Reviews
| Date | 01 July 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01041.x |
| Published date | 01 July 1964 |
REVIEWS
THE QUEEN’S
COURTS.
Second edition.
By
PETER
ARCHER.
[London: Penguin
Books,
Ltd.
1968.
x
and
293
pp.
(with
index).
6s.
net.]
JOHN
CITIZEN
AND
THE
LAW.
By
RONALD
RUBINSTEW.
Fifth
edition
by
CHRISTOPHER
R. RUBINSTEIN.
[London
:
Penguin
Books,
Ltd.
1963.
432
pp.
(with
index).
7s.
Gd. net.]
HERE
are
a
Pelican and
a
Penguin written with ~nuch the same intention and
overlapping at
a
nuniber of points which turn out nonetheless
to
be
strikingly different.
Mr.
Archer’s aim is to explain
the
procedure by which
justice is administered in the various courts and tribunals of this country
with the object
“
that those
who
dream of changing the legal system should
first understand it”; and if
I
had not known better
I
should have said that
his book was
a
good idea gone wrong.
I
sliould
have said too that
I
was
sorry it had gone wrong because the author had obviously tried very hard;
his reading has been very wide; lie has evidently clone quite
a
lot of rescarch;
and
the
result,
I
should have said, is
a
hook which is too elementary for
professionals but at the same tinie too technical for amateurs, and therc is
therefore no particular
reason
wliy
anyone should wHnt to buy it.
Ant1
I
should have been nbsolutcly wrong; for the fact is thst
the
first edition
sold
nut
within
a
few years
iind
xkit
1
ilin
now
reviewing is
the
second.
&fly
trouble
is
that
I
still think this book
too
technical for anlat{.iira
-
it is only
as
it
professioniil
tlmt
1
citn appreciate
the
skill
with
wliicli MI.
Archer has compressed
900
years of history into
2&7
pages in which he
deals with
the
origin
and
developnient
of
all the better known
English
tribunals.
As
one
who
has dipped not infrequently into Iloldsworth’s thirtrcn
volumes of tlic history of Englisli law 1
~III
hugely inipresscd
Iiy
the speed
with which
Mr.
Archer gets across
the
country.
Moreover,
it
would be quite
wrong if
I
were to say that he
has
not introduced me to anything
I
did not
know before.
I
had never heard, for instance (though
I
suppose
I
ought to
have done), of
a
Court
of
Swainmote
or
of
the Ordeal of Corsnead;
nor
did
I
reitlise that the point of the IVensleydale I’ecrage case was not that the
Crown could not create
a
life peerage but that if the Crown chose to
do
so
the life peer
SO
created
was
not entitled to sit
or
vote in the
House
of Lords.
‘l’hc fact is that
Mr.
Archer
has
Iirought in everything you can think of
iogethcr nith
a
whole lot of things you never
would
have thought
of.
and
cvery professional lawyer must be grateful to him for putting
so
Iiiuch
into
such small compass. All the same,
lie
gocs
so
many more miles
to
the gallon
than niost exponents
of
legal history that
I
still
find
it
hard
to
bclicve that
many
of his readers
do
not get
IvfC
behind. Thc fact thaL
I
have
ticeli
proved to be wrong about this
is,
I
suppose,
as
good
R testii.ionial
as
Nr.
Archer is likely
to
ask
for
and
disqualifies me from criticising
ahit
lie
Iias
written froni any but
a
professionnl point
of
view.
Speaking therefore
as
a
professioi!al practitioner
I
sliould like
to
itssure
Mr.
Archer that
I
shiill
keep his
Iioolc
by me,
for
it is quitc certain that
he
knows more about ICnglish tril)iin:ils than
I
do,
and
I
can forcsec. that therc
may well be occasions when
I
shall be able to save myself inany journeys to
the library if
I
begin
my
inquiries
hy
looliing into his admirable indcs.
I
must
confess however to having finished the book with some feeling of disappoint-
ment. This is beciiusc thr last section consists
of
coni~iarisons between the
15nglish sgsterii nntl
the
sysl~w~s
in
operation in
tlic
t-nitrtl
St:itrs
of
Ainrriw.
483
484
THE
MODERN LAW REVIEW
VOL.
27
France and the Soviet Union, and
I
had been looking forward to seeing what
the author had to say about them. But all this
fits
into thirty-five pages, and
here
I
am convinced that
Mr.
Archer has over-compressed his niaterial-so
much
so
that,
as
it scenia to nie, the rcally striking differences between the
English and foreign systems are concealed rather than expounded in these
chapters. Take the United States, for instance. One of the first things that
will astonish
a
visitor to the courts, thougli
Mr.
Archer does not mention it,
is the fact that in any substantial case it will generally take several days,
and often
a
whole wcek, to choose
a
jury. This is not so surprising when
one reflects that the fourteen persons drawn
at
random in the
State
of New
York (for that is the number they start with) are likely to include
It
a
I‘
ians.
Negroes, Irishmen, Germans, Poles and perhaps Chinese. They will all of
course be United States’ citizens but it is quite improbable that all of them
will have English
as
their mother tongue
or
that the defendant to
a
crimind
charge will not wish to object to
a
good many of them. There will also be
21
further ground of objection quite apart from their polyglot coniposition;
one must find out what they have been reading recently. The First Amend-
ment to the Constitution has made it almost impossible
to
put any restraint
on newspaper reporting, and the extent to which
“
trial I)y newspaper
”
is
carried on before, during and after trial in court is another feature, un-
mentioned
by
Mr.
Archer, which will not merely strike hiit will profoundly
shock the visiting English lawyer. Turning to France and the inquisitorial
system,
Mr.
Archer fails to emphasise what
I
believe to
he
its most important
feature for the purpose of comparison and its gravest defect. The essence
of the inquisitorial technique
is
that the
juge
d
instruction
is entitled to take
statements from anyone he likes and to take steps to ensure that he gets
them. What results from this
is
detention before trial on
a
scale which
would be deemed intolerable in this country. Gaston Domenici, for instance,
who was finally convicted of the Drumniond murders
of
1958,
spent more
than
a
year in prison before his case came on for trial. Sometimes indeed
there never is
a
trial,
as
witness the case of
Dr.
Lacoiir,
a.
leading member
of
the
dramatis
personae
in the
afn’nire
Lncnzc
which provided such engrossing
reading for the French public in
1959.
The doctor was taken into custody
on the direction of the
juge
d‘instrzlction
in March and was not released
until November, but no charge was ever madr againbt him. Of course the
inquisitorial method can be modified and mollified, as
it
has been in France,
but there is no doubt that
it
is
very easily adaptable as nn instruinent
of
tyranny.
It
has been displayed in its starkest foriu in the LT.S.S.R. and it
is perhaps
just
as
well to remind ourselves of what happelid to Lavrenti
Beria.
A
month later it was announced that
he was going to be tried for high treason. On December
lG
it
was
announced
that investigations had now been completed, and on the 23rd it was annoiinced
that the Supreme Court of the
U.S.S.R.
had considered the case “in closcd
session
”
during the last few days, had found Beria guilty and had ordered the
death sentence, which had been carried out immediately.
Xo
one wil! suggest
that Comrade Beria was
a
particularly well-loved citizen
or
that his passing
was regretted, but the fact that
a
public figure can be diqposrd of in this
way without any infringement of the forms of law docs make one wonder
what sort of substance goes with the forms.
I
wish
Mr.
Archer would delve
more deeply into these matters, because he
is
obviously very good
at
delving
and
I
am
sure
that his results would add greatly to the value and interest
of the next edition of his book.
Ronald Rubinstein, so the publishers tell
us,
wrote
John
Citizen
“
to
satisfy
a
five-year-old nmbition
to
write
a
book for Penguins which might be
helpful
to
the community.” He succeeded brilliantly and I’enguins have
produced five editions in the last sixteen years.
I
ant rather surprised,
however, that the
Modern
Law
Review
should want
a
review of
it
since,
as
&Ir.
ltllbinstein stated fairly and squarely in his Preface
to
the first edition,
In July
1953
he
was
arrested.
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