Part XV.
LAW AT A LOW PRICE.
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 thananother, it is that leading out of Holborn to Gray's Inn. I neverremember to have met a cheerful face at it, until the other morning,when I encountered Mr. Ficker, attorney-at-law. In a few minutes wefound ourselves arm in arm, and straining our voices to the utmost amidthe noise of passing vehicles. Mr. Ficker stretched himself on tiptoe ina frantic effort to inform me that he was going to a County Court. "Butperhaps you have not heard of these places?"
I assured Mr. Ficker that the parliamentary discussions concerning themhad made me very anxious to see how justice was administered in theseestablishments for low-priced Law. "I am going to one now;" but heimpressively added, "you must understand, that professionally I do notapprove of their working. There can be no doubt that they seriouslyprejudice the regular course of law. Comparing the three quarterspreceding with three quarters subsequent to the establishment of theseCourts, there was a decrease of nearly 10,000 writs issued by the Courtof Queen's Bench alone, or of nearly 12,500 on the year."
We soon arrived at the County Court. It is a plain, substantial lookingbuilding, wholly without pretension, but at the same time not devoid ofsome little architectural elegance of exterior. We entered, by a gatewayfar 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 ofthese was the Summons Office, and I observed on the wall a "Table ofFees," and as I saw Mr. Ficker consulting it with a view to his ownbusiness, I asked him his opinion of the charges.
"Why," said he, "the scale of fees is too large for the client and toosmall for the lawyer. But suitors object less to the amount than to theintricacies and perplexities of the Table. In some districts the expenseof 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 fromthe variety of interpretations which different judges and officers putupon the charges."
Passing out of the Summons Office, we entered a large hall, placardedwith lists of trials for the ensuing week. There were more than onehundred of them set down for trial on nearly every day.
"I am glad," I said, "to think that this is not all additionallitigation. I presume these are the thousands of causes a-year withdrawnfrom the superior Courts?"
"The skeletons of them," said Mr. Ficker, with a sigh. "There were somepickings out of the old processes; but I am afraid there is nothing butthe bone here."
"I see here," said I, pointing to one of the lists, "a single plaintiffentered, as proceeding against six-and-twenty defendants in succession."
"Ah," said Mr. Ficker, rubbing his hands, "a knowing fellow that--quiteawake to the business of these Courts. A cheap and easy way, sir, ofrecovering old debts. I don't know who the fellow is--a tailor, verylikely--but no doubt you will find his name in the list in this way onceevery half-year. If his Midsummer and Christmas bills are not punctuallypaid, it is far cheaper to come here and get a summons served, than tosend all over London to collect the accounts, with the chance of notfinding the customer at home. And this is one way, you see, in which wesolicitors are defrauded. No doubt, this fellow formerly employed anattorney to write letters for him, requesting payment of the amount ofhis bill, and 6_s._ 8_d._ for the cost of the application. Now, insteadof going to an attorney, he comes here and gets the summons served for2_s._ 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 oftrades-people, especially puffing tailors and boot-makers. Such peoplerely less on regular than on chance-custom, and therefore they care lessabout proceeding against those who deal with them."
"But," said I, "this is a decided abuse of the power of the Court. Suchfellows ought to be exposed."
"Phoo, phoo," said Mr. Ficker; "they are, probably, soon known here, andthen if the judge does his duty, they get bare justice, and nothingmore. I am not sure, indeed, that sometimes their appearance here maynot injure rather than be of advantage to them; for the barrister mayfix a distant date for payment of a debt which the tradesman, by alittle civility, might have obtained from his customer a good dealsooner."
"The Court" I found to be a lofty room, somewhat larger and handsomerthan the apartment in which the Hogarths are hung up in the NationalGallery. One-half was separated from the other by a low partition, onthe outer side of which stood a miscellaneous crowd of persons whoappeared to be waiting their turn to be called forward. Though theappearance of the Court was new and handsome, everything was plain andsimple.
I was much struck by the appearance and manner of the Judge. He wascomparatively a young man; but I fancied that he displayed thecharacteristics of experience. His attention to the proceedings wasunwearied; his discrimination appeared admirable; and there was a calmself-possession about him that bordered upon dignity.
The suitors who attended were of every class and character. There wereprofessional men, tradesmen, costermongers, and a peer. Among theplaintiffs, there were specimens of the considerate plaintiff, the angryplaintiff, the cautious plaintiff, the bold-swearing plaintiff, theenergetic plaintiff, the practiced plaintiff, the shrewish (female)plaintiff, the nervous plaintiff, and the revengeful plaintiff. Eachplaintiff 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_prima facie_ proved, the Barrister turned to the defendant, and perhapsasked him if he disputed it?
The characteristics of the defendants were quite as different as thecharacteristics of the plaintiffs. There was the factious defendant, andthe defendant upon principle--the stormy defendant, and the defendantwho was timid--the impertinent defendant, and the defendant who left hiscase entirely to the Court--the defendant who would never pay, and thedefendant who would if he could. The causes of action I found to be asmultifarious as the parties were diverse. Besides suits by trades-peoplefor every description of goods supplied, there were claims for everysort and kind of service that can belong to humanity, from the claim ofa monthly nurse, to the claim of the undertaker's assistant.
In proving these claims the Judge was strict in insisting that a properaccount should have been delivered, and that the best evidence shouldbe produced as to the correctness of the items. No one could come to thecourt and receive a sum of money merely by swearing that "Mr. So-and-soowes me so much."
With regard to defendants, the worst thing they could do, was to remainaway when summoned to attend. It has often been observed that thosepersons about whose dignity there is any doubt, are the most rigorous inenforcing its observance. It is with Courts as it is with men; and asSmall Debt Courts are sometimes apt to be held in some contempt, I foundthe Judge here very prompt in his decision, whenever a defendant did notappear 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 ofconfidence which characterized some of the proceedings. Here again theeffect in a great measure was attributable to the Barrister. He seemedto act--as indeed he is--rather as an authorized arbitrator than as ajudge. He advised rather than ordered; "I really think, he said, to onedefendant, "I really think, sir, you have made yourself liable." "Doyou, 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 werehotly contested, no
ne of the defeated parties complained of thedecision. In several instances, the parties even appeared to acquiescein the propriety of the verdict.
A Scotch shoeing-smith summoned a man who, from his appearance, I judgedto be a hard, keen-dealing Yorkshire horse-jobber; he claimed a sum ofmoney 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 thiserror even if he gave a decision in his favor, he should be doing him aninjury. The case was a hard one, and I could not help regretting thatthe poor plaintiff should be non-suited. Did _he_ complain? Neither byword 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 justclaim." The Barrister evidently believed him, for he advised acompromise, and adjourned the case that the parties might try to come toterms. But the defendant would not arrange, and the plaintiff was drivento elect a non-suit.
The mode of dealing with documentary evidence afforded me considerablesatisfaction. Private letters--such as the tender effusions of faithlesslove--are not, as in the higher Courts, thrust one after the other, intothe dirty face of a grubby-looking witness who was called to prove thehandwriting, sent the round of the twelve jurymen in the box, andfinally passed to the reporters that they might copy certain flowerysentences and a few stanzas from "Childe Harold," which the short-handwriters "could not catch," but are handed up, seriatim, to the Judge wholooks through them carefully and then passes them over withoutobservation for the re-perusal of the defendant. Not a word transpiresexcept such extracts as require comment.
There was a claim against a gentleman for a butcher's bill. He had thebest of all defences, for he had paid ready money for every item as itwas delivered. The plaintiff was the younger partner of a butcheringfirm which had broken up, leaving him in possession of the books and hispartner in possession of the credit. The proprietor of the book-debtsproved 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 thevalue of them, he somewhat unnecessarily thrust before the Barrister,the deed which constituted him a partner. The Judge instantly comparedthe deed with the bill. "Why," he said, turning to the butcher, "all theitems you have sworn to were purchased anterior to the date of yourentering into partnership. If any one is entitled to recover, it is yourpartner, whom the defendant alleges he has paid." In one, as they arecalled, of the "Superior Courts," I very much doubt whether either Judgeor Jury would have discovered for themselves this important discrepancy.
The documentary evidence was not confined to deeds and writings, stampedor unstamped. Even during the short time I was present, I saw somecurious records produced before the Barrister--records as primitive intheir way as those the Chancellor of the Exchequer used to keep in theTally-Office, before the comparatively recent introduction ofbook-keeping into the department of our national accountant.
Among other things received in evidence, were a milkwoman's score and abaker's notches. Mr. Ficker appeared inclined to think that no weightought to be attached to such evidence as this. But, when I recollectthat there have occasionally been such things as tombstones produced inevidence before Lord Volatile in his own particular Court, the House ofLords, ("the highest jurisdiction," as they call it, "in the realm,") Isee no good reason why Mrs. Chalk, the milkwoman, should not bepermitted to produce her tallies in a County Court. For every practicalpurpose the score upon the one seems just as good a document as theepitaph upon the other.
I was vastly pleased by the great consideration which appeared to bedisplayed towards misfortune and adversity. These Courts areemphatically Courts for the _recovery_ of debts; and inasmuch as theyafford great facilities to plaintiffs, it is therefore the moreincumbent that defendants should be protected against hardship andoppression. A man was summoned to show why he had not paid a debtpursuant to a previous order of the Court. The plaintiff attended topress 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 beenseized in execution."
In the Superior Courts this would have been no excuse. The man wouldprobably have gone to prison, leaving his wife and family upon theparish. But here that novel sentiment in law proceedings--sympathy--peepedforth.
"I believe this man would pay," said the Barrister, "if possible. But hehas 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 wereanxious to press very hardly upon defendants. Indeed it would be badpolicy to do so. Give a man time, and he can often meet demands that itwould be impossible for him to defray if pressed at once.
"Immediate execution" in this Court, seemed to be payment within afortnight. An order to pay in weekly installments is a common mode ofarranging a case, and as it is usually made by agreement between theparties, both of them are satisfied. In fact, the rule of the Courtseemed not dissimilar from that of trades-people who want to do a quickbusiness, and who proceed upon the principle that "No reasonable offeris refused."
I had been in the Court sufficiently long to make these and otherobservations, when Mr. Ficker introduced me to the clerk. On leaving theCourt by a side-door, we repaired to Mr. Nottit's room, where we foundthat gentleman (an old attorney) prepared to do the honors of "a glassof sherry and a biscuit." Of course the conversation turned upon "theCounty 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 andWales in the year 1848--the account for 1849 is not yet made up."
"Take six months, I suppose, to make it," said Mr. Ficker, ratherill-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, "L1,346,802."
"Good gracious!" exclaimed Ficker, his face expressing envy andindignation; "what a benefit would have been conferred upon society, ifall this property had been got into the legitimate Law Courts! What abenefit to the possessors of all this wealth! I have no doubt whateverthat during the past year the suitors, who have recovered this millionand a quarter, have spent the whole of it, squandered it upon what theycalled "necessaries of life." Look at the difference if it had only beenlocked up for them--say in Chancery. It would have been preserved withthe greatest possible safety; accounted for--every fraction of it--inthe books of the Accountant-General; and we, sir, we--the respectablepractitioners in the profession--should have gone down three or fourtimes 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 itsafely for our client, until his suit was properly and equitablydisposed of."
"But, perhaps, Ficker," I suggested, "these poor clients make better useof their own money after all than the Courts of Law and Equity couldmake it for them."
"Then the costs," said Mr. Ficker, with an attorney's ready eye tobusiness, "let us hear about them."
"The total amount of costs adjudged to be paid by defendants on theamount (L752,500) for which judgment was obtained, was L199,980," wasthe answer--"being an addition of 26.5 per cent, on the amount orderedto 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 actionduly brought to trial; but, as the greater part of these costs are costsof Court, twenty-five per cent, cannot be considered inadequate."
"It seems to me a great deal too much," said I. "Justice ought to bemuch cheaper."
"All the fees to counsel and attorneys are included in the amount,"remarked the clerk, "and so are allowances to witnesses. The fees
oncauses amounted to very nearly L300,000. Of this sum, the Officers' feeswere, in 1848, L234,274, and the General Fund fees L51,784."
"Not so bad!" said Mr. Ficker, smiling.
"The Judges' fees amounted to nearly L90,000. This would have given themall L1500 each; but the Treasury has fixed their salaries at a uniformsum of L1000, so that the sixty Judges only draw L60,000 of theL90,000."
"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 L90,000a year for what only costs L60,000?"
"I am afraid it is so," said Mr. Nottit.
"Dear me!" said Mr. Ficker; "I never heard of such a thing in all myprofessional experience. I am sure the Lord Chancellor would neversanction 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' FeeFund in those Courts above--eh, Ficker?"
"Ah--hem--yes," said Mr. Ficker. "Certainly--but the cases are not atall analogous. By the way, how are the other fees distributed?"
"The Clerks," said Mr. Nottit, "received L87,283, nearly as much as theJudges. As there are 491 clerks, the average would be L180 a-year toeach. But as the Clerks' fees accumulate in each Court according to thebusiness transacted, of course the division is very unequal. In oneCourt in Wales the Clerk only got L8 10_s._ in fees; in another Court,in Yorkshire, his receipts only amounted to L9 4_s._ 3_d._ But some ofmy colleagues made a good thing of it. The Clerks' fees in some of theprincipal Courts' are very 'Comfortable.'
"The Clerk of Westminster netted L2731 Clerkenwell 2227 Southwark 1710
Bristol, Sheffield, Bloomsbury, Birmingham, Shoreditch, Leeds.Marylebone, received L1000 a-year and upwards."
"But," continued our friend, "three-fourths of the Clerks get less thanL100 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 anaverage for each Judge of 140 days. The greatest number of sittings wasin Westminster, where the Judge sat 246 days. At Liverpool, there weresittings 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 eachCourt. In some of the Courts, however, as many as 20,000 cases are triedin a year."
"Why," said Mr. Ficker, "they can't give five minutes to each case! Isthis '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 takesscarcely two minutes."
"How long does a defended case take?"
"On the average, I should say, a quarter of an hour; that is, providedcounsel 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 theCounty 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 summonedin any case where the plaint is upwards of L5. The total number of casestried in 1848 was 259,118. Of these, upwards of 50,000 were cases inwhich juries might have been summoned. But there were only 884 jurycases in all the Courts, or one jury for about every 270 trials! Theparty 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 thedecision of the Barrister, and that reliance is not without goodfoundation, for certainly justice in these Courts have been welladministered. But there may be occasions when it would be very desirablethat a jury should be interposed between a party to a cause and thepresiding Judge; and certainly if the jurisdiction of these Courts isextended, it will be most desirable that suitors should be able tosatisfy themselves that every opportunity is open to them of obtainingjustice."
"For my own part," said I, "I would as soon have the decision of onehonest man as of twelve honest men, and perhaps I would prefer it. Ifthe Judge is a liberal-minded and enlightened man, I would rather takehis judgment than submit my case to a dozen selected by chance, andamong whom there would most probably be at least a couple of dolts. Bythe way, why should not the same option be given to suitors inWestminster Hall as is given in the County Courts?"
"What!" exclaimed Mr. Ficker, "abolish trial by Jury! the palladium ofBritish 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 thansixty per cent. of the entire number of plaints entered. This is vastlygreater than the number in the Superior Courts, where there is said tobe scarcely one cause tried for fifty writs issued. Why is this? Simplybecause the cost deters parties from continuing the actions. They settlerather than go to a jury."
"And a great advantage, too," said Mr. Ficker.
"Under the new bill," said our friend, the Clerk, "Fickers clients willall be coming to us. They will be able to recover L50 in these Courts,without paying Ficker a single 6_s._ 8_d._ unless they have a peculiartaste 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 hethinks can pay him L50, if he only swears hard enough that it is due tohim. 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 sumof money of very considerable importance. I must say, I think it wouldbe quite right that inferior courts should not have the right of dealingwith 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 thesatisfactory way in which this great experiment has worked--seeing howmany righteous claims have been established and just defencesmaintained, which would have been denied under any other system--Icannot but hope to see the day when, attended by proper safeguards forthe due administration of justice, these Courts will be open to even amore numerous class of suitors than at present. It is proposed thatsmall Charitable Trust cases shall be submitted to the Judges of theseCourts; why not also refer to them cases in which local magistratescannot now act without suspicion of partisanship?--cases, for example,under the Game Laws, or the Turnpike Laws, and, more than all, offencesagainst the Truck Act, which essentially embody matters of account. Whynot," said I, preparing for a burst of eloquence--"why not----"
"Overthrow at once the Seat of Justice, the Letter of the Law, and ourglorious constitution in Church and State!"
It was Mr. Ficker who spoke, and he had rushed frantically from the roomere I could reply.
Having no one to argue the point further with, I made my bow to MrNottit and retired also.