LAW, AND THE OOITRTS OF LAW.
1 F we cannot say that the present year is a year of Law Reform, we must give it the credit of having initiated the most im- portant discussions on that subject, and of having cleared the way for the work which will have to be done by its successors. The announcement in the Queen's Speech of a Conservative Government, that business was increasing in the superior Courts, and must be disposed of with greater despatch and. frequency ; the masterly speech of Sir Roundell Palmer ; the. Report of the Digest Commission, and now the appointment of a new Commission to inquire into the workings of the- Courts of Law, have followed close upon each other. The truth is, that the evils of the present system have at last become intolerable. With each succeeding term in London, and each of the assizes in the country, the number of causes has been increasing, while the Judges have remained the same since the reign of William IV. In his speech last February, Sir Roundell Palmer stated that the arrears of cases in one Court alone were almost as numerous as those newly set down for trial. At the assizes there is not the same ten- dency in cases to stand over, but great numbers are referred or compromised against the will of those concerned in them. We are glad to see that the powers confided to the new Com- mission are large enough to include all these grievances. The' Commissioners are to inquire into the operation and effect of the present constitution of the Courts of Chancery, Admiralty,. Probate and Divorce ; of the superior Courts at Westminster, the Courts of the Counties Palatine, and the Central Criminal' Court, and of the Courts of Error and Appeal from all these tribunals. They are also to investigate the present arrangements for holding sittings in London and assizes in the country, the division of the legal year into terms and vacations, the mode of transacting business in Court and Chambers, the limits of various jurisdictions, the rules as 'to the number of judges required for various duties, and the system of summon- ing juries. This is a large field for inquiry, and we hope the plan suggested will be worthy of the occasion. We do not think there is one of the points mentioned on which a change might not be wisely and easily made, and though we can neither state all their faults nor propose an adequate number of remedies in a single article, we may be able to bring the necessity for a general reform more or less clearly to the minds of our readers.
It is perfectly plain that we cannot do without more Judges, but why is it necessary that they should all be judges of te present type ? We have shown, we think, in a former article that there is too much of a gap between the leader. of the circuit and the junior judge upon it, and we- suggested that as barristers rose to eminence they should be gradually employed in judicial work. Without repeating that suggestion, we would extend it. Why should not a judge also have a chance of rising ? Why should not a Court of Appeal be made up of those who have attained judicial eminence in what are now the superior Courts ? Nothing is more cumbrous and unsatisfactory, as Sir Roundel' Palmer has shown, than the constitution of the Exchequer Chamber. The Justices of the Queen's Bench and Common Pleas review the decisions of the Barons of the Exchequer ; the Justices of the Common Pleas and the Barons of the Exchequer review the decisions of the Queen's Bench ; and those of the Common Pleas are reviewed by the Queen's Bench and Exchequer. Such a Court cannot sit often ; it sat only 28 days in 1866. It does not speak with absolute authority ; three puisne' judges in it may overrule the judgment of four puisner judges elsewhere. The appeal from the Exchequer Chamber is to the House of Lords, where the Lord Chancellor of the sitting Government and two ex-Chancellors of former Governments may decide against the majority of judges. In the recent case of " Ricket v. the Metropolitan Railway," four judges in the Queen's Bench were unanimous in favour of the plaintiff. Of the six judges in the Exchequer Chamber four were for the defend- ants and two for the plaintiff. In the House of Lords, the Lord Chancellor and Lord Cranworth were for the defendants, and Lord Westbury for the plaintiff, so that of the whole number six were for the victors and seven for the vanquished, while the proportion of judges was even greater. We have the more reason for alluding to this case, as it seems to us to establish a fatal precedent. But passing over the quality of the law, we object to the constitution of the tribunal. The four judges in the Exchequer Chamber who, prevail against six others may be the weakest judges on the Bench. The conquered majority may include the three chiefs of the three Courts, who are at least supposed to have superior standing to their puisnes. If there were a regularly constituted Court of
Appeal, and judges after sitting on the Bench some years were capable of being promoted to it, this inequality would exist no longer. Work enough would be found for a Court of Appeal, even if it could sit all the year round. At present there are several Courts of Appeal, and the members of them have either retired from active life or are en- gaged in other branches of the law. The judges of the Exchequer Chamber have their full work in their own Courts. But they are also judges in the Judicial Com- mittee of the Privy Council, which in addition is com- posed of the retired judges and of two judges specially ap- pointed. The Lord Chancellor, besides sitting as a Judge of Appeal in Chancery and as a Judge of Appeal in the House of Lords, acts as Speaker of the House of Lords, and dis- charges an infinite variety of other duties. Appeals have thus come to be a sort of recreation, to occupy the inter- vals of work, or the declining years of life. They are in reality the most important of all business. They interpret the law. They make the law.
A Court of Appeal, then, composed of practised judges is the first essential. But there are many things even more pressing. When we reconstitute the Courts, we must do away with antiquated ideas of the division of time and labour. Why should the old law terms be retained ? In olden days twelve or thirteen weeks in the year may have sufficed for all the business of the country, except that done at the assizes. But now the terms are meaningless, and as things are to a great extent regulated without them, they might be wholly abolished. The solicitors will find some equivalent for the term fee. The Inns of Court will perhaps in time reconsider their present qualification. Indeed, the Inns of Court them- selves are as much in want of reform as the profession by which they are supported. If there is any use in their having a kitchen and a dining-hall, it seems absurd to give dinners for a quarter of the year, and though the meals provided for the Benchers during that time are quite enough to give them gout, we can hardly think their digestion ought to gauge the wants of their juniors. We do not suggest that by merely abolishing the present terms we could increase the number of sittings. More work can only be done when there are more to do it. But we may bring about a more wholesome system, and one more consonant to modern ideas, by the substitution of regular terms and vacations for those that afford no index to the work which must be done, and to the relaxation which is legitimate. The judges have not a com- plete holiday during the vacation. One judge has to sit twice a week at Chambers. Last week the business of the Central Criminal Court employed two others. The circuits were not over by the time the vacation ought to begin, and Liverpool and Leeds lasted a fortnight later. Our present staff of judges may be said to earn their holidays; and ought not to be deprived of them. In Chancery the vacation is more definitely fixed, and though there is a vacation judge, he does not come up to town during the recess, but lets the business go down to his country place. It may be said that the work of common-law judges is more multifarious. But is this necessary Is there any reason why the circuits should continue These, like the terms and the various jurisdictions of the Courts and the Appellate jurisdiction of the House of Lords, are purely media3val. When travel was difficult, it was natural that the Judges and the Bar should go round from place to place, from county to county. There were not so many causes then as to crowd the lists of each assize, and to make delay inconvenient and expensive. But now that London is the centre of the Railway system, it is nearer in time to many of the provincial towns than they are to their neighbours. Instead of going round the circuit on horseback or in a postchaise, men run up to town between one point and another, miss out places where they have no business, and join again where they are sure of a connection. If it were not for the - rules of the circuit messes, they might occupy themselves in the meantime. But almost all London business is suspended during the assizes, and no man may go more than one circuit. We have already dwelt on the hardship of these rules to the banisters, and we will merely add that the circuit system is prejudicial to the country. All the business has to be prepared at the same time, and is taken at the same time. There is a press of work just before the assizes, in order that the cases may be got up. Pleaders in London have to work double time, and are then left idle. All the cases come on simultaneously ; the lists are full, the judge is harassed ; the leading counsel have more briefs than they can read, and the result is that half the eases are not heard, or are hurried over. If each large town was made the legal centre of a district round it, and there were four, six, or eight sittings yearly in each of these towns, according to the business to be done there, the work might be more fairly distributed among the judges as well as among the barristers, and the present arbitrary rules would prove unnecessary. If, moreover, each of these towns had a Recorder, with both civil and criminal jurisdiction over the same district, the smaller cases would be disposed of in the intervals between the more important sittings. The smallest cases of all, in which no law is involved, could be heard as they are now, by the County Courts, which ought to settle minor civil disputes, just as the magistrates are charged with the conduct of minor criminal matters. Whether or not it is right to let the same judge regulate the payment of 1/. lie. 6d. by weekly instalments of 4s. 6d. and pronounce on all contracts under 501., it is certain that neither clients nor attorneys are willing to be excluded from the superior Courts, and we can hardly recommend a scheme which will suit neither the public nor the profession.
Our scheme may not be more fortunate. We cannot tell what chance it has of being tested, either by practice or by discussion. We have given its broad features. Its details might be considerably varied. But such as it is, and with all its imperfections, we should be glad to think that something might be made of it, and that instead of cobbling up the old system the Commission may be induced to sweep away all that has ceased to be useful, and to devise what will be practical and permanent.
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