« PreviousContinue »
the end of the volume) is printed at page 1S9, that is, at the end of the second statement of the United States. All of the maps presented in behalf of Great Britain are placed at the end of the volume, preceded by a list of them.
If our space permitted, we should be glad to give some extracts from these official statements. We believe that none of them have found their way into the columns of the newspapers of either country. The "Memorial" of Mr. Bancroft, particularly, is an admirable piece of composition, whether regarded as an historical monograph or as a diplomatic argument. The country was peculiarly happy in the circumstance that it fell to Mr. Bancroft to conduct the case in its behalf. He was a member of the cabinet of President Polk when the treaty of 1846 was made. He was our minister in London when the pretensions of Great Britain to the island of San Juan were first broached. In his capacity of minister at Berlin, under the present administration, it devolved on him, in concert with his British colleague, to invite the German Emperor to assume the duty of arbitration; and it was then his duty to act as the agent of the United States in presenting and advocating their case. That this duty was performed wisely and well, the fact that a favorable result has been attained quietly and smoothly, is in itself a proof.
Indeed it is gratifying to be able to say that the whole affair has been conducted in a manner worthy of the great powers concerned. The United States and Great Britain held to their respective positions with firmness, argued them with decorum, and the result has been accepted without demonstration of triumph on one side or ebullition of ill temper on the other. The case was one eminently fit for arbitration, that is, for arbitration limited to a decision of the actual question at issue. The true statesmanship was shown when the Treaty of Washington was framed. For this, on the American side, the world is no doubt indebted to Mr. Fish and his colleagues in the Joint High Commission. A different way of putting the question would probably have led to a different and much less satisfactory result.
THE SUPREME COURT OF JUDICATURE ACT,
The Act of Parliament, which was passed last summer, " for the constitution of a Supreme Court, and for other purposes relating to the better Administration of Justice in England," inaugurates a reform which has been long talked of and much desired. The complaints which led to its enactment were very numerous. Especially, the separation of the jurisdictions of common law and equity was thought to be an anomaly. In causes at common law the necessity often arose for proceedings and remedies peculiar to equity, and in the latter jurisdiction it was often desirable to have recourse to the machinery of the former. Their respective modes of administering justice were not always suited to the different matters which came before them. Trial by jury was eminently suited to the simple issues of fact, which in early times were almost the only ones; yet it was obviously unsuited to the complicated issues which have arisen in modern times. This unfitness of courts of common law for trying complicated questions, and the inflexibility of their procedure, have been the origin of a large part of equity jurisdiction. On the other hand, in causes in equity, questions would arise, which were deemed especially fit for a jury, and were sent to a common-law court to be tried in that mode. Another evil was, that a party to a common-law action was often obliged to seek relief also in equity, — sometimes because the common-law court had not the means of giving relief, and sometimes because it did not recognize the real rights and duties of the parties, and would determine the cause and give judgment just as if those rights and duties did not exist, frequently in direct opposition to them. The courts of equity were always proverbial for delay, but they shared this reproach with those of common law. The confusion and conflict of jurisdiction exercised, the uncertainty as to the court in which a particular cause should be commenced, and the existence of conflicting rules of law which had grown up under this divided jurisdiction, were also great evils and causes of complaint.
It was thought that many of the evils might be avoided by establishing a court in which the jurisdiction of all the existing courts should be vested, which should have the power to use the procedure and method of trial required by each particular case, and to give the proper remedy and relief, and in which the same rules of law should prevail in similar cases. In 1869, a Royal Commission, composed of a number of the most eminent judges and lawyers, made a report upon the subject, in which they said that the evils of this double system of judicature, and the confusion and conflict of jurisdiction to which it led, had been long known and acknowledged, and that, in their opinion, the defects could not be remedied by any mere transfer or blending of jurisdiction between the courts as then constituted. They therefore recommended, as the first step towards the surmounting of those evils, the consolidation of all the Superior Courts into one court, which should exercise the jurisdiction of them all. They also made recommendations as to pleadings, the modes of trial, evidence, and other matters concerning the administration of justice. In 1872, Lord Hatherley (then the Lord Chancellor) introduced a bill for establishing a Supreme Court of Appeal. This measure, however, provoked much hostile criticism, and was afterwards abandoned.
It seems to have been understood, when the present Chancellor (Lord Selborne) took office, that he would introduce a scheme for carrying out the reform which had been so long desired. Early in the session he brought in a bill which, after much discussion and some alterations, was carried successfully through both Houses. It forms chapter 66 of the statutes of the session (36 & 37 Vict.), and the title by which it is to be cited is, the "Supreme Court of Judicature Act, 1873."
The English law is so similar to our own, which is in a great measure derived from it, that, except in respect of questions of local law, it is necessary for the lawyer to have a knowledge of the English cases next after those of the court in which he prac-. tises. This knowledge will hereafter require him to understand to some extent the changes which are made by this Act. It will be admitted, too, that the existing procedure in our own courts is not regarded with entire satisfaction; and if any changes are to be made here, it will be useful to have some familiarity with this measure, which deals with a similar system of law. Eveu as a
matter of curiosity, it cannot fail to be of interest to know in what manner, and with what object, England proposes to sweep away all the existing Superior Courts, most of which have existed from very ancient times, and substitute for them such a modern institution as the "Supreme Court." It is therefore proposed to give a general statement of some of the principal changes which are to be made by this Act. The Act itself, however, and the Schedule to it, are well worthy of perusal. They are not long, and are almost entirely free from the monotonous and wearisome style in which statutes are usually composed ; the Schedule, which contains the more general rules of procedure, should certainly be read. It will be noticed, in perusing them, that it is left to the judges to establish rules for carrying out their provisions; and the success of the reform will be determined in great measure by the manner and spirit in which they do their part of the work.
Before proceeding to state the manner in which the new court is to be constituted, it may be well to remind the reader briefly of the system out of which it is to be formed. The Court of Chancery, in which the equity jurisdiction is vested, is composed of the Lord Chancellor, two Lords Justices of Appeal, the Master of the Rolls, and three Vice-Chancellors. The last four of these have separate courts, in which they hear causes in the first instance. An appeal may be taken from their decisions to the Court of Appeal in Chancery, which is composed of the other three; but all of them seldom sit together, two being the usual number. From the Court of Appeal there may be another appeal, to the House of Lords.
The common law is administered by the three Courts of Queen's Bench, Common Pleas, and Exchequer, which have original jurisdiction; the first two are composed of a Chief Justice and five puisne Justices, and the last, of a Chief Baron and five junior Barons. From each of them there is an appeal to the Exchequer Chamber, composed of the judges of the other two common-law courts; and from the Exchequer Chamber to the House of Lords.
The other courts (besides some local courts) included in the Act are the Courts of Probate, and for Divorce and Matrimonial Causes, the Judge of the Court of Probate being also Judge Ordinary of the Divorce Court; the Court of Admiralty, consisting of one Judge ; and the London Court of Bankruptcy, at the head of which is a Chief Judge, who now happens also to be one of the Vice-Chancellors. Appeals from the Courts of Probate and Divorce are taken to the House of Lords. From the Court of Admiralty the appeals (which are final) are taken to the Privy Council, where they are heard by the Judicial Committee, which, besides the unpaid members, contains four salaried judges, provided for by a recent Act of Parliament. The appeals from the Chief Judge iu Bankruptcy are taken to the Court of Appeal in Chancery, and thence, in certain cases, to the House of Lords. The Privy Council is also the court of ultimate appeal in ecclesiastical cases, and in causes from the colonies. There are thus thirty-one judges in all, in which number are included the Lord Chancellor and the salaried Judges of the Privy Council.
The Judicature Act, which comes into operation on the second day of November, 1874, unites all these courts (and certain others with a local jurisdictionJ), which are henceforth to constitute one Supreme Court of Judicature in England. This court is to consist of two permanent divisions, to be called respectively "Her Majesty's High Court of Justice" and "Her Majesty's Court of Appeal."
The High Court is to consist of twenty-one permanent judges. In the consolidation of the courts, the Lord Chancellor, the two Chief Justices, the Master of the Rolls, and the Chief Baron, will retain their titles, and are to be judges of the High Court, as well as ex officio judges of the Court of Appeal. The other judges of the High Court will be the existing Vice-Chancellors, the commonlaw judges, the Judge of the Court of Probate, and the Judge of the Court of Admiralty.
The Court of Appeal is to consist of fourteen permanent judges. Of these, five are to be the ex officio judges before mentioned, and nine, ordinary judges, are to be the present Lords Justices of Appeal, the salaried judges of the Privy Council; and three others, to be appointed by the Queen: they are to be styled Lords Justices of Appeal.
All the judges are to hold their offices for life, subject to removal by the Queen, on an address of both Houses of Parliament.2
1 These are the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham, whose jurisdiction is transferred to the High Court; and the Court of Appeal in Chancery of Lancaster, and the Court of the Lord Warden of the Stannaries, whose jurisdiction is transferred to the Court of Appeal.
s By the 13th and 14th sections, the Chancellor, the two Chief Justices, the Master of the Rolls, aud the Chief Baron, are to receive the same salaries as at present.