William Russell

LOW, narrow, dark, and frowning are the thresholds of our Inns of Court. If there is one of these entrances of which I have more dread than another, it is that leading out of Holborn to Gray’s Inn. I never remember to have met a cheerful face at it, until the other morning, when I encountered Mr. Ficker, attorney-at-law. In a few minutes we found ourselves arm in arm, and straining our voices to the utmost amid the noise of passing vehicles. Mr. Ficker stretched himself on tiptoe in a frantic effort to inform me that he was going to a County Court. “But perhaps you have not heard of these places?”

I assured Mr. Ficker that the parliamentary discussions concerning them had made me very anxious to see how justice was administered in these establishments for low-priced Law. “I am going to one now;” but he impressively added, “you must understand, that professionally I do not approve of their working. There can be no doubt that they seriously prejudice the regular course of law. Comparing the three quarters preceding with three quarters subsequent to the establishment of these Courts, there was a decrease of nearly 10,000 writs issued by the Court of Queen’s Bench alone, or of nearly 12,500 on the year.”

We soon arrived at the County Court. It is a plain, substantial looking building, wholly without pretension, but at the same time not devoid of some little architectural elegance of exterior. We entered, by a gateway far less austere than that of Gray’s Inn, a long, well-lighted passage, on either side of which were offices connected with the Court. One of these was the Summons Office, and I observed on the wall a “Table of Fees,” and as I saw Mr. Ficker consulting it with a view to his own business, I asked him his opinion of the charges.

“Why,” said he, “the scale of fees is too large for the client and too small for the lawyer. But suitors object less to the amount than to the intricacies and perplexities of the Table. In some districts the expense of recovering a sum of money is one-third more than it is in others; though in both the same scale of fees is in operation. This arises from the variety of interpretations which different judges and officers put upon the charges.”

Passing out of the Summons Office, we entered a large hall, placarded with lists of trials for the ensuing week. There were more than one hundred of them set down for trial on nearly every day.

“I am glad,” I said, “to think that this is not all additional litigation. I presume these are the thousands of causes a-year withdrawn from the superior Courts?”

“The skeletons of them,” said Mr. Ficker, with a sigh. “There were some pickings out of the old processes; but I am afraid there is nothing but the bone here.”

“I see here,” said I, pointing to one of the lists, “a single plaintiff entered, as proceeding against six-and-twenty defendants in succession.”

“Ah,” said Mr. Ficker, rubbing his hands, “a knowing fellow that—quite awake to the business of these Courts. A cheap and easy way, sir, of recovering old debts. I don’t know who the fellow is—a tailor, very likely—but no doubt you will find his name in the list in this way once every half-year. If his Midsummer and Christmas bills are not punctually paid, it is far cheaper to come here and get a summons served, than to send all over London to collect the accounts, with the chance of not finding the customer at home. And this is one way, you see, in which we solicitors are defrauded. No doubt, this fellow formerly employed an attorney to write letters for him, requesting payment of the amount of his bill, and 6s. 8d. for the cost of the application. Now, instead of going to an attorney, he comes here and gets the summons served for 2s. A knowing hand that—a knowing hand.”

“But,” I said, “surely no respectable tradesman——”

“Respectable,” said Mr. Ficker, “I said nothing about respectability. This sort of thing is very common among a certain class of trades-people, especially puffing tailors and boot-makers. Such people rely less on regular than on chance-custom, and therefore they care less about proceeding against those who deal with them.”

“But,” said I, “this is a decided abuse of the power of the Court. Such fellows ought to be exposed.”

“Phoo, phoo,” said Mr. Ficker; “they are, probably, soon known here, and then if the judge does his duty, they get bare justice, and nothing more. I am not sure, indeed, that sometimes their appearance here may not injure rather than be of advantage to them; for the barrister may fix a distant date for payment of a debt which the tradesman, by a little civility, might have obtained from his customer a good deal sooner.”

“The Court” I found to be a lofty room, somewhat larger and handsomer than the apartment in which the Hogarths are hung up in the National Gallery. One-half was separated from the other by a low partition, on the outer side of which stood a miscellaneous crowd of persons who appeared to be waiting their turn to be called forward. Though the appearance of the Court was new and handsome, everything was plain and simple.

I was much struck by the appearance and manner of the Judge. He was comparatively a young man; but I fancied that he displayed the characteristics of experience. His attention to the proceedings was unwearied; his discrimination appeared admirable; and there was a calm self-possession about him that bordered upon dignity.

The suitors who attended were of every class and character. There were professional men, tradesmen, costermongers, and a peer. Among the plaintiffs, there were specimens of the considerate plaintiff, the angry plaintiff, the cautious plaintiff, the bold-swearing plaintiff, the energetic plaintiff, the practiced plaintiff, the shrewish (female) plaintiff, the nervous plaintiff, and the revengeful plaintiff. Each plaintiff was allowed to state his or her case in his or her own way, and to call witnesses, if there were any. When the debt appeared to be prim facie proved, the Barrister turned to the defendant, and perhaps asked him if he disputed it?

The characteristics of the defendants were quite as different as the characteristics of the plaintiffs. There was the factious defendant, and the defendant upon principle—the stormy defendant, and the defendant who was timid—the impertinent defendant, and the defendant who left his case entirely to the Court—the defendant who would never pay, and the defendant who would if he could. The causes of action I found to be as multifarious as the parties were diverse. Besides suits by trades-people for every description of goods supplied, there were claims for every sort and kind of service that can belong to humanity, from the claim of a monthly nurse, to the claim of the undertaker’s assistant.

In proving these claims the Judge was strict in insisting that a proper account should have been delivered, and that the best evidence should be produced as to the correctness of the items. No one could come to the court and receive a sum of money merely by swearing that “Mr. So-and-so owes me so much.”

With regard to defendants, the worst thing they could do, was to remain away when summoned to attend. It has often been observed that those persons about whose dignity there is any doubt, are the most rigorous in enforcing its observance. It is with Courts as it is with men; and as Small Debt Courts are sometimes apt to be held in some contempt, I found the Judge here very prompt in his decision, whenever a defendant did not appear by self or agent. Take a case in point:—

Barrister (to the Clerk of the Court). Make an order in favor of the plaintiff.

Plaintiff’s Attorney. Your honor will give us speedy recovery?

Barrister. Will a month do, Mr. Docket?

Plaintiff’s Attorney. The defendant is not here to assign any reason for delay, your honor.

Barrister. Very well; then let him pay in a fortnight.

I was much struck, in some of the cases, by a friendly sort of confidence which characterized some of the proceedings. Here again the effect in a great measure was attributable to the Barrister. He seemed to act—as indeed he is—rather as an authorized arbitrator than as a judge. He advised rather than ordered; “I really think, he said, to one defendant, “I really think, sir, you have made yourself liable.” “Do you, sir?” said the man, pulling out his purse, without more ado, “then, sir, I am sure I will pay.”

It struck me, too, as remarkable, that though some of the cases were hotly contested, none of the defeated parties complained of the decision. In several instances, the parties even appeared to acquiesce in the propriety of the verdict.

A Scotch shoeing-smith summoned a man who, from his appearance, I judged to be a hard, keen-dealing Yorkshire horse-jobber; he claimed a sum of money for putting shoes upon six-and-thirty horses. His claim was just, but there was an error in his particulars of demand which vitiated it. The Barrister took some trouble to point out that in consequence of this error even if he gave a decision in his favor, he should be doing him an injury. The case was a hard one, and I could not help regretting that the poor plaintiff should be non-suited. Did he complain? Neither by word or action. Folding up his papers, he said, sorrowfully, “Well, sir, I assure you I would not have come here, if it had not been a just claim.” The Barrister evidently believed him, for he advised a compromise, and adjourned the case that the parties might try to come to terms. But the defendant would not arrange, and the plaintiff was driven to elect a non-suit.

The mode of dealing with documentary evidence afforded me considerable satisfaction. Private letters—such as the tender effusions of faithless love—are not, as in the higher Courts, thrust one after the other, into the dirty face of a grubby-looking witness who was called to prove the handwriting, sent the round of the twelve jurymen in the box, and finally passed to the reporters that they might copy certain flowery sentences and a few stanzas from “Childe Harold,” which the short-hand writers “could not catch,” but are handed up, seriatim, to the Judge who looks through them carefully and then passes them over without observation for the re-perusal of the defendant. Not a word transpires except such extracts as require comment.

There was a claim against a gentleman for a butcher’s bill. He had the best of all defences, for he had paid ready money for every item as it was delivered. The plaintiff was the younger partner of a butchering firm which had broken up, leaving him in possession of the books and his partner in possession of the credit. The proprietor of the book-debts proved the order and delivery of certain joints prior to a certain date, and swore they had not been paid for. To show his title to recover the value of them, he somewhat unnecessarily thrust before the Barrister, the deed which constituted him a partner. The Judge instantly compared the deed with the bill. “Why,” he said, turning to the butcher, “all the items you have sworn to were purchased anterior to the date of your entering into partnership. If any one is entitled to recover, it is your partner, whom the defendant alleges he has paid.” In one, as they are called, of the “Superior Courts,” I very much doubt whether either Judge or Jury would have discovered for themselves this important discrepancy.

The documentary evidence was not confined to deeds and writings, stamped or unstamped. Even during the short time I was present, I saw some curious records produced before the Barrister—records as primitive in their way as those the Chancellor of the Exchequer used to keep in the Tally-Office, before the comparatively recent introduction of book-keeping into the department of our national accountant.

Among other things received in evidence, were a milkwoman’s score and a baker’s notches. Mr. Ficker appeared inclined to think that no weight ought to be attached to such evidence as this. But, when I recollect that there have occasionally been such things as tombstones produced in evidence before Lord Volatile in his own particular Court, the House of Lords, (“the highest jurisdiction,” as they call it, “in the realm,”) I see no good reason why Mrs. Chalk, the milkwoman, should not be permitted to produce her tallies in a County Court. For every practical purpose the score upon the one seems just as good a document as the epitaph upon the other.

I was vastly pleased by the great consideration which appeared to be displayed towards misfortune and adversity. These Courts are emphatically Courts for the recovery of debts; and inasmuch as they afford great facilities to plaintiffs, it is therefore the more incumbent that defendants should be protected against hardship and oppression. A man was summoned to show why he had not paid a debt pursuant to a previous order of the Court. The plaintiff attended to press the case against him, and displayed some rancor.

“Why have you not paid, sir?” demanded the Judge sternly.

“Your honor,” said the man, “I have been out of employment six months, and within the last fortnight everything I have in the world has been seized in execution.”

In the Superior Courts this would have been no excuse. The man would probably have gone to prison, leaving his wife and family upon the parish. But here that novel sentiment in law proceedings—sympathy—peeped forth.

“I believe this man would pay,” said the Barrister, “if possible. But he has lost everything in the world. At present I shall make no order.”

It did not appear to me that the plaintiffs generally in this Court were anxious to press very hardly upon defendants. Indeed it would be bad policy to do so. Give a man time, and he can often meet demands that it would be impossible for him to defray if pressed at once.

“Immediate execution” in this Court, seemed to be payment within a fortnight. An order to pay in weekly installments is a common mode of arranging a case, and as it is usually made by agreement between the parties, both of them are satisfied. In fact, the rule of the Court seemed not dissimilar from that of trades-people who want to do a quick business, and who proceed upon the principle that “No reasonable offer is refused.”

I had been in the Court sufficiently long to make these and other observations, when Mr. Ficker introduced me to the clerk. On leaving the Court by a side-door, we repaired to Mr. Nottit’s room, where we found that gentleman (an old attorney) prepared to do the honors of “a glass of sherry and a biscuit.” Of course the conversation turned upon “the County Court.”

“Doing a pretty good business here?” said Mr. Ficker.

“Business—we’re at it all day,” replied Mr. Nottit. “I’ll show you. This is an account of the business of the County Courts in England and Wales in the year 1848—the account for 1849 is not yet made up.”

“Take six months, I suppose, to make it,” said Mr. Ficker, rather ill-naturedly.

“Total ‘Number of Plaints or Causes entered,’” read the clerk, “427,611.”

“Total amount of money sought to be recovered by the plaintiffs,” continued Mr. Nottit, “£1,346,802.”

“Good gracious!” exclaimed Ficker, his face expressing envy and indignation; “what a benefit would have been conferred upon society, if all this property had been got into the legitimate Law Courts! What a benefit to the possessors of all this wealth! I have no doubt whatever that during the past year the suitors, who have recovered this million and a quarter, have spent the whole of it, squandered it upon what they called “necessaries of life.” Look at the difference if it had only been locked up for them—say in Chancery. It would have been preserved with the greatest possible safety; accounted for—every fraction of it—in the books of the Accountant-General; and we, sir, we—the respectable practitioners in the profession—should have gone down three or four times every year to the Master’s offices to see that it was all right, and to have had a little consultation as to the best means of holding it safely for our client, until his suit was properly and equitably disposed of.”

“But, perhaps, Ficker,” I suggested, “these poor clients make better use of their own money after all than the Courts of Law and Equity could make it for them.”

“Then the costs,” said Mr. Ficker, with an attorney’s ready eye to business, “let us hear about them.”

“The total amount of costs adjudged to be paid by defendants on the amount (£752,500) for which judgment was obtained, was £199,980,” was the answer—“being an addition of 26.5 per cent, on the amount ordered to be paid.”

“Well,” said Mr. Ficker, “that’s not so very bad. Twenty five per cent,” turning to me, “is a small amount undoubtedly for the costs of an action duly brought to trial; but, as the greater part of these costs are costs of Court, twenty-five per cent, cannot be considered inadequate.”

“It seems to me a great deal too much,” said I. “Justice ought to be much cheaper.”

“All the fees to counsel and attorneys are included in the amount,” remarked the clerk, “and so are allowances to witnesses. The fees on causes amounted to very nearly £300,000. Of this sum, the Officers’ fees were, in 1848, £234,274, and the General Fund fees £51,784.”

“Not so bad!” said Mr. Ficker, smiling.

“The Judges’ fees amounted to nearly £90,000. This would have given them all £1500 each; but the Treasury has fixed their salaries at a uniform sum of £1000, so that the sixty Judges only draw £60,000 of the £90,000.”

“Where does the remainder go?” I inquired.

The County Court Clerk shook his head.

“But you don’t mean,” said I, “that the suiters are made to pay £90,000 a year for what only costs £60,000?”

“I am afraid it is so,” said Mr. Nottit.

“Dear me!” said Mr. Ficker; “I never heard of such a thing in all my professional experience. I am sure the Lord Chancellor would never sanction that in his Court. You ought to apply to the Courts above, Mr. Nottit—you ought, indeed.”

“And yet,” said I, “I think I have heard something about a Suitors’ Fee Fund in those Courts above—eh, Ficker?”

“Ah—hem—yes,” said Mr. Ficker. “Certainly—but the cases are not at all analogous. By the way, how are the other fees distributed?”

“The Clerks,” said Mr. Nottit, “received £87,283, nearly as much as the Judges. As there are 491 clerks, the average would be £180 a-year to each. But as the Clerks’ fees accumulate in each Court according to the business transacted, of course the division is very unequal. In one Court in Wales the Clerk only got £8 10s. in fees; in another Court, in Yorkshire, his receipts only amounted to £9 4s. 3d. But some of my colleagues made a good thing of it. The Clerks’ fees in some of the principal Courts’ are very ‘Comfortable.’

Bristol, Sheffield, Bloomsbury, Birmingham, Shoreditch, Leeds. Marylebone, received £1000 a-year and upwards.”

“But,” continued our friend, “three-fourths of the Clerks get less than £100 a-year.”

“Now,” said Mr. Ficker, “tell us what you all do for this money?”

“Altogether,” said the clerk, “the Courts sat in 1848, 8,386 days, or an average for each Judge of 140 days. The greatest number of sittings was in Westminster, where the Judge sat 246 days. At Liverpool, there were sittings on 225 days. The number of trials, as I have before mentioned, was 259,118, or an average of about 4,320 to each Judge, and 528 to each Court. In some of the Courts, however, as many as 20,000 cases are tried in a year.”

“Why,” said Mr. Ficker, “they can’t give five minutes to each case! Is this ‘administration of justice?’”

“When,” said the clerk, “a case is undefended, a plaintiff appears, swears to his debt, and obtains an order for its payment, which takes scarcely two minutes.”

“How long does a defended case take?”

“On the average, I should say, a quarter of an hour; that is, provided counsel are not employed.”

“Jury cases occupy much longer?”

“Undoubtedly.”

“Are the jury cases frequent?” I inquired—some feeling of respect for ‘our time-honored institution’ coming across me as I spoke.

“Nothing,” said our friend, “is more remarkable in the history of the County Courts than the very limited resort which suitors have to juries. It is within the power of either party to cause the jury to be summoned in any case where the plaint is upwards of £5. The total number of cases tried in 1848 was 259,118. Of these, upwards of 50,000 were cases in which juries might have been summoned. But there were only 884 jury cases in all the Courts, or one jury for about every 270 trials! The party requiring the jury obtained a verdict in 446 out of the 884 cases, or exactly one-half.

“At any rate, then, there is no imputation on the juries,” said Mr. Ficker.

“The power of resorting to them is very valuable,” said our friend. “There is a strong disposition among the public to rely upon the decision of the Barrister, and that reliance is not without good foundation, for certainly justice in these Courts have been well administered. But there may be occasions when it would be very desirable that a jury should be interposed between a party to a cause and the presiding Judge; and certainly if the jurisdiction of these Courts is extended, it will be most desirable that suitors should be able to satisfy themselves that every opportunity is open to them of obtaining justice.”

“For my own part,” said I, “I would as soon have the decision of one honest man as of twelve honest men, and perhaps I would prefer it. If the Judge is a liberal-minded and enlightened man, I would rather take his judgment than submit my case to a dozen selected by chance, and among whom there would most probably be at least a couple of dolts. By the way, why should not the same option be given to suitors in Westminster Hall as is given in the County Courts?”

“What!” exclaimed Mr. Ficker, “abolish trial by Jury! the palladium of British liberty! Have you no respect for antiquity?”

“We must adapt ourselves to the altered state of society, Ficker. Observe the great proportion of cases tried in these Courts—more than sixty per cent. of the entire number of plaints entered. This is vastly greater than the number in the Superior Courts, where there is said to be scarcely one cause tried for fifty writs issued. Why is this? Simply because the cost deters parties from continuing the actions. They settle rather than go to a jury.”

“And a great advantage, too,” said Mr. Ficker.

“Under the new bill,” said our friend, the Clerk, “Fickers clients will all be coming to us. They will be able to recover £50 in these Courts, without paying Ficker a single 6s. 8d. unless they have a peculiar taste for law expenses.”

“And a hideous amount of rascality and perjury will be the consequence,” said Mr. Ficker. “You will make these Courts mere Plaintiffs’ Courts, sir—Courts to which every rogue will be dragging the first man who he thinks can pay him £50, if he only swears hard enough that it is due to him. I foresee the greatest danger from this extension of litigation, under the pretence of providing cheap law.

“Fifty pounds,” said I, “is, to a large proportion of the people, a sum of money of very considerable importance. I must say, I think it would be quite right that inferior courts should not have the right of dealing with so much of a man’s property, without giving him a power of appeal, at least under restrictions. But, at the same time, looking at the satisfactory way in which this great experiment has worked—seeing how many righteous claims have been established and just defences maintained, which would have been denied under any other system—I cannot but hope to see the day when, attended by proper safeguards for the due administration of justice, these Courts will be open to even a more numerous class of suitors than at present. It is proposed that small Charitable Trust cases shall be submitted to the Judges of these Courts; why not also refer to them cases in which local magistrates cannot now act without suspicion of partisanship?—cases, for example, under the Game Laws, or the Turnpike Laws, and, more than all, offences against the Truck Act, which essentially embody matters of account. Why not,” said I, preparing for a burst of eloquence—“why not——”

“Overthrow at once the Seat of Justice, the Letter of the Law, and our glorious constitution in Church and State!”

It was Mr. Ficker who spoke, and he had rushed frantically from the room ere I could reply.

Having no one to argue the point further with, I made my bow to Mr Nottit and retired also.