tub thrown to the whole, the Supreme Court was made itinerant by a law compelling it to hold three terms annually, one at Madison, one at Milwaukee and one at Oshkosh. Probably no more foolish law could be passed, with less reason for its passage. For one year the Court became peripatetic; but the law was repealed at the next session, and no one has since suggested a repetition of its folly. CONCLUSION. It is a hard-working court. The five judges must each write more than double the number of opinions written by a judge of the Supreme Court of the United States. Most of them are difficult cases, involving questions which, if not important in the sense of involving large amounts or great Constitutional questions, are solved only with careful study. The cases and briefs are and in most cases needlessly so voluminous and too often illy digested, and but few cases can be summarily decided without writing a full opinion. For nine months in the year the judges are laboriously employed in hearing arguments, consultation, or the writing of opinions. LAWYERS AND LAW PRACTICE IN ENGLAND AND THE UNITED STATES COMPARED. SOME BY A LAWYER OF BOTH. OME points of comparison or of contrast between law practice in England and in the United States will be of interest to American lawyers. More than twenty years spent in an extensive practice of law in England, and ten years' observation of it in different parts of the United States may entitle the writer to say, "I know whereof I speak," and with that introduction the "ego" of this article ends as well as begins. When we speak of the legal profession in England we must remember that it consists of two branches, which, though interdependent and essential to each other, are quite distinct and in many respects dissimilar. In addition to these there are some minor branches of it "certificated conveyancers" and "special pleaders not called to the bar " but these are now so small that we need not stay to notice them here. The two great branches of it are called "the higher" and "the lower." The lower branch is that of the attorney or solicitor. "Solicitor" is now the proper designation, and the word "attorney" is almost discarded; but it will be better to use it in this article, for it is the more ancient and historic, and is better understood in the United States. Until the Judicature Act of about thirty years ago "attorney" was the designation of one who practiced at common law, and "solicitor" of one who practiced in chancery. The Judicature Act fused common law and chancery into one High Court of Judicature," and "solicitor" became the legal, as it was the preferred, description of those who constituted the lower branch of the profession. No one now calls himself, or allows himself to be called, an attorney. The higher branch I. is that of the barrister or counsel. Between these two branches "is a great gulf fixed, so that they who would pass" from the one to the other cannot, by which quotation, however, I do not suggest conditions in other respects like those that were parted by the gulf of the parable. But the gulf is a very real and deep one, and every attempt to bridge or narrow it has been sternly resisted. The higher branch only is called "the bar." No attorney or solicitor is ever spoken of as "a member of the bar." Socially as well as professionally he is the inferior, and language is made to emphasize the distinction. His (the attorney's) legal rank is that of "gentleman," the barrister's is " esquire," and they are respectively so described in deeds and other legal documents. He is "admitted" to the rolls of the profession, but the barrister is "called to the bar." His place of business. is his "office," that of the barrister is his "chambers." He is " employed" by his clients, counsel is "retained"; his remuneration is called his "costs and charges," that of counsel is his "fee." For ignorance or carelessness in the conduct of his cause the attorney is responsible in an action for negligence; counsel is under no such responsibility, however ignorant, or negligent, or careless. The terms “crassa negligentia," and "crassa ignorantia," are inapplicable to "the bar," and are the exclusive privilege of the lower branch of the profession. The attorney cannot open his lips in any of the superior courts, even to ask for delay until the arrival of counsel, while counsel has audience everywhere, from a police court to the House of Lords. The attorney is undistinguished by dress from "the madding crowd," while counsel is clothed in wig, and gown, and bands, the insignia of his order. The attorney "instructs" counsel, but counsel follows the instructions only just so far as he pleases, the whole conduct of the cause from the moment at which the "brief" is delivered resting wholly in the discretion of the counsel. Counsel in court always speak of each other as "my learned friend," but never so speak of the attorney who instructs them; and even attorneys, speaking in the inferior courts in which they have audience, never presume to make use of the word "learned" in referring to each other, "my friend" being the nearest approximation to the language of the bar permissible to them. An attorney is stationary, practicing in the city or town in which he and his family reside, while the barrister (if practicing at common law), though having chambers and residing in London, or some other large city, attaches himself to a "circuit," and two or three times every year "goes circuit"; that is to say, he follows the judges from one assize town to another, for the trial of civil causes, or criminal cases, and is known and distinguished by the name of the circuit to which he belongs. Thus a barrister is described as "Mr. Jennings of the Northern Circuit," while an attorney has no such itinerant description, but is simply "Mr. Jennings of Manchester." "Respectable" is the word which marks the highest reach of the attorney's life, while "eminent" is the honored description of the successful counsel. No. one speaks of an eminent attorney or of a respectable counsel, for of course all counsel are respectable, and of course also no attorney is, eminent. Until recently counsel on circuit never "put up" at the hotels of the assize towns (for that would have been to place themselves in contact with attorneys having business at the assizes), but took "lodgings' in private houses; and a list of "counsels' lodgings" was, and still is, always exhibited outside the assize courts in order to show attorneys where counsels' briefs briefs might be delivered, and consultations appointed. During the last few years this rule of etiquette has been somewhat relaxed, and now counsels' "lodgings" are occasionally, though not generally, described as of a room in one of the hotels (e. g. No. 42, Queen's Hotel), especially in such large assize towns as Liverpool or Manchester; but even there no counsel would be found at the table d'hôte, or the bar parlor or smoking room. Yet notwithstanding this "gulf" of demarcation, counsel is wholly dependent on the attorney. There is not a single thing he can do in his profession, either in court or chambers, unless "instructed" by an attorney. He could not open his lips as the advocate of his own father, or write an "opinion" for his brother without an attorney's intervention, and the selection of counsel rests with the attorney. Whom he will he instructs and whom he will he neglects. But his instruction must be by delivery of a brief, and not merely verbal. Many a time I have seen an attorney in an emergency rush to counsel in court to instruct him to make an application or motion, but invariably he has had to prepare and deliver a "brief" as an essential requisite of the instruction, although the brief might be only a blank sheet of brief paper, indorsed with the name of the cause, the name of the counsel, the amount of his fee, and the name of the instructing attorney. The word "brief" has a very different meaning in England from what we understand by it here. There it is a confidential, "privileged" document-the attorney's statement of the case for the "instruction" of the counsel. It usually consists of a copy of the "pleadings" (all printed now, formerly all written), a full statement of the facts, technically called "the case," and a full statement of the "proofs," i. e. the names of the witnesses and their testimony, presumably taken down from their lips by the attorney or his clerk. Then the whole is folded in brief form, and indorsed, and this indorsement is to the counsel the most interesting part of the brief. Here is a speci men of it: - YORK SPRING ASSIZES. Lent, 1894. Coram, Mr. JUSTICE WILLS. JOHN THOMAS, Plaintiff. JAMES TOMKINS, Defendant. BRIEF FOR with PLAINTIFF. you, 2 66 Retainer, 2 gnas. clerk when the brief is delivered, but when the attorney is a regular client this is not always done, and, indeed, in some instances. a" fee list" is allowed to accumulate against the regular client to the end of the assizes, or, in London, to the end of the term. All counsel's fees are still reckoned in "guineas although the guinea (equal to £1 Is. od. or $5.25) has disappeared from English coinage, and the payment is made in £. s. d. A counsel's fee of 1 guinea really means £1 3s. 6d., two shillings and sixpence being Action of Replevin. added for counsel's clerk, whether he has a clerk or not. Where the fee exceeds 5 gnas. the clerk's fee is higher, according to a well understood ascending scale. The fee of counsel is not payment, or remuneration but merely an "honorarium." There is no contract express or implied between counsel and his client (either the attorney client or the actual litigant), and therefore no action can be brought by counsel to recover the fees, on the one hand, or against him for breach or neglect on the other. But the advantage of this principle is wholly on the side of counsel. No attorney dare leave his counsel's fees unpaid. There is an esprit de corps among counsel, quite as effectual and arbitrary as any trades-unionism. Let an attorney be known to have repudiated his counsel's fees, and he will soon find his briefs declined and his business at a practical standstill, for if counsel are dependent on attorneys, the attorneys are helpless without counsel. In my early years counsel never complained of the smallness of their fees, and either were, or affected and were presumed to be, wholly indifferent to the amount of them, and I remember the haughty reproof which an eminent counsel - afterwards a distinguished chief justice-administered to an attorney for apologizing for the smallness of the fee, as if he were supposed to be working for money! But of late years counsel have come down from the high horse and become much more mercenary and practical. It would yet be quite a As many duplicates of this brief are made as there are counsel to be instructed, each brief being indorsed with the name of the counsel to whom it is to be delivered, and stating on the indorsement the names of the other counsel who will be "with him" and with whom the "consultation" is to be arranged. The consultation on circuit is usually held either in one of the consultation rooms of the court, or at the "lodgings" of the senior counsel. The fee must be indorsed on the brief before delivery, and cannot afterwards be altered save by the addition of " refreshers" or further consultations. Such a thing is unknown as a contingent fee or the increase of the fee by reason of the successful result of the trial. It can never be in any degree contingent on the result. If the trial be a protracted one, refreshers" are usually marked de die in diem after the first full day, and further consultations are appointed at the request of any of the counsel; but what is called the "brief fee,” as indorsed before the brief is accepted, is afterwards unalterable. It is the proper thing to pay the fees to counsel's breach of good manners for an attorney to speak to counsel about the fee, and quite impossible for counsel to speak to the attorney about it. All that is arranged with counsel's clerk; but what counsel cannot do himself his man Friday does with impunity for him. He draws the attorney's attention to the fact that the fee indorsed is disproportioned to the weight of the brief, or the importance of the case, or tells him that the briefs on the other side are much more "heavily" indorsed, and the attorney almost invariably alters the indorsement according to the suggestion. But the suggestion must be made when the brief is offered, or at any rate before the trial is begun, and cannot under any circumstances be made afterwards. This "marking" of counsel's fees is often a matter of great difficulty and delicacy with the attorney. He stands between counsel and the real client, who may probably be a poor man whose means the lawsuit is sorely taxing. Counsel know nothing of this. The lay client they have never seen, and to his anxieties they are indifferent; but the attorney has been seeing him daily, and knows his means and his struggles. With a rich client behind him. he would gladly mark fees more liberal than those marked by his opponent, but perhaps his client is a poor man and the opponent's client a rich man, and in such case it is no easy thing to satisfy the suggestions of counsels' clerks, and at the same time to act considerately towards the client. But that is not the attorney's only difficulty. He lives in constant dread of the taxing master. he succeed in his trial the losing party has to pay his costs. But these costs have to be taxed" as between party and party" as it is called. The officer taxes' according to a published scale of "party and party costs," which, though it leaves him some discretion as to the amount of the counsel's fees to be allowed, does so only within a narrow range, and it is no uncommon thing for a third or even half the amount actually paid to coun If . sel to be disallowed on taxation as between party and party. The amount so disallowed is then charged against the client; but here again the attorney is not free from peril. The client has the right to have the attorney's bill taxed again, and though in such a taxation, called "taxation as between attorney and client," the officer follows a somewhat more liberal scale and is allowed a wider discretion, it is by no means uncommon to disallow what he may regard as excessive or unnecessary counsel's fees if "marked" without the express consent of the client. The loss then falls on the attorney personally, for counsel never return fees. Bargains between attorneys and clients, such as payment by proportion or percentage of results, are wholly discouraged by English law, and the scale of fees is the same in an action for £10,000 as in an action for £1000. Rarely is the conduct of an action very profitable to the attorney. Business of that kind requires a much larger staff (outdoor clerks, chamber clerks, process servers, etc.), and is attended with much more worry and liability to reproach, and therefore many of the oldest and most reputable law firms refuse all contentious business, confining themselves to conveyancing or family work; and many others would gladly relinquish that part of their business if they could do so without offending their clients, or handing them over to other members of the profession. I know one firm who employ over 100 clerks, and yet their net income is not half that of some other firms with less than a fourth that staff. I have said enough to show that the position of counsel is not only much more enviable than that of the attorney in litigious business but it is also much more profitable. A young counsel, who has not married or become engaged to a solicitor's daughter and who has no relatives or friends in the lower branch of the profession, may wait long for his opportunity, attending court and "going circuit" year after year, without ever seeing his name |