The decision of the judges was not unanimous, and the discussion was conducted in private, but the matter is one which deeply affects the public interests, not so much in its immediate effects as because it forms part of a large and important subject—the organisation of the High Court of Justice. Upon this subject I desire to offer some remarks for public consideration, as I greatly fear that the proposed changes, though not of the first importance in themselves, will form part of a set of changes by which the dignity and efficiency of the Bench will be greatly impaired, and by which the administration of justice will be deprived of some of its most characteristic and most deservedly popular features.
It is, I think, much to be regretted that the powers contained in the 32nd section of the Judicature Act were ever conferred upon the Council of Judges at all. The effect of that provision is to enable the Council to make the recommendations which they have made, but it does not enable them to make any report or recommendation on cognate subjects. The result is that they were compelled either to be silent or to recommend two isolated changes, the effect of which can hardly be estimated unless a full statement is given of the scheme of which they are to form a part. It is impossible to give a satisfactory opinion upon a part of a building unless you have a plan of the whole, and can so judge of the general effect of the matters on which you are to advise. In the same way I think that whatever changes are required in the constitution of the High Court should be made by a statute which can be discussed as a whole in Parliament, and by the public, and not upon a report of judges to whom are submitted two specific propositions, which may be advantageous or otherwise, according to the other arrangements which may be connected with them. The practical effect of the resolutions passed by the judges will be that the changes recommended will be made without any proper public discussion of their nature and effect, and that when they have been made they will be taken as the foundation for other changes, which they will be said to involve in principle.
Upon these grounds I wished the Council of Judges to abstain from the expression of any opinion at all upon the subject, and to leave to the Executive Government the responsibility, which I think properly rests upon them, of making by statute such alterations in the present state of things as they consider necessary.
The alterations themselves, if they are to stand alone, and if it is to be understood that no further alteration is proposed, at least at present, in the constitution of the High Court, do not seem to me to be of the first importance. It is difficult to say precisely what would be the effect of fusing the three Common Law Divisions into one. For reasons which I will state more fully immediately, I do not think that such a fusion would make any great difference in the actual transaction of business. The same, or nearly the same, number of divisional courts (as they are called) would have to sit as at present, and it is by no means clear to me that it would in practice be found easier to make the detailed arrangements necessary for the transaction of business between fifteen men all consulting together than between three sets of five men, each set consulting by themselves.
With regard to the abolition of the two offices, more, no doubt, is to be said, though I think the question is one which interests the public much more than the judges. The promotion of a Puisne Judge to the position of a Chief Justice or Chief Baron has happened (I think) only once in the course of the last fifty years—namely, when Sir William Erie was made Lord Chief Justice of the Common Pleas. In every other instance these offices have been conferred upon Law Officers of the Crown who had proved in Parliament their possession of the various qualities which procure parliamentary success. The question of their abolition is accordingly one in which the existing judges have practically no interest, except so far as they are specially interested in whatever concerns the efficiency and dignity of their office.
The argument upon the subject appears to me to stand thus: In favour of abolishing the offices it is urged that, if the Common Pleas and Exchequer Divisions are abolished, there will be nothing for the Chief Justice and Chief Baron to preside over, and that their names will thus become anomalous, and, indeed, unmeaning. It is added, that their duties being the same as those of the Puisne Judges, it is improper to give them a higher salary, superior titles, and the advantage of considerable patronage. Some persons go so far as to say that it is a positive advantage to break with the old associations which the names suggest, and to destroy the very semblance of continuity between the old courts and the new one. Finally, to the argument that the abolition of the offices would prevent the Law Officers from accepting judgeships, and so injure the relations between the Bench and the Bar, and diminish the authority of the Bench, it is replied, first, that such persons do not make good judges, and, secondly, that, though they would not accept puisne judgeships, they would accept the appointments of Lords of Appeal and Lords Justices.
To these arguments the following answers are given. It is admitted that the abolition of the Common Pleas and Exchequer Divisions of the High Court would leave no divisions for the Chief Justice and Chief Baron to preside over, but it is said that a title may remain as a title after the circumstances in which it originated have altered. If a great officer of the State can, without offence, be called Chancellor of the Exchequer, though he is not a Chancellor in any common sense of the word, and though no such place or office as the Exchequer exists, why should not an eminent judge be called Lord Chief Baron of the Exchequer, though there is no longer any Court of Exchequer, and though no more Barons are to be appointed? It is proposed to keep up the offices of Lord Chief Justice of England and Master of the Rolls, though the first is only a title, and the second little more. Why is the existence of four such offices any greater anomaly than the existence of two? The real question is whether it is expedient that either two or four of the judges should be paid more highly than the rest, both in money and rank. The argument that this is expedient is that otherwise Attorneys-General and Solicitors-General, and other barristers who have the prospect of holding such a position, will not accept judicial office; and as to their alleged willingness to accept the place of Lords of Appeal and Lords Justices, the answer is that the difference between the position of a Lord Justice and a Puisne Judge (which consists merely in the payment of the circuit expenses of the former, and in his being a Privy Councillor) would hardly be sufficient to induce men receiving already a higher salary, probably more than doubled by private practice, to accept the place; and that though the position of a Lord of Appeal is undoubtedly more attractive, it is not the one in which the public interests require men of this class to be placed. This last argument is of great importance, and unless it is fully understood it is difficult to appreciate either the importance of the offices proposed to be abolished, or the far more important question of the relation between the Court of Appeal and the High Court of Justice. It is based upon the principle that the business of a Judge of First Instance is of more importance than the business of a Judge of Appeal, and that it is highly desirable for the due administration of justice that the most highly paid and highest in rank amongst the judges should be Judges of First Instance.
As to the comparative importance of the business of Judges of Appeal and Judges of First Instance, the following points are to be observed. In the first place, a large majority of the trials of any importance which take place in this country, and practically all trials in which the public take much interest, are trials by jury, or rather by a judge and jury. This is true without exception in regard to criminal trials, and true in a great majority of cases not criminal. In regard to these cases, all that a Court of Appeal ever has to do is to decide upon questions of law arising out of the trial, and the utmost stretch to which their power can go is directing a new trial. The rights of the parties to an action, the fate of a man accused of a crime, depend in all cases upon the verdict of the jury, and this is influenced to a great extent by the summing up of the judge, and by his management of the trial. Perhaps not one case in fifty presents any difficulty in point of law. [I have tried hundreds of criminal cases, and I have reserved only one (R. v. Bishop, a case on the construction of the Act relating to Lunatic Asylums) for the Court for Crown Cases Reserved. The trial of that case took nearly two days. The point of law arising out of it was decided without the least hesitation, in less than half an hoar, and was reserved not because it was really doubtful, but because the Commissioners in Lunacy wished to have the correctness of a certain interpretation of words on the Act put upon the highest accessible authority. In civil cases the proportion of cases in which new trials are moved for is larger, but it is very small.] In all common cases the decision of the jury, under the direction of the judge, is not only final, but is unquestioned.
In the second place, trial by jury is the really popular and impressive part of the administration of justice. [In an interesting book just published (The Life of Sir Rowland Hill, i. p. 136) there is an account by Sir Rowland himself of the impression made on him in boyhood by a trial at Shrewsbury. 'Of all that passed before our eyes, or occupied our thoughts, daring this ever-to-be-remembered visit, incomparably the most striking and impressive scene was a criminal trial.' He recollected the facts minutely, and described the whole scene picturesquely many years afterwards, when writing his recollections in his old age.] It is understood by everybody. Everybody is interested in it. It is from such trials that every one, except a very small number of lawyers, derives his conception of the administration of justice and the character of the law. No one can ever have witnessed such a proceeding without being impressed by it, nor is any part of our institutions more characteristic. It is surrounded with ceremonies which I must confess do not appear to me to be in any degree inappropriate to the occasion, or liable to the charge of exaggerating its essential solemnity. If properly conducted, it may convey an impression of fairness, of dignity, and moderation calculated to give all who are present at it lessons not easily to be forgotten in many virtues. If improperly conducted, it may bring the most solemn institutions into contempt; but the tone and general character of the proceedings depend to a great extent upon the judge. Hardly any one who does not pass his life in courts can know how constant are the demands made, not only or chiefly on his knowledge of law, or on his readiness in understanding intricate facts and their bearings on each other, but on his temper, his good manners, his self-control, and his knowledge of mankind, and, in particular, on his sympathy with the feelings of those who appear before him, either as counsel, witnesses, or parties.
It must also be remembered that there is much truth in the saying that a judge is an advocate who chooses his side. In summing up in a case in which strong feeling has been excited, and the ablest men at the Bar have been engaged on the one side and the other, powers are required of the judge which a man of great learning and with great capacity for understanding legal principles does not always possess, and he must also have an understanding of, and sympathy with, popular feeling which the habit of regarding everything from the purely legal point of view not unfrequently weakens.
No one doubts the importance of the duties of a Court of Appeal. Its functions have a strong resemblance to legislation, and in the present day there is not the smallest reason to fear that they will be undervalued; but the qualities which I have been trying to describe are not required in the transaction of its business. The business itself is, as a rule, hardly intelligible to the public in general. The work is exclusively intellectual; there is nothing about it which appeals to the feelings, and hardly anything which even tries the temper. There are no witnesses, no jury, no prisoner, and the counsel have nothing to do but to convince the judges. The proposal to retain for the judicial Bench the services of the most distinguished members of the Bar by improving the position of the judges of the Court of Appeal is like trying to encourage surgery by holding out inducements to the best surgeons in London to accept positions in which they would only lecture and never operate.
On the other hand, the qualities required in a Judge of First Instance are just the qualities which a man who rises to the very first places at the Bar must possess to a greater or less extent. Such a man must be in Parliament. He must have seen a great deal of the world. He must be known not merely to the legal profession, but to the public at large. He is sure to be a good and effective, and he is likely to be an eloquent, speaker. He is also sure to have had occasion to look at law and the administration of justice (which is not quite the same thing) from the political point of view, and to have had occasion to acquaint himself practically with the feelings and sympathies of popular bodies.
Under the proposed new arrangements, the men who presumably possess these qualifications will either remain at the Bar or become Judges of Appeal. This proceeds upon the supposition that to try a man for high treason or murder, or for a seditious conspiracy, or to try a case of libel which may involve the character and prospects in life of an eminentj>ublic man, are duties which the most distinguished men at the Bar cannot be expected to undertake, their eminence being such that they ought to devote themselves exclusively to the decision of points of law; such, for instance, as the question whether the owner of one of two adjoining houses can acquire by lapse of time a right to throw an unusual degree of pressure upon his neighbour's wall without his neighbour's knowledge. This seems to me a mistake. I think that, if it is worth while to make law-officers, and men who look forward to holding such offices, judges at all, they ought to be put to the sort of judicial work for which they are presumably best fitted —namely, presiding over trials by jury; but I see no special good in inducing them to become Judges of Appeal by special pay and special rank. They will discharge such duties no better than men who are rather lawyers than advocates. Whether it is or is not worth while to retain the services of the most eminent advocates as Judges of First Instance, is a point on which every one can form his own opinion by reading the list of Chief Justices, Masters of the Rolls, and Chief Barons for the last fifty years given in the note, and asking himself how many of them would have accepted puisne judgeships, and how far the public interests would have been advanced by their being made Judges of Appeal. [Lord Chief Justices of the Queen's Bench: Lord Denman, Lord Campbell, Sir A. Cock burn, Lord Coleridge.; Masters of the Rolls: Lord Langdale, Lord Romilly, Sir G. Jessel.; Lord Chief Justices of the Common Pleas: Sir N. Tindal, Lord Truro, Sir J. Jervis, Sir A. Cockburn, Sir W. Erie, Sir W. Bovill, Lord Coleridge.; Lord Chief Barons: Lord Abinger, Sir F. Pollock, Sir F. Kelly.]
The substitution of four Puisne Judges for the four chiefs—for, as I have pointed out, it is impossible to justify the existence of the offices of the Lord Chief Justice of England and the Master of the Bolls on any grounds which do not apply equally to the two offices proposed to be abolished—would not only deprive the bench of a class of judges specially valuable, but would also make a great change in the relation between the Bench and the Bar—a matter in which the public have a greater interest than they may know. Till now a seat on the Bench has been the highest object of a barrister's ambition. Law Officers have indeed often refused puisne judgeships, but no instance occurs to me in which one of the chief justiceships has been refused. The result of the proposed change would be to alter this, and to call into existence a class of parliamentary barristers who will have no desire to be judges and little sympathy with the Bench; and this would not only deprive the Bench of its most eminent members, but would go far to lower it in the estimation both of the Bar and of the public. I do not think that anything has contributed so much to give the Bench the specific character which distinguishes it, and which I suppose the public would wish to be maintained, as the fact that it is not (as is the case in many other countries) a branch of the executive government, but an independent body forming the head of and closely connected with the most active and prominent of the liberal professions. If it should cease to occupy that position, it would cease to be regarded with anything like the respect or confidence which is accorded to it at present. That confidence rests mainly on the fact that it is composed of men who have won their position by success in a strenuous and protracted competition, in the course of which they have formed connections and associations with the great body of their countrymen in their political, personal, and commercial affairs rather than with government officials. If the Bench is to continue to be filled by men of the stamp of the present judges, it seems questionable whether it is wise to abolish those seats upon it which attract to it the very class of persons whose presence it is most important to secure.
I do not, however, consider the retention of the two offices in question as the most important point at issue. The true dignity of a judge's position depends ultimately neither on his rank nor on his salary, but on the importance of the duties which he has to discharge. I object to it principally because I have every reason to think that the abolition of these two offices is merely a step in a process which I regard as extremely mischievous, and as likely to diminish the dignity of the Bench by diminishing the importance of the duties allotted to the judges.
Some explanation is necessary to make this plain. The present organisation of the Supreme Court of Judicature, the Court of Appeal, and the High Court, with its five divisions, can be defended by no one. It is a mixture of two different and really discordant systems, not to say three. [For the sake of simplicity I have omitted from this article all reference to the business of the Probate, Admiralty, and Divorce Division.] It is intolerably obscure and intricate, and its constitution has been one main cause of an increase of expense and delay in litigation which are bitterly and justly complained of. My belief is that these results have been caused by an ill-judged attempt to carry what is described as the fusion of law and equity further than it ought to be carried, an attempt founded on a neglect of distinctions which exist in the subject-matter of litigation. I think that the changes now proposed to be made will be found to constitute a long step in this direction, and that they will either produce an aggravation of the bad results already incurred, or destroy trial by jury in civil cases. In order to explain the connection between these subjects, it is necessary to say something of the fusion of law and equity.
Before the Judicature Act the relation between law and equity might have been described in a summary way as follows:—
1. Law was administered by the Courts of Common Law according to one system of procedure, and equity by the Courts of Equity according to another system of procedure. The class of cases disposed of in equity was not altogether distinct from the class of cases disposed of at law, but in the great majority of instances there was a distinction between them, well recognised, though never well described.
2. Equity recognised and enforced a whole system of rights and obligations which were altogether unrecognised by the courts of law, and which they had no means of enforcing if they had recognised them.
3. Equity in certain cases provided remedies for wrongs which the law recognised as such, but for which it provided imperfect remedies. For instance, at law damages might be recovered for a breach of contract, but a decree for specific performance of it was to be had only in equity. In like manner equity in some cases helped people to enforce their legal rights, as, for instance, by compelling a defendant to answer a bill of discovery.
4. On the other hand, equity in particular cases had overruled and practically modified the law by forbidding people to exercise rights given to them by law, except upon conditions which the law did not impose. In the case of a legal mortgage, for instance, the mortgagee's interest at law was absolute as soon as the day fixed for payment had passed without payment, but the mortgagor's right to redeem was recognised and enforced by equity.
These were the four great points of difference or contrast between law and equity. The existence of such a contrast had for a great length of time been regarded as an evil, and its removal as an important reform in our legal system, and to effect this reform was one of the leading objects, not only of the Judicature Act, but of some of the provisions of the Common Law Procedure Acts of 1852 and 1854. That the object was excellent cannot be denied, but there are some qualifications upon the remark which I think were not sufficiently observed in passing the Judicature Act, and to which regard should be had in further legislation on the subject.
No doubt the distinction between law and equity cannot be justified upon any rational theory of law, though it can be explained historically. But it is equally true that the distinction corresponds, to a very great extent, to differences inherent in the subject-matter of litigation, and that the same may be said of the different modes of procedure appropriate to different classes of cases. The part of the distinction which was mischievous has been effectually removed. Every right recognised either by law or by equity is now recognised equally in every branch of the Supreme Court of Judicature. The possibility of any conflict between law and equity is at an end, and every court has unlimited power to administer every remedy which could previously have been administered by either. To this extent accordingly a fusion has actually been effected between law and equity, and no one, I suppose, would doubt that this has been a great improvement.
This, however, is by no means all that the Judicature Act seems to have been intended to do. It took a long step in the direction of attempting to cause all cases to be disposed of by one court, and by one method of procedure, especially as regards the course of appeal and the mode of trial, and in this I think it questionable whether the Judicature Act did not go too far, and I feel sure that in the legislation which we must now expect, other principles neglected by it ought to be considered.
If the question were still an open one, I am disposed to think that it would have been better, instead of fusing eight courts into one, to be content with fusing the three Common Law Courts into a single court, perhaps under the name of the Court of Queen's Bench, and to have enabled the judges of all the superior courts to act for each other in case of need, and to exercise all the powers belonging to any of them in any case which might require it; but the Judicature Act was otherwise conceived, and must no doubt be taken as conclusive. It would however, I think, be unwise to try to carry simplification beyond the reduction of the number of the divisions from five to three, for experience shows that the distinction between the business of the Equity Division and the business of the three Common Law Divisions is very nearly as much founded upon a real distinction in the subject-matter of litigation as the distinction between the business of either of them and that of the Probate, Divorce, and Admiralty Division.
It is not easy to give an unprofessional person a clear notion of the distinction between the business which goes to the Chancery Division and that which goes to the Common Law Divisions, but I do not think any one who is accustomed to the practice of the courts will fail to recognise the existence of such a distinction, though it is difficult to give a perfectly satisfactory theoretical account of it. For practical purposes, however, a few general observations will be sufficient.
Nearly all the litigation in the Common Law Divisions and a great part of the litigation in the Chancery Division arises out of contracts and wrongs. But, from the nature of things, such actions fall into two classes, which are clearly distinguishable from each other. The first class consists of actions in which two people or two sets of people are interested, and in which well-marked questions of fact or law or both are raised, and in which the remedy sought is the payment of damages. These actions are disposed of in the Common Law Divisions, almost always by a judge and jury.
In the other class of actions more intricate questions arise both as to the parties and the remedies, and the judgments given have to be interpreted and enforced by a machinery which the Common Law Divisions neither possess nor require. These actions are disposed of in the Chancery Division.
I think, too, that the questions of fact which arise in cases in the Chancery Division differ from the questions of fact which arise in the Common Law Divisions. In the latter the question commonly is which of two sets of witnesses is telling the truth? and in such cases it is essential to see and hear the witnesses, to watch their demeanour, and to have them examined and cross-examined viva voce. In equity cases it constantly happens that, though formal proof of facts has to be given, and though different views of admitted facts have to be presented, there is no sharp, definite contradiction at all. Evidence in such cases can be given far more conveniently and cheaply on affidavit than by word of mouth.
A classification of the litigation arising out of contracts and wrongs into that which admits of simple remedies and that which requires intricate and qualified remedies, and again into that in which two persons or sets of persons are interested and that in which more than two persons or sets of persons are interested, may appear to be unscientific and almost trifling; but it is extremely convenient, and it answers closely to the distinction between cases tried by a judge and jury and cases tried by a judge alone, and it must be remembered that the distribution of business between court and court, or between different divisions of the same court, is not a matter of science, but a matter of mere convenience and division of labour. A distinction which would form a very bad foundation for a treatise may form a very good foundation for the convenience of suitors and the despatch of business. If a man were writing a book on the human body, he would arrange his work with a view to the general plan of the body as he understood it, and not with reference to the remedies which particular diseases or injuries might require; but the medical profession divides itself into branches having relation not to the structure of the body but to the treatment of disease. Medical men are either physicians or surgeons, though all deal with the same subject-matter. It is not a mere fancy to say that a criminal trial or an action for damages has a resemblance to a surgical operation, and a decree in equity to a course of medical advice.
To a considerable extent, however, the subject-matter with which law and equity are conversant differ at least as much as the subject matter with which either is conversant differs from that of the Divorce, Probate, and Admiralty Division. The principal subject with which Courts of Equity are concerned is the interpretation and administration of trusts, which are the creation of the Courts of Equity, and form, I believe, a legal conception peculiar to English law. Whether, if the whole law were codified, this conception would be retained, and how in that case it would be expressed, I do not say; but, taking matters as they stand, it is, I think, obvious that to attempt to fuse the law relating to trusts with any other branch of law would be absurd. The thing could not be done, and an attempt to do it would produce, not simplicity, but confusion and obscurity. It would make the law hopelessly unintelligible.
There is another matter closely connected with this which will always make it necessary to keep Law and Equity to some extent distinct from each other. The establishment of the system of trust estates, and of the distinction between legal and equitable interests (which is far too firmly fixed in our national habits to be removed), has been one of the principal causes which have imposed upon the Courts of Equity a vast mass of business utterly unlike any which is transacted by the Courts of Common Law. I refer, of course, to administration suits, suits in which vast masses of property are administered under the orders and by the officers (either permanent or appointed for the purpose) of the court. The effect of this is that the Chancery Division has to superintend the management of an enormous mass of property, and the transaction of every imaginable kind of business connected with it, at every step in which it may be necessary to take the directions of the court as to the course to be pursued with reference to the interests, it may be, of a great variety of persons. Obviously this is a matter by itself, requiring special experience and a special organisation, and not capable of being fused with any other branch of the administration of justice.
For all these reasons I think that the fusion of law and equity has gone as far as legislation can for the present carry it. I also think that the distinctions already referred to must involve corresponding distinctions in the procedure of the two divisions, but I do not propose on this occasion to discuss any part of this question except that which relates to the course of appeal in the Chancery and Common Law Divisions.
The method of procedure favoured by the Judicature Act, and which it is now, I apprehend, proposed to extend, is sometimes described as 'the one judge system,' and its essential feature is that every cause, whether legal or equitable, should be tried in the first instance by a single judge, to whom it should be allotted from its commencement, and who should preside over it throughout, till he delivers a final judgment, and that this judgment should be subject to an appeal to a court of three judges. The original intention was that the decision of the Court of Appeal should be final, and it was proposed to abolish the appellate jurisdiction of the House of Lords; but this idea was given up, and the decision of the Court of Appeal is itself liable to a final appeal to the House of Lords. I do not think it is proposed to alter this part of the system, and I have no remark to make upon it.
This one judge system existed in the Courts of Chancery for many years before the Judicature Act, though it was more common for two than for three judges to sit in the Chancery Court of Appeal. Since the Judicature Act, it has prevailed in the fullest way in the Chancery Division, and it is no doubt intended to extend it to the three Common Law Divisions.
With respect to this proposal, I have the following propositions to establish:—
1. It cannot be carried out fully without abolishing trial by jury in civil cases.
2. Any attempt to carry it out fully, without the abolition of trial by jury, will greatly lower the efficiency and the dignity of the Puisne Judges of the Common Law Divisions.
3. The imperfect attempts hitherto made to introduce it have caused great intricacy, delay, and expense in the administration of justice.
4. A scheme may be suggested which would obtain all the objects in view without being open to any of these objections, and without involving any expense to the public whatever, or any change in the business of the Chancery Division, and which would greatly diminish the expense of litigation.
1. First, then, I say, that the full introduction of what is called the one judge system is inconsistent with the maintenance of trial by jury in civil cases. It is surprising to me that this obvious fact should require to be stated, and should apparently have been generally overlooked. It is, however, self-evident. The essence of the one judge system is, that the case is first tried by a single judge, who decides both the fact and the law, and then retried by three judges, who also decide both on the fact and the law. The appeal, in fact, is a rehearing.
On the other hand, the essence of trial by jury is, that the jury find the facts under the direction of the judge who tries the case, and that the judges, to whom the appeal lies, do not enter upon the question of fact for the purpose of deciding it, but only for the purpose of considering the correctness of the direction given to the jury by the judge who tries the case, in order to decide whether the matter of fact shall be remitted to another jury. In two words, where there is no jury an appeal is a re-trial. Where there is a jury, a motion for a new trial is the only form of appeal consistent with the essence of the institution. Therefore, so long as trial by jury in civil cases exists, there must be a distinction between the course of appeal in cases tried before a jury and cases tried without a jury.
Short and simple as this proposition is, I believe it to be entirely overlooked by those who wish to introduce the one judge system into the Common Law Divisions, unless indeed their object is to get rid of trial by jury by a side wind.
2. My second proposition is that any attempt to carry out fully the one judge system without abolishing trial by jury in civil cases, will greatly lower the efficiency and the dignity of the Puisne Judges of the Common Law Divisions.
This proposition follows from the last, for the result of such an attempt must necessarily be as follows: there would be in the Common Law Divisions a division between the Court of Appeal and the Court of First Instance similar to that which now exists in the Chancery Division. The duty of the Puisne Judges would be confined to trying causes at Nisi Prius. If it was considered that they had misdirected the jury, or that the jury had given a verdict against the evidence, or that a new trial should be had on any other ground, an appeal would lie to a Court of Appeal of three judges, who, if they thought fit, would direct a new trial. It is obvious that the effect of this would be to make the Common Law Judges mere commissioners for the trial of causes at Nisi Prius, and to deprive them of all connection with the decision of matters of law. That this would greatly lower the dignity of the judges is obvious. It would practically make them mere reporters to the Court of Appeal of facts ascertained by the help of a jury, and would afford an irresistible temptation to them to be indifferent to questions of law, which they would leave entirely to the Court of Appeal. The Judges of First Instance would thus cease, to a great extent, to require any special knowledge of law, though they would be appointed from a body of men distinguished rather as lawyers than as advocates. The Judges of Appeal, on the other hand, would have no special occasion to inquire into facts, though they would be appointed not so much on account of their knowledge as lawyers as on account of their eminence as advocates. The square men would be put in the round holes, and the round men in the square holes.
The same result would be produced upon the efficiency of the Bench. It is a thoroughly well-established rule, resting upon obvious convenience, that a motion for a new trial should, if possible, be made before the judge who tried the case. He knows as no other judge can know what that evidence was and what were his reasons for directing the jury as he did. If the judge who tried the case is to be a mere commissioner to take evidence, and is never to sit upon a motion for a new trial, the court which hears such motions will be deprived of the advantage of his presence and knowledge of the case, whilst his sense of responsibility for the decision would be greatly impaired, as he will hear no more of the matter after the verdict has been given.
I know it will be said that under the Appellate Jurisdiction Act, 1876, a Judge of First Instance is not only empowered, but required, as far as possible to decide the whole of every case which comes before him, determining questions of fact by the aid of a jury, and reserving for further consideration questions of law which cannot be conveniently decided at the trial. No doubt the Act contains a provision to that effect, but in practice it can be acted upon only in the few cases which involve no substantial dispute of fact, and the reason is obvious to any one who is familiar with trials by jury. The questions of law which usually arise upon such a trial are almost always questions as to how the judge ought to direct the jury, or whether certain evidence should be admitted or rejected. Such questions must be decided at once, and cannot be properly argued before they are decided. It would cause an intolerable waste of time and money to interpolate elaborate legal arguments into trials before a jury. The judge must decide there and then whether he will admit evidence or reject it, and whether he will direct the jury in accordance with this or that view of the law. This obvious consideration seems to me to have been left completely out of sight by the Appellate Jurisdiction Act of 1876.
The result of all this is that the practical effect of trying to apply the so-called one judge system to trials by jury must be to subordinate the Judges of the Common Law Divisions entirely to the Court of Appeal, and to make them, as I have said, mere commissioners to take evidence. I have already given my reasons for thinking that to do this would be one of the greatest misfortunes that could befall the administration of justice in this country. It would subordinate the more important function of trying causes to the less important function of deciding points of law on appeal. It would assign to men holding a position attained principally by legal knowledge functions requiring a combination of a great variety of far rarer and more important qualities, and it would assign to persons presumably possessed of those qualifications the duty of hearing appeals upon points of law. It would, in other words, be based upon the absurd theory that the ablest advocates at the Bar are the greatest lawyers, and that the best lawyers are likely to make the best judges for the trial of causes. It is as if men were made professors of medicine, and restrained from practice on account of their skill in practice, whilst others were put in charge of hospitals because they had written books displaying much knowledge of the theory of their profession.
Such an arrangement would, in my opinion, injure the Court of Appeal quite as much as the Courts of First Instance. Appellate jurisdiction can hardly be exercised as it ought to be, unless the judges are also Judges of First Instance whose knowledge of the actual administration of the law is kept up by constant practice. Under the present constitution of the Court of Appeal, its judges possess this advantage, inasmuch as the Presidents of Divisions, who are members of it, constantly sit as Judges of the Court of First Instance, whilst the Lords Justices (with one exception) all go circuit. An arrangement which tended in any way to put an end to this advantage would be as unwise as an arrangement which confined eminent physicians to the task of advising with other members of the profession in consultation, and excluded them from attendance by themselves upon sick people. If the two sets of duties were confined to separate courts, the Courts of First Instance would, to a considerable extent, lose the opportunity of considering and studying the general principles of law, and the Judges of the Appellate Court would lose that familiarity with the detailed application of general principles to current litigation which is essential not only to the proper apprehension, but to the complete and cautious statement of legal principles. The two duties are really component elements of one and the same function, and ought to be discharged by the same persons at different times. It must of course be remembered that I am now referring only to cases tried by juries. When the appeal is a complete rehearing, as is the case with appeals in the Chancery Division, the Judge of First Instance and the Judges of Appeal each perform in turn the whole of the same function in the same way, and in this case the Judge of First Instance differs from the Judges of Appeal merely in the fact that he is one and they are three.
Another consequence would follow from the scheme which I deprecate, of which it is a more delicate matter for a judge to write, though I do not like to pass it over. I refer to the effect which would be produced by dividing the judges into two grades, probably not very unequal in number, but distinguished from each other by a difference both in rank, and title, and in pay, just marked enough to be important, but not marked enough to answer the purpose which is now answered by the offices which will be abolished. As matters stand, I cannot say that it would for the first time introduce upon the Bench the principle of promotion, but it would give to this principle much greater force and prominence than it ever had before. Hitherto the general principle has been that a judge ought to have nothing either to hope or to fear from any quarter. He has nothing to fear, but he has something, though it may not be very much, to hope for. I do not imagine that any one supposes that this circumstance has ever exercised, or that it is probable that it will ever exercise, any influence on the conduct of any judge on the Bench, but there are matters in which it is well to be jealous and suspicious, even though no actual danger may present itself, and this seems to me to be one of them. I think it ought not to be open to any one to say of a judge ' he wants to be promoted.' No one, of course, would wish to interfere with existing titles or allowances, but it would certainly be an advantage in any scheme that it gave the same title and same advantages to all judges who performed duties of the same degree of importance.
3. My third proposition is that the imperfect attempts hitherto made to introduce the one judge system have caused great intricacy, delay, and expense in the administration of justice.
That great intricacy, delay, and expense do exist in, and arise out of, the present constitution of the High Court, I suppose no one denies. It is enough, by way of example, to say that its intricacy is such that in one sense there is but one court—namely, the Supreme Court of Judicature; that in another sense there are three courts— namely, the Court of Appeal, the High Court, and the Supreme Court of Judicature; and that in yet another sense there are seven courts— namely, the Chancery Division, the three Common Law Divisions, the Probate, Divorce, and Admiralty Division, and the two Divisions of the Court of Appeal. Each judge of the Equity Division, indeed, may be reckoned as a court, and, if so, there are in all ten, or perhaps eleven, courts.
As regards expense and delay I suppose I may take it for granted that great dissatisfaction exists upon the subject, and I am not surprised at it, for, apart from the expensiveness of the system of pleading established under the Judicature Act, it is a fact, as certain as it is little known, that, in respect of Common Law actions, the liberty of appeal which existed before the Judicature Act has, for practical purposes, been doubled—I might in strictness say trebled— though there was no occasion to increase it at all. This has been due entirely to an omission on the part of the authors of the Judicature Act to recognise the obvious distinction which I have already pointed out between the nature of appeals in cases which are tried by a jury, and appeals in cases which are tried by a judge without a jury. This I will now proceed to show.
Down to the year 1854 the methods of reversing the decision of a jury were as follows: first, a writ of error, which was, practically, hardly ever applicable, as it applied only to errors apparent on the record; secondly, a bill of exceptions, which was seldom employed; and thirdly, a motion for a new trial, which last was the method commonly employed. A motion for a new trial was in substance, though it was not in name, an appeal from one judge sitting at Nisi Prius to three judges sitting in Banc, and their decision was final. As the motion had to be made in the first four days of the first term after the trial, Common Law actions were speedily determined, and I do not know that any special complaint was made of their not being determined satisfactorily. By the Common Law Procedure Act of 1854 this state of things was altered, and in certain cases an appeal from the decision of the Court in Banc was allowed to the Court of Exchequer Chamber, and thence to the House of Lords; but practically such appeals were very seldom brought, because the Court of Exchequer Chamber was inconveniently large, and could hardly sit without shutting up the two courts of which it was composed; and also because the right to appeal was limited by conditions as to costs and by other restrictions, the effect of which was that the remedy was not worth having except in cases which seldom occurred. In a great mass of other business there was no appeal at all from the decision of a Court sitting in Banc. For instance, if the courts refused or granted a habeas corpus or other prerogative writ, or if they confirmed or dismissed an order made by a judge at chambers, no appeal lay from their decision. Matters stood thus till the Judicature Act came into force in 1875. It is thus true for practical purposes (though the statement is not perfectly correct), that till the Judicature Act came into force there was but one appeal in Common Law actions—to wit, an appeal by way of a motion for a new trial from the decision of the judge and jury at Nisi Prius to the Court sitting in Banc. In other words, there was an appeal from one judge to three judges. In short, the one judge system, as it is now called, did actually exist in regard to Common Law actions in fact, though not in name, down to the year 1875.
It was, as I have said, the object of the authors of the Judicature Act to apply the one judge system to the Courts of Common Law; they seem to have overlooked the circumstance that it already existed there, because they did not recognise the fact that a motion for a new trial was really an appeal from one judge to three, and they seem to have considered that uniformity could be produced, or at least that a step towards it would be made, by substituting the new Court of Appeal for the old Court of Exchequer Chamber, removing at the same time the conditions which restricted appeals to the Court of Exchequer Chamber to a very small number of cases. The Divisional Courts were accordingly substituted for the Common Law Courts sitting in Banc, and the Court of Appeal for the Exchequer Chamber, and an appeal was given in all, or nearly all, cases from the decision of the Divisional Courts to the Court of Appeal, and to the House of Lords. The result of this was practically to double, and in some cases to treble, the power of appealing in the Courts of Common Law. On every motion for a new trial, without any exception or any condition so framed as to restrict appeals to matters of importance, two appeals may be made—namely, first an appeal to the Court of Appeal, and next an appeal to the House of Lords. The same power was given in the case of an appeal from a judge's order at chambers, so that if a judge orders, say, that the evidence of a witness in France shall be taken by commission, an appeal lies to the Divisional Court, to the Court of Appeal, and to the House of Lords, and so strangely are matters arranged, that, in the final result, two judges may overrule four; for the judge at chambers, two judges in a Divisional Court, and one judge in the Court of Appeal, may be overruled by the two other judges in the Court of Appeal.
Putting the matter shortly, the result of the attempt to extend the one judge system from the Courts of Equity to the Courts of Common Law has been to destroy it where it existed and gave full satisfaction, and to introduce in its place a system certainly not more efficient, far more dilatory, and probably costing the suitors one-third more than the old one. These results have been caused entirely, as far as I can judge, by misunderstanding the nature of appeals incases tried by juries, and by trying to apply to such cases a course of appeal suitable for cases tried by a judge alone.
Until this principle is fully recognised and acted upon, it will be found practically impossible to organise the Court in a satisfactory manner. It has been supposed that this might be effected by abolishing the Divisional Courts, and the Appellate Jurisdiction Act of 1876 appears to be based on this view, for it directs that as far as possible single judges shall dispose of all causes, and that Divisional Courts shall be composed of two judges and no more, except in special cases, when they may be composed of three judges. The Act shows little practical acquaintance with Divisional Courts and their proceedings, and those who suppose that it can be carried out so as to economise judicial strength show that they have not mastered the subject. If the Divisional Courts are to be discontinued, and if the Common Law Judges are to do no business which cannot properly be done by judges sitting alone, it will be necessary to increase largely the number of Judges of the Court of Appeal. The following account of the business of the courts may not be quite complete, but it is complete enough for practical purposes. It distinguishes business which can properly be done by single judges from business which requires the presence of more judges than one.
1. All criminal business, except hearing cases in the Court for Crown Cases Reserved, can be done by single judges. The Court for Crown Cases Reserved sits only three or four days in the year, and may be left out of account.
2. The trial of actions at Nisi Prius can be done by single judges, and in cases where there is no jury, a single judge can carry the case through to final judgment.
3. Interlocutory orders in civil cases can be made by one judge, and I may observe in passing, that a few simple reforms relieving the judges of duties which ought not to be cast upon them, and especially of what are called judgment debtor summonses, would be equivalent to adding another judge to the Bench.
4. There are a few proceedings raising issues of mere law which a single judge could no doubt decide with propriety, such as demurrers and special cases. There may be some other matters of the same kind, but they do not occur to me. I may observe that such cases are very uncommon. I have never yet had to hear a demurrer argued. Special cases are commoner, but they are not common.
These, I think, are all, or nearly all, the duties which can properly be assigned to a single judge. The following, which form the principal part of the work of the Divisional Courts, clearly ought not to be discharged by less than two judges.
1. Motions for new trials. Such motions are commonly made either on the ground of misdirection, or on the ground that the verdict was against the weight of evidence, though there are other grounds which occur less frequently. If such a motion is made on the ground of misdirection, and if it is made before a single judge, it is in effect an appeal from one judge to another of equal authority, and this is obviously wrong. If, on the other hand, the motion is on the ground that the verdict was against the weight of evidence, it is an appeal to the judgment of one man on a matter of fact from the judgment of twelve men, and if the judge appealed to is the judge who heard the case, the appeal is either against his summing-up, in which case it is not likely to be successful, or in favour of his summing-up, in which case it is likely to be too successful. In all these cases, there ought clearly to be a plurality of judges. Sir Alexander Cockburn thought there ought to be three, and I am far from saying he was wrong.
2. Appeals from an order of a judge at chambers ought obviously not to be made to a single judge of equal authority.
3. Appeals from the inferior courts, and cases which go into what is called the Crown Paper, and, in particular, cases reserved by magistrates in the exercise of their summary jurisdiction, are all in the nature of appeals, and inasmuch as the principles involved in such decisions may be just as important as if their direct consequences were more serious than they are, I think that it would be unsatisfactory to the public if they were decided by a single judge. Several of the inferior courts, too, as the Lord Mayor's Court and the Court of Passage at Liverpool, have a jurisdiction of unlimited amount.
The business of the Divisional Courts is almost entirely made up of these matters—namely, motions for new trials, appeals from judges' orders at chambers, appeals from inferior courts, and other business which is, in fact, though not always in name, appellate business.
This jurisdiction represents the business of the old Common Law Courts sitting in Banc, and the result of the Judicature Acts has been to superimpose upon it, in the case of motions for new trials and appeals from chambers, a further appeal to the Court of Appeal. There is thus obviously one appeal too many in these cases.
The business to which I have referred occupies three courts of two judges each during the whole, or for the greater part, of the four sittings which correspond to the old terms.
Though an appeal does lie, as I have already said, to the Court of Appeal, appeals are actually brought only in a minority of the cases disposed of, one Appellate Court of three judges being sufficient to hear them. If, therefore, the Divisional Courts are discontinued, and all the appellate business is transferred to the Court of Appeal, its members would have to be largely increased—indeed, I doubt whether less than two additional divisions of the Court of Appeal could get through the additional business. In other words, six of the present Puisne Judges would have to be made Lords Justices.
There is one kind of business transacted in the Divisional Courts which is of the very highest importance, and which is not appellate business, and ought, I think, to be decided on the first hearing without appeal. I refer to applications for prerogative writs, and especially for the writ of Habeas Corpus. The occasions on which such a writ is demanded are commonly of great importance, and it is surely the best course in such cases to go at once, whenever it is possible, to the court by which the matter is to be finally decided. The name is not very important; but if a court of three judges is to decide on such a question (summary proceedings or routine cases before a Judge at Chambers stand on a different footing), it ought to be brought before them at once and not by way of appeal.
The result of the whole is that, if the Divisional Courts are to be abolished, it will be necessary to enlarge the numbers of the Appellate Court to such an extent that the Puisne Judges would form the exception. Surely this in itself would be a considerable evil. If most of the judges were members of the Court of Appeal, the position of the comparatively small number who were not would be greatly lowered, but they would still have to discharge what are intrinsically the most important of all judicial duties.
So far I have been engaged in pointing out the defects of the existing constitution of the court and of the alterations proposed in it. I now pass to my fourth and last proposition—which is that a scheme may be suggested which would obtain all the objects in view without being open to any of these objections, and without involving expense to the public, or any change in the business of the Chancery Division, and which would greatly diminish the expense of litigation. The plan is an extremely simple one. First, I would do away with the intricate phraseology which calls one court by many names, and enact that, for the future, there should be one court only—namely, the High Court, which for the distribution of business should be divided into three divisions, the Chancery Division, the Queen's Bench Division, and the Probate, Admiralty, and Divorce Divisions. I would also provide that the Chief Justice of England should be President of the Queen's Bench Division, and the other chiefs, if retained, be Vice-Presidents of it. The Lord Chancellor (who is President of the Chancery Division, though he never, or hardly ever, acts as such), the Master of the Rolls, the President of the Divorce Division, I would leave as they are. Subject to these exceptions, and subject to existing distinctions of rank, title, and pay, I would have all the judges called by the same title, receive the same pay, and take precedence according to their seniority. In the place of the Court of Appeal I would have appellate benches, consisting either of three or of two judges, according to the nature of the business to be disposed of. Appeals from hearings in the Chancery Division should be, as at present, to a bench of three judges. Motions for new trials in the Queen's Bench Division might be heard by benches of three judges; appeals from inferior courts or in interlocutory matters might be heard by benches of two judges, whose decision, or failure to decide owing to a difference of opinion, should be final, unless they gave leave to appeal, in which case there should be an appeal to a bench of three judges, whose decision should be final. The Lord Chancellor, the Master of the Rolls, and the three Chief Justices should decide from time to time how many appellate benches of three or two judges should sit, and how many courts should sit at Nisi Prius. The judges of each division should decide amongst themselves by a rota who should sit on appellate benches and who at Nisi Prius. It might, I think, be understood that the bench taking Equity appeals should have, if possible, one Common Law member, and that a certain number of members of the Chancery Division should sit on the Appellate Bench for cases from the Queen's Bench Division. The Chancery Division would have to consist of eight members, to correspond to the Master of the Rolls, three of the Lords Justices, the three Vice-Chancellors, and Mr. Justice Fry; and the Common Law Division of eighteen members, corresponding with the other three Lords Justices, and the fifteen members of the three Common Law Divisions. Of course, the existing Lords Justices would be called upon to sit only on Appellate Benches, so that the change I propose would come into force gradually as vacancies occurred amongst the Lords Justices. I think it would be very desirable to provide that (circuits notwithstanding) four judges should sit continuously in the Chancery Division for the trial of causes, for when the three Vice-Chancellors who now sit vacate their offices, their successors will be bound to go circuit, and I have a strong impression that the public will be ill satisfied if the business in the Chancery Division is interrupted, and I have great doubts whether they will be well satisfied if the judges of the Common Law Divisions have to take their turn in trying equity cases. Such a course appears to me to imply a pedantic determination to overlook the convenience of arrangements for the division of labour which have been established by practice, in favour of an ill-founded expectation of giving the law a degree of simplicity which does not belong to it.
This plan, it will be observed, maintains the existing number of judges, but simplifies the constitution of the court, making the division between appeals and trials the foundation of the distribution of business between different benches of the same court, instead of being, as it is at present, a ground for a most intricate division of the court itself.
The judges of the court so constituted would stand upon an equality, except so far as the existing chief, the Master of the Rolls, constituted an exception, and thus promotion on the Bench would be practically at an end. The court would no longer be organised on the false supposition that appeals are necessarily or as a rule more important than trials. Each of the judges would take his part in the trial of causes and in the hearing of appeals, and each would thus be made familiar, not only with all matters of legal principle decided on appeal, but with the detailed application of those principles to actual litigation. The maintenance of the ancient offices of the Lord Chief Justice of the Common Pleas and the Lord Chief Baron of the Exchequer would be consistent with the scheme, and for the reasons already given I think this would be desirable; but it is not an essential part of it. If it were thought best, upon the whole, to abolish these offices, the only modification which the scheme would require would be the appointment in their place of two additional Puisne Judges in the Queen's Bench Division.
The scheme would cost nothing. It would ultimately save a little if, as the offices of the Lords Justices became vacant, they were filled by judges whose circuit expenses were not paid. I do not, however, think that the question of saving that small amount is one to which the public would attach much importance. My own feeling is that the dignity of a judge's office depends upon the importance of his duties, on the manner in which they are discharged, and on his independence of the executive and even of the legislative branches of the government. On the question of titles and money I have only to say that I think it would be well if ultimately all the judges, with the exceptions I have explained and tried to justify, were to stand on the same footing.
The great practical importance of the adoption of my proposal would be that it would reduce the number of appeals and bring the procedure of the Chancery Division and the Queen's Bench Division as nearly into conformity in that particular as is possible, regard being had to the difference between trials by a judge alone and trials by a judge and jury. The scheme would leave the course of appeal in the Chancery Division just as it is.
Several persons to whom I have mentioned this scheme have asserted that it is a proposal to reinstate the old Court of Exchequer Chamber. The fact is that it is just the reverse. It is a proposal to reinstate the old Courts in Banc, and to do away with the unnecessary intervention of the Court of Exchequer Chamber, which has become permanent and active under the Judicature Act, instead of being hardly ever used, as was the case under the old system.
This change would greatly diminish the number of appeals and the cost of litigation, and it would in particular bring the appeals on interlocutory proceedings into a reasonable compass. This is a matter in which the public, and even the greater part of the profession, are much in the dark, and it was not fully considered in the Judicature Act. Before that Act passed, appeals from orders in chambers lay by way of motion to the Court in Banc, and could be carried no further; and as the power of the masters of the court to make interlocutory orders is of very recent date, the result was that upon no order at chambers, however important it might be, was there more than one appeal. The Judicature Act gave three appeals in respect of orders made by judges, and four appeals in respect of orders made by masters, however trifling the order might be.
It is very difficult for any one, except a judge accustomed to sit in chambers, to form an adequate notion of the nature of the business transacted there. It has a great deal to do both with the efficiency of the court and with the expense of litigation. About one-half of the work, or something between one-half and two-thirds, ought not, in my opinion, to be put upon the judges at all. I refer to the judgment debtor summonses, which I think might well be disposed of in other ways. The remaining half is of all imaginable degrees of importance. A large proportion of it represents the desire of quarrelsome people to keep each other at arm's length, and put each other to expense and trouble, and the desire of fraudulent people to put off as long as possible the evil day when they will be compelled to pay their debt or make amends for their wrongs. In such matters as these a single appeal is quite enough, but cases do occasionally come before judges at chambers which may turn upon principles of the greatest importance, and practically involve the decision of actions in which character, or property, or personal liberty are at stake. These are, of course, an essential part of the business of the court, and in such cases I think the court appealed to would seldom refuse leave to appeal further in cases in which a further appeal was really required.
Such is my view of the changes which the constitution of the High Court requires. I hope they may be thought worthy of consideration before practically irrevocable steps are taken which would greatly alter, and as I think for the worse, perhaps the most popular and one of the soundest of all English institutions.
The Nineteenth Century, January 1881.
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