THE JUDICATURE AMENDMENT BILL.
THE Common-law Barristers in the House of Commons made a dead-set at the Judicature Bill on Monday night, but though they had all the will in the world to mar, they con- trived, if anything, to improve the measure. Of the points raised by them, three only can be considered as of really im- portant bearing on the working of our new judicial system.— the constitution of the intermediate Court of Appeal, which, though to be established only for a year, may last a good deal longer ; the right of appeal to be allowed from it to the House of Lords ; and the rule that is to be established as to costs in the Courts which at present are Courts of Common Law. On the first point they to a certain extent succeeded, and, we think, deserved to succeed ; they made out a ease for further consideration on the second ; and on the third, they failed, as it was inevitable that they should do. The Bill pro- posed that the Court of Appeal should consist, besides ex-officio members, who can scarcely ever be in attendance, of not more than five ordinary Judges, two of whom should be the present Lords Justices of Appeal in Chancery, and two more of whom should be taken from the paid members of the Judicial Committee of the Privy Council. An attempt, by no means successful, though earnestly per- sisted in, was made to show that it would be breaking faith with the Privy Council Judges to appoint them to an inter- mediate Court of Appeal ; but the assailants of the Bill were right in maintaining that this would too greatly weaken the Judicial Committee, without making the Court of Appeal any stronger than by other arrangements it could easily be made. Having succeeded in obtaining the exclusion of the Privy Council Judges, they made a vigorous effort to have two of the Common- law Judges put in their place ; but in this matter the Attorney- General was not to be persuaded, and the result is that the Appeal Court will consist of the two Lords Justices, and of three others taken from the Bench or from the Bar, to be appointed by the Crown. This will, if anything, give a better Appeal Court than that proposed by the Bill, while it will leave the judicial strength of the Privy Council Committee unimpaired ; and it can scarcely be feared that in the Court, at its start, the Common Law will be insufficiently represented. The Lord Chancellor, with whom the appointments will lie, must desire to set up as strong a Court as possible, and it is best that his discretion should be entirely unfettered. The clause which was to regulate appeals from this Court to the House of Lords was so worded that no two persons were agreed as to its effect—a strange thing in a Bill for which Lord Cairns is responsible—and the prevailing feeling was that it would give too limited a right of appeal ; while, on the other hand, the amendment of Mr. Watkin Williams, which would have given an appeal to the Lords from every decision of the Appeal Court, obviously went much too far, and might have led to the supersession of the appeal altogether, by showing that the House of Lords was unequal to the duties thrown upon it. In these circumstances, it was unavoidable that the clause should be postponed, the Attorney-General undertaking to consider in what cases appeal should be given, and to ex- press his conclusion in unambiguous terms. That the Equity rule as to costs should be extended to all the Courts, followed necessarily upon the fact that every Court will henceforth be a Court of Equity as well as a Court of Law ; and the pathetic pleadings of Sir Henry James and Mr. Watkin Wil- liams could not avail to prevent what was inevitable. That they had found the Common-law rule, which makes costs follow the event, work well, and that their experience did not incline them to trust the discretion of the Judges in
awarding costs, could in no case have been sufficient reasons for maintaining a rule which circumstances will make inap- plicable ; but as between the Common-law rule and the dis- cretion in allowing costs exercised by the Equity Judges, there is no doubt that the latter is to be preferred. The Common- law Courts are only too much occupied with actions which should never have been brought, or which should have been brought in an inferior Court, and the judicious exercise by the Judges of the discretion which the Bill will give them can hardly fail to suppress a great part of this noxious growth of litigation.
Virtually, the Judicature Bill may be said to be through Committee, and besides the exclusion of the Privy-Council Judges from the Court of Appeal — which, considering the amount and the importance of the Privy - Council business, is, we think, to be approved—the Common-law assailants of the measure on Monday night succeeded in nothing except in preventing the diminution of the Common- Law Judges which was provided for by the Act of 1873. That
Act provided that the three divisions of the High Court of Justice which will represent the Courts of Common Law should consist of five Judges apiece, whereas since the passing of the Corrupt Practices Act, there have been six Judges in each Court. The three Election Judges at present enjoy a great deal of leisure ; and it was expected that by a re-arrangement of the business of the Courts, and especially of the circuit business, the Com- mon Law work could be carried on efficiently with the number of Judges which sufficed before 1867. Against this view Sir Henry James and his friends made out a case the only weakness of which was that it was far too strong for their purpose. On their showing the Courts of Common Law, manned as they are at present, are utterly inefficient. They get through scarcely a tithe of the special jury cases in London and Middlesex—the result being that litigants are forced to refer their cases or to settle, and that the number of actions brought is much lower than it otherwise would be. On circuit the same state of matters prevails, the Judges having at most places where they sit to leave the greater part of their work undisposed of. As to the truth of these statements there is no doubt. But supposing that a proper use of the strength of the Bench is made at pre- sent, the true inference from them would seem to be that the number of Judges should be indefinitely increased. It is almost appalling to think of the number of Judges which, on Sir Henry James's facts, are necessary ; and all the more, that there is some difficulty in supplying the Bench, as it now is, with thoroughly efficient men. Fortunately, there is no doubt that the block in the Common-law Courts is a result of sheer mis- management, and that it is to be got rid of by better arrange- ments ; not by adding to the number of Judges, but by making a better use of those we have. The number of Judges, once fixed at six for each Court, cannot be reduced ; and with the smaller number we should have had all the sooner to think out the expedients by which alone efficiency can be secured ; but the diminution of the number of Judges was so generally protested against by the lawyers in the House, that we can scarcely blame the Attorney-General for yielding the point. It appeared that he had himself opposed the reduction in 1873 ; and it cannot be said that the matter is of much importance, except to those who are or who have hopes of becoming Judges. It should be observed. however, that, inasmuch as the Judges of first instance will be relieved of the Exchequer Chamber business, which at present occupies a good deal of their time, the maintenance of the Courts at their present strength is equivalent to a considerable addition to the number of Judges. The Attorney-General accepted, on the suggestion of Mr. Butt, an amendment slightly limiting the power of making and changing rules of Court which the Bill gives to the Judges ; and as the amend- ment may do something to soothe the uneasy mind of Mr. Watkin Williams, and leaves the Judges with ample power, we have no doubt he did rightly. It does not seem that it would have been in the power of the Judges, as Mr. Williams and other opponents of the Bill asserted, to abolish trial by jury, and it may be assumed that their Conservative habit and the certainty of Parliamentary censure would have deterred them from so revolutionary a course ; but it would have been wrong to omit anything which could be done without inconvenience to reassure the timid. The distrust of Judges and the fear of change in the men who will be the Judges of the future have, however, been sufficiently deferred to, and it is to be hoped that the Attorney-General will take the advice of Sir Andrew Lusk, distrust Common-law counsellors, and stick to his Bill in future.
The Judicature Act, which will come into being in November next, will no doubt, have glaring defects but at any rate it will have the great merit of being new. We are cutting our- selves off from our past, and when we have fairly done so, even lawyers of the calibre of Sir Henry James and Mr. Watkin Williams, who can at present only pour forth lamentations over what is going, and make unavailing efforts to retain part of it, may do good service in suggesting the reforms that will be necessary. The more they point out the deficiencies of the new Judicature the more we shall all be obliged to them ; and the hope may be indulged that its deficiencies will be cured before time has consecrated them. There are to be continuous sittings for the trial of cases in London and Middlesex, and it will soon be found that more frequent sittings are equally needed in the provinces. Round the district registries which the Judicature Act establishes in provincial towns there will gather groups of barristers engaged in local practice, and from them there will by and by be a cry for local Courts to which, in some shape or other, concession will have to be made. The Bar and the Bench will resist changes of this sort, but their resistance will not avail for retarding change as it has hitherto done, and this appears to be among the most excellent effects of the revolution which is now in course of completion.
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