Part 14
Here in the street poor Juvenis May raise his head and proudly trudge Alongside Judex—judicis The Third Declension—Judge.
_Pater’s Book of Rhymes._
In England the legal profession has two branches. There is also the root of the matter, but that is seldom referred to. These two branches are called—(i.) The Upper Branch, and (ii.) The Lower Branch. In great affairs the Lower Branch tells the Upper Branch what it has learned about the case from the client, and the Upper Branch tells the Court what it remembers of what it has been told by the Lower Branch. The advantage of retaining these separate branches is that where error occurs it is difficult to assign responsibility therefor. The Upper Branch learns advocacy by passing examinations and eating dinners; the Lower Branch by means of further and better examinations and fewer dinners. Those rules of advocacy that have not been learned by that method are acquired afterwards, if at all, by practical experience in the Courts of Law at the expense of the client.
To offer advice to members of the Upper Branch of the Profession on the Art of Advocacy would be unseemly, and these hints are intended—merely as suggestions made in the friendliest spirit—for the Law Student of the Lower Branch who proposes to take up advocacy in those inferior Courts which are open to him. Long experience of sitting as Judge in an inferior Court has led me to believe that it is not necessary or convenient that the advocacy should also be inferior, and I humbly commend this point of view to the younger members of both branches of the Profession.
Perhaps the most important Court from the young solicitor’s point of view is the County Court. A solicitor is allowed to act for a client in a County Court. When he is acting he has what is called a right of audience. This does not mean that all he says will be listened to by the audience, even if it be uttered in an audible voice. Moreover, the advocate’s right of audience must not be confounded with the rights of the audience themselves, who are always entitled to leave the Court if they are bored. For this purpose the Judge is not “audience.” He is bound to go on sitting, and ought to listen. The commission of Judge is _oyer_ and _terminer_, but in actual practice in County Courts you will find that Judges are more ready to dispense justice _terminando_ than _audiendo_.
Law students who have afterwards risen to eminence in their profession have sought to practise advocacy in their earlier years by making appearances at the local Police Courts as defendants. Much of the law of the motor-car may be learned in this matter—and much that is not law. The young enthusiast will find, I fear, that the method is an expensive one, the legal educational value of the magistrate’s _dicta_ is slight, and the opportunities allowed by the magistrate’s clerk to the defendant for the practice of advocacy wholly unsatisfying.
Even in later life the young solicitor is not advised to begin his career as an advocate in the Police Courts. Criminals have very little cash, and ought not to receive much credit. As to licensing matters, these are wisely placed in the hands of matured and experienced advocates. A licensing Bench has always made up its mind—which is divided into two parts—long before the case is called on, and the advocate’s duty is to say nothing that could conceivably disturb the considered judgment of the Court. This is a delicate task not often entrusted to beginners, and although it is well worth while to study the technic of some of the masters of the game, yet it is to be remembered that only with a licensing Bench, and perhaps before some of the more remote Ecclesiastical Courts, is this style of advocacy required. The young solicitor will probably find more scope for his abilities as an advocate in the County Court than before any other tribunal. The Judges of these Courts are far more tolerant of advocacy and less dogmatic on legal questions than lay Magistrates, and are neither as omnipotent nor as omnivorous as Magistrates’ Clerks.
Thus much for advocacy in general. “I will now,” as Lord Chesterfield says, “consider some of the various modes and degrees of it.” I assume that you are a young solicitor entrusted by some hopeful and friendly client with a County Court Action. Your first duty as a solicitor advocate is to get something on account of costs. Do not omit this common opening. A gambit here is a mistake. The fact of your client being a personal friend makes it the more necessary. Many a friendship has not survived a fourteen days’ order to pay a debt and costs. This sum on account may prove your real and only solace (_solatium_) when you hear the judgment.
Always consider yourself before your client. Your client is here to-day and gone to-morrow, whilst you, I hope, may remain. Proper pride will instinctively teach you when to consider your own interests rather than your client’s. Remember Bacon’s saying that “Affected dispatch is one of the most dangerous things to business that can be.” All dispatch is indeed alien to the interests of your profession, whether affected or otherwise, but there are many forms of affectation which you will find useful to your advancement. I would not have you pretend to forget the names of the earlier cases you obtain, though I do not advise you to take cognisance of the Court number of your case. If you knew this it would save the Court officials trouble, and they are paid to take trouble. Later in life you will find it well to call the Defendant by the Plaintiff’s name and _vice versa_. It suggests to the Court and the audience that you have too many cases to attend to, though it will not gratify your particular client.
In examining a witness, never let him tell his own story in his own way. Many a case is lost by this. The leading question is a sign of ripe advocacy. But do not overdo it; remember over-ripeness is rotten. The seniors at the Bar are called “leaders” from their habit of using this form of question unless restrained by quasi-physical violence. Cross-examination is not merely the art of making the witness cross. If your opponent’s witness proves nothing against your client, cross-examine vigorously. By this means the truth is often brought out and justice is done. During your cross-examination notice carefully whether the Judge is taking a note of the answers you are obtaining, or writing letters. In either case do not prolong your cross-examination, for if the latter it is useless trouble, and if the former it is probable you are eliciting answers that will be used against you. In re-examination, endeavour to lead your witness once more through his proof. It is an excellent test of judicial complacency.
The rules of the County Court are to be found in books, and need not therefore be committed to memory. Indeed, most law can be found in books by those who know where to look for it. Yet it is ill to stir the green mantle of the standing pool of law yourself if you can persuade another to do it for you. A slight knowledge of the first principles of elementary law will always be welcome in any Court. You may evade a detailed study of the more intricate points in your case by insisting that it falls within the rule laid down in one of Smith’s Leading Cases. For this purpose, however, you should learn at least the one rule you propose to quote. After all, the Judge has to decide the law, and ought to know it. The legal presumption is that everyone knows the law—this includes Judges. In cases under the Workmen’s Compensation Act, be careful how you quote a decision of the Court of Appeal. It may not have gone to the House of Lords, but if it did it is well to find out what happened to it when it got there. If an appeal to the House of Lords is pending the current odds against the legal value of the existing decision will be found in any sporting paper. If, during your argument, the Judge points out to you that there is a leading case deciding exactly the opposite of what you are arguing, ask him, with pained irritation, to be patient, and tell him you will distinguish it presently—but do not try to do so. Never give yourself away unnecessarily, rather give your client away, and you will find that generosity of this kind is never forgotten.
Allow the Registrar’s clerks to fill up for you the prolix and difficult forms in use in the County Court. They are not solicitors, and are therefore less likely to make mistakes in the work. If, however, a mistake is made you can always explain to the Judge how it arose, and you will not be blamed for it. In any case, where the law is really obscure and difficult, agree with your learned friend to leave the matter entirely to His Honour. By this means His Honour—if he makes no objection—will have to hunt up the authorities, and this will save you and your learned friend much useless labour, whilst the decision of the Judge will be far more valuable to your client. If you lose your case and your client loses his temper, blame the Judge, and urge your client to write to one of the Government departments—it does not matter which—to make a formal complaint of the Judge’s conduct. Government departments enjoy correspondence, and will treat your client’s letter with the respect and attention it deserves. On days when county cricket matches are being played in the neighbourhood of the Court, and generally on fine summer afternoons, your arguments will be the more admired if they are brief and occasionally to the point. If the case you have lost is for an amount of over £20, nevertheless ask leave to appeal. You do not want leave, but the Judge may not remember this, and may either grant or refuse it. In any case it gives you what you are probably longing for at that particular moment—an effective exit. Finally, remember that however genuine your contempt for the Court may be, you conceal it until you get outside—otherwise, seven days.
If the law student will peruse these suggestions and act upon them, and assuming him to be, as no doubt he believes he is, a young man of clear, strong, subtle intellect, of sound judgment, quick perceptions and brilliant forensic abilities, I can assure him that there is nothing between him and a very considerable and remunerative practice as an advocate in the County Court in matters which are not of sufficient importance to “stand” Counsel.
THE INSOLVENT POOR.
“Small debts are like small shot; they are rattling on every side and can scarcely be escaped without a wound; great debts are like cannon; of loud noise but little danger.”
—_Dr. Johnson._
The average man—the “man in the street,” as the journalist of to-day calls him—has no clear notion of the affairs of the County Court. He reads occasional paragraphs in the evening papers of some amusing incident, in which the humour of the Plaintiff or Defendant is capped by the humour of the playful and learned Judge, and the humour of the reporter, displayed in his dramatic sketch of the litigants, is the chief motive for the record of the case. I have often been told that my work must be very amusing, that I must see a great deal of life, and that County Court cases seem very entertaining, and I have come to the conclusion that those of the public who never enter a County Court, or read any sane record of its everyday work, which is too often dull, wearisome, and painful, and no fit material for paragraphs and headlines, live in the belief that the occupation of a Judge of a County Court is a legal form of small beer and skittles, in which the Judge’s part is to preside with free and easy good humour, and settle disputes with as much wit and readiness as he happens to possess. No one who has any experience of the actual proceedings of the Courts would recognise such a picture as in any way portraying the facts of the case.
In Manchester and Salford I was able to divide the work of the Courts into two classes, and to keep them distinct from each other. One contained an increasing number of Bankruptcy, High Court, and other cases, in which the litigants are of the same class and have the same legal assistance as in the High Court. The main differences between the High Court and the County Court in the conduct of such actions, being the simplicity of the procedure, and the rapidity and punctuality of trial in the inferior Court. The second, and to my mind the more important, if less interesting class of cases, was the large mass of debt collecting cases under £2, which were the original work of Courts created by the legislature for the “better securing the payment of small debts.” The first class of work is a somewhat onerous compliment to the ability with which the County Courts of the country are worked, but the second class ought always, it seems to me, to be the chief interest and care of County Court officials. And in the work connected with this smaller class of cases, the chief result of my experience has been a dull sense of the enormous mass of misery and wretchedness it is one’s duty to cause, and the despondent feeling that of necessity oppresses one in the presence of misfortune, that one can sympathise with, but not to any material extent alleviate. I should like, therefore, if it be possible to bring home to the average citizen the hopeless and almost degrading position of the insolvent poor, and to suggest for his consideration some of the reforms which, with or without legislation, might assist in bringing about a better state of things.
To begin with, one may state that there are over a million cases entered every year in County Courts, to recover debts under £20, and it will give some idea of how few cases are seriously disputed when I state that there are only between eleven and twelve thousand cases in which the Plaintiff fails to succeed, and these latter figures refer to all cases up to and above the £50 limit. Many cases get settled, some plaints never get served, but I have no doubt that one is well within the mark in stating that 98 per cent. of cases under £20 result in judgment for the Plaintiff. It is clear, therefore, that the Court is to this extent a collecting agency rather than a Court for the determination of disputes, and it is, in this respect, that its machinery should be examined. Few who do not know by personal experience, something of the life of the poorer class of working men and women, recognise the enormous extent to which they live and have their being on credit. The extent to which credit is given, and recklessly given, to men, women, and children, by the competing tradesmen who supply the working classes, would be an absurdity if it did not lead to so much misery. As Judge Chalmers put it in an epigram born of his wide experience of the insolvent poor: “They marry on credit to repent on Judgment Summonses.”
Now the two main causes of this reckless system of credit are:—(1) the keen competition among tradesmen; (2) the existence of imprisonment for debt. It is not advisable here to say much of trade competition. If it were a competition to sell the best goods at the most reasonable price it would perhaps be healthy enough, but it seems to be rather a competition to give the longest credit for the most inferior article. The largest classes of competitors are the money lenders, the credit drapers, or “Scotchmen,” the travelling jewellers, the furniture hirers, and all those firms who tout their goods round the streets for sale by small weekly instalments. These of necessity give reckless credit, and, equally of necessity, collect their monies with much suffering to their poorer customers. It seems fairly clear that to a working man on small weekly wages, no credit can be given in any commercial sense. A tradesman, if he gives credit at all to such a man, ought to give it upon the ground that he has reason to believe that he is an honest man who can and will pay his debts. As a matter of fact, the two chief reasons, or rather excuses, for giving credit are both somewhat weak. Tradesmen will tell you that they have given a man credit either because he was in receipt of good wages or because he was out of work. In the first case they ought clearly to insist upon cash, and the workman ought to get the advantage of a cash price, and in the second case they should only give credit if they know the character of the man, unless, of course, they choose to call it charity, with which the County Court has nothing to do. But in truth, credit is given without enquiry, recklessly and equally to those in work and out of work, for necessities, luxuries, and inutilities, and given at a price which includes the profit of the credit giver, his costs of making weekly collections, the costs of his debt collector or solicitor, and ultimately a considerable tribute towards the maintenance of the County Court.
Now all this is only possible because of the second factor in our treatment of the insolvent poor, namely, imprisonment for debt. The insolvent rich—if we may use such a phrase—do not nowadays fear imprisonment for debt. At the expense of a few pounds borrowed from a friend, they file their petition in bankruptcy and shake themselves free of all their creditors as if by magic; for not being traders their discharge is of little importance to them, and they go absolutely unpunished. I set down a few cases from an Annual Report of the Board of Trade for comparison with some other cases, which I propose to set out later:—
“Bristol. No. 64, of 1896.
Liabilities expected to rank £36,631 Probable value of assets on realisation £100.”
Debtor, younger son of a duke. Creditors, mostly money-lenders and tradesmen. His expenditure, which included losses by betting, largely exceeded his income, and knowledge of his insolvent position for some considerable period was admitted.
“Kingston. No. 21, of 1896.
Liabilities expected to rank £21,741 Probable value of assets on realisation £667.”
Debtor, formerly in the army, lived on his wife’s income, lost money in Stock Exchange speculations and betting. No income except £135 derived under marriage settlement.
“No. 471, of 1896.
Liabilities expected to rank £298,166 Probable value of assets on realisation £1,700.”
Debtor, a peer. At the time of his succeeding to estates in 1864 his liabilities were £30,000, and have apparently continued to increase in consequence of his expenditure being larger than his income. His discharge was suspended three years on account of unjustifiable extravagance in living.
These are samples of the glorious achievements of the insolvent rich. Now let us turn to the shorter and simpler annals of the insolvent poor. For them the maxim, “_Si non habet in aere luat in corpore_,” is still a living truth, only they hear it as quoted to me once by a poor woman in the words of some Scotch draper: “If I canna ’ave yer brass I’ll tek yer body.” The law is not the same for the speculator who lives extravagantly above his income to the injury of his creditors and the working man on five-and-twenty shillings a week who fails to live within his means. The latter is only in a very limited sense the creature of bankruptcy. The luxury of legal insolvency is almost denied to him. He is ordered to pay his creditor, and the costs his creditor has incurred in obtaining judgment, and the fees of the County Court, at so many shillings a month, and if he fails to pay his instalments his creditor proceeds, at further cost to the debtor, to collect them by means of a judgment summons. Then, upon proof that he has or has had the means to pay the instalments due, he is committed to prison for default. Few citizens, I think, recognise the number of persons who are thus committed to prison. In 1909[2] no less than 375,254 summonses were issued, 234,753 heard, 136,630 warrants issued, and 8,904 debtors actually imprisoned. Nor can it be granted that of those who pay between the issue of the summonses and the day of imprisonment, all, or nearly all, are in a position to pay, in the sense of possessing surplus money sufficient to discharge the debt. Friends and relatives come to the rescue, fresh credit is obtained to pay off the old debt, and thus the result of a committal order is too often to thrust the unfortunate debtor one step deeper into the slough of insolvency in which he is already sinking beyond recovery. At the same time it is of no use railing at the system. The Select Committee of 1893 reported generally in favour of it, mainly, I think, because the working class themselves uphold it. They uphold it for one reason—and a powerful one—because without imprisonment for debt there would be no reckless credit, and without reckless credit there would be no possibility of prolonging a strike after their own accumulated funds began to give way. All that any individual Judge can do is to administer the system with as much sympathy and mercy as is compatible with its honest working, without prejudice to his right of private protest as a citizen against its social iniquity.
Having now pointed out the position of the small debtor in the County Court, I want to draw attention to an existing system of small Bankruptcies known as Administration Orders which are very little used or appreciated by either the Courts or by debtors, but which with some improvements might do much to mitigate the evils of the existing system of imprisonment and check the recklessness with which credit is given to the poor.
This Administration Order was the creation of the Bankruptcy Act of 1883, and in a few words the system may be thus described: Where a debtor has a judgment against him in a County Court and is unable to satisfy it forthwith, and alleges that his whole indebtedness does not exceed £50, he may file a request for an Administration Order. In this request he gives a full list of all his creditors with particulars of their debts, and states whether or not he proposes to pay them in full and by what monthly or other instalments. Notice is given to creditors of the date of hearing, and on that day the Judge either makes or refuses the order, or makes a modified order at his discretion. As soon as the order is made all proceedings against the debtor, in respect of the debts scheduled, are suspended, and the creditors individually cannot attack him. He can, however, if he does not pay his instalments, be committed for default or the order can be rescinded. The fund created by his payments is appropriated—(1) for the Plaintiff’s costs in the action; (2) for the Treasury fees, which are 2s. in the £ on the total amount of the debts; and (3) for the debts in accordance with the order.
This is the system which Mr. Chamberlain, on the second reading of his Bill, March 19th, 1883, described as a system whereby the “small debtor would be in exactly the same position as a large debtor who had succeeded in making a composition with his creditors or in arranging a scheme of liquidation. Although he had not abolished in all cases imprisonment for debt, yet, if these provisions became law, it could be no longer said that any inequality existed in the law as between rich and poor. The resort to imprisonment[3] to secure payment would be much rarer, and a large discretion would be vested in the Judges to arrange for the relief of the small debtor by a reasonable compensation.”
These were brave and wise words, interesting to-day as showing the then intentions of the author of the system, hopeful to-day as suggestive of what may be expected from those in authority when they recognise the failure of the system in achieving the objects for which it was invented.