Part 11 (2/2)
Medicine has its n.o.ble traditions of charity. Why should not lawyers set an example of self-sacrifice and unselfishness? Or is there some subtle essence in the law that of necessity destroys the favourable microbes that promote peace and goodwill among men?
We of the long robe of the Inns of Court have always held in theory that we were there to take on the protection of any and every suitor. Please do not think when your attorney asks you for counsel's fees that you are hiring him by that golden nexus of guineas. By no means. No barrister can stoop to take wages or salary. What you are giving him is a mere gratuity, ”which a barrister cannot demand without doing wrong to his reputation.”
And, that being so, one might expect some of the wealthier Templars to take the ideal of their profession at its face value and set up to advise and plead for the poor not only without wronging their reputation by demanding a gratuity, but by refusing to accept one.
In a recent case much was said of the n.o.ble att.i.tude of Barrister A., who, being a political opponent of Barrister B., appeared for him when he had got into trouble--I use the phrase in no technical sense. Correspondence ensued, and some enthusiasts for the honour of the profession said that every barrister was bound to take up a case if it was offered him. I wonder what would happen if Lazarus went knocking at the doors of Crown Office Row and Pump Court with a claim against Dives, but without a gratuity in his hand? Would he get anyone to advise him on evidence or settle the indors.e.m.e.nt on his writ? One never knows.
The atmosphere of our Courts is not all that it should be. I do not refer to the physical fog which pervades them, the smells of which the electric fans blow about the building in the sacred name of ventilation, but the moral atmosphere of our Courts always seems to me to suggest that the law is an appanage of the rich. By all means let us have dignity, decorum, and distinctive dress, but if you go into the High Court, although you may hear the affairs of the poor dealt with sympathetically and in a just spirit, the atmosphere of the Court is well-to-do and prosperous. Everyone connected with the duties seems to belong to the upper middle cla.s.s. There is no place at all for the working man to play his part except on occasion in the jury box.
And then, if the claim is the claim of a poor man against a rich man, a special jury is empanelled and you get at a greater cost a tribunal of the defendant's own cla.s.s to hold the scales of justice. And though I firmly believe that all do their best, and that speaking generally justice is well administered, yet I can quite understand the feeling of a poor man entering a Court of Justice and finding that the judge who lays down the law, the jury who decide the facts, the advocates who argue the case, and the solicitors who instruct the advocates are all drawn from a cla.s.s of the community which the working man rightly or wrongly believes to be hostile to his outlook on life.
If I have not made myself clear, imagine yourself bringing an action against a trade union, and finding when you came into court that a well-known ex-Labour M.P. was on the bench, that the jury were chosen entirely from the working cla.s.ses, and that you were only allowed to be represented by a next friend chosen from the ranks of a particular trade union.
Would you, under circ.u.mstances of this kind, even if you were convinced of the honesty and sincerity of every portion of the tribunal, feel that sense of security in its right decision which is so essential in a community where law should be respected?
And that this is a real trouble and that the Courts are aware of its existence was shown in a recent judgment of Lord Sumner in the Court of Appeal. A learned judge in the Court below in correctly directing the jury as to the effect of the Trades Disputes Act had ”added some remarks pointedly expressed which were indirectly a criticism of the Act and substantially a statement to the jury that a person who availed himself of the defence afforded by the Act was setting up a dishonest defence.” These remarks Lord Sumner described as ”inopportune, detrimental to the defendant's case and, perhaps worst of all, irrelevant.” He concluded with quaint sarcasm: ”A judge in charging a jury could never safely indulge in irrelevant observations because he could not be sure that the jury would be sufficiently logical to take no notice of them.” I intend asking the Office of Works to have that painted up on the walls of my Court. It is worthy of letters of gold. Irrelevancy is certainly the worst of sins and it is a natural vice in most of us only to be kept down by prayer and fasting from the practice of it. We all dislike some Act of Parliament; the Insurance Act, the Ground Game Act, the Finance Act--none is so perfect that it has not some judicial enemies. And it is certainly very tempting when you meet the fellow in Court to give him a bit of your mind.
But it must not be. The Legislature is our schoolmaster. Outside in the playground and on vacation we can express our opinions about him freely, but in school--No!
Lord Sumner is perfectly right and when he next speaks on this subject I wish he would point out with authority that this human habit of irrelevancy is the const.i.tutional reason for maintaining the grand jury.
For centuries the King's Bench judges have worked off their natural irrelevancy in charging the grand juries at a.s.size towns to the great benefit of themselves and the local papers. This national safeguard, this barrier between judicial irrelevancy and the public at large, should not be removed in a careless spirit. Our forefathers knew a thing or two. The grand jury is really a sound instrument of const.i.tutional mechanics. It is the safety valve for the blowing off of judicial steam.
Lawyers and judges are certainly held in higher esteem to-day than they were in the past. Gulliver describing the contemporary lawyers to his friend and master, the Houyhnhnm says: ”there was a society of men among us, bred up from their youth in the act of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself.” In another pa.s.sage he inveighs against judges in a strain of even coa.r.s.er invective. ”Now your honour is to know,” he says, ”that these judges are persons appointed to decide all controversies of property, as well as for the trials of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been bia.s.sed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office.”
Even in 1727 the extravagance and exaggerations of these pa.s.sages must have diminished the force of the satire, but one must remember that under the old forms of procedure and law of evidence all sorts and conditions of chicanery were possible, and the search after truth was clogged and hampered by technicalities that made for injustice.
Crabbe, in ”The Borough,” draws a picture of Swallow, the lawyer, ”a hard, bad man who preyed upon the weak,” but he had sufficient insight into the reality of things to see that:
Law was design'd to keep a state of peace; To punish robbery, that wrong might cease; To be impregnable; a constant fort, To which the weak and injured might resort.
And the main reason that the law in old days failed in a great measure to carry out its mission to protect the poor was the extraordinary mystery and obscurity of it. Where law is a jargon of technicalities foreign to the business ideas of the people an immoral man who is a lawyer has an easy task before him to defraud the weak. In our own time the worst frauds committed by lawyers have been mortgage frauds where the deeds were deposited with solicitors who converted them to their own use. Our land transfer system is a relic of the past; it is a mystery that no plain citizen can comprehend. It is necessary for him to employ a lawyer to carry out the smallest transfer of land and it is necessary for him to rely on the statement that the land has been conveyed to him and that the t.i.tle deeds are in order. The technical obscurity of the transaction opens the door to frauds that would be impossible with a modern, businesslike, public land transfer department.
And as technicalities in law and procedure were gradually abolished so we find the pictures of lawyers in contemporary fiction becoming less ign.o.ble, though there will always be more romance in the story of a fraudulent lawyer leading a double life than in the career of a blameless pract.i.tioner who serves his clients honourably during office hours and returns punctually to his accustomed suburb at the appointed dinner hour.
Though we have done away with much legal fiction and c.u.mbrous technicality we cannot greatly boast of the simplicity of our legal procedure. Take the County Court Practice for instance. Here is a Court primarily designed to adjudicate on the simple disputes of poor people. There are two practice books. They cost over a guinea apiece, they consist of hundreds of pages and are absolutely incomprehensible except to the trained lawyer. This being so it is clear that the lawyer is as necessary to the poor man as he is to the rich. It is a sign of grace in the matter of procedure that whilst this chapter is in the writing we have some new rules issued about giving poor people a.s.sistance in High Court actions. Up to now the procedure _in forma pauperis_ has not been of practical benefit to the poor except in enabling an occasional important appeal to reach the House of Lords. It is too soon to say whether these new rules will meet their object. Shortly, the scheme is that a poor person--meaning one who can satisfy the judge that he is not worth fifty pounds--will have counsel and solicitor a.s.signed to him from a rota. After that his case will be conducted free of costs or fees. If he succeeds the solicitor--but in no case the counsel--will get costs.
Much depends of course on the spirit in which this is worked, but it only refers to the High Court--which is not, speaking generally, the poor man's Court--and it seems unlikely on the face of it that a scheme of this kind, with no one in particular to look after it and advertise its existence, will do away with the undesirable activity of the speculative solicitor. One wishes it well, but except perhaps in relation to divorce cases it does not appear on paper to be of great practical use.
The fact is that it is not a very hopeful thing to go to lawyers and committees of lawyers for reforms unless you have the driving power of the business man behind them. Nothing was to be more disastrous according to legal prophecy than the inst.i.tution of the Public Trustee. No reform has done more to mitigate domestic worries and anxiety than this beneficent inst.i.tution. Lawyers and laymen nowadays concur in casting their troubles upon him and sheltering themselves and their clients beneath his protecting wing. If we are ever to have a proper system of legal advice for the poor it will, I think, have to be made an official department with a business head of affairs and attached lawyers. It might perhaps be added to the duties of Labour Exchanges, but in any case it should be a department of the Board of Trade, and it should have branches throughout the country and power to help the poor in all the Courts of the country. A device for suing _in forma pauperis_ working only in London, such as is set up by the new rules, cannot be of much avail in tackling the problem of placing legal advice and a.s.sistance at the call of the poor.
I wish some experiments of a voluntary nature could be made of a more extended character than the poor man's lawyer societies that are attached to University settlements, and do good work in advising the poor. It is really in Court that a poor man wants a.s.sistance. I often think that a poor man or woman coming into a Court for the first time is like the average middle-cla.s.s Englishman when he finds himself on Calais Pier without a word of French speech at his command and entire ignorance of the ways of the _douane_. How he clings to a friendly interpreter with a gold band round his hat. How extravagantly he rewards him when he and all his luggage are at length safely in the train.
And why should not we encourage an amateur legal interpreter in our County Courts just as we welcome missionaries in our police Courts. I should like to see practising in each Court an official friend of the poor, ready to state the case of a poor man or woman who sought his a.s.sistance. There is an existing section of the County Courts Act allowing a friend to appear for anyone by leave of the judge if he does not do it for fee or reward, and on that foundation something might be built.
I remember a clergyman, Father Gething, appearing for an old army pensioner against an insurance society with complicated rules, and asking to be allowed to address me, and conduct the old man's case. Sir William Cobbett, not having in his mind for the moment the section I refer to, objected. I asked Father Gething whether he was going to recover any ”fee or reward” for acting in the case.
”Certainly not,” replied the reverend gentleman.
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