The Strand Magazine/Volume 1/Issue 6/The State of the Law Courts
The State of the Law Courts.
III.—THE BAR.
NDOUBTEDLY the Bar possesses a charm that belongs to no other profession. Not only are its possibilities magnificent, extending as they do to the Woolsack, but it has the further attraction of being the one calling wherein the youthful aspirant may rely upon his personal attributes even more than upon industry and training for success. Many instances could be mentioned of eminent leaders who have been inundated with briefs, and have easily made their £10,000 or more a year, not on account of their legal lore, but because they have been brilliant and persuasive speakers, charming of manner, and quick at repartee.
Perhaps it is natural that most of the smart young graduates who swell the ranks of the Bar should feel themselves fully equipped, if not in their store of learning, at least in personal qualifications. But it is unfortunately a fact that this feeling of youthful confidence, admirable in itself, has in a great measure led to the growth of a numerous army of needy barristers, many of whom are only too anxious to pick up an occasional guinea at the County or the Criminal Courts.
The Temple: "Here lies Oliver Goldsmith."
The prizes of the Bar are only for the few, and the disappointments for the many. This uncertainty itself, perhaps, is an attraction to some of the numerous aspirants who would emulate the successes of Cockburn, Ballantine, Russell, Davey, and other great counsel. The advocates' profession is a very ancient one, and goes back to Roman times. The independence of the Bar has always been its greatest boast. Whether it has worthily maintained that characteristic of recent years is a question that we shall discuss later on, but that it did so formerly there can be no doubt. In illustration of this, we may relate a story of a counsel named Wilkins, who was defending a prisoner before Baron Gurney, a very severe judge. Wilkins thought that the judge had made up his mind to convict the prisoner, and, in the course of his address to the jury, he had the temerity to say: "There exist those upon the Bench who have the character of convicting judges. I do not envy their reputation in this world, or their fate hereafter!" The prisoner was in the end acquitted, but whether as the result of this attack, which Baron Gurney felt very keenly, or not, it is impossible to say. It may be doubted whether any advocate nowadays would venture to speak in a similar way. It is possible, however, that Baron Gurney was unaware of his reputation for severity, and Mr. Wilkins' remarks may have had a salutary effect upon him.
The appointment of barristers is now effected by the four Inns of Court, namely, the Inner Temple, the Middle Temple, Lincoln's Inn, and Gray's Inn. These Inns are voluntary associations, having no statutory powers, and it is only by virtue of ancient custom that they enjoy the right of calling students to the Bar. They are respectively governed by a self-elected body called "Benchers," who consist of the judges, a number of Queen's counsel, and a few veteran "juniors." The barristers as a class have no voice in the management of the Inns, or in the discipline of their profession. The social status of the Bar has of late years deteriorated, although it is true that
New Court, Middle Temple.
barristers are generally drawn from a much higher social level than solicitors. Individual merit is, somewhat erroneously perhaps, supposed to be as great a factor for success as interest, and this, together with other considerations that we have already alluded to, induces a large proportion of the most accomplished University graduates to devote themselves to the Bar in preference to any other profession. University men, however, are not the only aspirants to the Woolsack, whose first step is to obtain a call to
the Bar. There is quite a gathering of coloured gentlemen in the Middle Temple, including natives of India, many of whom, no doubt, intend to practise in their own courts; Hottentots, Negroes, Mongolians, dreamy-eyed
Japanese, and perhaps an occasional Redskin—many of whom seem to take to the methods of European civilisation quite naturally.
The Inner Temple is considered more fashionable than the Middle, and is preferred by University men, especially perhaps those who are prejudiced in favour of uniformity of colour in their fellow-students. Lincoln's Inn and Gray's Inn call comparatively few men to the Bar.
Middle Temple library.
Some particulars of the process of being "called to the Bar" may be of interest. The aspiring barrister must remain a student for three years, and will have to pay nearly £200 in stamp duty and fees to his Inn. Exception is, however, made in the case of solicitors, who, under recent regulations, can be admitted to the Bar without delay on payment of the fees. Within the last fifteen years an examination has been instituted for all students except solicitors, the latter having been examined by their own society; but, before that time, it was only necessary to eat twenty-four dinners a year for three years in the Hall of the Inn, besides paying the fees, in order to become qualified for the Bar. The dinners are still retained, and although it is not pretended that students insensibly imbibe legal knowledge with their meals in the atmosphere of the picturesque old dining halls, there can be no doubt that the dinners serve a useful purpose in enabling the future barristers to form each other's acquaintance. With what mingled feelings these dinner must be looked back upon in after life! Of two boon companions in student days one may, perhaps, be judge of the High Court, while the other is still struggling for a precarious livelihood in the County Court.
Students coming from the Universities are only expected to eat twelve dinners a year. The reason for this distinction is shrouded in mystery, but perhaps some solution may occur to the ingenious mind of the reader. It is usual for students to read with junior counsel in large practice, to whom they pay a hundred guineas a year. In return for this they have the run of the papers, from which they are no doubt enabled in some degree to familiarise themselves with the advocate's profession; if they require tuition, they must employ a regular coach. The examinations, however, are by no means severe. They secure a certain amount of legal knowledge on the part of the barrister, which can easily be acquired by a few attendances at the lectures held at the Inn, and a not very assiduous reading of Roman and Common Law. Upon the completion of his three years, the student is called to the Bar, by going through the solemn ceremony of taking a glass of wine with the Benchers of his Inn, and, together with a crowd of his compeers, listening to a friendly monition from the Senior Bencher, or some other venerable greybeard. Having purchased his wig and gown and a brand-new blue bag, the young barrister is then started on his career. He takes chambers in the Temple or Lincoln's Inn, which he probably shares with some other aspirants, and then proceeds on his way to the Woolsack.
Corridor, Inner Temple Hall.
The sensations of a young barrister when he first addresses the Court are usually somewhat agonising. Serjeant Ballantine describes his first experience as follows:—"I rose, but could see nothing; the court seemed to turn round and the floor to be sinking. I cannot tell what I asked, but it was graciously granted by the Bench."
He sat down with a parched throat and a sort of sickening feeling that he would never succeed. "Most successful advocates," he adds, "have experienced these sensations, and to this day I believe that many rise to conduct cases of importance with some of their old emotions."
The work of the Bar is divided into several sections, so that the beginner has a fairly wide choice as to which department of his profession he will make his own. There is the Parliamentary Bar, the Common Law Bar, the Equity Bar, and the Criminal Bar; and besides these, several barristers are exclusively occupied with Patents and Conveyancing.
But there are sections within sections, consisting of small coteries of specialists who devote themselves to the Divorce Court, to the Privy Council, or to Admiralty work.
While the majority of barristers pass the legal year in the Metropolis, except when on circuit, there are a good many who settle down in populous districts and become known in the profession as local barristers. Both Common Law and Equity men who are, through the pressure of competition, unable to make their way in London, or who perhaps have the advantage of being related to some eminent firm of provincial solicitors, prefer the certainty of making a decent livelihood in a busy manufacturing town to the keener competition of the Metropolis.
They are somewhat looked down upon by their brethren in London, the work in the provinces being of an inferior kind, mainly confined to the police courts, county courts, and quarter sessions.
The occupation of the local barrister, in fact, does not commend itself to the majority of the Bar, notwithstanding that a few are able to make their £2,000 or £3,000 a year.
Inner Temple Hall.
The Parliamentary Bar, probably the most lucrative branch of the profession, is engaged in Private Bill business before Parliamentary Committees. A popular Parliamentary Q.C. will make as much as £20,000 a year, and sometimes even those figures are exceeded. The leading "silks" have always a great number of cases going on at the same time before Committees of the Lords and Commons, and they spend their day in walking from one committee-room to another, opening a case here, replying on a case there, and cross-examining witnesses whose evidence-in-chief they have never heard. This perambulatory practice led to such abuse that in 1861 the committees decided not to allow a barrister to cross-examine who had not been present during the whole of the examination-in-chief, and recently Mr. Hanbury has endeavoured to enforce this rule. No doubt it is, generally speaking, a wholesome regulation, for the reiteration by successive counsel of the same questions leads to an inordinate waste of public time and money. It ought, however, to be enforced with moderation, for it by no means follows that a counsel who has not heard the examination-in-chief is the less able to cross-examine effectively. One of the objects of cross-examination, it should be understood, is to elicit fresh facts, and in that respect it is not necessarily dependent upon evidence-in-chief.
Undoubtedly cross-examination is one of the most difficult as well as one of the most important of a counsel's duties, and a barrister who makes his mark in this particular function is pretty certain to be in general request. It is no less important to know what questions to put than what to refrain from asking. Many counsel are too apt to imagine that by browbeating a witness, and overwhelming him with a multitude of questions, they are conducting their cross-examination effectively. Baron Alderson once withered up an advocate of this character by remarking: "Mr. So-and-so, you seem to think that the art of cross examination is to examine crossly."
The Parliamentary Bar certainly numbers within its ranks several highly-talented counsel, not the least eminent of whom are Mr. Pope, Mr. Bidder, Mr. Littler, and Mr. Pembroke-Stephens, of whom we give portraits. We have already referred to the great incomes that are made in this department of the Bar, and when it is remembered that the work is limited to the time during which Parliament is sitting, it becomes apparent that the fees paid to leading counsel must be enormous. Indeed, the fees marked on their briefs often amount to hundreds of guineas, and the junior gets a sum equal to two-thirds of the amount paid to the leader, except in cases where the latter receives a special fee. And, added to this, both receive a refresher of fifteen guineas a day. Surely such payment is excessive.
In one very essential particular the members of the Equity Bar differ in their customs from other branches of their profession. Practising before the five Chancery judges and the Chancery Court of Appeal, the leaders of the Equity Bar attach themselves to particular Courts, and invariably decline to leave their own favourite sphere of operations to appear in another Court without a special fee. The result of this arrangement is that litigants employing eminent counsel in Chancery cases can be almost certain of their attendance throughout. However heavy may be the fees paid to counsel of the Equity Bar, it can at least be said that they generally give full value for their money—a gratifying compliment that can hardly be extended to other branches of the profession. But satisfactory as the system may seem to be from the client's point of view, experience shows that it is not without its serious disadvantages. The continuous contact of particular counsel with particular judges is varying in its effects. In some cases it leads to an undue influence on the part of the counsel over the judges, while in others the judges use their power to such an overbearing extent that even eminent Queen's counsel are sometimes subjected to a degree of abasement that is painful to witness. The demeanour of one or two of the Equity judges is, in fact, characterised by an absurd pomposity, and, however great their abilities, they are not so high-minded as to disdain the petty delight of trying to humiliate the leaders of the Bar. There have been several instances of a judge taking a personal dislike to a counsel, and by making him feel it on every possible occasion, practically dismissing him from the Court. Thus it will be recognised that the system gives judges too much power over members of the Bar.
There are always two favourite "silks" in each Court, who practically divide the work between them. The special fees that we have already referred to are, however, frequently obtained by eminent Queen's counsel. The greatest advocates of the Equity Bar—like Sir Horace Davey or Mr. Rigby—do not attach themselves to any Court, and will not, in fact, appear in Court at all without a special fee. The incomes made by some of the most eminent Equity counsel are prodigious. Lord Selborne, when Sir Roundell Palmer, is said to have made over £30,000 a year; and rumour has it that neither Sir Horace Davey nor Mr. Rigby are earning much less than that amount.
Although, as a rule, the members of the Equity Bar do not shine in public life, it has nevertheless associated with it several distinguished names, such as those of Westbury, Cairns, and Selborne, all of whom found in the Chancery Courts the stepping-stone to fame.
The Criminal Bar of London congregates at the Old Bailey (which is the Assize Court for the Metropolis and part of the Home Counties) as well as at the Middlesex and Surrey Sessions, held respectively at Clerkenwell and Newington. În speaking of the Criminal Bar, the brilliant exploits of such men as Ballantine, Parry, Huddleston, Gifford, Hawkins, and Clarke naturally occur to one's memory. But what a sad falling off is now apparent! There is not a single name of distinction now associated with the historic Court that has in the past resounded to the eloquence of so many splendid advocates. Nowadays the mention of the Criminal Bar only brings to mind such men as the Government prosecutor (official in all but name), Mr. Poland, and a crowd of lesser lights, among whom Mr. Forest Fulton, M.P., and Mr. Gill stand forth as the most talented. There are at the Criminal Bar a number of newly-fledged barristers, and several indigent and disappointed men who are content to gain a small and precarious livelihood. A handful secure a respectable living, and comparatively large incomes are only made in two or three cases, notably among those who have Treasury work. The compulsory litigants, who often have to send the hat round among their friends for the purpose, can for the most part only provide small fees, and small as they are, they do not always reach the hands of counsel.
It may be interesting to mention here the curious fact that barristers cannot recover their fees at law. The fee, it appears, is an honorarium, and nothing more. Of course, while barristers have no legal claim for their fees, no action for negligence, however gross, can lie against them; and it is obvious that, if the power were accorded to them of recovering their fees at law, they would also be liable to action in case of negligence. If we may judge by the very rare occasions of actions for negligence being successful against solicitors, there is no reason why they should have any terrors for counsel. It would certainly be satisfactory to see the barrister's profession put upon a more business-like footing. Advocates are, under the present conditions, sometimes the prey of unscrupulous solicitors, who hand them briefs marked with tempting fees that are never paid, and when these harpies have tired out the patience of one guileless counsel, they devote similarly undesirable attentions to another. Happily, such solicitors are comparatively few; but even respectable firms often avail themselves of the inability of counsel to recover fees by taking unconscionable credit.
The system should be changed, and if barristers were made liable for negligence it would, perhaps, have a wholesome effect in preventing some of them from accepting briefs to which they or their clerks must know that they cannot attend.
To return to the Criminal Bar, one cannot help observing how great is the disadvantage at which a prisoner is sometimes placed. The unfortunate man has perhaps been unable by himself or his friends to find the necessary funds to instruct a counsel, or perhaps he has managed to scrape together a guinea, which he hands over the dock, as his case is called, to some inexperienced barrister, who thereupon finds himself face to face with a wary and experienced advocate like Mr. Poland or Mr. Gill. The prisoner's chances of vindicating himself, innocent though he may be, must be greatly reduced by the disadvantages under which he labours.
The State, which expends enormous sums for the conviction of criminals, ought, undoubtedly, as is the case in many other countries, to provide legal assistance for the accused in order to secure a fair trial. So far as we are aware, there is only one case in which this is done in England, namely, when an offence, while in the execution of duty, is charged against a member of the police force, a body of men who are in a much better position to secure for themselves legal assistance than the majority of ordinary prisoners.
Perhaps the deplorable dearth of highly talented men at the Criminal Bar is in some degree accounted for by the curious circumstance that when a man once becomes a criminal lawyer he can be nothing else. The dismal atmosphere of the Old Bailey seems to permeate all his future prospects, and he is rarely able to emerge from it into the higher ranks of his profession. The Lord Chancellor, Mr. Justice Hawkins, and Sir Edward Clarke are, perhaps, the only living instances to the contrary; but even they belong to a somewhat bygone time, and were never exclusively criminal lawyers.
The leading common-law work of the High Court is practically divided among a dozen or so eminent Queen's counsel. It is a matter of common complaint that the leaders accept briefs, knowing well at the time they receive them that they will not be able to attend to them. There is a good deal of truth in this, although the supposed delinquents are able to put forward a very plausible plea of justification. It is certain that they cannot always know what briefs they will be able to give full attention to, seeing that there are a number of Courts engaged in trying cases some of which may last days, and some only minutes. Indeed, a counsel with a very small practice may find that, owing to the unexpected manner in which the cases on the list are sometimes disposed of, the two or three briefs that have been entrusted to him may all require his attention in different Courts on the same day, although when he accepted them he might reasonably have anticipated that the cases would be called on different days. It must, however, be admitted that there are some eminent counsel who accept briefs, although it is morally certain that they will be unable to give them any personal attention.
No other professional man expects to be paid for work that he does not perform, and there can be no doubt that the proper course for counsel overwhelmed with briefs to pursue is to return those that he cannot attend to, thereby enabling his client to obtain legal assistance elsewhere, and at the same time distributing a little work among his less fortunate brethren of the Bar. The public are, however, at fault in insisting on retaining an eminent advocate at a fancy price, when their cases could be just as well conducted at much smaller cost by men whose names figure less frequently in the reports of important trials. In any sensational cause célèbre it is almost certain that the names of Sir Charles Russell, Sir Edward Clarke, and Mr. Lockwood, will appear on one side or the other. These eminent men have, in fact, the pick of the work, and the same may be said, in regard to great commercial cases, of Sir R. Webster and Mr. Finlay, and, before his recent elevation to the Bench, of Mr. Henn-Collins.
The work of a somewhat less distinguished character is in the hands of half a dozen Queen's counsel, among whom may be mentioned Mr. Kemp, Mr. Willis, Mr. Jelf, and Mr. Winch, while there is a "tail" of "silks" who, not being fortunate enough to rank as popular favourites, have to content themselves with a very much smaller practice as well as smaller fees. Under the present conditions there is nothing like a fair distribution of work among the leaders of the Bar. This is perhaps in a great measure due to the action of solicitors, who, if they have a rich client in a big action, are sure to run after one of the half-dozen most popular advocates, and with a less wealthy client they will retain one of the next half-dozen. It is indeed curious to observe how slavishly solicitors run after the most eminent counsel on the chance of securing their services, rather than entrust their briefs to less noted men, who, even if their ability be less, would at least make up for it by greater assiduity and closer attention. The result is that these favoured gentlemen may be seen popping in and out of the ten or twelve Queen's Bench Courts that are sitting at the same time, examining a witness in one place, and addressing the jury in another; while their imperfect knowledge of their cases must inevitably tell to the disadvantage of their clients, who perhaps have paid them fees of one or even two hundred guineas, with corresponding refreshers.
From what we have said it will be obvious that it is only the very few who can hope to become wealthy at the Bar, and such a lottery is "taking silk" that many "juniors" refuse to have the distinction conferred upon them, preferring the modest income that they are able to earn to the uncertainty and disappointment that falls to the lot of most of those who become leaders. Even a prosperous junior who gives up his practice to become a Q.C. runs the risk of being left out in the cold altogether.
A state of things that practically places the monopoly of the legal work in a few hands tends neither to the advantage of the public nor to the prosperity of the Bar as a body. The evil is undoubtedly caused by the centralisation of litigation in London, and the compression within a few months of the year of the whole of the High Court business. There is no valid reason why the Courts should not sit the whole year through, and barristers and judges take their holidays as they personally like to arrange. The amalgamation of the two branches of the legal profession has been much discussed in recent years, and it has many warm advocates both among barristers and solicitors, one of the strongest being the Solicitor-General. But no doubt the majority are opposed to the suggested change. Its supporters, in fact, are for the most part to be found among ambitious young solicitors who have acquired a taste for advocacy in the Police and County Courts. They urge that it would cheapen litigation, inasmuch as there would be only one person to pay instead of two, and they point to the United States and to the Colonies as indicating that amalgamation would work well. In great cities, however, the division of labour between the advocate and the solicitor, although theoretically non-existent, is in reality very similar to what it is in this country. The advocate must always be the advocate, and nothing more, and the drudgery of preparing the material for him to work upon must be reserved for other persons, whether they occupy the position of solicitors, partners, or clerks.
In the Temple Church.
Under the present system, a solicitor can exercise his judgment in retaining the counsel most suited to his client's case, an advantage which would disappear if solicitors had barristers for partners. The solicitor, it should be remembered, has multifarious duties in connection with litigation, whilst the barrister is only the adviser on points of law and the advocate. It is further to be observed that the barrister, not being associated with the pecuniary interests of his client, but arguing his case solely on legal grounds, and
on the weight of evidence, possesses a degree of independence and a reputation for trustworthiness which, if he were a solicitor as well, he would be unable to enjoy. It is not from an amalgamation, such as that suggested, that an amelioration of the present system is to be looked for. Notwithstanding its high reputation, the Bar, by tamely submitting to a system that works out to its own detriment, is itself responsible not only for its own unsatisfactory condition, whereby the bulk of the profits of the profession go into a few hands, but also in a considerable degree for the gross defects of our judicial system. Recently the members of the Bar have formed among themselves a Bar Committee to protect their interests, but
it appears to have done little practical work, and to be little more than a mutual admiration society.
It is obviously to the interest of the leading and wealthy members of the profession, several of whom are legislators, that the present state of things should continue. They make splendid incomes within the short legal year; while the Long Vacation, which completely closes the Courts, prevents the intrusion of competitors during their holidays. The present system practically secures to them a monopoly of work, and gives them an extravagant time for rest and enjoyment. The Long Vacation, then, which is also the chief cause of the law's delay, is at the root of the evil. The younger barristers as well as the less lucky Queen's counsel, who are anxious for work that they are fully capable of performing, would regard with pleasure the abolition or curtailment of the Vacation, as a means of enabling them to share in that work which cannot properly be done within the brief period now occupied.
Are the members of the Bar, notwithstanding all their boasted independence, afraid to speak out even in their own interests? They alone are capable of properly exposing the scandals of our judicial system, and of bringing about improvements that would be as much to the advantage of the public as of themselves; and yet their voice is uniformly silent. It is certain that had the leaders of the Bar opened their lips in the House of Commons, those scandals to which we adverted in former articles would either have been non-existent or would have been promptly remedied. It is not, however, from the leaders of the Bar that reform is to be expected; the first step must be taken by the rank and file, who, by a united movement showing that they do indeed possess independence and grit, will increase their own prosperity and at the same time commend themselves to the public.