4 JUNE 1870, Page 8

THE HIGH COURT OF JUSTICE BILL.

LAST Monday's discussion in the House of Lords, following as it does on the more important debate of the 29th of April, on the public letters and combined resolutions of the Judges, and on emphatic expressions of opinion from meetings of barristers and attorneys, can hardly be regarded as other- wise than imperfect. Most of the Law Lords regretted that the Bill should be pushed on this session ; some of them wanted to wait till a complete code could be drawn up, others would be contented with an Act after the model of the Common Law Procedure Acts ; but none could suggest any practical means of attaining the desired end without serious delay. To say, as Lord Cairns says, that we ought not to consolidate the Law till we have a single building for all our Courts of Justice is to make thought depend on matter, and to sacrifice scientific method to considerations of bricks and mortar. To object, as Lord Salisbury objects, that a power vested in the Privy Council for the regulation of details in the administration of justice would authorize the creation of a Star Chamber is to attempt to legislate by epigrams, and to postpone all reform till we can arrive at perfection. It must be obvious to every student of Lord Hatherley's Bill that the whole scheme looks meagre, that it is a skeleton rather than a body, and that until the practical test is applied it will be too soon to judge of its capacity for working. But the real answer to these complaints is that a total change in such a system as that of the English law cannot fail to look meagre. If we are to sweep away that which has been the gradual growth of ages, which has been patched in one part by the Legislature, has been modi- fied in another by the current of judicial decisions, and wears in a third the marks of a conflict between Parlia- ment and the Judges, between one set of Courts and another, we must necessarily bear the reproach of baldness. We have, as it appears to us, no choice but a Bill of this kind, or a Code. In many respects a Code would be preferable, but is a code possible and if it be, how long should we have to wait for it Lord Hatherley stated on Monday that we could not count upon having a code in less than six or seven years. Mr. Edwin Field, in a paper full of useful suggestions which is now before us,* calls attention to the length of time spent in pre- paring the New York Code of Procedure. It is clear that if we are to have a speedy reform, we cannot have one that, will be perfect in all its details, and we must therefore try to make it contain the germ of future improvements. In the present Bill we have a principle which is generally accepted. The fusion of Law and Equity, the estab- lishment of one High Court- of Justice in the place of six or seven, the creation of one uniform mode of procedure, form the first steps towards a complete and harmonious system. So far the Bill has been approved by the Lord Chief Justice and his brethren, while Lord Cairns, as chairman of the Judicature Commission, must feel some sympathy with what he himself suggested. It only remains to consider whether the gain which may be expected from the adoption of these principles will be counterbalanced by any loss either of power or elasticity, whether the scheme is too vague to work, and whether the independence of the Judges will be sacrificed to the Crown in Council.

With regard to the last of these questions, the answer seems to us easy. If we are right in assuming that the rules of procedure are not to be drawn up by a Committee of the Privy Council itself, but are to be prepared by paid draughtsmen under its supervision, there is no reason why that function should not be discharged by the Judges. There are objections, some of which are expressed by Mr. Field in the pamphlet from which we have quoted, while others were powerfully stated by Mr. Mellish at a late meeting of the Law Amend- ment Society, to the Judges being called upon to draw up the rules. But if the rules were drawn up by men of weight and position at the Bar—the Lord Chancellor admits that they would have to be well paid for the work—and the Judges merely exercised a control, these objections would be met. The rules might then be laid before Parliament for a certain time, and at the end of that time, if not cancelled or referred back for amendment, might become binding. By such means any of those grave constitutional changes the prospect of which alarms the Duke of Richmond would be averted, and trial by jury would not be in danger of succumbing to a general order. Still as the rules to be framed would mostly refer to minor details, this additional safe- guard might generally remain in the background. It is perfectly clear that the direct authority of Parliament must always be applied to the essentials. Without an express de- claration that Equity should in future form part of the com- mon law, and should (in the language of Lord Westbury's amendment) "control and modify the same, and supply the defects thereof," the old division between the two jurisdic- tions could never be removed. But it does seem rather absurd to provide in an Act of Parliament that there should be only one office in the High Court of Justice from which writs are to issue. This clause recalls some of those provisions in the Common Law Procedure Acts which have tied the Courts down to a mechanical system, and have stereotyped the smallest details of chamber practice. If it appears to the Judges that the words at present used in the Bill are too large, and that "the mode of hearing" includes such questions as trial by jury and the examination of wit- nesses in open court, a verbal amendment would meet the difficulty. But if we are to have any body, whether composed of the Privy Council or of the Judges themselves, which is to regulate our procedure, it would be useless to give it powers such as those conferred on the Courts by the Common Law Procedure Acts,—powers that are excellent within a limited scope, but illusory as soon as there is any necessity for their extension. The true object of the Bill is to steer between vagueness on the one hand, and rigid precision on the other ; and this object may, in our judgment, be best attained by laying down a sound rule as to the main principles to be adopted, and leaving the settlement of the details to some trustworthy and responsible body.

The majority of the Judges agree with the Lord Chief Justice in opposing any radical change in the present division of the Common Law Courts. Although all the Courts, they say, should have full legal and equitable jurisdiction in all

• Observations on the High Court of Jultioe 13til. By Zdwin W. Field. Office of the Social Science Association. civil business, it is "eminently undesirable that their consti- tution or peculiar jurisdictions in other matters should be in any way interfered with." Mr. Justice Wines observes more cautiously that there is now an economical division of labour, under which the Queen's Bench administers Crown law, the Common Pleas the law relating to Parliamentary elections, and the Exchequer the laws affecting the revenue. No doubt under any new system that may be introduced, much the same limits would be observed. But there ought always to be a power of modifying a division of labour if it is found to work badly. In the Court of Chancery causes are changed from one Vice-Chancellor to another if one Court is inconveniently crowded while the other is at a standstill. In the Common Law Courts it constantly happens that one set of judges is overworked, and arrears in one court are accumulating, while another set of judges and another court may be comparatively idle. In the course of last term the Court of Exchequer rose one day at noon for lack of work, while the Court of Queen's Bench could not even get through the motions which ought merely to precede the day's business. It is just the same with regard to jury cases. One court has a long list, and cannot finish it during the sittings ; another court rises after two or three days. Such cases as " Saurin v. Starr" and "The Queen v. Gurney and others," were fatal to all those which had the bad luck to follow them in the list ; and the plaintiff who had commenced his action in. the Queen's Bench might thus be kept waiting a whole' year, while the one who had chosen the Common Pleas or Exchequer had been nine months in the fruition of his judgment. We can fully appreciate the eloquence with which Sir Alexander Cockburn upholds the long traditions of the Court where he presides- " the great Court which it is my more special province to defend, the Court of Coke, of Hale, of Holt, of Mansfield— names at the thought of which, I say it in no spirit of mock modesty, a sense of dread sometimes comes over me when I reflect whose seat it is I venture to occupy." Yet the mere question of transferring some of the business from an over- burdened court to another division hardly justifies such lofty indignation. The powers exercised by the Court of the Sovereign herself would not be abrogated if they had to be shared with others. The great names of the English Law, the great traditions which they represent, the liberties which they have defended, would remain unimpeached, and would shine forth with equal lustre, whatever change might be wrought in the mechanism of our judicial system. It might as well be maintained that the glories of Westminster Hall would be effaced by a removal to Carey Street, as that the grandeur of the English Law will not survive the abolition of a name which varies with the sex of each succeeding sovereign.

It appears to us, therefore, that in all the chief points brought out by the debate, and by discussion in other quarters, the High Court of Justice Bill is a step in the right direction. Yet the improvements which have been made in it since it was first introduced are so considerable that we should almost welcome another recommitment, and though we do not wish the Bill postponed till next session, we must admit that the longer it is debated the more nearly it approaches to per- fection. We regret that Lord Cairns intends to oppose the further progress of the Bill, because the effect of an adverse vote would be merely to waste a year. At the same time, it is clear to us that the Bill is incomplete. It needs not only amend- ment, but extension. Any reform of our legal system which does not take in the County Courts must fail to satisfy the public as well as the profession. Yet here, again, the mag- nitude of the task appals us, and teaches us to be content for the present with what is offered us, so long as it has a fair chance of working, and can be put in force without delay.