A Philadelphia Lawyer in the London Courts Part 10

_Prisoner_: (with a snarl) "I have told you once I do not acknowledge the authority of the Court. You can do whatever you like with me--I do not care. Remember, one day we shall be all-powerful, and then we can do what we like."

Then followed absolute silence for two minutes--a silence in which the breathing of persons near was audible.

Slowly the Lord Chief Justice lifted from his desk a piece of black cloth. It was the "Black Cap." One naturally thinks, from its name, that this is a kind of headgear corresponding to the shape of a man's head. On the contrary, it looks like a piece of plain limp cloth, a remnant from a tailor's shop, about a foot square, which the judge places on the top of his wig, letting it rest there quite casually and perhaps at a rakish angle, the four corners hanging down and the whole producing a somewhat ludicrous effect. Neither judge, jury, nor audience, rose when sentence was about to be p.r.o.nounced, but all remained seated, except the prisoner, who stood in dreary isolation, flanked by his stalwart guard, at his elevated station in the dock. His Lords.h.i.+p, the dignity of whose well-modulated voice contrasted strongly with his comical head covering, slowly addressed the prisoner as follows:

[Ill.u.s.tration: THE SENTENCING OF DHINGRA]

"Madar Lal Dhingra, no words of mine can have the slightest effect upon you, nor do I intend to say anything more than to point out to you that you have been convicted upon the clearest possible evidence of the brutal murder of an innocent man. The law enforces upon me to pa.s.s the only possible sentence in such a case."

The sentence was that the prisoner should be hanged by the neck until he was dead and be buried at the place of execution.

The Chaplain, in his robes, having somehow appeared at his Lords.h.i.+p's side, added: "Amen. And may G.o.d have mercy upon your soul."

Immediately after the dread words had been uttered, the prisoner saluted the grave judge by a salaam, bringing the back of his hand to his forehead, and said in a manner, the impertinence of which deprived his words of dignity: "Thank you, my Lord. I am proud to have the honor of laying down my life for my country. I do not care."

Counsel representing the relatives of the condemned man then arose and said that he was instructed to say that they viewed the crime with the greatest abhorrence and wished to repudiate in the most emphatic way the slightest sympathy with the views and motives which had led to it, adding, on behalf of the father and family, that there were no more loyal subjects of the Empire than themselves.

His Lords.h.i.+p replied that, while the course might seem somewhat unusual, yet, having regard to the wicked attempt at justification in some quarters, he was glad for what had been said on behalf of the members of the family.

Dhingra and his guards then disappeared from the dock and in a few moments the Lord Chief Justice and his escort, as well as the small audience, had withdrawn, leaving the court room deserted except for a newspaper reporter who was completing his notes. And so the drama closed.

One was told that the youthful student would probably be hanged in a fortnight from the following Tuesday--the trial having taken place on a Friday--as ancient custom ent.i.tled the condemned man to three Sundays of life after sentence.[B]

The spectacle of this little, lonely, misguided, yellow man, prompted partly by fanaticism but largely by vanity, having braved the whole power of mighty Britain in its proud capital to exploit his chimerical views, caught in the meshes of a law he hardly understood and hemmed in on all sides by its remorseless ministers, was deeply interesting and somewhat calculated to excite sympathy, until one's reason summoned the significance of the treacherous murder and the picture of a fair Englishwoman going out into that London night a widow.

While the result of this trial was justice, swift and unerring, to an American observer it seemed odd and scarcely a fair practice for a man to be tried for his life unrepresented by counsel learned in the law. Although the case was plain, nevertheless, with great respect for the admirable administration of the law in England, it must be remarked that innocent persons,--who, even if not mentally defective, may none the less be far from clever and who are necessarily inexperienced, and may perhaps lack the intelligence or means to retain counsel--ought not to be permitted by the court to pit their wits against an able officer of the crown, the stake being their own necks. To excuse the omission on the ground of the obvious guilt and callousness of the prisoner, is not a satisfactory solution, because it would involve prejudging the issue to be tried.

The proper and humane course is followed in the United States--the appointment by the court of counsel for an undefended prisoner--for it guards against the possibility of terrible mistakes.

From a technical point of view, the "leading" nature of the direct examinations, so noticeable in English courts, was especially conspicuous in that this was a murder trial where no departure from the recognized customs would have been permitted. One's ear grows accustomed to questions which put the answer into the mouth of the witness and require merely a monosyllabic a.s.sent; and one waits in vain for the objection which, at home, would follow such infractions of the rules of evidence as thunder succeeds lightning. In the Dhingra trial, for instance, the Attorney General did not scruple to ask such questions as the following:

_Q_: "Did you happen to look through the doorway and into the vestibule and see the prisoner speaking to Sir Curzon Wyllie and did you see him raise his hand and fire four shots into his face, the pistol almost touching him?"

_Q_: "Did you see Sir Curzon Wyllie collapse?"

_Q_: "Then, was there an interval of some seconds and then more shots?" (These killed Dr. Lalcaca.)

Nor did he hesitate to put such questions to another witness as:

_Q_: "Did you hear the noise of four shots and did you then look and see the prisoner and did you see him shoot again?"

A police officer was asked:

_Q_: "Did you examine the pistol and find one undischarged cartridge only?"

_Q_: "Had the other pistol six undischarged cartridges in it?"

_Q_: "Did you find two bullets similar to these in the wall?"

To such an extent was leading carried in the Dhingra trial that occasionally the answer did not follow the lead, thus:

_Q_: "Did you ask him 'What is your name and where do you live?'"

_A_: "I can't remember what I asked him."

The probable reason for the great lat.i.tude in this regard is the fact that apparently nothing in an English trial is a surprise--except to the jury. The court and counsel, knowing practically all the evidence beforehand, are extremely lenient.

Not only are leading questions common but also questions asking for conclusions--not for facts from which the jury may draw their own deductions. Thus, in the Dhingra trial, a doctor, who was sent for after the murder, was asked: "Did the prisoner seem calm, quiet and collected?" A plaintiff, perhaps, will be asked: "How came the defendant to write this letter and what was its object? Did he consider himself remiss?" Of course an American lawyer would successfully contend that a letter speaks for itself, while a man's estimate of his own position could only be put in evidence by repeating his admissions in that regard--not by asking his opponent how he regarded himself.

In favor of the practice of asking witnesses for conclusions--a practice which many American lawyers have found invalidates parts of testimony taken in England for use here--much may be said. To ask a witness the mental att.i.tude of a person, whom he heard talking a year before--whether he was angry, or joking, for example--is to ask an answerable question; but to require him to repeat the exact words, is to demand an impossibility. In replying to either form of inquiry the witness may be honest or the reverse, so that the chances of intentional misinformation are equally balanced, but an attempt at verbatim repet.i.tion nearly always requires, consciously or unconsciously, a draft upon the imagination. It seems that our rules of evidence in this regard might, perhaps, be cautiously relaxed with advantage, to accord more with practical experience.

An English criminal trial is quick, simple and direct. Dhingra, for example, whose crime was committed on July first, was sentenced on the twenty-first of that month and was hanged on August seventeenth--all in forty-seven days. The simplicity and directness of such trials is due to the absence of irrelevant testimony and imaginative arguments; these, counsel scarcely ever attempt to introduce--so certain is their exclusion by the judge. Thus, the real object of all punishment--its deterrent effect upon others--is greatly enhanced because it is swift and sure. The public, moreover, are usually spared the scandal and demoralizing effects of prolonged, spectacular and sensational trials.

Until a short time ago any person convicted in an English court was without appeal--the rulings and sentence of a single judge were final--but this manifest injustice has lately been cured by a law granting the right of appeal. It is too soon to estimate the effect of this change, but the prediction may be ventured that the ancient habit of regarding criminal judgments as conclusive, together with the saving common sense which characterizes all English courts, will probably prevent any radical departure from the present methods, which have much to commend them.

Comparison with American conditions is most difficult because, besides the United States courts extending for certain purposes over the whole country, there are forty-six absolutely separate sovereignties whose administration of criminal law, unless in conflict with the Const.i.tution of the United States, is as independent of the rest of the world as that of an empire.

Consequently, while differences exist in methods and results, the remarkable fact is that they are, upon the whole, so similar, when only a common tradition and a fairly h.o.m.ogeneous public opinion serve to keep them from drifting in diverse directions.

The administration of criminal law by the United States Courts deals chiefly with the trial of persons accused of murder on the high seas, counterfeiting, forgery, smuggling or postal frauds, defaulting bank officials and, very lately, corporation managers charged with favoritism in freight rates, or with the maintenance of monopolies affecting interstate commerce. Throughout the length and breadth of the land it is prompt, thoroughly dignified, vigorous and fair; indeed, its excellence, as a whole, suffers little if at all by comparison with the best English standards, which have been perfected only by centuries of experience in the highly concentrated population of a small Island.

But turning to the individual States, all comparisons must depend upon locality. New York, the landing place, that threshold of real America, with a predominating foreign population; the western frontiers of civilization, and the South, with its peculiar racial conditions, suffer by comparison with British standards far more than would one of the orderly communities composing the greater part of the Republic.

Recent mal-administration of criminal law in New York const.i.tutes a subject of national mortification, but the existence of this sensitiveness is the best of reasons for believing that time will bring an improvement. Unfortunately for the good name of the country, foreigners do not comprehend, and can hardly be made to appreciate, that the instances of private a.s.sa.s.sination in that city followed by trials, which, whether owing to a vicious system of practice or to judicial incompetency, excite the indignation and ridicule of the world, are not typical of America but are expressions of purely local and probably temporary conditions.

Foreign critics should be told that New York is not America, as many of them a.s.sume, and that temporary and local lapses do not prove a low standard. They may also be reminded, as showing that human justice is fallible, that even in London if a man walks into an Oxford Street department store, lies in wait for the proprietor against whom he has a grievance and blows out his brains, although he will be convicted in a trial occupying but three hours, yet the Home Secretary may intervene and prevent his hanging, upon a pet.i.tion signed by tens of thousands of sentimentalists moved by the rather illogical fact that his wife contemplates an addition to a thus celebrated family.

In the far West, criminal practice is probably neither better nor worse than in any other rough frontier of civilization where men must largely rely upon their own resources, rather than upon the government, for the protection of their lives and property.

Conditions in the South are so peculiar, owing to the sudden elevation to a legal equality of an inferior race which is in the majority, that no comparison with any other community is possible.

Without in the least condoning existing conditions, it may even be said that lynching, unlike private a.s.sa.s.sination, involves some degree of co-operation and is the expression of public, rather than of individual, vengeance. The theatre of these outrages is, moreover, spa.r.s.ely settled, beyond large cities or centres of education, and still retains some of the features of a frontier.

Throughout much the largest area, however, const.i.tuting the solid civilization and containing the bulk of the population of this immense country, no such conditions exist. On the contrary, crime is met with that steady and impartial justice, inherited from England, which neither partakes of the police oppression of continental countries, nor lapses into the barbarism of the exceptional localities above referred to. To commit deliberate murder in one of the eastern States, such as Pennsylvania, or Ma.s.sachusetts, or in one of the great commonwealths of the middle West, means sure and reasonably speedy hanging.

But, bearing in mind the difficulty of accurate comparisons between such diversified sections and a compact unit like England, and endeavoring to arrive at a general estimate, it must be conceded that America, as a whole, has even more to learn from England's criminal, than from her civil, courts.

FOOTNOTE:

[B] He was hanged three weeks from the following Tuesday.

CHAPTER XIV

LITIGATION ARISING OUTSIDE OF LONDON

LOCAL SOLICITORS--SOLICITORS' "AGENCY BUSINESS"

--THE CIRCUITS AND a.s.sIZES--LOCAL BARRISTERS --THE COUNTY COURTS--THE REGISTRAR'S COURT.

As has been said, solicitors are to be found in every town in England, whereas barristers, with minor exceptions to be noted, all hail from the London Inns of Court. People living in the country or in provincial towns, especially the larger ones, such as Liverpool and Manchester, of course consult local solicitors. If litigation is contemplated, the solicitor advises his client and conducts the sparring and negotiations which usually precede a lawsuit. But when actual warfare opens, the provincial solicitor generally a.s.sociates himself with a London solicitor who is known as his "agent"; and hence "agency business" const.i.tutes a considerable portion of the practice of a large firm of town solicitors. The Manchester or Liverpool solicitor does all the work and receives the fees up to the time he sends the "proofs" to the agent--that is, the doc.u.ments, statements of witnesses reduced to affidavits, and the other items of evidence--and dispatches the witnesses to the trial in London, which usually however, he does not attend himself, although, of course, he sometimes does so. The London solicitor retains the barristers, and is thereafter in complete charge of the case. The newspaper reports of trials of cases from the provinces, after giving the names of the barristers, always mention the London solicitor as agent for the country solicitor whose name also appears. The fees are shared from the time of a.s.sociation; one-third to the country, and two-thirds to the town solicitor. This is not unlike the manner in which our lawyers handle business in States other than their own--but it is much more systematized. If, however, the provincial solicitor prefers to await the a.s.sizes (which he may, except in divorce, probate, equity and some other kinds of business) he may bring his action in the High Court, sub-offices of which are available throughout the country for the issuance of writs, and, having retained a barrister, may try the case in his own town when the judge of the High Court comes down from London thrice a year on circuit.