capable of performing his judicial duties. Some judges have, in the Superior Courts, been supposed to glory in attracting business, by an unwillingness to nonsuit: other arts may be employed with a like view. But the test of judicial fitness, to which we are now referring, is not like the amount of business attracted by these means, fallible and equivocal; it is perfectly unerring, for it is the opinion held by both parties, the consent of both being required to prorogate the jurisdiction of the judge. It was a great improvement upon this which the Lords rejected in the County Courts Extension Bill, the clause, namely, which enabled parties, by consent, to carry any cause out of the jurisdiction to that of some other Court. The objection that this might have overloaded one judge, seemed wholly insufficient to justify the rejection. But again we must insist on the grievous error committed, partly by the Government and partly by the Legislature, in refusing adequate salary to these important functionaries. It seems hardly to be believed that when acts are passing to increase their labours, an increase of remuneration should be grudged. Let it be observed, too, that the equitable functions, the duties of Masters in Chancery, given to these Judges, can never be performed without increasing the revenue from Court fees applicable to pay the expenses of the establishment. We are decidedly of opinion that this revenue never ought to be raised at all; that it is the bounden duty of the State to pay the expense of its whole judicial establishment; and that to exact any portion of this from the single class of suitors is the most cruel injustice as well as the grossest absurdity. But the wisdom of Parliament has decreed otherwise; then surely we do not ask too much if we require that the fund so raised shall be expended in the payment of those whose judicial labours enable you to levy it. You muzzle the ox that treads the corn, against all reason, all justice, all Scripture. It has been fairly enough proposed that the fees so raised by the extended powers should be vested in the Judges and their officers. Nothing can be more reasonable. and also nothing more safe; for no one will then receive a farthing unless in proportion as his labours are increased by the New Act; and if they are so raised, surely no one can deny the right to receive the remuneration. We have hitherto only dwelt upon the effects of the County Courts in promoting, peradventure in forcing, the amendment of the Common Law procedure. But they have, as we hinted generally in the outset of this paper, a similar effect on the other side of the Hall,-that here Equity will be found to follow Law, - and we have therefore expressed our confident expectation that the Equitable Jurisdiction Bill will be vigorously pressed on Parliament early next Session. But we must fairly admit, that much more than any palliative is required by the state of Chancery Procedure, much more than even the important measure of giving primary jurisdiction to the Masters. We firmly believe that this may be one and a very valuable means of mitigating the evils now so loudly complained of. We are as fully persuaded that it is insufficient, although a step taken in the right direction. There is but one effectual remedy,-that of the fusion of Law and Equity, with which too the measure now so generally allowed to be necessary is most harmoniously consistent ; namely, that Judges in Equity, like Judges at Law, must be made to work out their own decrees. Each Judge must, after disposing of general questions in Court, follow up his directions by sitting in Chambers to dispose of details, and the Master's Office, with all its evils, its expenses, its delays, its endless and often fruitless labours, will, as it ought, cease to exist. The late inquiries of the Committee in the Lords on the Masters' Jurisdiction Bill, have collected a body of evidence which reduces the reader to the dilemma of either adopting this conclusion, or believing that most of the respectable solicitors of the capital have forsworn themselves —a thing almost impossible to believe; and have forsworn themselves, against their own interest—a thing at least equally incredible. This and the pernicious mode of remunerating both solicitors and counsel, seems to be demonstrated in each page of that evidence. But the circumstance which must prove most gratifying to all the friends of Law Amendment, is the great and rapid progress which this cause has been and still is making in the favour of all men. We have already noted the silence of the contemporary annalists, and the organs of political and even of legal discussion a few years ago, on the great changes operating on the Jurisprudence of the country. We may now, on closing the present discussion, note the remarkable indications being given, both in the House of Commons and in the public, of the deep and general interest taken in the Law Amendment Bills passing through Parliament. All accounts agree in describing the anxiety felt, both on the subject of County Courts and on the Evidence Bill, as intense. To that anxiety we mainly ascribe the reluctance of their adversaries to offer any opposition. Judges, we believe, exerted themselves almost in a canvass against the measure, but they could obtain no support to their prejudices. The current was too powerful for even these sages of the law to stem. Not a voice was raised to save the remains of exploded error. The venerable dissentients will therefore be reduced to the painful necessity of surviving (as we trust they long may) their favourite notions; they will only have the solace of from time to time expressing their "more than doubts" of the wisdom of the Legislature; and they will, as often as any miscarriage happens in any case to which the new system is applied, have the "painful duty cast upon them" of reluctantly mentioning to what the catastrophe is "beyond all question" owing. This relief obtained in about one case out of 1000, will serve to bear up their drooping spirits, while they wholly obliterate from their recollection the history of the other 999. PREVIOUSLY to the passing of the act of last Session (for extending the jurisdiction of those Courts to sums not exceeding 50%) a great clamour was raised, founded on the amount of fees payable by the suitors in the County Courts, which was held up as a great grievance and as a formidable objection to Local Courts. Those fees (though a perfectly trifling burden compared to the costs of the Superior Courts) are, undoubtedly, not only a grievance, but one of the most flagrant specimens of injustice that ever deformed the institutions of a free country. Without entering here upon the wide question, whether Courts of Justice ought to be supported by the public treasury, or by fees, or partly by both; suffice it for us to remark that, in any view of the question, it cannot be right that Courts established for the benefit of the poorer classes, and for the trial of causes of small amount, should be treated with less liberality by the State, than Courts exclusively devoted to large causes and wealthy suitors. It is obviously preposterous that, while the Judges and Officers of the Superior Courts are paid out of the general taxation of the country, those of the County Courts should be remunerated out of resources derived from fees imposed on the parties. The only excuse that can be suggested for this anomaly, is the circumstance that the County Courts were in the first instance an experiment, on which it was inexpedient to risk the public money. But after four years the period of probation may be said to have long passed, and the dictates of common sense and of common justice imperatively demand that both Jurisdictions should share equally, or not at all, in the pecuniary aid of the State. But to return to the primary object of these remarks. Granting (which we fully do) the unfairness of making the County Courts dependent on fees-it remains for us to point out that the very subjection of those Courts to an undue burden of taxation-(an expression that correctly represents the facts of the case), only tends to render far more conspicuous and undeniable the inherent excellence of the principle of Local Courts: for it is a self-evident truth, that an institution which succeeds under all the disadvantages of an unequal impost, and exclusively by force of its own intrinsic merits, presents proportionably stronger proofs of natural superiority. It is like a heavily weighted racer that distances his competitors notwithstanding his burdens. After four years' trial, the people of this country cheerfully prefer paying the light fees of the County Courts-in which they can plead their own causes, and obtain redress at their own doors to bringing actions in the Superior Courts, in which there are (with some trifling exceptions) no court fees, but where they have to "run the gauntlet" through the various processes of Special Pleading and Jury Trial. We have already had occasion to observe that in many quarters a disposition exists to make the Judges of the County Courts objects of never-ending attack and depreciation. Among the decisions of so numerous a body, it is idle to expect that errors will not occasionally occur; and it is equally idle to expect that the selection of Judges will in all instances be fortunate, for no patron (however conscientious) can always avoid mistakes as to the qualifications of the candidates selected by him; and individuals originally highly competent may be incapacitated or enfeebled by illness or old age. -- But the same is equally true of the English Superior Courts and of all Human Tribunals. Probably there is a larger proportion of able and eminent men among the Judges of Westminster Hall at the present than there was at any anterior period. Nevertheless, that learned body does not exclusively consist (and it is impossible that it can be so composed) of individuals whose judgments command the ready assent of the public and the legal profession. Moreover, with regard to those Judges who stand high as lawyers and in their judicial capacity, a sober criticism must necessarily assign to them a large admixture of those errors and infirmities from which judicial functions cannot afford an immunity. We think it for the public interest that fair and just views sbould prevail on this subject—not only because we cannot help considering the attacks so often aimed at the Judges of the County Courts as ungenerous towards that body, but also because we look upon those attacks as a mode of creating on the public mind an impression (most dangerous to the public welfare) that the system of County Courts has been entrusted to improper hands. This impression, once adopted, may lead to lukewarmness or hostility to the system itself, the maintenance of which we believe to be indispensable to the progress of Law Reform. |