Thomas Leaming

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 of Judicature, composed of two branches—the High Court of Justice and the Court of Appeal. The High Court is the one of immediate interest because here are begun all litigations of every description, excepting the minor matters which go to the County Courts, or, perhaps, to the Registrar's Court.

The High Court is separated into three parts known as the King's Bench Division, 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 their own initiative without the necessity to rely upon the action of a legislative body largely incapable of dealing with such technical and important questions.

This experience should be borne in mind in the present movement to lessen the law's delays in America, and the existing power of the courts should be utilized, or, if necessary, broadened, rather than permit Congress and the 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 court itself 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 to maritime 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 respect are extremely useful, if rather uninteresting. An appeal lies from the County Court to the High Court on points of law but it is not often exercised. For very small matters—chiefly the 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 be supposed from this fact that the Lord Chancellor would yield to a natural temptation in making judicial appointments and that his selections would constitute a distribution of 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 entertain for the English judiciary as a body will in such instances not be reflected by the views of the English Bar, with opportunities for observation at closer range. Barristers will remark that a given judge is not a lawyer at all, but merely had the gift of gaining cases before juries, and that the political influence he acquired induced the government to give him an office for which he is 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."

A stranger is left to speculate how far such views may reflect some past grudge and he will probably come to the conclusion that the high standing of the English judiciary, in the opinion of all the world, is fully deserved, but that there are some few exceptions to this general excellence.

Costs play an important part in all English litigation. The tendency since the time of the Stuarts has been constantly to increase them. By costs—as understood in England—is not meant the official fees payable to the court officers, but a sum which the unsuccessful party is condemned to pay to the successful party, the aim being to indemnify the side whom the event proves to have been in the right. If a litigant has incurred expense to obtain a judgment for a sum of money, then he must be reimbursed by the other side who occasioned his outlay by refusal to pay. On the other hand, if an unjust claim has been made against him, the claimant must repay his expenses in resisting it.

Part of these costs are taxed as the case proceeds. Thus, if one party summon another before a Master prior to trial, to obtain an order for the production of some document, the Master imposes costs—say £2. 10s. 0d.—upon the party who refused to produce, or upon the party who, the Master finds, has unwarrantably demanded the production. The theory here is to discourage unnecessary and harassing interlocutory proceedings.

But the principal costs "await the event"—follow the course of the final judgment. They include an allowance for counsel fees, which, however, is not always as much as the amount paid by the litigants. 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 illustrates the possibilities of the system.

In theory it seems reasonable that the party in the wrong should reimburse the party in the right for having vexatiously put him to expense in 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 assertion of just rights and to stimulate fictitious claims, they are not to be desired by the profession or by the laity.

A jury trial strikes one as more cut and dried in an English than in an American court. Apparently, through the exchange of documents and otherwise, so much is known to the opposing counsel, solicitors and judge, that the element of surprise is largely eliminated. If all the litigants were honest, and the law were an exact science, this might conduce to a deliberate consideration of the questions involved. But what American advocate, having confronted a disingenuous 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?

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 circumstances 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, pass 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 participants.

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 identity, of a wart under the tail of a costermonger's donkey, the ownership of which is in dispute. Yet, like every feature of an English court, it is 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 assert 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.