A Philadelphia Lawyer in the London Courts Part 1

A Philadelphia Lawyer in the London Courts.

by Thomas Leaming.

PREFACE

The nucleus of this volume was an address delivered before the Pennsylvania State Bar a.s.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 pursuit of a subject heretofore apparently overlooked. Successive holiday visits to England were utilized for this purpose.

As our inst.i.tutions are largely derived from England, it is natural that the discussion of public questions and the glimpses of important trials afforded by the daily papers--usually murder trials or divorce cases--should more or less familiarize Americans with the English point of view in legal matters. American lawyers, indeed, must keep themselves in close touch with the actual decisions which are collected in the reports to be found in every library and which are frequently cited in our courts.

Nothing in print is available, however, from which much can be learned concerning the barristers, the judges, or the solicitors, themselves, whose labors establish these precedents. They seem to have escaped the anthropologist, so curious about most vertebrates, and they must be studied in their habitat--the Inns of Court, the musty chambers and the courts themselves.

The more these almost unknown creatures are investigated, the more will the pioneer appreciate the difficulty of penetrating the highly specialized professional life of England, of mastering the many peculiar customs and the elaborate etiquette by which it is governed and of reproducing the atmosphere of it all. He will find that he can do little but record his observations.

It was not unknown to him that some lawyers in England are called barristers, some solicitors, and he had a vague impression that the former, only, are advocates, whose functions and activities differ from those of the solicitor; but he was hardly conscious that the two callings are as unlike as those of a physician and an apothecary. It requires personal observation to see that the barristers, belonging to a limited and somewhat aristocratic corps, less than 800 of whom monopolize the litigation of the entire Kingdom, have little in common with the solicitors, scattered all over England. The former are grouped together in their chambers in the Inns, their clients are solicitors only, they have no contact, perhaps not even an acquaintance, with the actual litigants and a cause to them is like an abstract proposition to be scientifically presented. The solicitors, on the other hand, const.i.tute the men of law-business, whose clients are the public, but who can not themselves appear as advocates and must retain the barristers for that purpose.

Again, it is difficult to grasp fully the influence exercised through life by the barrister's Inn--that curious inst.i.tution, with its five hundred years of tradition--voluntarily joined by him when a youth; where he has received his training; by which he has been called to the Bar and may be disbarred for cause, and upon the Benchers of which Inn he must naturally look as his exemplars, although the Lord Chancellor may be the nominal creator of King's Counsel and the donor of judge-ships. The impulse of these Inns is still felt at the American Bar, despite more than a century's separation, for, about the time of the Revolution, over a hundred American law students were in attendance, not only acquiring, for use in the new country, a sound legal training, but absorbing the spirit of the profession which has been transmitted to posterity, although its source may be forgotten.

Nor will anything he has read prepare the American for the abyss which separates the common law barrister, who spends his days in jury trials, from the chancery man, who knows nothing but equity courts; nor for the complete ignorance, if not contempt, with which they seem to regard each other.

K. C.'s, indeed, are afforded their t.i.tle 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 a.s.sociated in each case with "Juniors," who in turn have "Devils" to prepare their cases; or that a leader may sever this relation and thereafter "go special"; yet all these, and many other peculiar and inviolable customs, are handed down from one generation to another to be followed as if by instinct: and the profession would no more trouble the busy world with such matters than a dog would feel it necessary to explain that he turns thrice before lying down, simply because his wolfish ancestor did so in order to make a bed in the gra.s.s.

In this environment of ancient custom, however, the American is surprised to find the most up-to-date courts in the world and an administration of law which is so prompt, so colloquial, so simple, so free from formality and so thoroughly in touch with the ordinary man's every-day life, as to provoke a blush for the tribunals of the vaunted New World, still lagging in their archaic conventionality and their diffuse and dilatory methods.

At home, the American has been perplexed by the threadbare a.s.sertion that we have as many judges in a large city as has all England, but he shortly learns that such comparison considers only the few judges of the High Court, and ignores the others and the officials performing judicial functions, so numerous that the little Island fairly teems with its justiciary and that the implied criticism is due to ignorance of the facts.

The trials, both civil and criminal, will reveal the complete triumph of common sense and the Englishman will appear at his best in his court, for there he leads the world. The hearty good humor, alacrity and crispness of the proceedings, the absence of declamation but the avoidance of monotony by the proper distribution of emphasis, all combine to delight the practised observer.

The disciplining of the profession by means of a body to whom may be privately submitted questions of morals and manners, mostly solved by gentle admonition and rarely by severe action, will suggest that our single punishment--disbarment--is so drastic as rarely to be invoked and hence largely fails as a corrective.

From the "bobby" in the street, to the Lord Chancellor on the Woolsack, from a hearing by a registrar to collect a petty debt, to the donning of the black cap in order to sentence a murderer; all will prove suggestive to the alert American who will nevertheless depart with a feeling that, while there is room for improvement at home, yet, upon the whole, there is much of which to be proud in our administration of the sound old law of our ancestors.

The kindly aid of a number of English judges, barristers and solicitors, by way of suggestion and criticism, is gratefully acknowledged.

The occasional ill.u.s.trations are photographic reproductions of original oil sketches.

Philadelphia, April, 1911.

CHAPTER I

FIRST IMPRESSIONS

THE LAW COURTS BUILDING ON THE STRAND--A COURT ROOM--PARTIc.i.p.aNTS IN A TRIAL--WIGS AND GOWNS --COLLOQUIAL METHODS--AGREEABLE VOICES-- SIMILARITY TO AMERICAN TRIALS.

Leaving the busy Strand at Temple Bar and entering the Law Courts Building, one plunges into that teeming hive where the disputes of millions of British subjects are settled by law. Here the whole kingdom begins and ends its legal battles--except the cases on circuit, those minor matters which go to the County Courts, and the very few which reach the House of Lords.

The visitor, strolling through the lofty Gothic hall and ascending one of the stair-cases to the second floor, finds himself in a long, vaulted corridor, sombre and quiet, which runs around the building.

There are no idle crowds and there is no smoking, but, curiously enough, frequent refreshment bars occupy corners, where drink as well as food is dispensed by vivacious bar-maids.[A] Here and there, a uniformed officer guards a curtained door through which may be had a glimpse of a court room; but no sound escapes, because of a second door of gla.s.s, also draped with curtains. Groups of litigants and witnesses await their turns or emerge with flushed faces and discuss their recent experiences before returning to the roar of London.

Barristers pace up and down in wig and gown, or retire to a window-seat for conference with their respective solicitors.

A mere sight-seer, having thus visited the courts, pa.s.ses on his way, but as the administration of law, from the Lord Chancellor to the "bobby," is the thing best done in England and commands the admiration and imitation of the world, the courts deserve more than a casual visit.

Pa.s.sing the officer and the double-curtained doors, one enters the court-room, which is usually small and lofty, with gray stone walls panelled in oak, subdued in color and well lighted from above. The admirable arrangement of seats sloping steeply upward on all sides, instead of resting upon a level floor, brings the heads of speakers and auditors near together; and the bright colors of the judges'

robes--scarlet with a blue sash over the shoulder in the case of the Lord Chief Justice, and blue with a scarlet sash in the case of most of the others, together with various modifications of broad yellow cuffs--first strike the eye.

The judge's bewigged head, as he sits behind his desk, is about twelve feet above the floor. On his left, at the same level, stands the witness, who has reached the box by a small stairway. At the judge's right are the jury, seated in a box of either two rows of six or three rows of four, the back row being nearly on a level with the judge. In front of the judge, but so much lower as to oblige him to stand on his chair when whispering to his lordship, sits his "a.s.sociate," a barrister in wig and gown, whom we should designate as the clerk of the court.

Facing the a.s.sociate is the "solicitors' well," at the floor level, where, on the front row of benches, sit the solicitors in ordinary street dress. Then come the barristers--all in wig and gown--seated on wooden benches, each row with a narrow desk which forms the back of the seat in front. The desks are supplied with ink wells, and with the inevitable quill pen. The barristers keep their places until their cases are reached and then try them from the same seats, so that there is always a considerable professional audience. For the public there is little accommodation--usually only a few benches back of the barristers and a meagre gallery above.

The solicitor, whose client may be the plaintiff or the defendant, has prepared the case and knows its ins and outs as well as the personal peculiarities of the parties and witnesses who will be called, but he is unable to take any part in the trial and can only whisper an occasional suggestion to the barristers he has retained, by craning his neck backward to the leader behind him. This leader is a newcomer into the case. He is a K. C. (King's Counsel) who has been "retained" by the solicitor upon payment of a guinea followed by a large "agreed fee," and he leaves the "opening of the pleadings" to the junior immediately back of him, while the latter, in turn, has handed over the preparation to his "devil" who is seated behind him.

Thus, the four men engaged on a side, instead of being grouped around a counsel table, as in America, are seated one in front of the other at different levels, rendering a general consultation difficult when questions suddenly arise. The two men on each side of the case who know most about it have no voice in court, for the devil is necessarily as mum as the solicitor, and the name of the former does not even appear in the subsequent report of the trial.

How this comes about requires some acquaintance with the different fields of activity of barristers and solicitors, which will be referred to later.

In thus glancing at an English court, an American's attention is sure to be arrested by the wig. The barrister's wig, for his ordinary practice in the High Court, has a ma.s.s of white hair standing straight up from the forehead, as a German brushes his; above the ears are three horizontal, stiff curls, and, back of the ears, four more, while behind there are five, finished by the queue which is divided into tails, reaching below the collar of the gown.

There are bright, shiny, well-curled wigs; wigs old, musty, tangled and out of curl; some are worn jauntily, producing a smart and sporty effect, others look like extinguishers. So grotesque is the effect that it is difficult to realize that these men are not mummers in some pageant of modern London, but that they are serious partic.i.p.ants in grave proceedings.

Not only the eye, but the ear will convey novel and favorable impressions to the observer. He will be struck by the cheerful alacrity and promptness of the witnesses, by the quickness and fulness of their responses, by a certain atmosphere of complete understanding between court, counsel, witnesses and jury, and more than all, by the marked courtesy, combined with an absence of all restraint, and a perfectly colloquial and good-humored interchange of thought. It is hard to define this, but it certainly differs from the air of an American tribunal where the partic.i.p.ants 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 a.s.sociated with literary and ecclesiastical surroundings. Besides superior modulation, the chief merit is in the admirable distribution of emphasis. In this respect both the dialogue and monologue in an English court room are far less monotonous than in an American.

Pa.s.sing the superficial impression and coming to the underlying substance, there is extraordinarily little difference between law courts on both sides of the Atlantic. Not only is the common law the same, and the legislation of the two countries largely parallel, but the method of law-thought--the manner of approaching the consideration of questions--is precisely identical, so that, upon the whole, the diversity is no greater than that which may exist between any two of the forty-six states. Indeed, so complete is the similarity that an American lawyer feels that he might step into the barristers' benches and conduct a current case without causing the slightest hitch in the proceedings, provided he could manage the wig and that the difference of accent--not very marked in men of the profession--should not attract too much attention.

That the law emanating from the little Island, which could be tucked away in a corner of some of our States, should have spread over the vast territory of America and control such an enormous population with its many foreign strains, and that, as the decades roll on, it should thrive, improve, and successfully grapple with problems never dreamed of in its origin, indicates its surprising vitality and stimulates interest in the methods now in vogue in its native land.

FOOTNOTE:

[A] Very recently these bars have been moved to restaurants on the lower floor.

CHAPTER II

THE MAKING OF LAWYERS

CLa.s.sES FROM WHICH BARRISTERS AND SOLICITORS ARE DRAWN--THE INNS OF COURT--INNS OF CHANCERY-- STUDENTS AT PERIOD OF REVOLUTION--A BARRISTER'S CHAMBERS--TRAINING OF BARRISTERS IN AN INN--BEING CALLED TO THE BAR--TRAINING OF SOLICITORS.

To young Englishmen possessing neither fortune nor influence, the profession of the law has long been an open road to advancement in a country notable for orderly and const.i.tutional methods, where the ultimate appeal is always to reason. Perhaps the worship of money, which characterizes modern 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 barristers, and to those whose ambition soars no higher than the solicitor's calling; moreover the cla.s.ses from which the candidates are generally drawn, differ as do their training and the future functions.