now have their "chambers" in the obsolete little dwelhng houses, facing upon the open squares or narrow lanes of the Inns, which are merely offices, but very unlike those of an American law- yer in one of our "skyscrapers." Entering the front door by a low step, or climbing two or three flights of a rickety stair- case in one of these houses, the visitor finds a door on which, or on a tin sign, are painted the names of one or more gentlemen, without stat- ing their occupations, which woxild be superfluous in this small world of barristers. A summons by means of the old iron knocker, discloses the barrister's clerk, whose habitat is an outer room, and whose business it is to receive visitors — per- chance the clerks of solicitors with briefs and fees. Ushered into the barrister's sanctum, one finds THE MAKING OF LAWYERS 19 a meagrely furnished room, the walls masked with rows of books, the table, chairs and win- dow-sills littered with papers. Amidst all this, a modem telephone looks quite out of place, and the American tries to avoid detection when his eye imconsciously steals to a wig hanging on a hook back of the barrister's chair and to a round tin box, lying on the floor, which is for the transportation of the tonsorial armor when its owner travels on circuit. The otherwise un- inviting aspect of the place is redeemed, how- ever, by a cheerful fire blazing on the hearth and by a restful outlook upon a shady garden, and a splashing foimtain, where the sparrows sip the water and take their dainty baths. Here the barrister remains when not in court; but when the day's work is done, if he be prosperous, his motor car whisks him to the more elegant sur- roundings of a home in the West End, or, per-r haps a humble bus and suburban train carry him far from town. The Inns of Court began their existence about 1400, nearly cotemporaneously with the Trade Guilds, and both, doubtless, took their rise from the instinct of men engaged in a common occu- pation to combine for mutual protection. All lawyers were once men in holy orders and the 20 THE MAKING OF LAWYERS judges were bishops, abbots and other Church dignitaries, but in the XIII Century the clergy- were forbidden to act in the courts and, there- upon, the students of the law gathered together and formed the Inns. Much concerning their origin is obscure, but the nucleus of each was doubtless the gravitation of scholars to some an- cient hostelry, there to profit by the teachings of a master lawyer of the day — just as the modern London club had its beginning in the convivialities of a casual coffee house. In time these loose aggregations developed into strong and elaborate organizations which acquired ex- tensive real property, now of enormous value, and have long wielded a powerful influence. In order to enjoy the quiet of what was then the country, and yet to retain the advantage of the city's protection at a time when rural local- ities were far from safe, the Inns were mostly located close to the west wall of the City, al- though the Inner Temple, as its name implies, is just within the line of that vanished wall, and thus they were convenient to Westminster, where the courts were permanently located by a pro- vision of Magna Charta. During the present generation, however, the principal courts (ex- cept the House of Lords and the Judicial Com- THE MAKING OF LAWYERS 21 mittee of the Privy Council) have returned to a situation actually contiguous to the old Inns, whilst the vast town, during the centuries, has not only engulfed Westminster but has spread miles beyond it. Thus, all the Inns were grouped in a section, perhaps a square mile in extent, bounded on the east by Chancery Lane, which roughly follows the old City wall and oe- tween the Thames on the south, and the dis- trict called Holborn on the north. Looking now to the functions of these ancient institutions, an Inn of Court may be defined as an unincorporated society of barristers, which, originating about the end of the XIII Century, possesses by immemorial custom the exclusive privilege of calling candidates to the Bar, and of disciplining, or when necessary, of disbarring barristers. The governing body is composed of the benchers, who are either Judges or King's Coun- sel and prominent junior barristers, but it is usual to invite a member to join the benchers of his Inn when, and only when, a vacancy occurs. The executive officer is the treasurer, who is selected annually, and the members consist of the barris- ters and students. All the Inns are alike in authority, and in J22 THE MAKING OF LAWYERS the privileges which they enjoy and the regu- lations of each, governing the admission, edu- cation and examination of students and the calling to the Bar of those who are qualified, are precisely uniform; any differences which may have existed having been abolished by the adop- tion in 1875 of a code of rules known as the "Consolidated Regulations." While there is thus complete equality and no official precedence, yet each Inn has its own history, traditions and ancient customs. The choice of which Inn to enter, thus becomes a matter of individual prefer- ence, depending upon sentiment, or upon family or social surroundings. The former Inns of Chancery should also be mentioned before leaving the subject, although they have no present interest for the modern lawyer. Their origin, too, is buried in obscur- ity, but they arose about the same time as the Inns of Court, with one of which each was con- nected, and were at first places of preparatory training for young students later to be admitted to the particular Inn. These youthful appren- tices, however, were gradually ousted by the at- torneys and solicitors — who have always been excluded from the Inns of Court — ^whereupon the Inns of Chancery fell out of fashion and de- THE MAKING OF LAWYERS 23 teriorated, so that by the middle of the Eight- eenth Century they had disappeared and their names are now mere memories. During the period of activity of the Inns of Chancery, Staple Inn (perhaps the best known) and Bar- nard's Inn, were attached to Gray's Inn; Clif- ford's Inn, Clement's Inn and Lyon's Inn were intimately related to the Inner Temple; Furni- val's Inn and Thavie's Inn to Lincoln's Inn; the New Inn and Strand Inn to the Middle Temple. One block only of quaint Elizabethan buildings, with gables of cross timber and plas- ter, still overhangs the great thoroughfare of Holbom and marks what is left of Staple Inn. Likewise Serjeants' Inn vanished in 1876, when its valuable realty was sold — for Serjeants- at-law had long ceased to be created — and the proceeds were divided amongst the few sur- vivors; a proceeding much criticized at the time, although one of them gave his share to charity. The serjeants-at-law were once a class of bar- risters who had in some manner acquired the exclusive right of audience in the Court of Com- mon Pleas and had also secured a monopoly of the then profitable art of pleading. Upon at- taining this degree, a serjeant severed, his rela- tions with his Inn of Court and attached him- M THE MAKING OF LAWYERS self to the Serjeants' Inn. After having occupied several sites since the Sixteenth Cen- tury, Serjeants' Inn was finally located on Chancery Lane, and to it belonged all of the Serjeants, and all of the judges of the Common Law Courts, for they, necessarily, had been Ser- jeants before being elevated to the bench. The buildings, which are small and have no preten- sions to architectural beauty, have for many years been occupied as oflBces, chiefly those of solicitors. Thus, of the many Inns of Chancery, of the Serjeants' Inn (and the once powerful societies which they housed), there remain none but the four great Inns of Court, through one of which must pass every barrister called to the English Bar. This brief sketch may convey some idea of the extent to which the young law student uncon- sciously absorbs tradition, and is moulded, when plastic, by the pressure of centuries of custom and etiquette. Whatever may have been his fore- bears, he is more than likely, when turned out as a full-fledged barrister, to answer pretty nearly to the old definition, for he has, indeed, been one "who studieth the laws of the realm" and he is apt to "bear the port, charge and coun- tenance of a gentleman." THE MAKING OF LAWYERS 25 To the embryo barrister, however, the exist- ing Inns possess interests far livelier than those referred to, for he must enter one of them, and not only thus gain access to the Bar, but must ally himself to his choice unless he elects, by going through certain formalities, to emigrate to another Inn. Formerly he had only to attend a single function — a dinner — during each term and, having "eaten twelve dinners," he, ipso facto, became entitled to be called to the Bar, no matter how inadequate might be his knowledge of the law. In these less aristocratic and more prosaic days, however, he is obliged diligently to apply himself to study, and to pass, from time to time, regular and strict examinations, prescribed by the Coimcil of Legal Education, so that his equipment is no longer left to chance, but is really measured with cold accuracy. The term of study is not less than three years, and twelve terms, four in each year, must be "kept" at the Inn, the evidence of which is stUl the fact of dining in the hall six days during each term, although members of the Universities of Oxford and Cambridge need dine but three days in each term. An English student's reading is much like that pursued in one of om* own law schools, the ae THE MAKING OF LAWYERS chief difference being that he devotes more time to mastering general principles than to the con- sideration of reported cases from which our stu- dents are presimied to extract the underlying principle. Much has been said in favor of each method, and the true course probably hes be- tween the extremes, but the average result of an English law training, superimposed upon a gener- ally superior prior education, is perhaps somewhat better than the average American result, while, as to the few on both sides of the water destined to attain real eminence, no superiority could fairly be claimed by either. The total fees payable by a student amount to about £140. and women, be it observed by progressive ladies, are not eUgible for the Bar in England. Having passed the necessary examinations, the young barrister is finally "called to the Bar," a ceremony which takes place in the Hall of his Inn, at the close of dinner on "Grand Day," which is the day appointed for a banquet, to which a score or more of distinguished guests are invited by the "Treasurer and the Masters of the Bench." The Students, wearing gowns over evening dress, are grouped together, below the dais on which the benchers' table stands. The THE MAKING OF LAWYERS 27 Steward of the Inn calls out the names in order of seniority. Each Student, as his name is called, advances to the high table and halts there, facing the Treasurer, who, standing up, says to him: "Mr. , by the authority and on behalf of the Masters of the Bench, I publish you a barrister of this Honorable Society." Then the Treas- urer shakes hands with the new barrister and the latter walks away to join his com- rades. Solicitors are created by entirely different methods, as there are no Inns nor any similar organizations for students. There is a prelimi- nary examination to determine whether the boy who desires to become a solicitor, has sufficient general education. If so, he is apprenticed, for a period of five years, to some practitioner, for which privilege he pays a sum of money, say from 100 to 400 guineas; the amount chiefly depending upon the solicitor's standing. There are official fees, too, amounting to about £130, so that, as he receives no compensation during his five years' appren- ticeship, and meantime must be supported by his people, the cost of entering the solici- tor's calling is not inconsiderable. He be- gins by copying papers and performing minor £8 THE MAKING OF LAWYERS services in the pubKc offices and, at the same time, pursues his legal studies, which have stead- ily become more arduous. His progress as a law student is ascertained by an intermediate examination, held under the direction of the Solicitors' Incorporated Law Society, and a final one determines whether he has acquired suffi- cient knowledge of the law to be admitted to practice. If shown to be qualified, he is admitted by the courts, and is thereafter subject to the discipline of the Society and to that of the courts themselves, usually prompted by the So- ciety. (The marked difference, therefore, that distinguishes the solicitor's training from that of the barrister, is the absence of any Inn of Court — ^with its esprit de corps — as a commanding in- fluence in shaping his development and govern- ing his whole career. Nevertheless, while the whole body of solicitors is, perhaps, not as liber- ally educated nor as polished as the Bar, the higher grade of solicitors are lawyers quite as well equipped, and gentlemen equally accom- plished, as members of the Bar itself. Some glimpses of the separate roads which the barrister and the solicitor travel after their stu- dent days, will be reserved for later chapters. CHAPTER III BARRISTERS WAITING FOR SOLICITORS AS CLIENTS— "DE- VILLING"— JUNIORS— CONDUCT OF A TRIAI^"TAKING SILK"— BECOMING A K. C. —ACTIVE PRACTICE— THE SMALL NUMBER OF BARRISTERS. Having been called to the Bar, the question first confronting the young barrister is whether he really intends to practice. He may have read law as an education, meaning to devote himself to literature, to pohtics or to some other pursuit, or he may have embraced the profession in defer- ence to the wishes of his family and to fill in the time while awaiting the inheritance of property. Supposing him, however, to be one of the minor- ity determined to rise in the profession, he is confronted with formidable obstacles, for he can not look to his friends to furnish him with briefs. He can never be consulted nor retained by the litigants themselves. The only clients he can ever have are solicitors, whose clients, in turn, are the public. He never goes beyond his 30 BARRISTERS dingy chambers in the Inns of Court, where, guarded by his clerk, he either wearily waits for sohcitors with briefs and fees, or, more likely still, gives it up and goes fishing, shooting or hunting. And this furnishes the market for the alluring placards one sees at the old wig- makers' shops in the Inns of Court: "Name up and letters forwarded for £5 per annmn." The early ambition of the young barrister is to become a "devil" to some junior barrister, who always has recourse to such an understudy, and, if the junior is making over £1,000 a year, he continuously employs the same devil. This term is not applied in a jocular sense, but is the regular and serious appellation of a young bar- rister who, in wig and gown, thus serves with- out compensation and without fame — for his name never appears — often for from five to seven years. The devil studies the case, sees the witnesses, looks up the law and generally masters all the details, in order to supply the junior with ammunition. Before the trial the jimior has one or more "conferences" with the solicitor, all paid for at so many guineas; occasionally he even sees the party he is to represent, and, more rarely, an important witness or two. The devil is some- BARRISTERS 81 times present, although his existence is, as a rule, decorously concealed from the solicitor. If the solicitor, or the litigating party, grows nervous, or hears that the other side has em- ployed more distinguished counsel, the solicitor retains a K. C. as leader. Then a "consiiltation" ensues at the leader's chambers between the leader, jimior, solicitor, and, occasionally, the devil. At the trial, the junior merely"openstheplead- ings" by stating in the fewest possible words, what the action is about — that it is, perhaps, a suit for breach of promise of marriage between Smith and Jones, or to recover upon an insur- ance policy for a loss by fire — and then resumes his seat, whereupon the leader — the great K. C. ■ — ^really opens the case, at considerable length and with much more detail and argimient than would be good form in an American court. He states his side's contention with particularity, reads docimaents and correspondence (none of which have to be proved unless their authenticity is disputed — points which the solicitors have long ago threshed out) and he even indicates the position of the other side, while, at the same time, arguing its fallacy. Having done this, he leaves it to the junior to call the witnesses — ^more of- 32 BARRISTERS ten he departs from the court room to begin another case elsewhere, and returns only to cross- examine an important witness on the other side, or to make the closing speech to the jury. In this way a busy 'leader may have several trials going on at once. The junior then proceeds to examine the witnesses with the help of an oc- casional whispered suggestion from the solicitor, who is more than ever isolated by the departure of the leader, and the devil is proud when the junior audibly refers to him for some detail. If the leader is absent, which frequently hap- pens notwithstanding his fee has been paid, in- asmuch as no case is deferred by reason of coun- sel's absence, the junior takes his place, while the sohcitor grumbles and more devolves upon the devil. Occasionally, indeed, both leader and junior may be elsewhere and then is the glorious op- portunity of the poor devil, who hungers for such an accident, for he may open, examine, and cross-examine, and, if neither his junior nor his august leader appear, he may even close to the jury. The solicitor will be white with rage and chagrin, wondering how he shall explain to the litigant the absence of the counsel whose fees he has paid, but the devil may win and so BARRISTERS 33 please the solicitor that the next time he may himself be briefed as junior. This is one of the things he has read of in the Lives of the Lord Chancellors. The devil is in no sense an employee or per- sonal associate of the junior — ^which might look like partnership, a thing too abhorrent to be permitted. On the contrary, he often has his own chambers and may, at any time, be him- self retained as a junior, in which event his busi- ness takes precedence of his duties as a devil, and he then describes himself as being "on his own." Having gained some identity, and more or less business "on his own " from the solicitors, a devil gradually begins to shine as a junior, whereupon appears his own satellite in the person of a younger man as devil, while the junior becomes more and more absorbed in the engrossing but ever fascinating activities of regular practice at the Bar. Reaching a certain degree of prominence, a junior at the common-law Bar may next "take silk;" that is, become a K. C, or King's Counsel, which has its counterpart at the Chancery Bar, as will be explained later when dealing with the division between the law 34. BARRISTERS and equity sides of the system. Whether a bar- rister shall "apply" for silk is optional with him- self and the distinction is granted by the Lord Chancellor, at his discretion, to a limited, but not numerically defined, number of distinguished barristers. The phrase is derived from the fact that the K, C.'s gown is made of silk instead of "stuff," or cotton. It has also a broad collar, whereas the stuff gown is suspended from shoul- der to shoulder. Whether or not to "take silk," or to become a "leader," is a critical question in the career of any successful common law or chancery barrister. As a junior, he has acquired a paying practice, as his fee is always two-thirds that of the leader. He has also a comfortable chamber practice in giving opinions, drawing pleadings and the like, but all this must be abandoned — because the eti- quette of the Bar does not permit a K. C. or leader to do a junior's work — and he must there- after hazard the fitful fancy of the solicitors when selecting counsel in important causes. Some have taken silk to their sorrow, and many strong men remain juniors all their lives, trying cases with K. C. 's much younger than themselves as their leaders. They tell this story in London: A certain BARRISTERS 35 Scotch law reporter (recently dead), noted for his shrewdness and good judgment, having been consulted by a barrister whether to "apply for silk," advised him in the negative, but decHned to go into particulars. The barrister renewed his inquiry more than once, finally demanding the Soot's reason for his advice. The latter reluctant- ly explained that the barrister had a good living practice which he would be fooUsh to give up. Being further pressed, he finally said: "In many years' observation of the Bar I have learned that success is only possible with one or more of three qualifications, that is, a commanding person, a fine voice, or great ability, and I rate their im- portance in the order named. Now, with your wretched physique, penny-trumpet voice, and mediocre capacity, I think you would surelyj starve to death." The barrister did not "apply," but never spoke to the Scotchman again. The anecdote illustrates the crucial natiu'c of the step when taken by any barrister, and even if taken with success, yet there are waves of popu- larity affecting a leader's vogue. Solicitors get vague notions that the sun of a given K. C. is ris- ing or setting — ^that the judges are looking at him more kindly or less so, therefore K. C.'s and leaders who were once overwhelmed with busi- 36 BARRISTERS ness, may sometimes be seen on the front row with few briefs. A successful K. C. leads a strenuous life, as may well be appreciated if he be so good as to take his American friend about with him in his daily work, seating him with the barristers while he is actually engaged. One very eminent K. C, who is also in Parliament, rises in term time at 4 a.m., and reads his briefs for the day's work until 9, when he breakfasts and drives to cham- bers. SUpping on wig and gown at chambers and crossing the Strand, or arraying himself in the robing room of the Law Courts, he enters court at 10:30, and takes part in the trial or argimient of various cases until 4 o'clock, often having two or three in progress at once, which require him to step from court to court, to open, cross-examine, or close, having relied upon the juniors and solic- itors to keep each case going and teU him the situ- ation when he enters to take a hand. From 4 to 6 :30 he has consultations at his chambers, at in- tervals of fifteen minutes, after which he drives to the House of Commons, where he sits imtil 8 :30, when it is time for dinner. If there is an important debate, he returns to the House, but tries to retire at midnight for four hours' sleep. Naturally the Long Vacation alone makes such a Ceossing the Steand feom Temple to Couet BARRISTERS 37 life possible for even the strongest man. His success, however, means much, for there lie be- fore him great pecuniary rewards, fame, perhaps a judgeship, or possibly an attorney-general- ship, both of which, unlike their prototypes in America, mean very high compensation, to say nothing of the honor and the title which usually accompany such offices. The English Bar is small and the bftsiness very concentrated, but no statistics are available, for many are called who never practice. By con- sidering the estimates of well-informed judges, barristers and solicitors, it seems that the legal business of the Kingdom is handled by so small a number as from 500 to 800 barristers, although the roll of hving men who have been called to the Bar now includes 9,970 names. We have no Bar with which to institute a com- parison, for each county of every State has its own and all members of county Bars, practicing in the appellate court of a State, constitute the Bar of that State, which is a complete entity. Great commercial centres have larger ones and have more business than rural localities, but no Bar in America is national Uke that of London. It would be interesting, if it were possible, to compare the proportion of the population of S8 BARRISTERS England, which pursues the law as a vocation, with that of the United States, but no figures exist for the purpose. The number of barristers includes, as already stated, those who do not practice, while an enumeration of the solicitors' offices would exclude individual solicitors em- ployed by others, as will be explained hereafter. The aggregate of these two uncertain elements, however, would be about 27,000. The legal di- rectories give the names of something like 95,000 lawyers in America of whom about 27,000 appear in fifteen large cities — New York, for example, being credited with over 10,000, Chicago with over 3,500 and San Francisco with about 1,500— leaving about 69,000 in the smaller towns and scattered throughout the land. These tentative, and necessarily vague, suggestions rather indicate that the proportion of lawyers may not be very unequal in the two countries. CHAPTER IV BARRISTERS— THE COMMON LAW AND THE CHANCERY BARS BAR DIVIDED INTO TWO PARTS— NO DISTINC- TION BETWEEN CRIMINAL AND CIVIL PRACTICE— LEADERS— "TAKING HIS SEAT" IN A PARTICULAR COURT— "GOING SPE- CIAL"— LIST OF SPECIALS AND LEADERS- SIGNIFICANCE OF GOWNS AND "WEEPERS" —"BANDS"— "COURT COATS"— WIGS IN THE HOUSE OF LORDS— BARRISTERS' BAGS, BLUE AND RED. The Bar is divided into two separate partS' — the Conunon Law Bar and the Chancery Bar; for a harrister does not try cases of both kinds as in America. The solicitor knows whether he has a law or equity case in hand, and takes it to the appropriate barrister. Common law barristers have their chambers chiefly in the Middle Tem- ple and Inner Temple; chancery men, largely in Lincoln's Inn, and the two kinds of barristers know little of, and seem even to have a kind of contempt for, each other. Thus a common law barrister passes his hfe in jury trials and ap- 40 COMMON LAW AND CHANCERY BARS peals; whereas a chancery man knows nothing but courts of equity, unless he follows a will case into a jury trial as a colleague of a common law man to determine an issue of devisavit vel non. And there are further specializations — although the divisions are not so marked — into probate, divorce or admiralty men. Besides, there is what is known as the Parliamentary Bar, prac- ticing entirely before ParUamentary coramittees, boards and commissions. It is, however, curious that in England no apparent distinction exists between civil and criminal practice and common law barristers accept both kinds of briefs indis- criminately. At the Chancery Bar there is a peculiar sub- division which has already been mentioned. Hav- ing reached a certain degree of success and be- come a K.C., a barrister may "take his seat" in a particular court as a "leader" by notifying the Judge and informing the other K.C. 's who are already practising there. Thereafter he can never go into another, except as a "special," a term which will be explained presently. For three pence, at any law stationer's, one can buy a list of the leaders in the six chancery courts, varying in number from three to five and aggre- gating twenty-five, and if a solicitor wishes a COMMON LAW AND CHANCERY BARS 41 leader for his junior in any of these courts he must retain one out of the limited list available or pay the "special" fee. Hence, these gentle- men sit like boys in school at their desks and try the cases in which they have been retained as they are reached in rotation. But even for a leader at the Chancery Bar, one more step is possible, a step which a barrister may take, or not, as he pleases, and that is: he may go "special." This means that he surrenders his position as a leader in a particular court and is open to accept retainers in any chancery court ; but his retainer, in addition to the regular brief fee, must be at least fifty guineas or multiples of that sum, and his subsequent fees in hke propor- tion. The printed list also shows the names of these "specials," at present only five in nimiber. The list of leaders and specials in 1910 reads as follows : 42 COMMON LAW AND CHANCERY BARS A LIST OF HIS Usually Pbacticing in the Chancery The Following Counsel abe Not Attached Mr. Levett: Mr. Astbury: Counsel who Have Attached Themselves to Pakticulab Courts, Mr. Justice Joyce Lord Chaacellor's Court Date of Ap'ointment Mr. Justice Warrington Chancery Court 2 Date of Ap'ointment Mr. T. R. Hughes 1898 Mr. Henry Terrell 1897 Mr. R. F. Norton 1900 Mr. T. H. Carson 1901 Mr. R. Younger 1900 Mr. George Cave 1904 Mr. A. C. Clauson 1910 Mr. Justice Eve Date of Ap'ointment Mr.Justice Swinfen Eady Chancery Court 1 Date of Ap'ointment Mr. P. O. Lawrence 1896 Mr. W. D. Rawlins 1896 Mr. Ingpen 1900 Mr. E.C.Macnaghten 1897 Mr. Dudley Stewart- 1902 Mr. N. Micklem 1900 Smith Mr. A. H. Jessel 1906 Mr. Frank Russell 1908 Mr. E. Clayton 1909 Note — Counsel attached to the above Courts usually abo practice before Printed and The Solicitors' Law Stationery Society, Limited, 22, Chancery forms of all Price COMMON LAW AND CHANCERY BARS 43 MAJESTY'S COUNSEL. Division op the High Court op Justice. TO Any Coukt, and Requibe a Special Fee; — Mr. Upjohn: Mr. Buckmaster. Aeranged in the Order in which They abe Entitled to Move:- Mr. Justice Melville Date of Ap'ointment Mr. Justice Parker Chancery Court 4 Date of Ap'ointment Mr. Bramwell Davis Mr. J. G. Butcher Mr. C. E. E. Jenkins Mr. A. F. Peterson Mr. F. Cassel 1895 1897 1897 1906 1906 Mr. W. F. Hamilton Mr. M. L. Romer Mr. E. W. MarteUi Mr. A. Grant Mr. J. Gatey 1900 1906 1908 1908 1910 the Judge to whom the Companies windiog-up matters are attached. Published by Chancery Lane, W. C, 29, Walbbook, E.G., 6, Victoria Street, S.W. kinds kept in stock. Threepence. 44 COMMON LAW AND CHANCERY BARS The dress of barristers is the same for the Com- mon Law Bar as for the Chancery Bar, but the details of both gown and wig signify to the initi- ated much as to the professional position of the wearer. The difference between the junior's stuff gown and the leader's silk one has already been referred to, but it is not true that a barris- ter having "taken silk," that is, having become a K.C. or a leader, always wears a silk gown, for, if he be in mourning, he again wears a cotton gown, as he did in his junior days, but, to pre- serve his distinction, he wears "weepers" — a six- inch deep, white lawn cuff, the name and utility of which originated before handkerchiefs were invented. Moreover, when in mourning his "bands" — ^the untied white lawn cravat, hang- ing straight down, which all barristers wear — have three Unes of stitching instead of two. Un- der his gown, a K.C. wears a "court coat," cut not imhke an ordinary morning coat, though with hooks and eyes instead of buttons, while the junior wears the conventional frock coat. On a hot day, a junior wearing a seersucker jacket and carelessly allowing his gown to disclose it, may receive an admonition from the court, whis- pered in his ear by an officer. Wigs, which were introduced in the courts in COMMON LAW AND CHANCERY BARS 45 1670, and have long survived their disappear- ance in private life, were formerly made of himaan hair which became heavy and unsanitary with repeated greasing. They required frequent curling and dusting with powder which had a tendency to settle on the gown and clothing. About 1822, a wig-maker, who may be regarded as a benefactor of the profession, invented the modern article, composed of horse hair, in the proportion of five white strands to one black; this is so made as to retain its curl without grease, and with but infrequent recurling, and it requires no powder. The wig worn by the barrister in his daily practice has already been described, but, when arguing a case in the House of Lords he has re- course to an extraordinary head-dress, which is precisely the shape of a half -bushel basket with the front cut away to afford him hght and air. This, banging below the shoulders, has an ad- vantage over the Lord Chancellor's wig in being more roomy, so that the barrister's hand can steal inside of it if he have occasion to scratch his head at a knotty problem, whereas his Lordship, in executing the same manoeuvre, inevitably sets his awry and thereby adds to its ludicrous effect. To the unaccustomed eye, the wig, at first, is 46 COMMON LAW AND CHANCERY BARS a complete disguise. Individuality is lost in the overpowering absurdity and similarity of the heads. Then, too, there is an involuntary asso- ciation of gray hair with years, making the Bar seem composed exclusively of old gentlemen of identical pattern. The observer is somewhat in the position of the Indian chiefs, who, having been taken to a number of eastern cities in order to be impressed with the white man's power, recognized no difference between them — ^although they could have detected, in the deepest forest, traces of the passage of a single human being — and reported upon returning to their tribes that there was only one town, Washington, and that they were merely trundled around in sleeping cars and repeatedly brought back to the same place. By degrees, however, diflPerences between in- dividuals emerge from this first impression. Blond hair above a sunburned neck, peeping be- tween the tails of a queue, suggests the trout stream and cricket field ; or an ample cheek, not quite masked by the bushel-basket-shaped wig, together with a rotundity hardly concealed by the folds of a gown, remind one that port still passes repeatedly around English tables after dinner. But it must be said that, while the wig may add COMMON LAW AND CHANCERY BARS 47 to the uniformity and perhaps to the dignity — despite a certain grotesqueness — of a court room, yet it largely extinguishes individuahty and obhterates to some extent personal appearance as a factor in estimating a man; and this is a factor of no small importance, for every one, in describing another, begins with his appearance — a man's presence, pose, features and dress all go to produce prepossessions which are subject to revision upon further acquaintance. One thing is certain, the wig is an anachronism which will never be imported into America. For the Bar to adopt the gown (as has been largely done by the Bench throughout the country) would be quite another matter and it seems to work well in Can- ada. This would have the advantage of distin- guishing counsel from the crowd in a court room, of covering over inappropriateness of dress and it might promote the impressiveness of the tri- bunal. The bag of an English barrister is also an important part of his outfit. It is very large, capable of holding his wig and gown, as well as his briefs, and suggests a clothes bag. It is not carried by the barrister himself, but it is borne by his clerk. Its color has a deep significance. Every young barrister starts with a blue bag and 48 COMMON LAW AND CHANCERY BARS can only acquire a red one under certain condi- tions. As devil, and as junior, it is not considered infra dig. to carry his own bag and he has ever before him the possibility of possessing a red bag. At last he succeeds in impressing a venerable K.C. by his industry and skill in some case, whereupon one morning the clerk of the K.C. appears at the junior's chambers bearing a red bag with his initials embroidered upon it — a gift from the great K.C. Thereafter he can use that coveted color and he may be pardoned for having his clerk follow him closely for awhile so there may be no mistake as to the ownership. Custom requires him to tip the K.C.'s clerk with a guinea and further exacts that the clerk shall pay for the bag, which costs nine shillings and sixpence, thus, by this curious piece of economy, the clerk nets the sum of eleven shillings and sixpence and the K.C. is at no expense. CHAPTER V SOLICITORS LINE WHICH SEPARATES THEM FROM THE BAR— SOLICITOR A BUSINESS MAN— FAM- ILY SOLICITORS— GREAT CITY FIRMS OF SOLICITORS— THE NUMBER OF SOLICITORS IN ENGLAND AND WALES— TENDENCY TO- WARD ABOLISHING THE DISTINCTION BE- TWEEN BARRISTER AND SOLICITOR- SOLICITORS WEAR NO DISTINCTIVE DRESS EXCEPT IN COUNTY COURTS— SOLICITORS' BAGS. The line which separates solicitors from the Bar — ^the barristers — ^is difficult for an American to fully appreciate, for in our country it does not exist. The solicitor, or attorney, is a man of law business — ^not an advocate. A person contem- plating litigation must first go to a solicitor, who guides his conduct by advice in the preliminary stages, or occasionally retains a barrister to give a written opinion upon a concrete question of law. The solicitor conducts all the negotiations or threats which usually precede a lawsuit and if compromise is impossible he brings a suit and re- 50 SOLICITORS tains a junior barrister by handing him a brief, which consists of a written narrative of the con- troversy, with copies of all papers and corre- spondence — ^in short, the facts of the case — ^and which states on its back the amoiint of the barris- ter's fee. The brief is engrossed or type-written on large-sized paper with very broad margins for notes, and is folded only once and lengthwise so as to make a packet fifteen by four inches. All Englishmen of substance, and all firms and corporations, have their regular solicitors and the relation is frequently handed down from generation to generation. It is, of course, un- usual except in large corporations to have a per- manent barrister, because the sohcitor selects one from time to time, as the occasion requires, and the client is rarely even consulted in the choice. When an Englishman speaks of his lawyer, he always means his solicitor and if he wishes to im- press his auditor with the seriousness of his legal troubles, he adds that his lawyer has been obliged to take the advice of counsel — perhaps of a K.C. Hence, the solicitor, unlike the barrister, is not ambitious for fame, nor does he worry because he can not become the Attorney-General or a judge; his mind is intent upon the pounds, shil- lings and pence of his calling. He may seek SOLICITORS 61 business, which the barrister can not do, and he is something of a banker, often a promoter. Some solicitors, especially those practicing at Liver- pool, are admiralty men, others are adepts in the organization of corporations and in litigation arising concerning them and there are many other specialties. Some are men of the highest grade — particularly those employed by big com- panies or by families with large estates. The venerable family solicitor of the novel and stage — that custodian of private estates and se- crets who appears in all domestic crises, warning the wayward son, comforting the daughter whose affections are misplaced and succoring the gam- bling father, is sufficiently f amihar. The worldly experience, which this kindly old gentleman brings from his musty office, is invaluable to his. clients. The large City firms of solicitors, on the other hand, occupy spacious suites of offices and main- tain elaborate organizations like modern banks, with scores of clerks distributed in many depart- ments, whose duties are so specialized that no one of them has much grasp of the business as a whole. The name of such a firm, appearing as sponsor for an extensive financial project, car- ries weight in the business world and its heads 53 SOLICITORS enjoy generous incomes, besides being men of much importance upon whom the honor of knighthood is sometimes conferred. In all England and Wales only about 17,000 solicitors took out annual certificates last year. This indicates the number of offices and does not include clerks (many of whom have been ad- mitted to practice as solicitors), nor those who, for one reason or another, do not practice. In- stead of being concentrated, like the barristers, in the Inns of Court in London, solicitors are scattered all over the town and throughout the Kingdom itself. Some, especially in the minor towns or poorer quarters of London, are in a small way of business and must earn rather a precarious hving. Others are of a still lower class and seek business of a more or less disrepu- table character by devious methods, but all are supposed to have been carefully educated in the law and are answerable to their Society and to the courts for questionable practices. The division of the profession between the soHcitors and the Bar is no doubt a survival in modern, or socialistic, England of aristocratic conditions which it is the tendency of the times to weaken, if not eventually to abolish. It is somewhat hard upon the solicitor of real ability SOLICITORS 63 to be c»nfined to a limited field and to feel that, no matter how great his powers and acquirements, it is impossible to rise to the best position in his profession without abandoning his branch and beginning all over again in the barrister's ranks. In associating with solicitors, one can not fail to be struck by their attitude towards barristers, as a class, which is hardly flattering to the latter; they frequently allude somewhat lightly to them as though they were useless ornaments and as if such a division of the profession were rather un- necessary. Upon asking whether the distinction exists in America, they receive the information that it does not with evident approval. The advantages, however, of the separation of the functions of the sohcitor from those of the barrister are distinctly felt in the superior skill, as trial lawyers, developed by the restriction of court practice to the limited membership of the Bar, which would hardly exist if the practice were distributed over the whole field of both branches of the profession. Then, too, the small nmnber of persons composing the Bar enables greater control by the benchers over their pro- fessional conduct, and helps to maintain a high standard of ethics and the feeling of esprit de corps. Moreover, the Bar is not distracted from 16* SOLICITORS the science, by contact with the business, of the law and it is saved from the contaminating effect of participation in the sordid details of litigation. At the same time, this very condition may be cal- culated to develop in the average barrister, as distinguished from one of real ability, an attitude approaching dilettanteism. If the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the soUcitors' branch upon the Bar. Already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. The more this progresses, the greater will be the number of solicitors who will become known as court prac- titioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed. While such is the drift in England, there is at the same time a tendency in America to approach JEnglish conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business SOLICITORS 55 of the law, and indeed one now occasionally hears of such partnerships designating one of their number as "counsel" to the firm — ^which is, per- haps, an affectation. Sohcitors often become barristers — sometimes eminent ones, for they have had an opportunity to study other barristers' methods, and have ac- quired a knowledge of affairs. Of course they must first retire as sohcitors and enter one of the Inns for study. The late Lord Chief Justice of England began his career as an Irish solicitor. Solicitors wear no distinctive dress (except a gown when in the county court, as wiU be ex- plained hereafter) but attire themselves in the conventional frock or morning coat and silk hat which is indispensable for all London business men. They all, however, carry long and shallow leather bags, the shape of folded briefs, which are usually made of polished patent leather. CHAPTER VI BUSINESS AND FEES INFLUENTIAL FEIENDS OF BARRISTER— JUN- IOR'S AND LEADER'S BRIEF FEES— FEES OF COMMON LAW AND CHANCERY BARRISTERS —BARRISTER PARTNERSHIPS NOT AL- LOWED—ENGLISH LITIGATION LESS IM- PORTANT THAN AMERICAN— CLERKS OF BARRISTERS AND SOLICITORS HAGGLE OVER FEES— SOLICITORS' FEES. An American lawyer will be curious concern- ing two things, about which he will get little reli- able information, viz., how legal business comes and what are its rewards. The barrister supplements his reading, some- times by practical service for a short time in a solicitor's office and nearly always by the deviling before described, and thus, in theory — and ac- cording to the traditions of the Bar — ^may pass years awaiting recognition. Finally, briefs be- gin to arrive which are received by his clerk with the accompanying fee, in gold, as to which the barrister is presumed to be quite oblivious. This, however, is not always the experience of the 68 BUSINESS AND FEES modern barrister, who may have some relative occupying the position of chairman of a rail- way, or of a large City company, the solicitors of which will be apt to think of this particular man when retaining counsel. In such fashion and other ways, while he can not receive business directly from an influential friend or relative, but only through the medium of a solicitor, yet such connections are often definitely felt in giving the young barrister a start. His eventual success, however, as in every other career, depends upon how weU he avails himself of his opportunities. When briefed as a junior, without a leader, in a small action, his fee may be "3 & 1," mieaning three guineas for the trial and one guinea for the "conference" with the solicitor. When briefed with a leader, however, his fee, which is always endorsed on the brief, may read : BUSINESS AND FEES 69 "Mr. J. Jones 35 guineas 1 guinea 36 guineas "With you Sir J. Black, K. C." The leader's brief will be endorsed: "Sir J. Black, K. C 50 guineas 2 guineas 'With you Mr. J. Jones." 52 guineas The fee is not always sent by the solicitor with the brief, but a rimning account, with settlements at intervals, is not uncommon. Contingent fees are absolutely prohibited, the barrister gets his compensation, or is credited with it, irrespective of the result. All speculation as to professional earnings of a barrister must be vague, for there can be little accurate knowledge on such a subject. Chancery men seem to earn much less than common law .barristers and their business is of a quieter and less conspicuous character. At the fireside in chambers in Lincoln's Inn, if the conversation 60 BUSINESS AND FEES drifts to fees, one may hear a discussion as to how many earn £2,000, and a doubt is expressed whether more than three men average £5,000, but the gossips will add that they do not really know the facts. The fees of common law men, while larger, are equally a matter of guess-work. One hears of the large earnings of Judah P. Benjamin a gen- eration ago, and R. Barry O'Brien, in his Hfe of Sir Charles Russell, quotes from his fee book yearly showing that the year he was called to the Bar he took only £117, while thirty-five years later — ^in 1894 — just before he was elevated to the bench, his fees for the year were £22,517. For the ten years preceding he had averaged £16,842, and, for the ten years before that, £10,- 903. The biographer of Sir Frank Lockwood, a successful barrister, relates that he earned £120 his first year and that this increased to £2,000 in his eighth year, but he was glad to accept dur- ing his twenty-second year the Solicitor General- ship, paying about £10,000. The Attorney Gen- eral, who, although his office is a political one, is generally a leading barrister, receives a salary of £7,000 and his fees are about £6,000 more. The clerk of a one time high judicial officer now dead, is authority for the statement that the BUSINESS AND FEES 61 year before he went upon the bench his fees ag- gregated 30,000 guineas. It seems to be the general opinion of those well informed that the most distinguished leader may, at the height of his career, take 20,000 to 25,000 guineas. All such estimates must, however, be received with the greatest reserve, and no one could undertake to vouch for them. Barristers' fees are, of course, for purely pro- fessional services and do not come within the same category as the immense simis one occa- sionally hears of being received by American lawyers — not, however, as a rule, for real pro- fessional services in litigation, but for success in promoting, merging or reorganizing business enterprises. The fees of English barristers are practically all gain, as there are no office expenses worth mentioning. No suit can be brought by a barrister to compel the payment of a fee al- though the services have been performed, nor is he liable for negligence or incompetence in his professional work. Partnerships, which are common between so- licitors, are unknown to barristers and anything approaching them would be the subject of severe discipline. This is a fundamental law of the pro- fession, never questioned, as to which the rulings 62 BUSINESS AND FEES of the governing body of the Bar (some of which will be quoted in a later chapter) relate only to the application of the principle to different cir- cumstances. In order to appreciate the abhor- rence of partnerships, it is necessary to bear in mind the fact that the great science of the law is to the barrister strictly a profession, having no affin- ity to a business or a trade. 'No barrister can have the slightest personal concern in the inter- ests which he advocates, his fee being never con- tingent, nor is he ever permanently retained by salary or otherwise. He is a purely intellectual ■ally of the court in the consideration of questions, more or less abstract, as to which he merely sup- ports the view he has undertaken to urge. Upon the whole, professional rewards do not strike an American as particularly large, remem- bering that the recipients are at the top of the profession in London, which means the King- dom. One can not escape the impression that litiga- tion in England deals with minor matters as com- pared with that of America. There are no Amer- ican data for comparison with the admirable judicial statistics of England, but, in listening to the daily routine of the London courts, in the tight little Island with its dense population and BUSINESS AND FEES 63 well-settled rights, there seems to be a complete absence of those far-reaching litigations which arise in America, involving enormous sums, or conflicting questions concerning a whole conti- nent, with its railroads and rivers extending as avenues of commerce for thousands of miles and with ramifications of trade running into many States, each with its separate sovereignty. One circumstance rather indicates that the popular estimate of fees is above the truth, and this is the acceptance of judgeships by the most eminent barristers; still, judicial salaries in Eng- land are high — £5,000 at the least — ^not to speak of the compensation of the Chief Justice and Lord Chancellor, which are more. Solicitors' clerks occasionally haggle and bar- gain with barristers' clerks in an undignified manner — ^but of this their masters are supposed to be in ignorance. And it seems that the matter of fees is sometimes abused. In the case of a cele- brated barrister, now dead, it is whispered that his clerk would receive a retainer of 500 guineas on behalf of the K. C. who would be missing upon the cause being reached. The clerk would then tell the sohcitor's clerk that the K. C. was over- crowded, and he did not beheve he could get him into court unless 250 guineas were added to the 64 BUSINESS AND FEES fee. After grumbling and protesting, the addi- tion would be forthcoming, whereupon the clerk would readily find the K. C. strolling in the Tem- ple Gardens, and fetch him to court. This, how- ever, was not regarded as honest and the story itself is doubted. In the case of solicitors, the acquirement of a practice is apparently much hke establishing a mercantile business. The majority doubtless begin as clerks in existing firms, and, if men of ability, either rise in the firm or form their own associations. They are not hampered by the same considerations of delicacy and etiquette as the barrister, but may seek employment, although, of course, the one guarantee of real success is the honest and efficient handling of affairs with which they may be entrusted. The profits of a large firm of solicitors are very great. Much of the money, however, is made in the transaction of business which is not of the profession at all, such as the promotion of enter- prises, the flotation of companies, just as there is a class of American lawyers pursuing the same lines. A solicitor's compensation, called "solicitor's costs," is not a matter of discretion, but is regu- lated by a recognized scale, although he may make BUSINESS AND FEES 65 a special agreement with his client in advance, but it must be in writing and is subject to review by a Master as to its reasonableness. For an ap- pearance in court the charge runs from 6s, 8d. to £l. Is, Od., according to the nature of the business and the time consumed, A charge read- ing, "To crossing the street to speak to you and finding it was another man. Is. 3d.," has been ruled out, A solicitor's compensation for services other than litigation is obtained by rendering to the client a regular bill, minutely itemized. The writ- ing of a post card will justify a charge of three shillings and sixpence, but, for a letter the demand maybe five shillings and sixpence withahalf -penny for the stamp. Each interview at the ofiice, and every visit to the client's town or country house, is charged for; while incidental outlays and ex- penses are carefully detailed, including the fees paid the barrister for his opinions, for the draft- ing of pleadings and for appearance in court. If the matter has involved proceedings in court in which the solicitor's client has been successful, then various costs are allowed as part of the judg- ment to be recovered from the opposite side, al- though they do not necessarily equal the charges to be paid by the client, as will be explained when 6e BUSINESS AND FEES dealing with the subject of costs. Solicitors, un- like barristers, may sue for their compensation and are liable for negligence, although not for mistaken opinions upon questions of law. CHAPTER VII DISCIPLINE OF THE BAR AND OF SOLICITORS THE GENERAL COUNCIL OF THE BAR— THE STATUTORY COMMITTEE OF THE INCOR- PORATED LAW SOCIETY— RULINGS ON VAR- IOUS MATTERS— LAPSES FROM CORRECT STANDARDS. The discipKne of the Bar — ^the maintenance of correct standards of professional conduct — ^is everywhere a difficult problem. In England, with the experience of centuries, good results are obtained, upon the whole, considering that hu- man nature is alike the world over. The Gener- al Council of the Bar governs the Bar; the Statutory Committee of the Incorporated Law Society governs the solicitors. These two bodies occasionally confer together — or rather exchange views — in matters concerning the relations of the two branches of the profession. The General Coimcil of the Bar, having heard a complaint against a barrister, reports its find- ings with recommendations — perhaps of disbar- 68 DISCIPLINE OF THE BAR ment in exceptionally serious cases — ^to the Benchers of the barrister's Inn. They alone have the power to act and nearly always follow the recommendation. Probably httle difference ex- ists in their deliberations, methods and actions in serious cases and that of corresponding disciplin- nary agencies in the United States, whether called a Bar Committee or a Committee of Cen- sors. Disbarment is an extreme penalty in both countries, inflicted only for moral turpitude amounting usually to crime. But the General Council of the English Bar renders an even greater service to the profession in establishing standards of professional conduct, not only in respect of morality, but in questions of propriety and good taste. This is accom- plished by resolutions upon submitted questions which seem to fall into two classes : those which are found contrary to a "Rule of the Profession" and those which are pronounced to be "Unde- sirable Practices". These rulings (without names or other particulars which might lead to identification) are all reported in the "White Book", an annual book of practice in general use, and constitute a code of ethics and etiquette. An examination of these rulings shows very few findings upon rudimentary morals; it ap- DISCIPLINE OF THE BAR 69 parently is taken for granted that lawyers are familiar with such commandments as "Thou shalt not steal." They deal chiefly with the more refined questions of professional conduct which often present difficulties even to men of honest instincts but who lack natural dehcacy or experi- ence. An example of a course contrary to a rule of the profession is the following : "County Court Judge's Sons: It should be recognized as a 'Rule of the Profession' (the quotation marks are the Council's) that no barris- ter should habitually practice in any county court of which his father, or any near relative, is the judge." An. St. 1895-1896, p. 6. It is not necessary to discuss whether this would be applicable in America. Here the principle is probably recognized in the larger cities by the best element, whereas in the country, with only one county judge, it would prevent a son's following his father's profession. The rul- ing merely illustrates that in England there is an authoritative body which could be asked to de- clare how the profession regards such a difficult question as, whether suitors should be obliged to see their cases won or lost by the arguments of a son addressed to his father, or whether the son 70 DISCIPLINE OF THE BAR should Fe excluded from the only court of his vicinity. That a kind of sporting magnanimity is de- sirable but not required by any 'rule of the pro- fession', is shown in the following, which refers to revenue laws requiring receipts and other papers to be stamped in order to constitute evi- dence: "Stamps: It is undesirable that coimsel should object to the admissibility of any doctmient upon the ground that it is not, or is insufficiently, stamped, unless such defect goes to the vaHdity of such document. It is also undesirable that counsel should take part in any discussion that may arise in support of any objection taken on the ground aforesaid unless invited to do so by the court." An. St. 1901-1902, p. 5. The next point has been the subject of judi- cial rulings in America to the same effect: "Damages: Mentioning in Court Amount claimed: There is a general understanding that it is irregular for plaintiff's counsel to mention during the trial the amount claimed by way of damages." An. St. 1898-1899, p. 11. A series of rulings hold that a barrister occupy- ing the office of town clerk, or clerk of any simi- lar public body, "ought not" to practice at the DISCIPLINE OF THE BAR 71 Bar and that it is "undesiraJble" for such an official to be called to the B^r. ,(An. St. 1896- 1897, J). 9, 1898-1899, p. 10, 1899-1900, p. 5.) Again it has been held that there is a generally- understood "Rule of the Profession" that«a bar- rister should not practice at Quarter or Petty, Sessions in the county of which he is a magis- trate, but he may practice at the Assizes for his county. (An. St. 1901-1902, p, 6.) The following illustrates the aversion to any- thing approaching advertising: "Photographs in Legal Newspapers: It is un- desirable for members of the Bar to furnish signed photographs of themselves for publica- tion in legal newspapers." An. St. 1900-1901, p. 8. Likewise the following: "Names of Counsel giving Opinions: Publica- tion of: The practice of certain newspapers pub- lishing the names of counsel in connection with opinions printed in their columns has been al- tered to meet the wishes of the Council." An. St. 1896-1897, p. 9. This is a little obscure and fur- nishes no information as to what alteration was eflfected. The daily papers invariably print the names of all counsel and sohcitors engaged in any reported litigation and the object of this ruling is Ta DISCIPLINE OF THE BAR probably to prevent indirect advertising by writ- ing opinions upon current topics. In this connection it may be remarked that the law reports of the leading papers are far superior to similar reports in most American journals. The chief difference is that, instead of disjointed fragments throwing the sensational into disproportionate re- lief and thus conveying little idea of the whole, the reports are really accurate and symmetrical, the drama, however, losing none of its interest. The perusal of these reports, instead of leaving a desire to know what reaUy occurred, gives a feeling of being fully informed. Brevity is served by admirable condensation of the evidence, ar- guments and rulings, and by the use of the third person in narration. By occasional recourse, too, to the first personal pronoun, and a verbatim re- port of graphic passages, the important and in- teresting phases of the case are emphasized. These reports indicate that the authors are men trained both in the law and in writing. So well done are those of the London Times that they are generally used in court for the citation of recent decisions, and, when collected and issued periodically, are universally employed for refer- ence. DISCIPLINE OF THE BAR 73 The English Courts scrupulously guard against the trial of cases in the newspapers rather than in court. In the recent trial of Dr. Crippen for murder, the proprietor of a provincial news- paper whichi in printing the news of the arrest, had speculated upon the prohabiHty of Crippen's guilt, was summoned before the court after the trial had been concluded and was fined £100 on the ground that the article was calculated to in- terfere with the cause of justice. A prominent London daily newspaper was likewise fined £200 for relating that Crippen had confessed his guilt, while a London evening paper was fined a like sum because, during the course of the trial, it published a statement not contained in the evi- dence. Many of the resolutions of the General Coun- cil of the Biar deal with the rights and privileges of the profession. One is thus reminded that the Inns of Court, which came into existence with the ancient London Trades Guilds, were founded originally for a like purpose — ^the protection of a particular occupation. During the established vacations many junior barristers take only a few days' holiday and particularly on the Chancery side, quite a number of them and also a few K.C.'s are at work in their chambers or attend 74 DISCIPLINE OF THE BAR the weekly sittings of the Vacation Court dur- ing the greater part of the Long Vacation. It appears, however, that some young devil once attempted to obtain a ruling that another devil should not devil in vacation, but the Council declined to sustain his contention as follows: "Devilling in Vacation: There is no 'Rule of the Profession' against it." An. St. 1900-1909, p. 8. A few years ago, there was a newspaper agitation against the Long Vacation which had always extended from August 12th to the first Monday of November. The result of the dis- cussion was to shorten it, by making it begin — as it now does — on August 1st and end on the 12th of October. There are also liberal vaca- tions at Christmas, Easter and Whitsuntide. One resolution of the Coimcil Ulustrates the fact, already referred to, that barristers are not nearly so intimately identified vdth litigation conducted by them as are American lawyers and that their cases are more or less like abstract propositions placed in their hands to be advo- cated. The resolution is as follows : "Briefs, Obligation to Accept: The general rule is that a barrister is bound to accept any brief, in the courts in which he professes to practice. DISCIPLINE OF THE BAR 75 at a proper professional fee. Special circum- stances may justify his refusal to accept a parti- cular brief. Any complaint as to the propriety of such refusal, if brought to the attention of the Council and by them considered reasonable, would be transmitted by them to the Benchers of the Inn of which the barrister is a member." An. St. 1903-1904, p. 15. Conversely; a barrister can not offer induce- ments for briefs, as was held in the following: "Commissions or Presents from Barristers: Any barrister who gave any commission or present to any one introducing business to him would be guilty of most unprofessional conduct which would, if detected, imperil his position as a bar- rister." An. St. 1899-1900, p. 6. Again: "Fees to Barrister's Clerk: The clerk of Mr. A. informed the clerk of Mr. B. that the latter (Mr. B.) had received a brief on circuit because he had recommended the solicitor to Mr. B. (as was the fact) and suggested that Mr. B. should give him the clerk's fees which he would have received on it, had Mr. A. been on circuit and so able to ac- cept the brief. Mr. B., considering that such a practice might lead to serious abuses, if it were countenanced, requested a pronouncement of the 76 DISCIPLINE OF THE BAH Council on the matter. The Council expressed the opinion that the practice referred to is ab- solutely improper." An. St. 1904-1905 VII. p. 11. A number of rulings serve to define the limita- tions or partial exceptions to the rule that a bar- rister's clients are exclusively solicitors and that he must never be in direct contact with litigants themselves. For example: "Non-contentious Business: There is no rule against a barrister advising in non-contentious business without the intervention of a solicitor, but it is an undesirable practice. If fees should be taken for such opinion, such fees must be marked and paid in the usual way, and on the ordinary scale, not by way of annual payment or salary." An. St. 1896-1897, p. 11. Also: "Counsel advising on Case submitted by Colonial Advocates: A counsel does not commit any breach of etiquette in advising, without the in- tervention of an English solicitor, on a case submitted to him by a colonial advocate in a col- ony where the professions of barrister and so- licitor are combined." An. St. 1902-1903, p. 11. On the other hand, it was held that a barrister DISCIPLINE OF THE BAR 77 "should not" appear as spokesman for a deputa- tion of contractors waiting upon a public body, nor on behalf of an application for a license, with- out the intervention of a solicitor. The preservation of the barrister's dignity in his relations with the solicitor seems to have in- duced this : "Conferences at a Solicitor's Office: The Council have expressed an opinion that as a general rule it is contrary to etiquette and improper for a barrister to attend conferences at a solicitor's of- fice, but that under exceptional circumstances the rule may be departed from." An. St. 1904-1905, p. 10. The complicated subject of one barrister as- sisting another, usually in the capacity of a devil, while avoiding quasi-partnerships, has been the occasion for frequent resolutions by the General Council of the Bar, of which the following are a few: "It is not permissible, or in accordance with professional etiquette, for a counsel to hand over his brief to another covmsel to represent him in court as if the latter coimsel had himself been briefed; unless the chent consents to this course being taken In the Chancery Division it is not the practice for one junior to hold a brief 78 DISCIPLINE OF THE BAR (other than a mere formal one) for another and the same is true of King's Counsel." "In the King's Bench Division, in the case of juniors, it is not uncommon for one counsel to devil a brief for another: but in the case of King's Counsel it is very seldom done." "There is no rule or settled practice govern- ing the remuneration for devilling, or assistance given by one coimsel to another, in the cases above referred to." "With regard to juniors, it is a common prac- tice in the Chancery Division for the one counsel to remunerate the other by paying him an agreed proportion, generally one half, of the fees the former receives in respect of opinions or draft- ing. In the King's Bench Division, remunera- tion for devilhng of briefs or assistance in draft- ing opinions is not common. In both Divisions occasionally such work is remunerated either by casual or periodical payments." "An arrangement of this kind is also not vm- frequently made in the case of a King's Counsel who desires regular assistance from a junior in the perusal and noting of his briefs." "So far as the Council are aware, there is no practice to pay any remuneration in the rare DISCIPLINE OF THE BAR 79 cases where one King's Counsel holds a brief for another." "In conclusion the Council desires to say that no practice in the least resembling a partnership is permissible or (so far as they know) prac- ticed between Counsel: and they are of opinion that the etiquette of the profession forbids the handing over of work by one counsel to another, " outside of the conditions above stated." An. St. 1902-1903. p. 4. A large number of resolutions deal with the subject of fees and refreshers. Thus, it is held that while the Council is not a debt-collecting body, yet, where it is "in the interest of the whole profession" that solicitors who default in pay- ment should be "exposed and punished" assis- tance may be given by the Council to a barrister in taking proceedings before the Statutory Com- mittee of the Law Society — the solicitor's gov- erning body. '(An. St. 1901-1902, p. 13.) Again it was resolved that a junior Chancery man was not precluded by the etiquette of the Bar from accepting a refresher less in amount than two- thirds or three-fifths of the refresher accepted by the leader. (An. St. 1903-1904, p. 14.) Somewhat in the same line is the following: "A King's Coimsel should refuse all drafting 80 DISCIPLINE OF THE BAR work and written opinions on evidence as being appropriate to juniors only; but a King's Coun- sel is at liberty to settle any such drafting and ad- vice on evidence in consultation with a junior. A King's Counsel in accordance with a long- standing 'Rule of the Profession' cannot hold a brief for the plaintiff on the hearing of a civil cause in the High Court, Court of Appeals or the House of Lords, without a junior. It is the usual practice for a King's Counsel to insist on having a junior when appearing for the defen- dant in hke cases and when appearing for the prosecution or the defence on trials of criminal indictments". An. St. 1901-1902, p. 4. The following is more general than most of the resolutions as it starties a fundamental rule rather than its refinements : "Junior and Leader. Proportion of Fees. Re- freshers: — ^By long-established and well-settled custom a junior is entitled to a fee of from three- fifths to two-thirds of the leader's fee, and, al- though there is no rigid rule of professional eti- quette which prevents him from accepting a brief marked with a fee bearing a less proportion to his leader's fee, it is in accordance with the prac- tice of the profession that he should refuse to do so in the absence of special circumstances affect- DISCIPLINE OF THE BAR 81 ing the particular case and that he should be supported by his leader in such action. An. St. 1900-1901, p. 8. (The Council of Incorporated Law Society dissent from the view expressed in this resolution). The same rule applies to re- fresher". An. St. 1896-1897, p. 11. The necessity for a barrister upon accepting a brief in a circuit of which he is not a member, to see that the sohcitor retain a junior belonging to the circuit, which will later be explained, is recog- nized in the following resolution: "Special Fees at Assizes: — The universal prac- tice of the circuits since Jime 1876 (when the matter was considered by a Joint Committee of all the Circuits) is that a counsel going special on to one circuit from another circuit should, if a King's Counsel, have a special fee of 50 guineas in addition to the brief fee, and that one member of the circuit should be employed on the side on which the counsel comes special." An. St. 1899- 1900, p. 8. A resolution provides for the settlement of disputes between barristers and solicitors by their entering into an agreement to leave the questions to arbitration, the board to be composed of the chairman of the General Council of the Bar (or some member of that Council to be named by 82 DISCIPLINE OF THE BAR him) and the President of the Incorporated Uaw Society (or some member thereof to be selected by him) . An, St. 1897-1898, p. 9. The following is a curious resolution: "Barrister Recommending another Barrister as his Leader or Junior: A barrister ought not to recommend another as his leader or junior. And such questions as, who is the best man for a wit- ness action in such a court? Which leader is persona grata in such a court? Do you get on all right with X — as your leader? are improper questions and should not be answered." An. St. 1902-1903, p. 3. Illustrative of this ruling was a recent investi- gation of the charge that a barrister, about to leave town, had recommended another barrister to a solicitor — the objections being that such an act would not only violate the etiquette which forbids any barrister to laud or decry another barrister to a solicitor, but also that it might savor of co-operation in the nature of a partner- ship which would never be tolerated. The de- fence was successful, however, in showing that they were old Eton schoolmates and the solicitor knew them equally well. The above extracts show how broad in scope and minute in detail are these authoritative rul- DISCIPLINE OF THE BAR 83 ings on every phase of professional life and daily; practice in England. Many of them would be totally inapplicable to American conditions, and, beyond affording a glimpse of peculiar customs and an elaborate etiquette, possess little value here. They do, however, show that the experi- ence of the best Bar in the world justifies the ex- istence of such a body ready to declare the standards of professional propriety. It should not be inferred that in England there is no lapse from such standards. It requires some diligence to discover individual short- comings, but inquiry wiU develop that even "ambulance chasing" is not imknown — although greatly reprehended and despised. If the American observer, on watching the trial of an action, perhaps against an omnibus company for personal injuries, will cautiously comment upon the array of solicitors and counsel representing a plaintiff apparently not possessed of a six- pence, and express wonder that he is able to af- ford it, the information will be forthcoming that some solicitor's clerk was probably in a neighbor- ing "poobhc" and, hearing of an accident, had fol- lowed the injured man, perhaps to the hospital, and got the case for his master, whose remimera- tion would depend upon the result. Pressing the 84i DISCIPLINE OF THE BAR inquiry further as to whether the solicitor ad- yances the barrister's fees, it will reluctantly be admitted that some barristers have relations with soHcitors that should not be looked into too closely — ^in other words that their fees are con- tingent. But it will also be added that they are taking great risks of exposure. Any one who has sat on a Bar Committee, or on a Committee of Censors, in America must have been struck by the frequent instances where practitioners have fallen into error from sheer ignorance, due to inexperience or to the fact that they had not been born and bred to the best tra- ditions. This is especially true in these days when law schools are grinding out members of the Bar who have had no real professional pre- ceptors. As disbarment or suspension is too severe a penalty, such lapses pass unreproved and the standards sink, a result much more de- plorable than the failure of individual discipline. Many a young lawyer would be induced to mend his ways if privately and fraternally informed of professional disapproval and some would be glad to seek the judgment of such a body if it could be had without exposing names or parti- culars. In this way, too, a body of rulings on the pro- DISCIPLINE OF THE BAR 8S f essional proprieties applicable to American con- ditions would be steadily forced upon the at- tention of the whole profession, instead of being locked in the breasts of the more reputable mem- bers to govern merely their own conduct. CHAPTER VIII THE CIVIL COURTS THE GENERAL SYSTEM— DIFFERENT COURTS— feULES OF PRACTICE MADE BY LORD CHAN- CELLOR—JURIES, COMMON AND SPECIAL —JUDGES AND HOW APPOINTED— JUDGES' PAY— COSTS— COURT NOTES— SOME DIF- FERENCE IN ENGLISH AND AMERICAN METHODS. The general system of the English courts may; be indicated without detailing the exact limita- tions 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 Par- liament, or rather their functions were merged into the present far simpler system. In this rad- ical 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 88 THE CIVIL COURTS 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, de- voted 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 num- ber 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 as- sistance of a jury in the King's Bench Division, THE CIVIL COURTS 89 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 expe- rience 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 direc- tion — probably all that woidd be wise — particu- larly in the admission of equitable defenses in common law actions and in the facility with which, on the other hand, an equity court is en- abled to obtain the verdict of a jury upon dis- puted facts without the old and cimibersome 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 ap- proval of a majority of the judges. It is pro- vided, however, that such changes must be sub- mitted 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 improve- ments in practice which have so greatly facili- tated and accelerated English litigation, have been effected by the courts and the Bar of their 90 THE CIVIL COURTS 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 legisla- tures 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 atten- tion to the present equity practice of the United States Courts. In them, testimony upon dis- puted facts is still elicited by an examiner — a method long since abandoned in progressive communities. Such an official, temporarily ap- pointed by the court, possessing but limited power and often with little experience, merely presides, while a stenographer notes the oral evi- dence subsequently to be reproduced in type- writing or print. Thereafter, in some instances, a Master is appointed to consider the testimony and report his conclusions, while later the court THE CIVIL COURTS 91 itself does the same thing over again. All law- yers 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 pro- duced 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 tri- bimal which is to decide the facts upon their testi- mony — exactly as they would be brought before a jury. The power to bring about such a salutary change inheres in the Supreme Coiu't of the United States which, by the simple promulgation of an order to that effect, without any further legislation, can forever abolish the obsolete sys- tem 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 dura- tion and lightened in cost, to the infinite relief of court, coimsel and litigants. In the King's Bench Division — ^the only court holding j ury trials except the County Courts — ^the jury of twelve men may be either a "common" 92 THE CIVIL COURTS 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 equiva- lent 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 lit- tle more than that the juror should have a known place of residence. His compensation for ser- vices 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 be- stowed. The employment of special juries is increasing in frequency at the expense of ordi- nary 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 par- ties so agree. THE CIVIL COURTS 93 The Chancery Division, as stated, is the tri- bunal for eqmty 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 juris- diction 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 construc- tion of wills and the distribution of property. Divorces occupy much time of this Court and furnish sensational material for English news- papers. They form an exception to the general rule in the Probate, Divorce and Admiralty division in the presence of a jury and in the sub- mission of the facts to them. The Admiralty Court is of course confined to 94. THE CIVIL COURTS maritime matters and the room is adorned Hy 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 coun- ties, notwithstanding they are called Coimty Courts. One judge suflSces 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 hmited, 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 ex- plained later, barristers rarely appear but solic- itors are allowed to act as advocates. The Coimty Courts were established in 1846 and, as men- tioned, 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 THE CIVIL COURTS 95 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 col- lection of trifling debts — the Registrar's Court, which is hkewise not confined to London, per- forms 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 trans- act 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 96 THE CIVIL COURTS 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 pohtical pa- tronage. There appears to be nothing in the law to prevent this, and formerly judges were largely appointed for political considerations or by rea- son of personal or social influences. At present, however, the least observation will convince any one that the great majority of judi- cial appointments in England are made solely out of consideration for character and profes- sional 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 barris- ters 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 qual- ified and his selection is attributed to influence. The just admiration which Americans entertain THE CIVIL COURTS 97 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 iU equipped. And one may even hear the state- ment 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 fuUy 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 tmderstood in England — ^is not meant the official fees payable to the court offi- cers, but a sum which the unsuccessful party is condemned to pay to the successful party, the aim 98 THE CIVIL COURTS being to indemnify the side whom the event proves to have been in the right. If a litigant has in- curred 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 pro- ceeds. Thus, if one party summon another be- fore a- Master prior to trial, to obtain an order for the production of some document, the Master imposes costs — say £2. 10s. Od. — 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 pro- ceedings. 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 amoimt paid by the litigants. For, if a litigant has in- dulged in the luxury of an unusual array of coun- sel, 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 THE CIVIL COURTS 99 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 consulta- tion, of eighty-eight guineas. The defendant, however, has heen content with a junior at "3 & 1." If the plaintiff succeeds, the Master will not allow him the eighty-eight guineas, but will de- cide that the more modest armament of the de- fendant would have been sufficient. Costs are, upon the whole, very high. In an ordinary action to recover a moderate sum — say £200 — ^the costs wiU 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 imreasonable 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 obtainir^ his due. In practice, however, the prospect of large costs may stimulate unjust suits by impecunious plaintiffs — ^unable them- 100 THE CIVIL COURTS selves 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 imable to give security for costs, he may, in actions of tort, at least, be re- mitted 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. Ap- parently, 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 wit- ness 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 A JuEY Trial THE CIVIL COURTS Lj lOX/,: I \ '. Vi^ 1./ known that the letter was to be produced and had <;^i?/ had the chance to regulate his evidence acc2(ri*E-:^' ingly? And what American lawyer would not feel that half the fun of life were gone? During the examination of witnesses, notwith- standing the rapidity of articulation, an Amer- ican ear is struck by a certain lack of snap and by the great dehberation and long intervals between ^ questions, which afford — especially for a dishon- est witness imder 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 hesi- tancy 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 vdtnesses 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 con- ducted the preliminaries, nor become acquainted with and advised the parties they are to repre- sent; in other words, they have not "grown up with the case," and the facts are more like ab- stract propositions lately placed in their hands to 109 THE CIVIL COURTS be presented. It is not unusual during the trial, when some unexpected situation arises, to see evi- dence of a lack of famiUarity with the circum- stances 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 wiU 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 wit- nesses, and his influence is quite openly exerted to guide the jury and cause them to avoid absurd- ities 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 imfettered 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 im- proper questions and that they have too much respect for the court to hazard a rebuke. This is a very pretty, but hardly a satisfactory, explana- tion. Observation of many trials gives the im- THE CIVIL COURTS 103 pression, 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 wUl 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 con- cerned more tolerant of counsel leading in a story known to all beforehand. The occasional ele- ment 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 104 THE CIVIL COURTS 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 ex- pected, the best Admiralty Courts and Bar in the world. The chart used by counsel in examining wit- nesses is pinned to a sloping table, among the barrister's benches and facing the Court. In collision cases, small models of steamers and sail- ing 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 injunc- tion and accident cases, one frequently sees elaborate models reproducing the loctis in quo. In actions concerning floods or other occurrences affecting considerable areas, models many square THE CIVIL COURTS 105 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-Uke 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 eminent- ly 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 insig- nificant, 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 occa- sion, to hear an appeal involving nominally £22.- 106 THE CIVIL COURTS lis. 6d., payment on account having reduced the actual amount in controversy to £2. lis. 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, hovv^ever, thought his rights had been invaded, vrhich justi- fied the vraste, while the costs furnished a small stake upon the result. CHAPTER IX COURTS OF APPEAE THE COURT OF APPEAL— HOUSE OF LORDS- DIVISIONAL COURT— JUDICIAL COMMIT- TEE OF THE PRIVY COUNCIL. The Court of Appeal — ^the last resort except for occasional cases which reach the House of Lords and Colonial appeals which go to the Privy; Council — ^is, perhaps, the most perfectly working tribunal for the adjustment of conflicting rights which the wit of man in any age has devised. It is divided into two parts of three judges each, sitting simultaneously. The Lord Chancellor, the Chief Justice, or the Master of the Rolls presides over the respective parts and two associate Lord Justices of Appeal compose the court. Printed brief s are not used, though the advan- tage of this omission is not apparent. There is no bill of exceptions and the appeal is in name, as well as in fact, a motion for a judgment the re- verse of that rendered below or, in the alternative, for a new trial, and everything which transpired is open to review. Three barristers — ^the leader. 108 COURTS OF APPEAL junior and devil — ^together with the solicitors, are usually found on either side. The leader for the appellant opens, stating the case with great particularity, and reads from the evidence, documents and charge to the jury at great length. Much time is thus spent because, for no discoverable reason, but probably due to ancient custom and lack of enterprise, the material is all in manuscript, often illegible and with occasional errors in the copies of the Court and opposing counsel. The result is tedious and prosy and an American auditor gets an unfavor- able impression at this stage of the argument ; an impression, however, which is later dispelled. During the irksome opening, the court has been getting a grasp of the case, as becomes ap- parent when the argumentative stage is reached, for then there ensues a good tempered, courteous, informal debate between the several gentlemen, comprising the court and counsel. There is no "orating" and no declamation. The positions of the opponents are stated rapidly and smoothly. Each, as enunciated, is taken up by one or more members of the coiu*t and distinct intimation given whether the court agrees with the speaker. In case it does, he may pass on. On the other hand, deferential dissent may warn him to COURTS OF APPEAL 109 strengthen his position, or a frank expression of doubt may be accompanied by a friendly invita- tion to the other side to contribute suggestions. At the conclusion, judgment is rendered oral- ly, in nine cases out of ten, by the presiding Lord Justice, as the last speaker resumes his seat. Then follow the opinions of the associate Lord Justices of Appeal, concurring or dissenting, all expressed with the utmost frankness and spon- taneity. These are taken down stenographical- ly, and, after revision, sometimes by the judge himself, find their way into the books to become authorities. Occasionally a "considered judg- ment" is reserved to be delivered within two or three days. The contrast presented by these methods [(for the system is not essentially different) to the average American appeal is very great. In America, only the ablest men know by a kind of intuition upon what points their cases will turn, and one often hears a more or less stereotyped speech delivered to a court sitting hke silent images, without the shghtest intimation to the speaker whether he is wasting effort upon con- ceded pcants, or slighting those upon which he may discover by the written opinion — delivered months afterwards — ^he has won or lost. 110 COURTS OF APPEAL Sometimes these friendly debates in an Eng- lish court of appeal are witty, and they are often rather amusing. In a case recently argued, the defendant, a real estate owner, appealed from a judgment for ,£300. against him for wrongfully evicting his tenant, the plaintiff, and putting his sick wife and furniture out on the sidewalk in the rain. There was not much to be said in his favor upon the merits of his act, but his counsel argued that plaintiff's advocate had used inflam- matory language in his speech to the jury. The judgment was immediately affirmed, the Lord Chancellor dehvering an opinion to the ef- fect that the control of the language used was a matter of discretion for the court below and could not be examined by the appellate court. Both of the associate Lord Justices concurred, but one proceeded to give quite different reasons. With the preliminary words: "Speaking only for, my- self, but not for his Lordship," and with a slight inclination of his head towards the Lord Chan- cellor, he said he was for affirming for an entire- ly different reason — not because he could not ex- amine the language used below, but rather that he had done so. He then proceeded to rehearse the brutal conduct of the defendant, and wound up by declaring, "If it had been my sick wife and COURTS OF APPEAL 111 my furniture which had been set out in the rain under the circumstances described, I do not think the English vocabulary contains the language I should wish my counsel to use in addressing the jury," This was received, as is not uncommon in England, but unheard of in America, with fre- quent laughter and even subdued applause, and the "London Times" in its regular legal column the next day, reported the opinions and indicated the "laughter" and "loud laughter" in brackets. iThe opinions in the books, after being toned down by the reporter, often bear but faint re- semblance to the actual utterances. In the House of Lords appeals are equally in- formal and colloquial, an impression that is heightened by the absence of wigs and gowns, so far as the bench is concerned, and by the very casual manner in which the half dozen gentle- men composing the court are seated. The house itself is a large, oblong chamber with steep tiers of seats, upholstered in red leather, which rise high up the side walls and upon which the peers sit when legislating, but which are, of course, empty when the court only sit. At the far end is an unoccupied throne, while, at the near end, raised above the floor, is a kind of box from which counsel address the court. It is much like the 112 COURTS OF APPEAL rear platform of one of our street cars. Counsel, of course, are in wig and gown, and if K. C.'s, in full bottomed wigs, but one may occasionally see a litigant actually arguing his own case in pro- pria persona. On either side of the counsel's box is a very narrow standing place for reporters and the public. The court, consisting of the Lord Chancellor in gown and full bottomed wig, and perhaps of five judges, in ordinary clothing, sit at the floor level, and therefore considerably lower than coun- sel in the elevated box. They are not placed in a row nor behind any bench or table. On the con- trary, though the presiding Lord Chancellor is vis-a-vis to the counsel box, the others sit where they please. Sometimes this is on the front row of benches and sometimes on one of the higher tiers, with a foot propped up, perhaps, on the bench in front, and their thumbs hitched to the armholes of their waist-coats, and, necessarily, with their sides to the speaker. The members of the court often have portable tables in front of them, piled with books and papers. During the course of an argument they constantly debate with each other across the House, or walk over to one of their colleagues with some document or a book and talk of the case audibly and perfectly COURTS OF APPEAL 113 freely. One may hear one of them, in a salt and pepper suit, call across the floor to another Lord of Appeal who has interrupted a barrister's argu- ment, "I say, can't you give the man a chance to say what he's got to say?" These little circumstances show that judges and counsel in the appellate courts of England behave as natural men without the shghtest re- straint, formality or self-consciousness. Argu- ments are deHvered with surprising rapidity of utterance, in a conversational tone, and with a crispness of articulation altogether delightful to the ear. The drawhng style of speech some- times heard on the stage as typical of a certain kind of Englishman, seems to have disappeared in real life; it certainly is not to be found in the Courts. An American stenographer reporting an Enghsh argimient, would h^ve to increase his accustomed speed at least one-third. The methods of the Divisional Court are the same as those of the Court of Appeal, but the low limit of its jurisdiction renders it of little in- terest. The Judicial Committee of the Privy Council- or, as it is colloquially described by the lawyers, "The Privy Council" — ^is doubtless the most in- teresting court in England because of the vari- 114 COXIRTS OF APPEAL ety of the questions there considered and owing to the fact that, geographically, the litigations originate in nearly every quarter of the civilized world, for, as noted above, this is the court of last resort for all of the British Colonies. It should not be confused with the Privy Council itself — a poUtical adviser of the Crown — for the Judicial Committee's fimctions are purely judi- cial and its personnel consists of the Lord Chan- cellor and the other Law Lords, a few paid mem- bers, and some Ex-Colonial Judges. Historic- ally, indeed, it was but a sub-committee of the Privy Council, which circumstance gives the Court its name and explains why its judgments always conclude with the phrase that the Com- mittee "hrmibly advises His Majesty" to affirm or reverse the judgment rendered in the Colony, instead of pronouncing the conclusion in direct Janguage, as do other courts. This extraordinary body sits in a large second story chamber, not in the least resembling a court room, of a building in Downing Street, and rarely is there any audience other than the professional men whose business takes them there. Of course, most of the Colonies are equipped with their own court of appeals — usually called the Supreme Court — ^but, nevertheless, an ap- COURTS OF APPEAL 115 peal lies from their decisions to the Prity Coun- cil in certain circumstances, although to define ex- actly the scope of this jurisdiction would he too technical for present purposes. Here are to be found, arguing their cases, lawyers from Colonies in every comer of the globe in some of which the division of the pro- fession into barristers and solicitors hardly ex- ists, or at least, the line separating them is quite hazy — but they must all appear in wig and gown. Bearing in mind the fact that the Colonies of Great Britain are scattered over the whole world and that it has always been the policy, so far as possible, to accept the existing law of each and graft it upon the English law system, the diversity and broadness of this court's de- liberations may be imagined. The succession to an Indian Principality, to be determined under the ancient law of that far Eastern land, will be followed by a question of the legality of the adoption of a child in South Africa, to be considered under the rules of Dutch law. The next case will, perhaps, involve the effect upon an area much greater than that of all England, of the diversion of a river in the Cana- dian North- West. And the court may next turn its attention to the problem whether the widow of 116 COURTS OF APPEAL a Scotchman who left two wills — one intended to operate at home and the other to take effect in Australia — can take her thirds against the will in Scotland but accept the benefits of the other will as to property in Australia. The Court of Appeal and the House of Lords deal with domestic matters of the little Island, which, however important the principles involved and however critical the issues to the litigants themselves, seem almost petty in comparison with the broad field of the Privy Council, Little as the average man knows of it, and rarely as it figures in news of the day, no American lawyer can fail to perceive in this great com"t something of the tremendous scope of his own Supreme Court of the United States, to which tribimal only is the Privy Council secondary. CHAPTER X MASTERS: THE TIME SAVERS CURRENT HEARINGS— MINOR ISSUES THRESHED OUT. The numerous motions and interlocutory ap- plications, supported by affidavits and urged by argument, which consume so much of the time of an American court, are disposed of in Eng- land by Masters — competent barristers ap- pointed by the Courts, who are paid salaries of about £3,000 a year. At a certain hour the Master takes his seat at a desk with a printed list of "applications without counsel" or "apphcations with coimsel." He nods to the imif ormed officer at the door who admits the solicitors engaged in the cause which happens to be first on the list of cases "without counsel." The solicitors stand before the Master with a shelf upon which to rest books or papers ; one side then states its demand and the other its objection in the briefest and most direct manner. The Master's immediate oral decision, accom^ panied by imposition of the costs and a few 118 MASTERS: THE TIME SAVERS scratches of his pen on the back of the summons, indicates to the officer the opening of the door to admit the next case. By actual count twenty- seven cases may thus be disposed of in one hour and thirty-two minutes — an average of a Uttle more than three minutes each. Of course there is a right of appeal, which, however, is rarely exercised. As the door opens two solicitors hurry in. There are no salutations nor introductory re- marks and the business proceeds abruptly : Plaintiff's solicitor: "Master, we claim £50 judgment for rent." Master to defendant's solicitor: "Do you admit the amoimt?" Defendant's solicitor.: "Yes, but we claim a set- off." Master: '(endorsing a few words on the sum- mons) "Judgment for rent £50 with stay of execution until counter claim is tried." Defendant's solicitor: "If you please. Master." This expression is the universal vernacular with which the defeated party accepts the judg- ment of a master or judge in all coiu-ts. The expression is not an interrogation but is equiv- alent to "as you please." Out they go and the next enter; here the de- MASTERS: THE TIME SAVERS 119 f endant asks for delay, and gets seven days which is endorsed on the summons and requires a min- ute. Then comes an application under "order XIV" for judgment for £1,000. Defendant requires four days' delay. Master: "What is the defence?" Defendant's solicitor: "Master, I don't know — a recent agreement has been made between the parties which I have not yet seen." Master: "I'll give you four days, but you must pay the costs of the adjournment; thirteen shillings and fourpence." Defendanfs solicitor: "If you please. Master." The next summons for judgment. As this is denied, the parties agree to try it before the Mas- ter on the foUowing Thursday without a jury. Then follows a summons by defendant upon plaintiff for particulars of goods sold and de- livered. Both parties are dealers in Japanese bulbs, and the sale was made subject to arrival in England safe and sound. The defendant de- mands particulars of the plaintiff as to who were his customers. The plaintiff objects to disclos- ing his business and the written summons, con- taining the request for partictdars, is gone over rapidly by the Master. Such parts of the request 130 MASTERS: THE TIME SAVERS as, in his opinion, ought not to have been de- manded, because they pry into the plaintiff's private affairs, are eliminated by a stroke of the Master's pen and an order is made at the bottom in an abbreviated form, imposing the costs of the sununons upon the plaintiff. This means that the plaintiff is obliged to furnish the defendant, in so many days, all the particulars which the Master did not strike out, and must pay the de- fendant the costs of the application. A moment is consumed in giving judgment in an uncontested case for £1,800 with costs of £8. 16s. Od. Then comes a breach of promise case. The defendant asks for an order upon the plaintiff for a statement of claim and discovery of cor- respondence, which is granted. As most of the witnesses are in London, the defendant wants to try ihe case here, but the plaintiff wis'hes to try it in Manchester where the parties live. The Mas- ter thinks it is easier to bring two people up from Manchester than to take a dozen down from London. Next is a summons for directions : Master: "Statement of claim in ten days." Plaintiff's solicitor: "Yes, Master." Master: "Defence in ten days." MASTERS: THE TIME SAVERS 121 Defendant's solicitor: "Yes, Master." Master: "No counter claim?" Defendant's solicitor: "No, Master." Master: "Documents?" Both solicitors: "Large number." Master: "All parties in London?" Both solicitors: "Yes." Master: "Any question of law?" Both solicitors: "No." Master: "Next case." And he at once endorses a few words on the bot- tom of the summons. Then a defendant appears in person : Master: "Do you owe the £26?" Defendant: "Yes, sir." Plaintiff's solicitor: "We only want judgment for £21 because this morning he paid '£5 on account, and he agrees to pay £3 a week, so that we wiU not issue execution if he does this." Master: "I'll give you judgment generally for £21, but you write defendant a letter stat- ing that you will not issue execution as you have just stated." Another defendant appears in person : Defendant: "I've got no defence, all I want is time." 122 MASTERS: THE TIME SAVERS Plaintiff's solicitor: "We'll do nothing until Monday as we think he means to pay." Master: "All right, it is understood you will do nothing until Monday." The details of practice before these Masters would be beyond the scope of the present writing, suffice it to say that rules have been promulgated from time to time, and are constantly being im- proved upon, having for their object the simpli- fication of procedure, the rapid despatch of busi- ness and the settling of all minor questions which may arise in a case before actual trial. Thus, "Order XIV," just referred to, enables a Master to enter judgment when the defence averred, even if true, would not be effectual, or when the defence is obviously frivolous, although, of course, the rights of the defendant are pre- served by the privilege of appeal, the judgment, meantime, binding his property. Again, the "summons for directions" is to enable the Master to give general directions as to how the parties shall proceed, the intervals of time to be allowed for exchange of copies of documents, taking for- eign testimony and what not. One of the cleverest contrivances in the prac- tice before Masters is the "tender of damages in tort without admitting liability." A defend- MASTERS: THE TIME SAVERS 123 ant may tender, say, £500. If plaintiflP does not accept it, the trial ensues — ^the jury, of course, being in ignorance of the tender. If the judg- ment be for defendant, or for more than the tender, that is the end of the matter. But if the judgment be for less than the tender, a large de- duction for costs is made from the judgment, and inures to the defendant's benefit. This has enormously reduced the volume of accident cases and has also curbed the often wildly extravagant demands and unjust results in such actions gen- erally recognized as evils difficult to deal with. In short, the system of Masters in England works admirably. It is entirely adaptable to American courts, the details and modifications which might prove necessary being fitted to local conditions, but in any such adaptation, the gen- eral purpose should be kept in view, namely, that when a case appears upon a trial hst it shall have already been pruned of all non-essential pre- liminary details and is forthwith to be actually tried upon its merits ; the court's time being too precious to be expended upon the subsidiary side issues. CHAPTER XI THE POLICE COURTS CURRENT HEARINGS. Upon arrest, a preliminary hearing is first held at a police station where, as in most Eng- hsh proceedings, the testimony, with anything the prisoner may say (after he has heen warned of the consequence of self-incrimination) is care- fully reduced to longhand writing and plays an important part at the subsequent stages of the prosecution. The next step is the hearing before a Police Magistrate at Bow or Marlborough Streets, or at any one of the like courts in London which, although of minor importance, are dignified tri- bimals. The court room is entered by two small doors, one for the witnesses and audience, the other for ofiicials and solicitors, and there is an- other passage leading from the cells through which the prisoners are brought to a dock. This dock, as in all criminal courts, is at the far end of the room from the magistrate. The prisoner 126 THE POLICE COURTS is thus isolated and can only communicate with his solicitor, if he has been able to retain one, by scrawling a note and passing it on to an officer. The magistrate, appointed by the Crown or the Lord Chancellor acting in its behalf, is al- most invariably a man of standing and repute, always a barrister, whose ready dispatch of busi- ness shows great experience with crime, and whose kindness to the merely unfortunate testi- fies to his charitableness of heart. He wears no wig nor gown and is called in court, "Your Wor- ship"; whereas judges of the High Court are called in court, "My Lord," and those of the County Courts, "Your Honor." All judges, however, are addressed in private life as "Mr." or, if they have one, by a title. A Judge of the High Court is always knighted on appointment and in private life is addressed as "Mr. Justice " unless he is a Peer. Solicitors act for the more important prisoners but barristers are rarely seen and appear in ordinary street dress if at all. The early morning run of business consists chiefly of the "drunks", divided nearly equally as to sex, and of persons arrested for begging and minor misbehavior. These cases are disposed of with great rapidity. A woman, looking very silly, and with her THE POLICE COURTS 127 millinery somewhat awry, is ushered into the dock charged with being "drunk and disorderly." Magistrate: "Do you admit it?" Woman: "Hi hadmit hi 'ad a little too much, but deny being disorderly. Your Worship." Police Constable: (sworn) "She was banging on the door of the Black Horse at 2 A.M. screamin' for drink. I cautioned her and then saw her repeat this at another closed 'pooblic'; so I took her in charge." Magistrate: (To an officer with a book of re- cords) "Is she known?" Officer: "No, Your Worship, she was never here before." Magistrate: "Five shillings or five days." As she is rapidly conducted through the pas- sage and disappears in the direction of the cells, one hears called from official to official the words : "Five or five." The next is an intelligent, elderly, but very shabby, man charged with begging. The police officer had testified that a lady gave the prisoner money and that he immediately entered the near- est "pooblic". The prisoner's explanation was that he had been given the shilling without his having asked for it, and that he had gone to the tavern to get bread and cheese, which he greatly needed, and a glass of beer. The magistrate 128 THE POLICE COURTS rather rebuked the policeman for referring to tbr visit to the public house as counting against'the man, adding that anybody had the perfect riglr^ to do as he had. Then, addressing the prisor er, he said, kindly, that he was by no mssr " that actual solicitation by words was essen^' ^' constitute begging and that his mere apj " was an appeal. It seemed as though tl " was about to, get off, when the inevitable qu^^ "Is he known?" brought the information that had been in Court upon the same charge c February 19th, on March 5th and again the month follomng. The magistrate's manne quickly changed, as he recognized an old offend- er, "Three months hard labor," he said, an "three hard" was repeated like an echo c" the corridor as the prisoner- slunk back cells. The next was a well-dressed young mm parently a clerk, charged with being drunk disorderly. Prisoner: "It's quoite roight what the consta? says." Magistrate: "Seven shillings and sixpen-- six days." A voice down the corridor: "Seven and six." A Subject foe the Police Court THE POLICE COURTS 129 After the early business, which is dispatched with great rapidity, come the more serious cases, which, if well-foimded, are to be held for trial. An American was charged with obtaining money and goods by false pretence. Soliciting adver- tisements from tradespeople for a book intended for Americans visiting London, which never was published ; he had obtained money on account and at the same time, procured millinery and gar- ments for a woman whom he introduced as his fiancee. He was represented by a barrister who would try his case if he were held for trial. The witnesses consisted of milhners and dressmakers who detailed the method of his operations. The magistrate referred frequently to the memoranda of their evidence, taken at the police station, and questioned them so as to ehcit their testimony, which he wrote down in longhand. The defend- ant's barrister cross-examined and the magistrate added the substance of the cross-examination to the deposition which was finally signed by the witness, to be used by the trial judge as his guide, if the grand jury should find a true bill. During the examination, one was struck by the alacrity and glibness of the replies, as in all London courts of whatever degree. An American ear is im- ipressed by the thought that possibly these people. 130 THE POLICE COURTS living in a densely packed community of five millions, all speaking one language, are particu- larly facile in the use of the mother tongue, un- like the English rustic who is apt to be taciturn and awkward of speech. One is also struck, as in aU courts, by a certain ring of sincerity, an attitude of respect for the administration of law and the quick and cheerful co-operation of all concerned. The Englishman truly appears to the best advantage in his court, where he leais the world. If the accused be held for trial by the magis- trate, the next step, as with us, is the presenta- tion of the charge to the grand jury. The grand jury either throw out the indictment or find a true bill, in which event a jury trial follows at the Central Criminal Court. CHAPTER XII THE CENTRAL CRIMINAL COURT;— THE OLD BAILEY CURRENT TRIALS. At the corner of Newgate and Old Bailey streets, near Fleet street and not far from Lud- gate Hill, stands a modern building, officially known as the Central Criminal Com-t, but pop- ularly called "the Old Bailey." It occupies the site of the ancient Newgate Gaol and Fleet Pris- on, where, for nearly seven centuries the crimi- nals of London expiated their crimes. There they were tried and, if convicted, hanged on the •premises, or — a scarcely better fate — ^thrown into Newgate Prison, which, from time immemorial, was so overcrowded, so ill-ventilated and so poor- ly supplied with water that it was the hot-bed of diseases designated as "prison fever." At a single session of court the fever had been known to carry off fifty human beings; not only prison- ers, but such august personages as judges, may- ors, aldermen and sheriffs. ISa THE CENTRAL CRIMINAL COURT The present fine structure is exclusively a court house to which prisoners are brought for trial and confined in sanitary cells beneath the court rooms only while awaiting the call of their cases. There are three courts : two presided over by judges called, respectively, the Common Ser- jeant and the Recorder, together with the Lord Chief Justice of England, or such other judge of the High Court as may be designated for the month, who comes from his civil work in the Strand Law Courts to try criminal cases at the Pld Bailey. Each month, also, two or three [AJdermen and SherifPs of the City of London are scheduled for the complimentary duty of at- tending their Lordships and entertaining them at luncheon. The court rooms are rather small and nearly square. Like every London court, they have oak panelled walls, and excellent illumination from above by skylights ; they are arranged with a high dais — on which are the chairs and desks for the presiding judge, the sheriffs, or for any guest — ^and they have the usual steep upward slope of the benches for barristers on the one side and for the jury on the other. Only the solicitors' table is at the floor level. This ar- rangement brings all the participants in a trial more nearly together than if they were distri- THE CENTRAL CRIMINAL COURT 133 buted over a flat floor. At the end of the room farthest from the judge is the prisoners' dock, a large square box, elevated almost to the judge's level. This the prisoner reaches by a stairway from the cells below (invisible because of the sides of the dock), accompanied by officers, and he stands throughout the trial — unless invited by the judge to be seated — completely isolated from his barrister and from his soHcitor and can only communicate with his defenders by scrawling a lead pencil note and passing it to an officer. A small area of sloping benches, together Avith a very inadequate gallery, are the only accommoda- tions for the public. If the visitor happens to be a guest of the Court, he wiU be ushered in by a door leading to the raised dais and wiU sit at a desk beside the judge. His eye wiU first be arrested by a small heap on his desk of dried aromatic herbs and rose leaves and, while speculating as to the purpose of these, he will discover similar little piles on the desks of the presiding judge and sheriffs. He will also observe that the carpet of the dais is thickly strewn with the same litter. Vaguely it is suggested that the court room has been used over night for some kind of a horticultural ex- hibition and that the sweeping has been over- 134* THE CENTRAL CRIMINAL COURT looked. Later, his astonishment, however, is redoubled when enter the sheriffs and the judge each carrying a bright colored bouquet of roses or sweet peas bound up in an old-fashioned, stiif , perforated paper holder. The visitor ventures to whisper hi« curiosity and he is then informed that, in the former times, these herbs, and the perfume of fresh flowers, were supposed to prevent the contagion of prison fever; and that the ancient custom has survived the use of disinfectants and the modern sanitation of prisoners and cells. The opening of court in the morning and after limcheon is a curious ceremony. The Bar and audience rise and, through a door corresponding to the one by which the visitor has reached the dais, enter the two sheriffs gowned in flowing dark blue robes trimmed with fur. Then comes the under-sheriff in a very smart black velvet knee breeches suit, white ruffled shirt, white stock- ings, silver buckled shoes, cocked hat under arm and sword at side. The sheriffs bow in ushering to his seat the judge, who is arrayed in wig and robe, which, in the case of the Lord Chief Justice, or one of the judges of the High Court, is of brilliant scarlet with a dark blue sash over one shoulder, or in the case of the Common Sergeant, is of sombre black. Each member of the court THE CENTRAL CRIMINAL COURT 136 carries the bouquet referred to and the whole group afford a dash of color strong in contrast with the dark setting. The judge, having seated himself in a chair — so cumbersome as to require a little track to roll it forward sufficiently close to the desk — the sheriffs dispose themselves in the seats not occupied by the judge or his guest, and, later, they quietly withdraw. They have no part in the proceedings, their only function being to usher in and out the judges, and to entertain them at luncheon — ^the judges being by custom their guests. The judge having taken his seat, the Bar and pubhc do the same and the busi- ness begins. There are usually two such courts sitting at the Old Bailey — sometimes three of them. At lunch time the sheriffs again escort the judges from their seats, and all the judges, sher- iffs and under-sheriffs, and any guests they may invite, assemble in the dining-room of the court house for an excellent, substantial limcheon served by butler and footman in blue liveries with brass buttons, knee breeches and white stock- ings. The luncheon table looks odd with the varied costmnes, the rich blues, the bright scar- lets and the wigs of the party, who, no longer on duty, relax into jolly sociabihty. Indeed one 136 THE CENTRAL CRIMINAL COURT can not escape the impression that he has in some way joined a group of "supes" from the opera who are snatching a hght supper between the choruses. These are some of the picturesque fea- tures of the Old Bailey which, at the same time, is the theatre of the most sensible and enlight- ened application of law to the every day affairs of the largest aggregation of himian beings the world has ever seen. While enjoying a cigar after luncheon with one of the imder-sheriflfs, the voice of the Com- mon Serjeant or Recorder is heard at the door of the smoking room. Robed and armed with his bouquet, he smilingly inquires if there are no sheriffs to escort him into court. A hasty buck- ling on of sword, a snatching up of his bouquet and a little dusting of cigar ashes from his velvet knee breeches, prepares the under-sheriff for the function, and, preceded by the sheriffs in their blue gowns, his Lordship bringing up the rear, the httle procession starts along the corridor and enters the door leading to the judges' dais. The imder-sheriff shortly returns to finish his cigar but the guest tarries beside the judge. The first case was a minor one — a charge of breaking and entering a shop and stealing some goods. His name having been called, the pris- THE CENTRAL CRIMINAL COURT IS*^ oner suddenly popped up into the dock at the far end of the room with police officers on either side of him. Asked if he objected to any of the jurors already seated in the box, he replied in the nega- tive and the trial began. The junior barrister opened very briefly, merely stating the name, date, locality and nature of the charge. Follow- ing him the senior barrister gave the details at much greater length. These barristers were not, as with us, district attorneys or state prosecutors. They are either retained by the Treasury or, as the case may be, represent private prosecutors. The judge was fully conversant with the evi- dence, as he had before him the depositions taken at the Magistrate's Court. In an English court, when counsel has finished the direct examination of a witness, he does not say, as we do, "cross-examine" or "the witness is yours", he simply resumes his seat as the signal! for the other side to cross-examine. Sometimes, a pause of the voice simultaneously with a stoop- ing of the barrister's head for a word of suggestion from the solicitor below, leads his opponent to be- lieve he is seating himself and to begin to cross- examine prematurely. 'Although in this case the plea was "not guilty," the charge was practically undefended, and a 138 THE CENTRAL CRIMINAL COURT prompt verdict of "guilty" followed. Then came the important query from the judge to the police as to whether the prisoner "is known" — was there a record of former convictions? Learn- ing that there was not, a sentence to eighteen calendar months at hard labor followed a caution that if he should be brought again before the court, he would be sent to penal servitude. iWith a servile "If your Lordship pleases" he turned to dive down the stairs, and, as he did so, with a grinning leer, seized his left hand in his right and cordially shook hands with himself — a bit of a gesticular slang which led one to think that the police were not very well informed as to his previous experiences. The next was a more important case. A clever but sinister-looking Belgian, the master of sever- al languages, was charged with obtaining a valua- ble pair of diamond earrings by an ingenious swindle. Having a slight acquaintance with a dealer in stones, he telephoned that a friend of his was coming over to London from Paris to join his wife and desired to present her with a pair of earrings. If the dealer had suitable stones and would allow a commission, the Belgian said he would try to effect a sale for him. He, therefore, arranged that the dealer, at a fixed THE CENTRAL CRIMINAL COURT 139 hour the following day, should bring the stones to his lodgings for the Frenchman's inspection. .The appointment was kept and the two men waited for some time for the Frenchman. Fi- nally the latter's wife appeared and explained to the Belgian in French — ^which the Englishman did not understand — ^that her husband had been detained but would come by a later train, where- upon she withdrew, and the conversation was interpreted to the disappointed dealer. Then the Belgian suggested that, if the dealer cared to leave the stones, he would give a receipt for them and would either return them or the money by half -past four. The dealer repUed that although he was quite willing to do so, he had partners whose interest he must consult. The Belgian then produced a certificate of stock in some Newfoundland Company, saying that it was worth as much as the diamonds. The dealer con- sented to receive this as security and he then left. Just before half -past four he was called up on the telephone and told by the Belgian that he had made the sale and had received the money in French notes which he would have changed into English money. The dealer told him to bring the French notes, which would be acceptable to him. That, of course, was the last he ever saw of 140 THE CENTRAL CRIMINAL COURT the money, the diamonds or the swindler, until the latter was arrested some months later. The leading nature of the direct examination, so marked in all English courts, was conspicu- ous in such questions as the following: Q; "Did the defendant telephone you about 4.15?" A: "Yes, sir." Q: "Did you recognize his voice?" A: "Yes, sir." Q: "Did you send an assistant to the defendant's flat with a letter and was it returned to you imopened?" A: "Yes, sir." The Secretary of the Newfoundland Com- pany having been called, was asked: "Were the shares in defendant's name formerly in the name of John Smith?" ^;"Yes." Q: "Was there an order of court forbidding their transfer?" A: "Yes." Two pawnbrokers testified that, shortly after fom* o'clock, the prisoner had brought the ear- rings to their shops and asked how much would be loaned upon them and that, the sum offered being apparently unsatisfactory, the Belgian took the earrings away. THE CENTRAL CRIMINAL COURT 141 Defendant's barrister: "My Lord, I submit, I've no case to answer." The Court: "Oh, yes, you have." Barrister: "Well, if your Lordship thinks so." The defence was cleverer than the original swin- dle in that it did not attempt to deny the over- whelming evidence, but merely made the story tally with an ostensibly innocent explanation. iThe Belgian averred that he had himself been robbed by the Frenchman, with whom he had but a slight acquaintance gained at the Paris races. He said that the Frenchman had kept the deferred appointment and, though he ad- mired the stones, he thought them hardly worth the price, whereupon the two had set off in a cab to obtain an opinion as to their value. If thus assured, he was to make the purchase and to- gether they were to take them to his wife in a hotel near Piccadilly. As it was late in the day, they failed to find a French-speaking jeweller whom they sought, and it was suggested that, as pawnbrokers were very cautious in loaning, two opinions of that fraternity should be had. On stopping at the pawnbrokers' shops, the French- man, being ignorant of English, said there was no use of his going in as he would have to rely upon his companion's interpretation and might 142 THE CENTRAL CRIMINAL COURT as well sit in the cab. Thus, the visits by the Bel- gian alone to the two pawnshops and the inquiry as to the amount procurable as a loan, were duly accounted for. According to the prisoner's story, the French- man, being satisfied, proposed to pay in French notes and the Belgian entered a public telephone booth to enquire of his principal if that would be satisfactory, leaving the jewels with the French- man in the cab. When he returned the cab was gone. His intention having been to leave for the Con- tinent the following day, the Belgian said he had already notified the landlord of his flat — which was apparently true — and had dispatched his effects in advance. So, supposing that the Frenchman had gone to Paris, he immediately followed on the evening train in the hope of identifying him en route, or of finding him some- where in that city. He swore he did find him a few days later and caused his arrest, and that the French magistrate declined to hold him be- cause the crime had been committed in England where there was no warrant out, and, hence, no demand for extradition. The weakest point in this ingenious fabrication was the prisoner's failure to communicate with THE CENTRAL CRIMINAL COURT 143 the owner of the diamonds during the ensuing five months. This, and other discrepancies, hav- ing been easily laid bare on cross-examination, a verdict of guilty was quickly rendered. The judge had hardly uttered the usual query whether the prisoner was known, before an alert police inspector replied, "He is an international swindler, well-known all over the Continent, wanted in Berlin for a job of 20,000 marks, in Paris for another of 30,000 francs and else- where." Judge: "Suppose we ^ve him a few months and allow the foreign pohce to apply for extradi- tion?" Inspector: "Well, Your Lordship, the trouble is that he claims to have been born in Paris of English parents and that he is, therefore, a British subject, and the French police will jolly well accept his statement." Judge: "That's very awkward. We'll give him twelve calendar months and see what tran- spires." CHAPTER XIII AN IMPORTANT MURDER TRIAL Amongst the murder trials on the "Calendar of Prisoners" appeared "No 38; Madar Lai Dhingra, 25, Student, wilful murder of Sir Wil- liam Hutt Curzon Wyllie and Dr. Cowas Lal- caca." This referred to the cowardly assassina- tion of an English gentleman who had devoted his life to Indian administration and to benefiting the native races of that country, and to the mur- der of an Indian doctor, who lost his life in an effort to save him. The tragedy, the news of which had profoundly shocked the world less than three weeks before, occurred during an evening reception at the Imperial Institute. The prisoner, a fanatical Indian student, was be- Heved to have borne no personal animosity to his victim. No one knew exactly when the case would be reached, but it had been expected for several days when, one morning, the Old Bailey, in 146 AN IMPORTANT MURDER TRIAL" view of a possible disturbance by Indian sympa- thizers, was found to be carefully guarded by de- tectives. Except a small audience admitted by cards which were doubtless hard to procure and not transferable, the public, clamoring at the doors, were excluded from the Court, although one American lady, who appeared in one of the back seats, seemed to have had information and influence necessary to gain an entree. The barristers' benches, however, were so full that there was an unusual array of bewigged heads on that side of the court. The jury, al- ready in place, and the small audience, waited in quiet but tense expectation. While one was idly noting the usual dried herbs and rose leaves on the desks and carpet of the judges' dais, the Lord Chief Justice seated himself and rolled his chair forward, a shaft of soft sun rays from the sky- light accentuating his scarlet robe. The sheriffs bowed and took their seats at the side, and Dhin- gra's name was called. Into the dock at the far end of the room popped the prisoner, guarded by two im- perturbable policemen. He was a little, yellow youth with a Semitic or Oriental counte- nance, silky black hair much dishevelled and badly in need of the scissors, and eyes, so far as AN IMPORTANT MURDER TRIAL 147i they were discernible under his gold-rimmed spectacles, of glittering black. He wore an or- dinary gray suit and stood with his right hand thrust into the breast of his coat, suggesting that he had concealed there some weapon or, perhaps, poison ; but of course he had long since been dis- armed and under careful guard. His was a meagre figure, by no means conveying to an ob- server his own conceited estimate of his person- ality. When he spoke, though posing as a hero and martyr, he revealed only a sullen, sulky and venomous disposition and the ferocity of his character was attested by the premeditated and treacherous murder which he had committed. The Clerk of Arraigns having asked whether the prisoner pleaded guilty or not guilty, his re- ply was at first not imderstood because of his broken English and his quick, spasmodic utter- ance. So his answer had to be repeated, as fol- lows: ^Prisoner: "First of all, I would say these words can not be used with regard to me at all. Whatever I did was an act of patriotism which was justified. The only thing I have got to say is contained in that statement, which I believe you have got." The Clerk: "The only question is whether you 148 AN IMPORTANT MURDER TRIAL plead guilty or not guilty to this indict- ment." Prisoner: "Well, according to my view I will plead not guilty." The Clerk: "Are you defended by counsel?" Prisoner: "No." There were three barristers for the prosecution, including the Attorney General who chiefly con- ducted the case. The Lord Chief Justice volun- teered leave to the prisoner to sit down, which he did, appearing more diminutive than ever, in con- trast with his guardians. The junior barrister having stated the names, the date and locality of the crime very briefly, the Attorney General opened the case for the prosecution in great de- tail, consuming a third of the ninety minutes which elapsed before sentence of death. In his opening, as is usual in England, he produced exhibits and read letters not yet offered in evi- dence. In substance it was related that Dhingra came to England about three years before to study engineering and fell into the association of India House, a rendezvous in London of In- dians of seditious proclivities. He lived in lodg- ings where he had few visitors and where, after the murder, was found a letter from Sir Curzon AN IMPORTANT MURDER TRIAL 14-9 Wyllie which was read in the opening speech and which stated that the prisoner had been com- mended to the writer's protection and offered to be of service to him while in England. The story was told of his procuring a license to carry a weapon, of his purchase of a Colt's automatic magazine revolver and another revolver, of car- tridges and of a long dagger — all of which were produced by the speaker and the triggers of the empty pistols snapped to show the jury how they worked. An accoimt of his frequent practice at a pis- tol gallery for three months and up to the very afternoon of the day of the tragedy and the use of a target the size of a man's head, preceded an exhibition of the last paper target used, when four bullets out of the five had pierced the bull's eye. The speaker described how Dhingra had called his victim aside into a vestibule while Lady Wyllie proceeded down the staircase, how he fired four shots pointblank, which passed through Sir Curzon's head ; how Dr. Lalcaca had tried to intervene and was shot for his temerity, and how, finally, an elderly English baronet had grappled with the murderer and succeeded in wresting the revolver from him and bearing him to the floor. 160 AN IMPORTANT MURDER TRIAL The witnesses were then called and examined with great rapidity, the judge restricting their testimony to essentials and checking both counsel and witness from the slightest digression. This seemed to be carried almost to an extreme, as an untrained witness often brings forth an impor- tant fact amid much irrelevant verbosity. At the end of the direct examination of the first wit- ness, his Lordship asked Dhingra if he wished to cross-examine. The latter growled a negative but added that he had something to say, where- upon he was informed that he would have an op- portunity for that later. Thereafter, when asked the same question at the conclusion of each wit- ness' evidence, he merely shook his head. The prosecution having rested, Dhingra was asked if he had any witnesses and replied that he had not. The Lord Chief Justice then in- formed him that if he had anything to say, now would be his chance, and asked whether he desired to speak where he was — from the dock^ — or from the stand. The judge of course referred to the difference between a mere imsworn statement which might be in the nature of a plea to the jury to add a recommendation for mercy to their ver- dict, or, sworn testimony which might go to the merits of guilt or innocence. It was apparent AN IMPORTANT MURDER TRIAL 151 that the prisoner, as he was without counsel, did not understand this question and, as well, that the judge did not comprehend his inahihty to grasp a distinction indicated in the question. Doubtless, as the prisoner was bound to be hanged — and he richly deserved it — the misun- derstanding made not the slightest difference in this case, but one could not help feeling that the failure to provide counsel was a serious defect in the administration of justice. Dhingra elected to remain in the dock and stated that he was imable to remember all he wanted to say, but that he had committed it to a writing which was in the possession of the pohce. This was then read by the Clerk but so f alteringly owing to the manuscript being illegible, that the effect of the revolutionary diatribe was largely lost. The London Times^ however, printed it the next day as follows : "I do not want to say anything in defence of myself, but simply to prove the justice of my deed. For myself I do not think any English law court has got any authority to arrest me, or to detain me in prison, or to pass sentence of death upon me. That is the reason why I did not have any counsel to defend me. I maintain that if it would be patriotic in an Enghshman 15a AN IMPORTANT MURDER TRIAL to fight against the Germans, if they were to occupy this country, it is much more justifiable and patriotic in my case to fight against the Bng- hsh. I hold the English people responsible for the murder of eighty millions of my countrymen in the last fifty years, and they are also responsi- ble for taking away £100,000,000 every year from India to this country. "I also hold them responsible for the hanging and deportation of my patriotic countrymen, who do just the same as the English people here are advising their countrymen to do. An Eng- lishman who goes out to India and gets, say, £100 a month, simply passes the sentence of death upon one thousand of my poor country- men who could live on that £100 a month, which the Englishman spends mostly on his frivolities and pleasures. "Just as the Germans have got no right to oc- cupy this coimtry, so the English people have no right to occupy India, and it is perfectly justi- fiable on our part to kill an Englishman who is polluting our sacred land. "I am surprised at the terrible hypocrisy, farce, and mockery of the English people when they pose as champions of oppressed humanity such as in the case of the people of the Congo and of AN IMPORTANT MURDER TRIAL 153 Russia, while there is such terrible oppression and such horrible atrocities in India. For example, they kill 2,000,000 of our people every year and outrage our women. If this country is occupied by Germans and an Englishman, not hearing to see the Germans walking with the insolence of conquerors in the streets of London, goes and kills one or two Germans, then, if that English- man is held as a patriot by the people of this country, then certainly I am a patriot too, work- ing for the emancipation of my Motherland. Whatever else I have to say is in the statement now in the possession of the court. I make this statement, not because I wish to plead for mercy or anything of that kind. I vdsh the English people wUl sentence me to death, for in that case the vengeance of my countrymen will be all the more keen. I put forward this statement to show the justice of my cause to the outside world, es- pecially to our sympathizers in America and Ger- many. That is all." His Lordship then asked the prisoner if he wished to say anything more. The prisoner at first said "No", but just as the Lord Chief Justice was commencing to sum up the case to the jury, Dhingra said there was another statement on foolscap paper. 154 AN IMPORTANT MURDER TRIAL His Lordship: "Any other statement you must make now yourself." Prisoner: "I do not remember it now." His Lordship: "You must make any statement you wish to the jury. If there is anything, say it now." Prisoner: "It was taken from my pocket amongst other papers." His Lordship: "I do not care what was in your pocket. With what you had written before, we have nothing to do. You can say any- thing you wish to the jury. What you have written on previous occasions is no evidence in this case. If you wish to say anything to the jury in defence of yourself, say it now. Do you wish to say anything more?" Prisoner: "No." The Lord Chief Justice then summed up the case to the jury in a charge occupying but six minutes. He said that the evidence was abso- lutely conclusive; that the jury had no concern with any political justification for the crime, for if anything of the kind were considered it would be in the carrying of the sentence into ef- fect — ^with which the jury had nothing to do — that this was an ordinary crime by which a blame- AN IMPORTANT MURDER TRIAC 155 less man, who had devoted himself to the pubHc service and had done much for the natives of India, had lost his life, and that it was quite plain there had been premeditation. His Lordship added that there was nothing which could induce the jury to reduce the crime from murder to man- slaughter, nor was it suggested that Dhingra was insane, so that if the jury believed the un- contradicted evidence the only possible verdict was one of wilful murder. Without leaving the box the jury put their heads together and, in less than a minute, the foreman arose and uttered the fateful word "Guilty." There are no degrees of murder in England, but in cases where a weak intellect or greatly extenuating circimistances render hanging too severe a penalty, the Home Secretary may exer- cise a power of commutation. Thereupon Dhin- gra having been ordered to stand up, the clerk addressed him as follows: "You stand convicted of the crime of wilful murder. Have you any- thing to say for yourself, why sentence of death should not be passed on you according to law?" Prisoner: (with a snarl) "I have told you once I do not acknowledge the authority of ^he Court. You can do whatever you like with 156 AN IMPORTANT MURDER TRIAL me — I do not care. Remember, one day we shall be all-powerful, and then we can do what we like." Then followed absolute silence for two min- utes — a silence in which the breathing of per- sons near was audible. Slowly the Lord Chief Justice lifted from his desk a piece of black cloth. It was the "Black Cap." One naturally thinks, from its name, that this is a kind of headgear corresponding to the shape of a man's head. On the contrary, it looks like a piece of plain limp cloth, a remnant from a tailor's shop, about a foot square, which the judge places on the top of his wig, letting it rest there quite casually and perhaps at a rakish angle, the four corners hanging down and the whole produc- ing a somewhat ludicrous effect. Neither judge, jury, nor audience, rose when sentence was about to be pronounced, but all remained seated, ex- cept the prisoner, who stood in dreary isolation, flanked by his stalwart guard, at his elevated station in the dock. His Lordship, the dignity of whose well-modulated voice contrasted strongly with his comical head covering, slowly addressed the prisoner as follows : "Madar Lai Dhingra, no words of mine can have the slightest effect upon you, nor do I in- o B Iz; Ed CO AN IMPORTANT MURDER TRIAL 157 tend to say anything more than to point out to you that you have heen convicted upon the clear- est possible evidence of the brutal murder of an innocent man. The law enforces upon me to pass the only possible sentence in such a case." The sentence was that the prisoner should be hanged by the neck until he was dead and be buried at the place of execution. The Chaplain, in his robes, having somehow appeared at his Lordship's side, added: "Amen. And may God have mercy upon your soul." Immediately after the dread words had been uttered, the prisoner saluted the grave judge by a salaam, bringing the back of his hand to his forehead, and said in a manner, the impertinence of which deprived his words of dignity : "Thank you, my Lord. I am proud to have the honor of laying down my life for my coimtry. I do not care." Counsel representing the relatives of the con- demned man then arose and said that he was in- structed to say that they viewed the crime with the greatest abhorrence and wished to repudiate in the most emphatic way the slightest sympathy with the views and motives which had led to it, adding, on behalf of the father and family, that there were no more loyal subjects of the Empire 158 AN IMPORTANT MURDER TRIAL than themselves. His Lordship replied that, while the course might seem somewhat imusual, yet, having regard to the wicked attempt at jus- tification in some quarters, he was glad for what had been said on behalf of the members of the family. Dhingra and his guards then disappeared from the dock and in a few moments the Lord Chief Justice and his escort, as well as the small audience, had withdrawn, leaving the court room deserted except for a newspaper reporter who was completing his notes. And so the drama closed. One was told that the youthful student would probably be hanged in a fortnight from the fol- lowing Tuesday — ^the trial having taken place on a Friday — as ancient custom entitled the con- demned man to three Sundays of life after sen- tence.* The spectacle of this little, lonely, misguided, yellow man, prompted partly by fanaticism but largely by vanity, having braved the whole power of mighty Britain in its proud capital to exploit his chimerical views, caught in the meshes of a law he hardly understood and hemmed in on all sides by its remorseless ministers, was deeply *He was hanged three weeks from the following Tuesday. AN IMPORTANT MURDER TRIAL 159 interesting and somewhat calculated to excite sympathy, until one's reason simimoned the sig- nificance of the treacherous murder and the pic- ture of a fair Englishwoman going out into that London night a widow. While the result of this trial was justice, swift and unerring, to an American observer it seemed odd and scarcely a fair practice for a man to be tried for his life unrepresented by counsel learned in the law. Although the case was plain, never- theless, with great respect for the admirable ad- ministration of the law in England, it must be remarked that innocent persons, — who, even if not mentally defective, may none the less be far from clever and who are necessarily inexperi- enced, and may perhaps lack the intelligence or means to retain counsel — ought not to be per- mitted by the court to pit their wits against an able officer of the crown, the stake being their own necks. To excuse the omission on the ground of the obvious guilt and callousness of the prisoner, is not a satisfactory solution, be- cause it would involve prejudging the issue to be tried. The proper and humane course is fol- lowed in the United States — ^the appointment by the court of counsel for an undefended prisoner 160 AN IMPORTANT MURDER TRIAL — for it guards against the possibility of terrible mistakes. From a technical point of view, the "leading" nature of the direct examinations, so noticeable in EngUsh courts, was especially conspicuous in that this was a murder trial where no departure from the recognized customs would have been permitted. One's ear grows accustomed to ques- tions which put the answer into the mouth of the witness and require merely a monosyllabic as- sent; and one waits in vain for the objection which, at home, would follow such infractions of the rules of evidence as thunder succeeds light- ning. In the Dhingra trial, for instance, the At- torney General did not scruple to ask such ques- tions as the following: Q; "Did you happen to look through the door- way and into the vestibule and see the pris- oner speaking to Sir Curzon Wyllie and did you see him raise his hand and fire four shots into his face, the pistol almost touch- ing him?" Q; "Did you see Sir Curzon Wyllie collapse?" Q: "Then, was there an interval of some seconds and then more shots?" (These killed Dr. Lalcaca.) AN IMPORTANT MURDER TRIAL 161 Nor did he hesitate to put such questions to an- other witness as : Q: "Did you hear the noise of four shots and did you then look and see the prisoner and did you see him shoot again?" A police officer was asked : Q; "Did you examine the pistol and find one imdischarged cartridge only?" Q; "Had the other pistol six imdischarged car- tridges iuit?" Q; "Did you find two buUets similar to these in the wall?" To such an extent was leading carried in the Dhingra trial that occasionally the answer did not follow the lead, thus : Q; "Did you ask him 'What is your name and where do you live?' " A : "I can't remember what I asked him." The probable reason for the great latitude in this regard is the fact that apparently nothing in an English trial is a surprise — except to the jury. The court and counsel, knowing practically all the evidence beforehand, are extremely lenient. Not only are leading questions common but also questions asking for conclusions — not for facts from which the jury may draw their own deductions. Thus, in the Dhingra trial, a doc- 162 AN IMPORTANT MURDER TRIAL tor, who was sent for after the murder, was asked: "Did the prisoner seem calm, quiet and collected ?" A plaintiff, perhaps, will be asked: "How came the defendant to write this letter and what was its object? Did he consider himself remiss?" Of course an American lawyer would successfully contend that a letter speaks for it- self, while a man's estimate of his own position could only be put in evidence by repeating his admissions in that regard — not by asking his op- ponent how he regarded himself. In favor of the practice of asking witnesses for conclusions — a practice which many Amer- ican lawyers have found invahdates parts of testi- mony taken in England for use here — much may be said. To ask a witness the mental attitude of a person, whom he heard talking a year before — ■ whether he was angry, or joking, for example — is to ask an answerable question; but to require him to repeat the exact words, is to demand an impossibihty. In replying to either form of in- quiry the witness may be honest or the reverse, so that the chances of intentional misinforma- tion are equally balanced, but an attempt at ver- batim repetition nearly always requires, con- sciously or unconsciously, a draft upon the im- agination. It seems that our rules of evidence in AN IMPORTANT MURDER TRIAL 163 this regard might, perhaps, be cautiously relaxed with advantage, to accord more with practical ex- perience. An English criminal trial is quick, simple and direct. Dhingra, for example, whose crime was committed on July first, was sentenced on the twenty-first of that month and was hanged on August seventeenth — all in forty-seven days. The simplicity and directness of such trials is due to the absence of irrelevant testimony and imag- inative argimients; these, counsel scarcely ever attempt to introduce — so certain is their exclu- sion by the judge. Thus, the real object of all punishment — its deterrent effect upon others — is greatly enhanced because it is swift and sure. The public, moreover, are usually spared the scandal and demoralizing effects of prolonged, spectacular and sensational trials. Until a short time ago any person convicted in an English court was without appeal — ^the rulings and sentence of a single judge were final — ^but this manifest injustice has lately been cured by a law granting the right of appeal. It is too soon to estimate the effect of this change, but the pre- diction may be ventured that the ancient habit of regarding criminal judgments as conclusive, together with the saving common sense which 164 AN IMPORTANT MURDER TRIAL characterizes all English courts, will probably prevent any radical departure from the present methods, which have much to commend them. Comparison with American conditions is most difficult because, besides the United States courts extending for certain purposes over the whole country, there are forty-six absolutely separate sovereignties whose administration of criminal law, unless in conflict with the Constitution of the United States, is as independent of the rest of the world as that of an empire. Consequently, while differences exist in methods and results, the remarkable fact is that they are, upon the whole, so similar, when only a common tradition and a fairly homogeneous public opinion serve to keep them from drifting in diverse directions. The administration of criminal law by the United States Courts deals chiefly with the trial of persons accused of murder on the high seas, counterfeiting, forgery, smuggling or postal frauds, defaulting bank officials and, very lately, corporation managers charged with favoritism in freight rates, or with the maintenance of monop- olies affecting interstate commerce. Throughout the length and breadth of the land it is prompt, thoroughly dignified, vigorous and fair; indeed, its excellence, as a whole, suffers little if at all by AN IMPORTANT MURDER TRIAL 165 comparison with the best English standards, which have been perfected only by centuries of experience in the highly concentrated popula- tion of a small Island. But turning to the individual States, all com- parisons must depend upon locality. New York, the landing place, that threshold of real America, with a predominating foreign population; the western frontiers of civilization, and the South, with its peculiar racial conditions, suffer by com- parison with British standards far more than would one of the orderly communities composing the greater part of the Republic. Recent mal-administration of criminal law in New York constitutes a subject of national mortification, but the existence of this sensitive- ness is the best of reasons for believing that time will bring an improvement. Unfortunately for the good name of the country, foreigners do not comprehend, and can hardly be made to appre- ciate, that the instances of private assassination in that city followed by trials, which, whether owing to a vicious system of practice or to judicial incompetency, excite the indignation and ridicule of the world, are not typical of America but are expressions of purely local and probably tempo- rary conditions. Foreign critics should be told that 160 AN IMPORTANT MURDER TRIAL New York is not America, as many of them as- sume, and that temporary and local lapses do not prove a low standard. They may also be re- minded, as showing that human justice is fallible, that even in London if a man walks into an Ox- ford Street department store, lies in wait for the proprietor against whom he has a grievance and blows out his brains, although he mil be con- victed in a trial occupying but three hours, yet the Home Secretary may intervene and prevent his hanging, upon a petition signed by tens of thousands of sentimentalists moved by the rather illogical fact that his wife contemplates an addi- tion to a thus celebrated family. In the far West, criminal practice is probably neither better nor worse than in any other rough frontier of civiUzation where men must largely rely upon their own resources, rather than upon the government, for the protection of their lives and property. Conditions in the South are so pe- culiar, owing to the sudden elevation to a legal equality of an inferior race which is in the major- ity, that no comparison with any other commun- ity is possible. Without in the least condoning ex- isting conditions, it may even be said that lynch- ing, unlike private assassination, involves some degree of co-operation and is the expression of AN IMPORTANT MURDER TRIAL 167 public, rather than of individual, vengeance. The theatre of these outrages is, moreover, sparsely settled, beyond large cities or centres of educa- tion, and still retains some of the features of a frontier. Throughout much the largest area, however, constituting the sohd civilization and containing the bulk of the population of this immense coun- try, no such conditions exist. On the contrary, crime is met with that steady and impartial justice, inherited from England, which neither partakes of the police oppression of continental countries, nor lapses into the barbarism of the exceptional localities above referred to. To commit deliber- ate murder in one of the eastern States, such as Pennsylvania, or Massachusetts, or in one of the great commonwealths of the middle West, means sure and reasonably speedy hanging. But, bearing in mind the difficulty of accurate comparisons between such diversified sections and a compact unit hke England, and endeavoring to arrive at a general estimate, it must be conceded that America, as a whole, has even more to learn from England's criminal, than from her civil, courts. CHAPTER XIV LITIGATION ARISING OUTSIDE OF LONDON LOCAL SOLICITORS— SOLICITORS' "AGENCY BUSINESS"— THE CIRCUITS AND ASSIZES- LOCAL BARRISTERS— THE COUNTY COURTS —THE REGISTRAR'S COURT. As has been said, solicitors are to be found in every town in England, whereas barristers, with minor exceptions to be noted, all hail from the London Inns of Court. People living in the country or in provincial towns, especially the larger ones, such as Liverpool and Manchester, of course consult local solicitors. If litigation is contemplated, the solicitor advises his client and conducts the sparring and negotiations which usually precede a lawsuit. But when actual warfare opens, the provincial solici- tor generally associates himself with a Lon- don solicitor who is known as his "agent"; and hence "agency business" constitutes a consider- able portion of the practice of a large firm of 170 PROVINCIAL LITIGATION town solicitors. The Manchester or. Liverpool solicitor does all the work and receives the fees up to the time he sends the "proofs" to the agent — ^that is, the documents, statements of witnesses reduced to affidavits, and the other items of evi- dence — and dispatches the witnesses to the trial in London, which usually however, he does not at- tend himself, although, of course, he sometimes does so. The London solicitor retains the bar- risters, and is thereafter in complete charge of the case. The newspaper reports of trials of cases from the provinces, after giving the names of the barristers, always mention the London solicitor as agent for the country solicitor whose name also appears. The fees are shared from the time of as- sociation ; one-third to the country, and two-thirds to the town solicitor. This is not unlike the manner in which our lawyers handle business in States other than their own — ^but it is much more sys- tematized. If,' however, the provincial sohcitor prefers to await the Assizes (which he may, ex- cept in divorce, probate, equity and some other kinds of business) he may bring his action in the High Court, sub-offices of which are available throughout the coimtry for the issuance of writs, and, having retained a barrister, may try the case in his own town when the judge of the High PROVINCIAL LITIGATION 171 Court comes down from London thrice a year on circuit. These Circuits of the High Court are arranged with regard to the volume of business and the contiguity of centres of population, without refer- ence to county boundaries, and the same judge is rarely designated to repeat his visit to a circuit until it is reached again in regular rotation. To some circuits, like the Northern, where the busi- ness is very heavy, two judges are sent. At these Assizes, both civil and criminal business is handled, and, if there be two judges, one court room is devoted to the former and the other to the latter. Every London barrister, early in his career, joins a circuit. He usually selects one where he may be somewhat known to the solicitors, and where, perhaps, his family have property or as- sociations. Formerly and, in fact, long after the advent of steam, judge and counsel "rode the circuit" — ^as was done in the early days of our own county Bars — and indeed, within the memory of barristers still in middle life, a horse van used to stand in one of the Temple squares to receive the luggage, papers and books of court and Bar for the circuit. Each circuit has its "mess" with in- teresting traditions of midnight carousals and 17a PROVINCIAL LITIGATION records of fines of bottles of port inflicted upon members for various delinquencies. The modern mess, besides procuring special rates at the hotels, constitutes a sort of itinerant club; rendering possible a discipline for breaches of professional propriety by expulsion or denial of admission, which is the most drastic punishment short of disbarment. A few barristers, and their number is increas- ing, reside in large towns other than London and practice exclusively at the Assizes and in the county courts — of which something will be said later. They are known as "locals". If success- ful, however, they gravitate to the soiu'ce of the High Court — London. Thus the local solicitor, if he decide to eschew London and an agent and await the Assizes, has a considerable Bar from which to pick his man, A barrister never accepts a brief in a circuit other than his own unless the solicitor has also briefed, as his associate, a junior who is a mem- ber of the circuit. To do so would be a gross breach of etiquette. But if this unwritten law be duly observed, the barrister who is a stranger here, although a daily colleague in the London courts, is immediately received with open arms and made an honorary member of the mess. PROVINCIAL LITIGATION 173 Court and Bar having reached and disposed themselves in an Assize town, as a flock of birds settle in a convenient cover, a transplantation of a London court is e£Pected until the disputes of the neighborhood are resolved. An observer can find no diflPerence in personnel or general aspect, except perhaps, that the provincial policemen at the doors are not so polite and patient as the Lon- don "bobby" — that marvel which excites the envy, admiration and despair of conscientious ministers of authority in the rest of Christendom. If an action involve no more than £^100, a so- licitor may seek the County Courts — for there are seven of such courts for the county of London. The advantage in so doing is chiefly in the smaller costs, which are a serious matter to all English litigants, and almost prohibitive to the X>oor. The judge of a county court must be a barrister of at least seven years standing and generally hails from London. He is appointed by the Lord Chancellor and receives a salary of £1,500. His title in court is "Your Honor", as distinguished from a judge of the High court, who is addressed as "My Lord" or "Your Lord- ship," and from a magistrate, who is called "Your Worship." In the county courts, solicitors "have audi- 174 PROVINCIAL LITIGATION ence", that is, they may, equally with barristers, address the court and jury; in other words, they may be the actual trial lawyers, whereas, in the High Court barristers alone are heard. In ad- dressing the court, they must wear a black gown, but no wig. Barristers, except locals, are in- frequently seen in the county courts ; the amounts involved scarcely warrant retaining them. But, for some years, the tendency has been to increase the limit of jurisdiction of these courts and their importance is steadily growing. In this connec- tion it may be mentioned, too, that agitation ap- pears to be making some progress for removing all limitation of the jurisdiction of the county courts with, however, a right to the defendant to remove a cause to the High Court when more than a certain sum is involved, thus creating a sort of solicitor-advocate. But the outcome of all this is, at the moment, problematical. At present, to prevent sohcitors developing into pure advocates even in the county courts, a law forbids one solicitor retaining another to conduct the actual trial. The Registrar's Court in a great town, like Birmingham, wiU be found in the county court building. The court room is large, but usually contains only a few people, of the lower class, and PROVINCIAL LITIGATION 175 the registrar, in black gown and wig, sits on a raised dais. In the High Court, the American observer has been accustomed to associate a gown only with the barrister — ^never with the solicitor. In the county courts, however, he has seen solic- itors practicing as advocates, in minor cases, and wearing gowns; but until he visits a registrar's court he has never seen a wig except upon the head of a barrister or of a judge; and all judges have once been barristers. He is therefore sur- prised to learn that, notwithstanding his attire, the registrar is a solicitor, appointed to his posi- tion by the county judge. Beside the registrar stands a man who very rapidly passes to him numerous printed forms upon which the registrar places a figure or two, such as "4/6" or "7/6". This is done almost as fast as one would deal a pack of cards. Occa- sionally, there is a pause, a name is called and some one from the audience steps forward; whereupon brief testimony is taken as to some small debt, claimed upon one side and denied upon the other. Judgment for plaintiff fol- lows in nine cases out of ten, and then inquiry is made by the registrar whether the defendant — or her husband, if she be a woman — ^has work or is unemployed. A figure is then placed on 176 PROVINCIAL LITIGATION the printed form which is added to the pile. The business dispatched is that of some large retail tradesman. Upon payment of a small fee in the clerk's office, summonses have been ob- tained which have been served on the debtors by a policeman, and, in most oases, the de- fendants have signed their names admitting the debt. The figures 4/6, 7/6, etc. signify the order of the court, that 4 shillings and 6 pence, or 7 shillings and 6 pence, shall be paid monthly un- til the debt is liquidated. In this way, the time of a defendant who admits the debt is not di- verted from his work to attend court. The claims are fixed for hearing in batches of 100 every half hour of the court's sitting, when, if not admitted in writing, a short trial of the con- tested cases ensues. In this way about 400 cases a day are readily disposed of. Payments are made in the clerk's ofiice and each payment is endorsed on the summons. If the debtor falls out of work, an application is made, invariably with success, to suspend the payment until idleness ceases. The costs are trifling and the whole system works admirably. It is a prompt and businesslike manner of enforc- ing small obligations with a minimum of loss and delay. CHAPTER XV GENERAL OBSERVATIONS AND CONCLUSION It is the office of the courts to administer written laws enacted from time to time in re- sponse 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 de- cision of a controversy. These dehverances, con- stituting the common law, rely much upon pre- cedents which, however, are not followed slavish- ly, but are continually being modified — some- times 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 Eng- land 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 per- 178 GENERAL OBSERVATIONS sonal 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 poUce 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 in- dividualism began in 1885 and it proceeds rapid- ly 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 im- possible 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. Sidewalk Sociahsm — Hyde Park GENERAL OBSERVATIONS 179 The Workingmen's Compensation and Em- ployers' 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 mis- conduct, 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 ex- traordinary provision that, having paid the compensation, the employer may sue any former employer for the amoimt, if he can prove the servant actually contracted the com- plaint in the earlier service and within ten years. Of course universal accident habihty insurance followed, the cost of which must be borne by the proprietor, and, if he is a manufacturer, eventu- ally by the consumer. As may be imagined, such laws give rise to surprising results. The report 180 GENERAL OBSERVATIONS of one of the great accident liability insurance companies, made shortly after the passage of this law, exhibited, for example, the recovery of dam- ages by a domestic servant, who, while eating a meal, had swallowed her own false teeth; an- other 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 man- ageress of a laundry had her hands poisoned by handhng 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 cele- bration of the servants during the master's ab- sence, 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 com- paratively small areas of cultivation, in marked contrast with the minute utilization of every inch on the Continent, and the reflection that Eng- land produces only a portion of the food con- siraied in its crowded towns, should leave no one surprised at an agitation to modify the existing conditions, which led to continued assaults upon GENERAL OBSERVATIONS 181 all foi^s of possession, whether of real or per- sonal property. Acts of Parliament followed each other in quick succession depriving land owners of their holdings to inaugurate chimeri- cal 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 accumula- tions; levying upon the hving 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 coUectivist — are doubtless eco- nomically impossible and morally pernicious im- less required to be contributory on the part of those who may later claim them, so that they constitute a system of compulsory saving and insiu^ance, as is the plan in Germany where socialism is at least somewhat scientific. But it remained foB the once conservative England to inaugurate the 182 GENERAL OBSERVATIONS distribution of universal alms without any com- prehensive plan for raising the money — ^the week- ly 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 Gov- ernment 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 weU as taught. At the Marylebone Police Court a well known journalist and writer on education was sum- moned by the Education Department of the Lon- don County Council some time ago for neglecting to send his four children to school. He was, him- self, an old andexperiencedteacherwith credentials from one of the colleges of Cambridge Univer- sity. He did not beheve 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, with- out exhausting the nervous force or injuring the GENERAL OBSERVATIONS 183 physical health, of his children. The eldest, a boy of fourteen, had contributed an article to one of the leading magazines which was pro- nounced by a competent editor of another peri- odical 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 Eng- hsh 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-atten- dance officer, however, had reported that the chil- dren 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 efl&ciently educated. This epi- 184. GENERAL OBSERVATIONS sode 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 surren- ders to the proletariat, which have practically delivered over the general Government of Eng- land 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 trad- ing 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, tele- phones, 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 GENERAL OBSERVATIONS 185 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 legis- lation to be unconstitutional — for every act of Parliament becomes a law which can never be challenged in any court — there is no brake to re- tard, and the politicians of all shades are left free to compete in casting one vested right after an- other 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 charac- terized 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 un- necessary, for the revolution progresses smooth- ly and the whole country is adjusting itself to the new order of things. The possessors of prop- erty seem singularly resigned, or at least inar- 186 GENERAL OBSERVATIONS ticulate, and submit almost in silence to spolia- tion. 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 de- parted 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 world- wide socialism destined to modify the existing or- der 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 abol- ish 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 coun- try is more than doubtful; but in England the politicians seem to be destroying that which it has taken centuries to biiild up, whereas in America this could not happen unless the con- GENERAL OBSERVATIONS 187 viction was so widespread, determined and per- manent, as to accomplish what is apparently im- possible — ^the radical amendment of the Constitu- tion. This digression into the field of politics is only relevant in its possible effect upon the courts. They, at present, necessarily exist in an atmos- phere of confusion and of constant annihilation of rights. The head of the whole administration of law, the Lord Chancellor, is a pohtical ap- pointee changing with the parties. He appoints the other judges, the King's Counsel and, direct- ly 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 weU 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. 188 GENERAL OBSERVATIONS 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 in- ference 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 re- verse. 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 presid- ing 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 GENERAL OBSERVATIONS 189 Criminal Courts at the Old Bailey, more than twenty police magistrates at Bow Street and elsewhere, and County Courts, at Bloomsbury, Clerkenwell, Edmonton, Marylebone, Shore- ditch, 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 re- lieve the metropohtan judges. The justices of the peace number in many coimties 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 pre- sided 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 httle Island fairly bristles with tri- bunals and teems with judges and any criticism of American judges or of American judicial 190 GENERAL OBSERVATIONS methods by such comparison would only be pos- sible in ignorance of the facts. In America, litigation begins in the court room ; in England, it ends there. American pro- ceedings tend to be somewhat formal, conven- tional, 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 in- comprehensible to the laymen concerned except the result. Enghsh legal proceedings on the contrary are colloquial, flexible, simple and prompt, thorough- ly 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 su- periority 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 Eng- lish courts were most slow, expensive and vm- satisfactory. But in these thirty-five years, re- forms in methods have so progressed, step by step, that the most important action can be tried, a judgment given, appeal taken, argued and GENERAL OBSERVATIONS 191 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 con- ditions. 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 disciphning and purg- ing itself and in commanding public respect for its rights; its standards of professional pro- priety are not clearly enough estabUshed, al- though 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 INDEX Absence of "leader" in tri- al, 33 Accident cases, "tender of damages " in, 133 Admiralty, Probate, Divorce and Admiralty Division of High Court, 93 Trial, 104 Advocates, solicitors as, 174 " Agency business " of solicit- ors, 169 American law books in Middle Temple library, 14 Members of English Bar, 13 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, 13 Calling to, 36 Discipline of, 67 English, size of, 37 English, division of, 39 Make up of, 13 Parliamentary, 40 Women not eligible to, 36 Barnard's Inn (Chancery), 23 Barrister, "Associate," 3 "Blue and red" bags of, 47 Begins by becoming "devil," 30 Barrister — Oont. Chambers of, 14 Chancery, 40 Common law, 40 Desks of, 3 Dress of, 44 Fees of, S8 Formerly lived in Inns, 18 Joining circuit, 171 "Juniors," 31 "Leader," 4 "Locals," 173 Master, 117 Member of Inns of Court, 34 Partnerships forbidden, 61 Practice of, 57 Selection of, SO Serjeants-at-law, 33 Training of, 35 "Twelve Dinners" of, 35 Upon becoming K.C., invited to join Benchers, 21 Voices of, 6 Wig of, 5, 45 Benchers govern Inns, 31 Black Cap, 156 Briefs, SO Briefs, endorsed with fees, 63 Butler's livery at Old Bailey, 135 Calling to bar, 36 Cambridge students exempted, 25 Censors, 68 Chambers of barristers, 18 Chancery Bar, "SpecijJs," 41 Barrister of, 40 Division of High Court, 93 Inns, 16 Inns formerly connected with Inns of Court, 33 Inns, history of, 32 Lane, IS Lane, Serjeants' Inn, 33 "Leaders," 34 Chief Justice, salary of, 95 195 196 INDEX Circuits of High Court, 171 Clement's Inn (Chancery), 33 Clerk of Court or " associate," 3 Clifford's Inn (Chancery), 33 Colonial appeals, 114 Colors of bags, " blue and red " for barristers, 47 Common juries, 93 Serjeant criminal judge, 133 Law barrister, 39 " Consolidated regulations," 33 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 barris- ter, 35 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 Bai- ley), 131 Civil, 87 Common Pleas, practice for- merly limited to Sergeants- at-law, 33 County, 94-143 Criminal, 131 Divisional, 113 Enumerated, 188 High, 88 Police, 135 Registrar's, 95 Room described, 3 Room, Criminal Court, de- scribed, 133 Vacation of, 73 Criminal Law, 39 Trials, 136 Trials, appeals in, 163 Trials, comparison with Am- erican, 164 Criminal Court, Aromatic herbs in, 133 Central (Old Bailey), 131 Customs in, 133 Criminal Court — Cont. Docls of, 133 Judges of, 133 Police, 125 Recorder, 133 Room described, 132 Devil may conduct trial, 33 "Devilling," 30 Dhingra's Trial, 145 Disbarment, 67 Discipline of bar, 67 of solicitors, 67 Divisional Court, 113 Divorce, Probate and Admiral- ty 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 barris- ters, 25 Employers' Liability Acts, 179 English Bar, size of, 37 Entrances to court room, 1 Equity Trials in Chancery Di- vision 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 di- vided, 170 First impressions, 1 Fleet Street—" Old Bailey," 131 Footman's livery — " Old Bai- ley," 135 Fumival's Inn (Chancery), 3S INDEX 197 General Council of Bar, 67 Observations, 177 "Gentleman," defined by Sir Thomas Smith, 10 Gray's Inn, 13-lS 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' cham- bers, 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 Judges — Cont. 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' Incorpo- rated, 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, 94 198 INDEX " Mess " of Circuits, 171 Middle Temple, described, 13 American law books in, 13 Models much used, 104 Murder Trial of Madar Lai Shingra, 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, 26 Parliamentary Bar, 40 Partnerships of barristers for- bidden, 61 Pensions, old age, 181 Police courts, 125 Porter's Horn, 17 Practice of barristers, 68 before masters, 117 Rules of, 89 Preliminary hearing in Police Courts, 126 Preparation of case by solicit- or, 4 "President" of Probate, Di- vorce and Admiralty Divi- sion, 88 Prison fever, 131 Privy Council, judicial com- mittee of, 113 Probate, Divorce and Admiral- ty Division of High Court, 93 Procedure in county courts, 173 Provincial courts, 169 Reading of English law stu- dent, 26 Recorder, a criminal judge, 132 Registrars' courts, 174 Registrar, a solicitor, 175 Reports of cases, 72 Robes, Judges,' 3 of Judges' Chancery Divi- sion, 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 Tem- ple, 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, 66 Become registrars, 176 Develop into advocates, 174 Discipline of, 67 Dress of, 66 Fees of, 64 Have no Inn of Court, 27 Incorporated Law Society governs training of solicit- ors, 27 Prepare cases, 4 Sphere of, 60 Training of, 12-27 "WeU," 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, 26 Supreme Court of Judicature 87 INDEX 199 "Taking SU^' 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 Trial— Cont. 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, S Witness Box, situation of, 3 Witnesses, demeanor of, 6 Women, not eligible to Bar, 26 Workingmen's Compensation Acts, 179 THE WORKS OF SIR HENRY SUMNER MAINE ANCIENT LAW Its Connection with the Early History of S«ciety, and its Relation to Modern Ideas. With Introduction and Notes by Sir Frederick Pollock, Bart. i2mo. $1.75 net (by mail, $1.89). LECTURES ON THE EARLT HISTOR'T OF INSTITUTIONS A Sequel to " Ancient Law." 8vo. $3.50. VILLAGE COMMUNITIES IN THE EAST AND 'WEST Six Lectures delivered at Oxford ; to which are added other Lectures, Addresses, and Essays. 8vo. $3.50. CONTENTS :— Village Communities in the East and West.— The Effects of Observation of India on Modern European Thought.— Ad- dress to University of Calcutta.- The Theory of Evidence.— Roman Law and Legal Education. EARLY- LAW AND CUSTOM Taken chiefly from Lectures delivered at Oxford. 8vo. $3- SO. POPULAR GOVERNMENT Four Essays. 8vo. $2.75. CONTENTS :— The Prospects of Popular Government.— The Nature of Democracy.— The Age of Progress.— The Constitution of the United States. INTERNATIONAL LAW A series of Lectures delivered before the University of Cambridge, 1887. 8vo. $2.75. SIR HENR7 MAINE A Brief Memoir of his Life and Speeches. By Sir M. E. Grant DufiE. Selected and edited by W. Stokes. With Por- trait. 8vo. $3.50. HENRY HOLT AND COMPANY PUBLISHERS NEW YORK. amerlcan ©ubiic iproblems Series Edited by Ralph Curtis Ringwalt Chinese Immigration By Mary Roberts Coolidge, Formerly Associate Professor of Sociology in Stanford University. 531 pp., $1.75 net; by mail, $i.go. (Just issued.) Presents the most comprehensive record of the Chinaman in the United States that has yet been attempted. "Scholarly, Covers every important phase, economic, social, and political, of the Chinese question in America down to the San Francisco fire in 1906." — JVtfw York Sun. "Statesmanlike. Of intense inteTesX."— Hartford Courant. *' A remarkably thorough historical study. Timely and useful. En- hanced by the abundant array of documentary facts and evidence."^ Chicaso Record-Herald. Immigration: And Its Effects Upon the United States By Prescott F. Hall, A.B., LL.B, Secretary of the Immi- gration Restriction League. 393 pp. $1.50 net; by mail, $1.65. " Should prove interesting: to everyone. Very readable, forceful and convincing. Mr. Hall considers every possible phase of this great question and does it in a masterly way that shows not only that he thoroughly understands it, but that he is deeply interested in it and has studied everything bearing upon it." — Boston TranscripU " A readable work containing a vast amount of valuable information. Especially to be commended is the discussion of the racial effects. As a trustworthy general guide it should prove a god-send." — Nerw York Evening Post. The Election of Senators By Professor George H. Haynes, Author of " Representation in State Legislatures." 300 pp. $1.50 net; by mail, $1.65. Shows the historical reasons for the present method, and its eflEect on the Senate and Senators, and on state and local government, with a detailed review of the arguments for and against direct election. " A timely book. . . . Prof. Haynes is qualified for a historical and analytical treatise on the subject of the Senate."— ^^w York Evening Sun. HENRY HOLT AND COMPANY S4 WEST 33d street NEW YORK BOOKS ON RAILROADS Ry LOGAN G. McPHERSON, Lecturer on Transportation at Johns Hopkini TRANSPORTATION IN EUROPE A rearrangement and amplification of the author's re- ports to the National Waterways Commission. i2mo. $1.50 net; by mail, $1.63. " It is always difficult to compare the transportation problems of Europe with those of America because of the difcerent conditions which surround them. . . . He has perfortued this task most excellently, and in doing so has produced a valuable and interesting addition to railway literature. His history of the crowth of transportation by rail and by water, and his analy- sis of the reasons why the canals in Europe continue in service despite their economic obsolescence, is timely and enlightening in view of the proposi- tion to spend large sums upon the waterways of the American continent. It is not 'often that such a work of an American upon European affairs can comma:^d even the attention of the critics of the latter continent, but Mr. McFherson has not only done this but has received high praise from such authorities as Dr. Von der Leyen, chief councilor of the German railways. This was given not because Mr. McFherson has praised European methods, for he has not hesitated to criticise, but because of the thoroughness of his work and the fairness of his statements. Should be read by every student of transportation problems in America."— O/Zicza/ Railway Guide. RAILROAD FREIGHT RATES In Their Relation to the Industry and Commerce of the United States. With maps, tables, and a full index. 8vo. $2.25 net; by mail, $2.42. ** An exceedingly important book. . . . Not only the best existing account, but it is easily the best book on American railway traffic. . . . We have little hesitation in expressing the opinion that it will stand as the standard reference work for a good many years. , . . The country would be better governed if the , legislator, state and national, had to pass an examination upon it before taking his oath of office." — Railroad Age Gazette. THE WORKING OF THE RAILROADS i2mo. $1.50 net; by mail, $1.63. " Simply and lucidly tells what a railroad company is, what it does, and how it does it. Cannot fail to be of use to the voter. Of exceed- ing value to the young and ambitious in railroad service." — The Travelers' Official Railway Guide, "The most important contribution to, its branch of the subject that has yet been made." — The Dial. By CHARLES FREDERICK CARTER WHEN RAILROADS WERE NEW With an Introductory Note by Logan G. McPherson. 16 full- page illustrations. 8vo. 312 pp. $2.00 net ; by mail, $2.16. "Full of interest. Besides the general chapter on the beginnings, it gives the early history of the Erie, the Pennsylvania, and the Balti- more and Ohio, of the Vanderbilt lines, the first Pacific railroad, and of the Canadian Pacific. Very readable." — New York Sun. HENRY HOLT AND COMPANY PUBLISHERS NEW YORK HAZEN'S EUBOPE SINCE 1815 By Chakles Downeb Hazen, Professor in Smith College. With fourteen colored maps. (In American Historical Series edited by Prof. Haskins of Harrard.) xv+830 pp. B3.00 net. A clear and concise account of European history from Waterloo to such recent matters as the Dreyfus Trial, church disestablishment in France, and the various Russian Dumas. The author has paid fully as much attention to economic and social as to military matters, and has simplified his narrative by considering one country at a time for considerable periods. Europe's relations to her Colonies and to the United States are also considered. There is a full bibliography of general works and of those bearing on each chapter and a full index. "A clear, comprebensire and impartial record of the bewildering changes in Europe. . . . lUuminatiDgly clear. , . . High praise for the ezecutioaot a difficult bistorlcal task must be accorded him." — New York Sun. "The meaning and effects of the revolutionary movements in the different countries of Europe. . . . are clearly set forth, , . , The author . . . manages bis materials well, and we think be has managed to get into his volume the most important events of the century. He cer- tainly has succeeded in making the story of Europe both clear and interest- ing, and be brings together in the closing chapter the influence of the past eignty-flve years upon modern progress. The period be covers is practically contemporary history, and it is rather difficult to get contemporary history written as bnefly as the history of the past, but it must be said