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OUR BRETHREN OVERSEAS.

BY
HON. JOHN W. DAVIS,

OF NEW YORK. A sound rhetorical canon forbids the introduction of any address by an apology. No apology, however, is necessary to preface the statement that what I shall have to say to you has no tangible connection with any of the grave perplexities that vex the world today. I shall call upon you to solve no riddles and demand no action within the competence of this Association. With the hope that you may be willing to forego consideration of international and domestic problems for lighter if more familiar things, I shall ask you to listen to some random observations on the organization of the legal profession in England and the administration of English justice. An American in Great Britain faces no sudden shock from an unfamiliar tongue and the activities of political, commercial and professional life are easily translated into terms of his own experience; yet with all due allowance for these essential facts, there is enough of novelty to engage his interest and reward his study.

Any effort to picture the life of an English lawyer begins almost of necessity with the Inns of Court, those venerable institutions called by Jonson, “the noblest nurseries of liberty and humanity in the Kingdom ”; or as a less noble poet writes, in parody of Milton;

“ Yet not the more,
Cease I to roam through Elm or Garden Court
Fig Tree or Fountain side or learned shade
Of King's Bench Walk, by pleadings vocal made;
Thrice hallowed shades! Where slip-shod Benchers muse,

Attorneys haunt and Special Pleaders cruise." Entering from the Thames embankment alongside the garden made famous by the plucking of the white rose and the red, the visitor when enfolded by the quiet precincts of the Temple, seems to walk at once in a world apart. The ancient dining hall of the Middle Temple, graced in its day by Shakespeare and his Virgin Queen, stands as it has done for centuries, filled with its long rows of tables for the students and members of the Inn, and its high table of mighty English oak for the reverend Benchers. Across Temple Lane rise the buildings of the Inner Temple, less venerable in time by reason of fire, yet preserving nevertheless traditions running to the year 1327, when the Knights Hospitalers of St. John of Jerusalem farmed the manor and place of the New Temple to the professors and students of the day. Here, too, is the old Temple church, consecrated in 1185 by Heraclius, Patriarch of Jerusalem, where the organ selected by Jeffrey of the Bloody Assizes still discourses its music to the sculptured knights upon the pavement and the pious lawyers in their pews.

Through busy Fleet Street and up Chancery Lane the way lies to the stately buildings of Lincoln's Inn adjoining Lincoln's Inn Fields, of which a contemporary wrote in 1735 that “from a heap of rubbish and the receptacle of ruffians and vagabonds is made one of the finest squares in the world.” The place has had its turbulent history. In 1629, for instance, a royal messenger holding a warrant of arrest, found his man in Lincoln's Inn Gardens, but forbore to touch him out of respect for the place; but when the messenger had quietly gone into the street, about thirty gentlemen of the Inn, who felt that his very presence had been an insult to their privilege, “ fetched him into the house, violently pumped him, shaved him and disgracefully used him.” Here, too, stood the old Blue Boar Inn at which Cromwell and Ireton disguised as robbers, awaited the soldier who carried sewn into his saddle a letter from Charles the First to his Queen. While the soldier was detained within, they cut open the saddle, extracted the letter containing certain proof of Charles' incurable and incessant treachery, and sent the messenger on his way unwitting of his loss. And then, crossing Holborn, one comes to Gray's Inn to tread the pavement where the weary feet of Francis Bacon paced so many a round after his fall from place and power, and where, within sight of his statue in the outer court, one may still be shown the sacramental cup from which his sad lips drank.

The impression of age and antiquity which such a journey leaves, is not lost even when one enters the Royal Courts of Justice, for though built only in 1886 the design of the architect and the smoke of London have combined to make the buildings seem years older than they are, and in the hurrying figures of gowned and bewigged barristers and the red-robed judges on the Bench, one recognizes forms familiar for centuries in legal portraiture. No degree of intimacy with the traditions which cluster round these halls or with the costume of the dwellers there can drive from the mind of the American visitor the contrast with his less ancient temples and the highly informal garb of their priests and acolytes. Only when he has tarried to witness the courts in action does this sense of the unusual wear away; for then he finds the rôle of law invoked are those upon which he was nurtured, the examination of witnesses is conducted in the manner and by methods he has himself employed, and judgment is rendered in language drawn from the very precedents he has been taught to revere. As he watches the triumphant victor or disgruntled vanquished leave the arena he feels, to paraphrase John Bunyan, that“ but for the grace of God” and the lack of a wig and gown there might he go himself.

“The best prospect,” said Disraeli, “ that the law holds out to a man is port and bad stories until he is fifty and then a peerage.” Two of these rewards are obviously beyond the present reach of the American lawyer, no matter on which side of fifty he may find himself. It must be admitted that there are other differences between the lawyers of England and ourselves hardly less definitive. Of these the most pronounced perhaps are those which spring from the methodical, and from the American point of view, the somewhat rigid organization of the legal profession itself. In large part this organization is the result of slowmoving historical causes, but it springs also from that innate love of established order and custom which is one of the strongest instincts of the English race. The rank and precedence which obtain are not based upon any innate sense of superiority or inferiority among men—indeed the underlying philosophy of the English state is as profoundly egalitarian in point of human rights as that of America—but there is a desire to know and a willingness to recognize the exact limit of the sphere to which one has been assigned by choice or fate that is not felt in a newer society. The table of legal precedence accordingly is quite definite. It begins at the apex with the Lord Chancellor as the highest legal dignitary of the Kingdom and descends by successive gradation as follows:

The Lords of Appeal;
The Lord Chief Justice of England;
The Master of the Rolls;

The Lords Justices of the Court of Appeal (according to seniority of appointment) and the

President of the Probate, Divorce and Admiralty Division;

Judges of the High Court (according to seniority of appointment);

The Judge of the Arches Court;
The Attorney-General;
The Solicitor-General;
The Judges of the County Courts;
King's Counsel, and such as have patents of precedence;
The Recorder of London;
The Common Serjeant of London;
Doctors of Civil Law;
Doctor of Laws;
Barristers-at-law;
Proctors;
Solicitors.

Among barristers, there is not only the distinction which prevails between the mere utter barrister in his stuff gown and the King's Counsel in his glistening silk, but there is precedence based upon the date of one's call to the Bar, which is not entirely devoid of consequence in professional life. No King's Counsel can hold a brief for the plaintiff on the hearing of a civil cause, in the High Court, Court of Appeal or House of Lords, without a Junior, and it is quite unusual that he should do so even when appearing for the defendant in a civil case or upon a criminal trial. While among those of lesser rank, no barrister should accept a junior brief for a barrister junior to himself in point of call, and as the table shows any and every barrister outranks all his legal brethren of the lower branch. Indeed, some years ago a solicitor rather bitterly remarked that “a barrister is to a solicitor what a peer is to a law stationer.” Among solicitors themselves a greater equality obtains; or perhaps it would be fairer to say that their struggle for existence is neither helped nor hampered by questions of relative rank.

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Mere questions of precedence aside, however, the whole scheme of legal life in Great Britain is built upon the hard and fast division between the barrister on the one hand and the solicitor on the other. It is a distinction which tradition, custom and positive law combine to maintain inviolate and inviolable; and to say that it is analogous to the difference with which we are familiar between the “court lawyer” and the “ office lawyer," tells but half the story. Pollock & Maitland assert that historically considered “these two branches have different roots; the attorney represents his client and appears in his client's place, while the countor speaks in behalf of a litigant who is present in court either in person or by attorney.” This was certainly true as far back as 1286 for recognized countors or advocates were already performing their function when the Statute of Merton granted to every free man the right to be represented at the county, trything, hundred, wapentake and minor courts, by an attorney, whose right, however, to address the court seems to have been doubtful. Under Edward the First, the English Justinian, a definite class of English lawyers makes its appearance, and toward the close of the thirteenth century we find statutory evidence of their respective functions in an ordinance passed by no lesser potentates than the Mayor and Aldermen of London, forbidding any countor to practice also as an attorney.

The separation thus begun between the two orders continues to this day and shows itself not only in function but in education, in dress, in legal status, in relationship to clients, in compensation, and not least of all, in eligibility for public office. Thus a barrister educated at one of the Inns of Court and admitted by its benchers to the Bar enjoys in his wig and gown a singular immunity from legal restraint. He is not an officer of the court, and the court neither admits him to practice nor has power to disbar him from his profession. He takes no oath of service, nor even of allegiance, for an alien may enjoy full professional status at the English Bar. No tax is levied upon his right to practice and no statute undertakes to regulate the compensation which

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