CHAPTER IV

Crossing the Strand from Temple to CourtCrossing the Strand from Temple to Court

His success, however, means much, for there lie before him great pecuniary rewards, fame, perhaps a judgeship, or possibly an attorney-generalship, 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 business very concentrated, but no statistics are available, for many are called who never practice. By considering 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 living men who have been called to the Bar now includes 9,970 names.

We have no Bar with which to institute a comparison, 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 like that of London.

It would be interesting, if it were possible, to compare the proportion of the population ofEngland, 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 employed by others, as will be explained hereafter. The aggregate of these two uncertain elements, however, would be about 27,000. The legal directories 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.

BAR DIVIDED INTO TWO PARTS—NO DISTINCTION BETWEEN CRIMINAL AND CIVIL PRACTICE—LEADERS—"TAKING HIS SEAT" IN A PARTICULAR COURT—"GOING SPECIAL"—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 Common Law Bar and the Chancery Bar; for a barrister 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 Temple 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 life in jury trials and appeals;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 ofdevisavit 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, practicing entirely before Parliamentary committees, 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 indiscriminately.

At the Chancery Bar there is a peculiar subdivision which has already been mentioned. Having reached a certain degree of success and become 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 aggregating twenty-five, and if a solicitor wishes aleader 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 gentlemen 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 like proportion. The printed list also shows the names of these "specials," at present only five in number. The list of leaders and specials in 1910 reads as follows:

Usually Practicing in the Chancery Divisionof the High Court of Justice.

Mr. Levett: Mr. Astbury: Mr. Upjohn: Mr. Buckmaster.

[Transcriber's Note: In the original text, the section for M. Justices Melville and Parker appears across from the section for M. Justices Joyce and Washington, on the following page.]

The dress of barristers is the same for the Common Law Bar as for the Chancery Bar, but the details of both gown and wig signify to the initiated 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 barrister 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 preserve 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, hanging straight down, which all barristers wear—have three lines of stitching instead of two. Under his gown, a K. C. wears a "court coat," cut not unlike 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, whispered in his ear by an officer.

Wigs, which were introduced in the courts in1670, and have long survived their disappearance in private life, were formerly made of human 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 recourse to an extraordinary head-dress, which is precisely the shape of a half-bushel basket with the front cut away to afford him light and air. This, hanging below the shoulders, has an advantage 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, isa complete disguise. Individuality is lost in the overpowering absurdity and similarity of the heads. Then, too, there is an involuntary association 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, differences between individuals emerge from this first impression. Blond hair above a sunburned neck, peeping between 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 addto the uniformity and perhaps to the dignity—despite a certain grotesqueness—of a court room, yet it largely extinguishes individuality and obliterates 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 Canada. This would have the advantage of distinguishing counsel from the crowd in a court room, of covering over inappropriateness of dress and it might promote the impressiveness of the tribunal.

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 abluebag andcan only acquire aredone under certain conditions. As devil, and as junior, it is not consideredinfra 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 aredbag 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.

LINE WHICH SEPARATES THEM FROM THE BAR—SOLICITOR A BUSINESS MAN—FAMILY SOLICITORS—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 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 contemplating 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 retainsa junior barrister by handing him a brief, which consists of a written narrative of the controversy, with copies of all papers and correspondence—in short, the facts of the case—and which states on its back the amount of the barrister'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, unusual except in large corporations to have a permanent barrister, because the solicitor 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 impress 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, shillings and pence of his calling. He may seekbusiness, which the barrister can not do, and he is something of a banker, often a promoter. Some solicitors, especially those practicing at Liverpool, 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 companies or by families with large estates.

The venerable family solicitor of the novel and stage—that custodian of private estates and secrets who appears in all domestic crises, warning the wayward son, comforting the daughter whose affections are misplaced and succoring the gambling father, is sufficiently familiar. 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 maintain elaborate organizations like modern banks, with scores of clerks distributed in many departments, 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, carries weight in the business world and its headsenjoy 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 admitted to practice as solicitors), nor those who, for one reason or another, do not practice. Instead 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 living. Others are of a still lower class and seek business of a more or less disreputable 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 solicitors 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 abilityto be confined 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 unnecessary. 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 solicitor 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 number of persons composing the Bar enables greater control by the benchers over their professional conduct, and helps to maintain a high standard of ethics and the feeling ofesprit de corps. Moreover, the Bar is not distracted fromthe 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 calculated 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 solicitors' 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 practitioners, 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 English 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 businessof the law, and indeed one now occasionally hears of such partnerships designating one of their number as "counsel" to the firm—which is, perhaps, an affectation.

Solicitors often become barristers—sometimes eminent ones, for they have an opportunity to study other barristers' methods, and have acquired a knowledge of affairs. Of course they must first retire as solicitors 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 will be explained 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.

INFLUENTIAL FRIENDS OF BARRISTER—JUNIOR'S AND LEADER'S BRIEF FEES—FEES OF COMMON LAW AND CHANCERY BARRISTERS—BARRISTER PARTNERSHIPS NOT ALLOWED—ENGLISH LITIGATION LESS IMPORTANT THAN AMERICAN—CLERKS OF BARRISTERS AND SOLICITORS HAGGLE OVER FEES—SOLICITORS' FEES.

An American lawyer will be curious concerning two things, about which he will get little reliable information, viz., how legal business comes and what are its rewards.

The barrister supplements his reading, sometimes 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 according to the traditions of the Bar—may pass years awaiting recognition. Finally, briefs begin 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 themodern barrister, who may have some relative occupying the position of chairman of a railway, 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 well he avails himself of his opportunities.

When briefed as a junior, without a leader, in a small action, his fee may be "3 & 1," meaning 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:

The leader's brief will be endorsed:

The fee is not always sent by the solicitor with the brief, but a running 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 conversationdrifts 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 generation ago, and R. Barry O'Brien, in his life 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 during his twenty-second year the Solicitor Generalship, paying about £10,000. The Attorney General, 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 theyear before he went upon the bench his fees aggregated 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 professional services and do not come within the same category as the immense sums one occasionally hears of being received by American lawyers—not, however, as a rule, for real professional 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 although the services have been performed, nor is he liable for negligence or incompetence in his professional work.

Partnerships, which are common between solicitors, are unknown to barristers and anything approaching them would be the subject of severe discipline. This is a fundamental law of the profession, never questioned, as to which the rulingsof 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 circumstances. In order to appreciate the abhorrence 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 affinity to a business or a trade. No barrister can have the slightest personal concern in the interests which he advocates, his fee being never contingent, 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 supports the view he has undertaken to urge.

Upon the whole, professional rewards do not strike an American as particularly large, remembering that the recipients are at the top of the profession in London, which means the Kingdom.

One can not escape the impression that litigation in England deals with minor matters as compared with that of America. There are no American 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 andwell-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 continent, 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 England 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 bargain 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 celebrated 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 solicitor's clerk that the K. C. was overcrowded, and he did not believe he could get him into court unless 250 guineas were added to thefee. After grumbling and protesting, the addition would be forthcoming, whereupon the clerk would readily find the K. C. strolling in the Temple Gardens, and fetch him to court. This, however, was not regarded as honest and the story itself is doubted.

In the case of solicitors, the acquirement of a practice is apparently much like 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 enterprises, 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 regulated by a recognized scale, although he may makea 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 appearance in court the charge runs from 6s. 8d. to £1. 1s. 0d., according to the nature of the business and the time consumed. A charge reading, "To crossing the street to speak to you and finding it was another man, 1s. 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 writing of a post card will justify a charge of three shillings and sixpence, but, for a letter the demand may be five shillings and sixpence with a half-penny for the stamp. Each interview at the office, and every visit to the client's town or country house, is charged for; while incidental outlays and expenses are carefully detailed, including the fees paid the barrister for his opinions, for the drafting 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 judgment to be recovered from the opposite side, although they do not necessarily equal the charges to be paid by the client, as will be explained whendealing with the subject of costs. Solicitors, unlike barristers, may sue for their compensation and are liable for negligence, although not for mistaken opinions upon questions of law.

THE GENERAL COUNCIL OF THE BAR—THE STATUTORY COMMITTEE OF THE INCORPORATED LAW SOCIETY—RULINGS ON VARIOUS MATTERS—LAPSES FROM CORRECT STANDARDS.

The discipline 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 human nature is alike the world over. The General 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 Council of the Bar, having heard a complaint against a barrister, reports its findings with recommendations—perhaps of disbarmentin 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 little difference exists in their deliberations, methods and actions in serious cases and that of corresponding disciplinary agencies in the United States, whether called a Bar Committee or a Committee of Censors. 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 accomplished 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 "Undesirable 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 apparentlyis 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 delicacy or experience.

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 barrister 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 ruling merely illustrates that in England there is an authoritative body which could be asked to declare 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 sonshould be excluded from the only court of his vicinity.

That a kind of sporting magnanimity is desirable but not required by any 'rule of the profession', is shown in the following, which refers to revenue laws requiring receipts and other papers to be stamped in order to constitute evidence:

"Stamps: It is undesirable that counsel should object to the admissibility of any document upon the ground that it is not, or is insufficiently, stamped, unless such defect goes to the validity 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 judicial 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 occupying the office of town clerk, or clerk of any similar public body, "ought not" to practice at theBar and that it is "undesirable" for such an official to be called to the Bar. (An. St. 1896-1897, p. 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 barrister should not practice at Quarter or Petty Sessions in the county of which he is a magistrate, but he may practice at the Assizes for his county. (An. St. 1901-1902, p. 6.)

The following illustrates the aversion to anything approaching advertising:

"Photographs in Legal Newspapers: It is undesirable for members of the Bar to furnish signed photographs of themselves for publication in legal newspapers." An. St. 1900-1901, p. 8.

Likewise the following:

"Names of Counsel giving Opinions: Publication of: The practice of certain newspapers publishing the names of counsel in connection with opinions printed in their columns has been altered to meet the wishes of the Council." An. St. 1896-1897, p. 9.

This is a little obscure and furnishes no information as to what alteration was effected. The daily papers invariably print the names of all counsel and solicitors engaged in any reported litigation and the object of this ruling isprobably to prevent indirect advertising by writing 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 relief 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 really occurred, gives a feeling of being fully informed. Brevity is served by admirable condensation of the evidence, arguments and rulings, and by the use of the third person in narration. By occasional recourse, too, to the first personal pronoun, and a verbatim report of graphic passages, the important and interesting 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 LondonTimesthat they are generally used in court for the citation of recent decisions, and, when collected and issued periodically, are universally employed for reference.

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 newspaper which, in printing the news of the arrest, had speculated upon the probability 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 interfere 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 evidence.

Many of the resolutions of the General Council of the Bar 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 attendthe weekly sittings of the Vacation Court during 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 discussion 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 vacations at Christmas, Easter and Whitsuntide.

One resolution of the Council illustrates the fact, already referred to, that barristers are not nearly so intimately identified with 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 advocated. 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,at a proper professional fee. Special circumstances may justify his refusal to accept a particular 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 inducements 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 barrister." 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 accept the brief. Mr. B., considering that such a practice might lead to serious abuses, if it were countenanced, requested a pronouncement of theCouncil on the matter. The Council expressed the opinion that the practice referred to is absolutely improper." An. St. 1904-1905 VII, p. 11.

A number of rulings serve to define the limitations or partial exceptions to the rule that a barrister'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 intervention of an English solicitor, on a case submitted to him by a colonial advocate in a colony where the professions of barrister and solicitor are combined." An. St. 1902-1903, p. 11.

On the other hand, it was held that a barrister"should not" appear as spokesman for a deputation of contractors waiting upon a public body, nor on behalf of an application for a license, without the intervention of a solicitor.

The preservation of the barrister's dignity in his relations with the solicitor seems to have induced 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 office, but that under exceptional circumstances the rule may be departed from." An. St. 1904-1905, p. 10.

The complicated subject of one barrister assisting 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 counsel to represent him in court as if the latter counsel had himself been briefed; unless the client consents to this course being taken.... In the Chancery Division it is not the practice for one junior to hold a brief(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 governing the remuneration for devilling, or assistance given by one counsel to another, in the cases above referred to.""With regard to juniors, it is a common practice 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 drafting. In the King's Bench Division, remuneration for devilling of briefs or assistance in drafting 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 unfrequently 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 rarecases 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) practiced 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.

"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 governing the remuneration for devilling, or assistance given by one counsel to another, in the cases above referred to."

"With regard to juniors, it is a common practice 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 drafting. In the King's Bench Division, remuneration for devilling of briefs or assistance in drafting 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 unfrequently 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 rarecases 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) practiced 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 payment should be "exposed and punished" assistance may be given by the Council to a barrister in taking proceedings before the Statutory Committee of the Law Society—the solicitor's governing 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 Counsel should refuse all draftingwork and written opinions on evidence as being appropriate to juniors only; but a King's Counsel is at liberty to settle any such drafting and advice 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 defendant in like 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 states a fundamental rule rather than its refinements:

"Junior and Leader.Proportion of Fees.Refreshers:—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, although there is no rigid rule of professional etiquette 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 practice of the profession that he should refuse to do so in the absence of special circumstances affectingthe 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 refresher". 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 solicitor retain a junior belonging to the circuit, which will later be explained, is recognized in the following resolution:

"Special Fees at Assizes:—The universal practice of the circuits since June 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 byhim) and the President of the Incorporated Law 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 witness action in such a court? Which leader ispersona gratain 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 investigation 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 partnership which would never be tolerated. The defence 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 rulingson 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 experience of the best Bar in the world justifies the existence 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 shortcomings, but inquiry will develop that even "ambulance chasing" is not unknown—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 sixpence, and express wonder that he is able to afford it, the information will be forthcoming that some solicitor's clerk was probably in a neighboring "pooblic" and, hearing of an accident, had followed the injured man, perhaps to the hospital, and got the case for his master, whose remuneration would depend upon the result. Pressing theinquiry further as to whether the solicitor advances the barrister's fees, it will reluctantly be admitted that some barristers have relations with solicitors that should not be looked into too closely—in other words that their fees are contingent. 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 traditions. This is especially true in these days when law schools are grinding out members of the Bar who have had no real professional preceptors. As disbarment or suspension is too severe a penalty, such lapses pass unreproved and the standards sink, a result much more deplorable 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 particulars.

In this way, too, a body of rulings on the professionalproprieties applicable to American conditions would be steadily forced upon the attention of the whole profession, instead of being locked in the breasts of the more reputable members to govern merely their own conduct.

[86]

THE GENERAL SYSTEM—DIFFERENT COURTS—RULES OF PRACTICE MADE BY LORD CHANCELLOR—JURIES, COMMON AND SPECIAL—JUDGES AND HOW APPOINTED—JUDGES' PAY—COSTS—COURT NOTES—SOME DIFFERENCE IN ENGLISH AND AMERICAN METHODS.

The general system of the English courts may be indicated without detailing the exact limitations 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 Parliament, or rather their functions were merged into the present far simpler system. In this radical 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 ofJudicature, 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, devoted 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 number 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 assistance of a jury in the King's Bench Division,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 experience 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 direction—probably all that would be wise—particularly in the admission of equitable defenses in common law actions and in the facility with which, on the other hand, an equity court is enabled to obtain the verdict of a jury upon disputed facts without the old and cumbersome 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 approval of a majority of the judges. It is provided, however, that such changes must be submitted 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 improvements in practice which have so greatly facilitated and accelerated English litigation, have been effected by the courts and the Bar of theirown 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 legislatures 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 attention to the present equity practice of the United States Courts. In them, testimony upon disputed facts is still elicited by an examiner—a method long since abandoned in progressive communities. Such an official, temporarily appointed by the court, possessing but limited power and often with little experience, merely presides, while a stenographer notes the oral evidence subsequently to be reproduced in typewriting or print. Thereafter, in some instances, a Master is appointed to consider the testimony and report his conclusions, while later the courtitself does the same thing over again. All lawyers 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 produced 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 tribunal which is to decide the facts upon their testimony—exactly as they would be brought before a jury.

The power to bring about such a salutary change inheres in the Supreme Court of the United States which, by the simple promulgation of an order to that effect, without any further legislation, can forever abolish the obsolete system 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 duration and lightened in cost, to the infinite relief of court, counsel and litigants.

In the King's Bench Division—the only court holding jury trials except the County Courts—the jury of twelve men may be either a "common"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 equivalent 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 little more than that the juror should have a known place of residence. His compensation for services 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 bestowed. The employment of special juries is increasing in frequency at the expense of ordinary 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 parties so agree.

The Chancery Division, as stated, is the tribunal for equity 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 jurisdiction 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 construction of wills and the distribution of property. Divorces occupy much time of this Court and furnish sensational material for English newspapers. They form an exception to the general rule in the Probate, Divorce and Admiralty division in the presence of a jury and in the submission of the facts to them.

The Admiralty Court is of course confined tomaritime matters and the room is adorned by 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 counties, notwithstanding they are called County Courts. One judge suffices 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 limited, 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 explained later, barristers rarely appear but solicitors are allowed to act as advocates. The County Courts were established in 1846 and, as mentioned, 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 respectare 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 collection of trifling debts—the Registrar's Court, which is likewise not confined to London, performs 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 transact 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 changing with the Government. It might besupposed 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 political patronage. There appears to be nothing in the law to prevent this, and formerly judges were largely appointed for political considerations or by reason of personal or social influences.

At present, however, the least observation will convince any one that the great majority of judicial appointments in England are made solely out of consideration for character and professional 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 barristers 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 qualified and his selection is attributed to influence. The just admiration which Americans entertainfor 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 ill equipped. And one may even hear the statement 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."

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