Would you, under circumstances 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 constitutional 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 assize 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 constitutional 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 passage he inveighs against judges in a strain of even coarser 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 biassed 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 passages 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 title 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 ignoble, 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 practitioner 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 cumbrous 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 assistance 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 assigned 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.