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Those who uphold the present system are in this difficulty: Are the County Court judges in fact ' inferior' to their brethren of the High Court ? Are they, taken as a body, deficient in those qualities which we are accustomed to consider as necessary for the proper discharge of the judicial office? If they are, then is it not, to say the least, inconsistent to entrust such gentlemen with power to decide questions in bankruptcy to an unlimited amount, or in the winding up of companies, where the paid-up capital does not exceed £1,000, seeing that in such matters beyond most others, the most difficult and important questions of law are continually arising? If, on the other hand, it is admitted that they are, as a body, in no wise inferior in judicial qualities to many of their brethren of the High Court, why insist on this humiliating distinction? Surely the brand should not belie the vintage.
The judges of County Courts are the last men in the world to trouble themselves about matters of this nature, and the judicial statistics' show what the people think of the law as administered by these “inferior' Courts. But there is something of substance behind this. Sixty years ago, and indeed in some instances until quite recent times, the County Court bench was looked upon as a kind of asylum for the unfortunate or the inefficient, or for such friends or relations of the ruling authority as could not otherwise be comfortably provided for. The stipend of these gentlemen was then £1,500 a year, a sufficient, perhaps in some cases a more than sufficient, fee for the work done. Since those days the County Courts have evolved' in a way which can only be properly grasped by reading the pamphlet above referred to, but the stipend remains unaltered. A County Court judge, although he may be, and now frequently is, as sound a lawyer as any in the kingdom, still gets his £1,500 a year, bis brother judge of the High Court £5,000! And then many of the little things that go
to make men happy (through their wives)--all the little embroideries of judicial life--are denied to the County Court judge. No one addresses him as 'My Lord’; scarlet and ermine are not for him; he is never asked to reply to the toast of His Majesty's Judges ? ;no sheriffs, chaplains or trumpeters, not even crowds of 'thirsty yokels' welcome him to his Court town. But probably, save as aforesaid, he rejoices that circumstances have preserved him from a share in these somewhat oppressive honours !
A great awakening has taken place in the last ten years, the nation has shaken itself together; mon now care less how a man is dressed, or what he is called. The question is, can he do his work ? does he do his work? So of an institution or machine, no matter what it looks like, is it efficient?
Is this dual system efficient? Prima facie it would seem improvident to construct and run two machines for doing the work which
one, more carefully designed, might be made to do. Would it, for instance, be an efficient arrangement for a railway company to lay two lines side by side to take passengers from London to Bristol, each line of different gauge, governed by a different board, officered by a different staff, with different stations, tickets, and time-tables -- one line for first and second class, the other for third class only, the third class ticket three times the price of the others ?
Now we bave-in this High Court and County Court systeintwo machines, each of exceedingly elaborate construction, designed by very skilful persons (with too great a leaning perhaps towards minuteness of detail), each machine worked by zealous and competent experts, and each turning out work of excellent quality. But there is no co-ordination. On the contrary, there is friction and overlapping and waste of time and labour in squabbling over small details of very little consequence, and each set of workers has to be acquainted with the bewildering mass of Statutes, Rules, and Cases which regulate the working of each of these machines.
Now it bas turned out, contrary to all expectation, that of these two machines the so-called “inferior' one is in fact the more efficient. For, says the authority above referred to, the fact remains that at least two-thirds of what once formed the ordinary business of the King's Bench Division has drifted to the County Court' (Evolution of the County Court, p. 31). This really means that twenty-three judges of the High Court do one-third of the work necessary for the administration of justice throughout England, for which they are paid £115,000 a year, whilst about fifty-seven County Court judges do the remaining two-thirds at a cost of about £85,000 a year.
But this useful domestic court of all work’ is in danger of being overwhelmed by its own success, for from the first the practical public, and more recently the Legislature, has discovered its value, with the result that new burdens are yearly imposed
Now although it is admitted that this dual system does good work, yet it is not unreasonable to suppose that if it were possible to reconstruct this machinery_by selecting from each system those parts which time has proved to be the most serviceable, and moulding the two into one- very considerable advantages in the saving of time, money, and work, might fairly be expected to result.
The Judicature Commissioners of 1872 certainly thought that
this was not a matter 'outside practical politics, for they recommended that the County Courts should be annexed to and form constituent parts or branches of the High Court of Justice.' That recommendation was not adopted. The 'Sons of Zeruiah' (the interests of that day) again barred the way. The Superior Courts were remodelled on simple lines, wonderfully free from error, but the County Courts were left out of the scheme, to remain humble annexes to the superior' tribunal.
The time would seem propitious for the further consideration of these not unimportant matters, for several things have of late happened tending in the direction of levelling up the County Courts or levelling down the High Court'(Times, Art., 1 Nov., 1897). The writer, therefore, with unfeigned diffidence ventures, with the Editor's kind permission, to submit to the consideration of the profession some few ideas on the subject of consolidation, for which he is chiefly indebted to the Reports of the Judicature Commissioners, to Sir Thomas Snagge's pamphlet, and to some papers upon imperial organization, but considerations of space require that they should be stated very concisely.
General Policy. Assuming the appointment of a Judicature Commission and the main lines of the scheme settled in some such way as that next indicated, the idea should be to work it out with the least possible disturbance of existing conditions, as regards officers, offices, and vested interests generally. It would be desirable to tolerate many anomalies and inconsistencies until time should make it more easy to deal with them. Continuity of policy might in these days probably be relied upon.
Main Principles. One Supreme Court of Judicature; (a) The High Court of Justice; (b) The Supreme Court of Final Appeal. One practice and procedure.
High Court. From the commencement of the Act the Judges of the County Courts, Palatine Courts, Lord Mayors' Courts, &c., would become (District) Judges of the High Court with the jurisdiction of the High Court (save certain limitations as to Probate and Divorce). Vacancies in the present staff of High Court Judges would be filled, as a general rule (subject to exception in special cases), from the staff of (District) Judges. Salary £3,000 a year. It would be necessary to rearrange the existing circuits, grouping them round, say, fifty of the populous centres in England and Wales in which District Registries of the High Court are already established. One judge to each district, a common law and an equity man in alternate circuits if possible. Special Sessions (see Evolution of the County Court, p. 32) to be held periodically at each of the Court towns in which there is a
District Registry. The Bar and Solicitors to have equal right of audience in the High Court (District and Metropolitan). Until the scheme is complete vacancies in the interim, whether in the High Court or County Courts bench, should be filled conditionally, i.e. upon terms as to salary and duties.
The Supreme Court of Final Appeal. In such a scheme as that suggested it would be above all things necessary that there should be a strong Court of Appeal sitting in Divisions (Divisional Courts of the C. A.) to which recourse might be had speedily and cheaply. It is probable that the appeals from the District Courts' would at first be very much in excess of the present number of appeals to Divisional Courts of the High Court. There should never be any delay in getting an appeal heard. Judges should always be available. The Court of Appeal would sit in London. The number of the Divisional Courts would depend on the amount of the business. The Court would therefore sit in as many Divisions as the authority might from time to time direct. Its judgments and orders would be final. All English appeals would go direct to this Court, Divisional Courts of the High Court being abolished.
There need be little, if any, interference with existing arrangements. Thus (1) the House of Lords Division and (2) the Privy Council would sit as they sit at present, and would take respectively the English, Irish, Scotch, and Colonial Appeals, which they take now. The House would also take its share in hearing appeals from the High Court—but there would, of course, be no appeal to that House from the judgments or orders of the other Divisions of the Supreme Court of Final Appeal. With regard to these two divisions of the Court, it is probable that having regard to plans for ' Imperial Organization,' which are now being carefully elaborated by many persons of eminence in this country and in the colonies, that as to those appeals which may be called "external' appeals some special arrangements may have to be made, but as the idea wbich underlies this scheme is to place the whole of the judiciary of the country in such a position that at the will of the authority selected members of it may be requested to undertake any special matter, for which their individual knowledge and experience would exceptionally qualify them, little difficulty would arise in providing a court which would meet the wishes of the colonies. Probably in the future it may be thought desirable that colonial judges of eminence should be invited to take part in the hearing of certain "external' appeals, a matter of detail admitting of adjustment.
The other normal divisions of this court would be (3) and (4) the Lords Justices. Extra divisions would probably be required
occasionally. In such case the Master of the Rolls might invite a judge of the Ch. D. and of the K. B. D. to assist him, and so form a fifth division, his place being filled by a judge of the K. B.D. invited by the senior Lord Justice. If further extra divisions were required a like process could be adopted by the other Lords Justices, or by L.C.J., or the President P. D. and A. Each division might be manned with a view to the particular class of cases that were on appeal, e.g. the President P. D. and A. with two selected High Court Judges might take a batch of Admiralty Appeals, or a Chancery Lord Justice assisted by one High Court Judge of the Ch.D. and one of the K. B. D. would take Chancery Appeals, and so on.
The authority would have power to order that the hearing of any exceptionally important and difficult case should be heard by a * full Court’ of such judges, and such number of judges as might seem desirable, and also power to order the re-hearing of any case, either by a full Court' or by the division which first heard it.
The judges (permanent) of this Final Court of Appeal might be six in number, their salary (eventually) £4,000 a year. The High Court judges called in to take part in forming Divisional Courts of Final Appeal would receive a special fee.
The procedure of the Courts' Divisions (Nos. I and 2) should if possible be the same as that of the other Divisions, namely, that of the present C. A., which is quick, cheap, and effective.
Sub-committees. Sub-committees of experts would be appointed to work out the following, amongst other, details: (1) The revision of the rules of the Supreme Court, and the consolidation of such rules with the rules of the County Courts, selecting from each code that procedure which has proved itself to be the most effective. (2) The consolidation of the fourteen Judicature Acts, embodying such of their provisions as are retained in the new Act and repealing the former Acts. (3) The re-arrangement of the County Court Districts. These committees would report to the commissioners, and their draft might also be considered by a committee of judges of the High Court and of the County Courts.
Finance. No scheme can succeed unless it appeals successfully to the economical instincts of the Lords of the Treasury. The present staff of the Supreme Court and of the County Courts numbers about eighty-six persons, and costs in round numbers £232,000 a year, thus (omitting extra sums for circuits)23 Judges of High Court at £5,000
£115,000 6 Judges C. A.
31,000 57 County Court Judges at £1,500