A Philadelphia Lawyer in the London Courts Part 6

For, if a litigant has indulged in the luxury of an unusual array of counsel, he must do so at his own expense, and the Master allows only what he should have laid out in fees. Thus, in a petty action, caused by some personal pique, the plaintiff may have insisted that his solicitor retain a K. C. at fifty guineas and a junior at thirty-five guineas, involving a total expense, with three guineas for the consultation, of eighty-eight guineas. The defendant, however, has been content with a junior at "3 & 1." If the plaintiff succeeds, the Master will not allow him the eighty-eight guineas, but will decide that the more modest armament of the defendant would have been sufficient.

Costs are, upon the whole, very high. In an ordinary action to recover a moderate sum--say 200--the costs will generally amount to 50. In a recent action to recover 60, the balance of the purchase price of a motor car, costs were claimed of over 400, and actually allowed in a sum over 200. Though this was exceptional, owing to the unreasonable stubbornness with which a just claim was resisted, and is by no means typical, yet it ill.u.s.trates the possibilities of the system.

In theory it seems reasonable that the party in the wrong should reimburse the party in the right for having vexatiously put him to expense in obtaining his due. In practice, however, the prospect of large costs may stimulate unjust suits by impecunious plaintiffs--unable themselves to respond in costs if defeated--against richer defendants vulnerable for whatever the chances of war may have in store for them. To this criticism English lawyers can only answer that if the plaintiff is unable to give security for costs, he may, in actions of tort, at least, be remitted to the County Courts, where the costs are much lighter.

This, however, is merely a mitigation of the evil.

The general opinion seems to be that high costs discourage litigation. This may be true, but if they tend as well to obstruct the a.s.sertion of just rights and to stimulate fict.i.tious claims, they are not to be desired by the profession or by the laity.

A jury trial strikes one as more cut and dried in an English than in an American court. Apparently, through the exchange of doc.u.ments and otherwise, so much is known to the opposing counsel, solicitors and judge, that the element of surprise is largely eliminated. If all the litigants were honest, and the law were an exact science, this might conduce to a deliberate consideration of the questions involved. But what American advocate, having confronted a disingenuous witness with his own letter, utterly at variance with his testimony, could say that the cause of justice would have been better served if the witness had known that the letter was to be produced and had had the chance to regulate his evidence accordingly?

[Ill.u.s.tration: A JURY TRIAL]

And what American lawyer would not feel that half the fun of life were gone?

During the examination of witnesses, notwithstanding the rapidity of articulation, an American ear is struck by a certain lack of snap and by the great deliberation and long intervals between questions, which afford--especially for a dishonest witness under cross-examination--too much time for reflection. This impression may be due to differences in national temperament, and the examination may seem even rapid to an English listener. Perhaps the chief cause of the hesitancy is the fact that the examiner has obtained his information at second hand, from his client the solicitor, or his junior or devil, and has to feel his way. A kind of confidence in the veracity of witnesses appears to pervade the court; and they are, indeed, as a rule, uncommonly frank.

English barristers do not know their cases as well as American lawyers. They have not conducted the preliminaries, nor become acquainted with and advised the parties they are to represent; in other words, they have not "grown up with the case," and the facts are more like abstract propositions lately placed in their hands to be presented. It is not unusual during the trial, when some unexpected situation arises, to see evidence of a lack of familiarity with the circ.u.mstances which requires instant reference to the solicitor.

The judges take a larger part in trials than in most American courts--a practice which has much to commend it, and which is increasing on this side of the water. An American lawyer will say, "I tried a case before Judge So-and-so"--an English barrister says: "I conducted a case which Lord So-and-so tried." The English judge restrains counsel, often examines the witnesses, and his influence is quite openly exerted to guide the jury and cause them to avoid absurdities and extremes. Yet, the crucial questions of fact really to be determined--of which there are usually but one or two--are left absolutely to the jury's unfettered decision.

Objections to questions by opposing counsel, which cut so large a figure in an American trial, are rarely made. One is told that the barristers know the rules of evidence too well to ask improper questions and that they have too much respect for the court to hazard a rebuke. This is a very pretty, but hardly a satisfactory, explanation. Observation of many trials gives the impression, rather, that great laxity prevails as to what is a proper question and that the party aggrieved by an objectionable one prefers to rely upon the reaction in his favor in the judge's mind, which will be shown when his influence comes to be exercised upon the jury.

That this laxity prevails, the least experience will show. Upon direct examination leading questions, which in America would bring a storm of objection, pa.s.s unnoticed, and even hearsay evidence is not unknown. The absence of the element of surprise in trials, may make those concerned more tolerant of counsel leading in a story known to all beforehand. The occasional element of hearsay is more difficult to explain unless, indeed, the French view gains in England, which justifies the admission of hearsay on the ground that in the most important questions of life--for example, in respect to the reputation of a man whom one contemplates trusting, or of a woman one thinks of marrying--men act exclusively upon hearsay and never upon direct evidence. But, of course, the law of evidence remains in England as it always has been: all that is here meant is that a degree of tolerance prevails and upon careful observation, the real cause of this tolerance will be found in the fact that both sides rely on the influence of the judge to eliminate from the minds of the jury the effect of evidence wrongly introduced.

In England, mistress of the seas, with much the greatest merchant marine in the world, and with a large insular population living in close touch with the water, one finds, as might be expected, the best Admiralty Courts and Bar in the world.

The chart used by counsel in examining witnesses is pinned to a sloping table, among the barrister's benches and facing the Court.

In collision cases, small models of steamers and sailing vessels, as well as arrows to indicate winds and tides, are employed. All of these may be veered and shifted as the trial progresses, by means of thumb pins projecting beneath and capable of being pressed into the table which has a cork top. The Admiralty trials are beautifully conducted and great familiarity with the affairs of the sea is displayed by the partic.i.p.ants.

Models are very much used in all English Courts. In land condemnation, nuisance injunction and accident cases, one frequently sees elaborate models reproducing the _locus in quo_. In actions concerning floods or other occurrences affecting considerable areas, models many square feet in size, reproducing the whole locality, are employed.

The Chief Justice sits at nisi prius more often than upon appeal. It seems odd, during the trial of an action for damage caused by a flood due to the alleged improper construction of a bridge, to see the Lord Chief Justice of England reaching far down with a long white, lath-like stick, into the solicitors' well to point out some feature of a model while interrogating a witness, and afterwards charging the jury stick in hand. It is still more strange to hear a judge, whose name is known the world over, gravely charging a jury as to the value, as evidence of ident.i.ty, of a wart under the tail of a costermonger's donkey, the ownership of which is in dispute.

Yet, like every feature of an English court, it is eminently practical and free from form or affectation.

The highly paid judges of the High Court, sit in the smallest case; the idea seems to be that if a man desires to a.s.sert his rights, however insignificant, it is the duty of the Government to afford him the opportunity. In the Divisional Court (an appeal court of limited jurisdiction) the Lord Chief Justice of England and two famous colleagues did not grudge, upon a recent occasion, to hear an appeal involving nominally 22. 11s. 6d., payment on account having reduced the actual amount in controversy to 2. 11s. 6d. As the salaries of the occupants of the Bench were not less than 20,000 a year--to say nothing of those of the court attendants, and the fees of the barristers and solicitors on both sides--the economy of such an employment of human effort is not apparent. Some one, however, thought his rights had been invaded, which justified the waste, while the costs furnished a small stake upon the result.

CHAPTER IX

COURTS OF APPEAL

THE COURT OF APPEAL--HOUSE OF LORDS--DIVISIONAL COURT--JUDICIAL COMMITTEE 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 a.s.sociate Lord Justices of Appeal compose the court.

Printed briefs are not used, though the advantage 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 reverse of that rendered below or, in the alternative, for a new trial, and everything which transpired is open to review. Three barristers--the leader, 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, doc.u.ments 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 ma.n.u.script, 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 unfavorable 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 apparent 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 court and distinct intimation given whether the court agrees with the speaker. In case it does, he may pa.s.s on. On the other hand, deferential dissent may warn him to strengthen his position, or a frank expression of doubt may be accompanied by a friendly invitation to the other side to contribute suggestions.

At the conclusion, judgment is rendered orally, in nine cases out of ten, by the presiding Lord Justice, as the last speaker resumes his seat. Then follow the opinions of the a.s.sociate Lord Justices of Appeal, concurring or dissenting, all expressed with the utmost frankness and spontaneity. These are taken down stenographically, and, after revision, sometimes by the judge himself, find their way into the books to become authorities. Occasionally a "considered judgment" 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 like silent images, without the slightest intimation to the speaker whether he is wasting effort upon conceded points, or slighting those upon which he may discover by the written opinion--delivered months afterwards--he has won or lost.

Sometimes these friendly debates in an English 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 inflammatory language in his speech to the jury.

The judgment was immediately affirmed, the Lord Chancellor delivering an opinion to the effect 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 a.s.sociate Lord Justices concurred, but one proceeded to give quite different reasons. With the preliminary words: "Speaking only for myself, but not for his Lordship," and with a slight inclination of his head towards the Lord Chancellor, he said he was for affirming for an entirely different reason--not because he could not examine the language used below, but rather that he had done so. He then proceeded to rehea.r.s.e the brutal conduct of the defendant, and wound up by declaring, "If it had been my sick wife and my furniture which had been set out in the rain under the circ.u.mstances 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 frequent 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. The opinions in the books, after being toned down by the reporter, often bear but faint resemblance to the actual utterances.

In the House of Lords appeals are equally informal 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 gentlemen 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 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 propria 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 counsel in the elevated box. They are not placed in a row nor behind any bench or table. On the contrary, 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. .h.i.tched 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 doc.u.ment or a book and talk of the case audibly and perfectly 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 argument, "I say, can't you give the man a chance to say what he's got to say?"

These little circ.u.mstances show that judges and counsel in the appellate courts of England behave as natural men without the slightest restraint, formality or self-consciousness. Arguments are delivered with surprising rapidity of utterance, in a conversational tone, and with a crispness of articulation altogether delightful to the ear. The drawling style of speech sometimes 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 English argument, would have 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 interest.

The Judicial Committee of the Privy Council--or, as it is colloquially described by the lawyers, "The Privy Council"--is doubtless the most interesting court in England because of the variety 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 political adviser of the Crown--for the Judicial Committee's functions are purely judicial and its personnel consists of the Lord Chancellor and the other Law Lords, a few paid members, and some Ex-Colonial Judges.

Historically, indeed, it was but a sub-committee of the Privy Council, which circ.u.mstance gives the Court its name and explains why its judgments always conclude with the phrase that the Committee "humbly advises His Majesty" to affirm or reverse the judgment rendered in the Colony, instead of p.r.o.nouncing the conclusion in direct language, 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 appeal lies from their decisions to the Privy Council in certain circ.u.mstances, although to define exactly the scope of this jurisdiction would be too technical for present purposes.

Here are to be found, arguing their cases, lawyers from Colonies in every corner of the globe in some of which the division of the profession into barristers and solicitors hardly exists, 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 deliberations may be imagined.

The succession to an Indian Princ.i.p.ality, 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 Canadian North-West.

And the court may next turn its attention to the problem whether the widow of 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 court something of the tremendous scope of his own Supreme Court of the United States, to which tribunal only is the Privy Council secondary.

CHAPTER X

MASTERS: THE TIME SAVERS

CURRENT HEARINGS--MINOR ISSUES THRESHED OUT.

The numerous motions and interlocutory applications, supported by affidavits and urged by argument, which consume so much of the time of an American court, are disposed of in England by Masters--competent barristers appointed by the Courts, who are paid salaries of about 3,000 a year.