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major premiss of this syllogism itself requires argument to support it. And this Sir James Stephen thus supplies :(1.) Trial by jury is the really popular and impressive part of the administration of justice, and the lessons which its proceedings furnish depend to a great extent on the presiding Judge. (2.) In order that trial by jury may be a success, a great deal more is wanted than familiarity with legal principles, namely, temper, good manners, self-control, knowledge of mankind. (3.) A man who has seen a great deal of the world, such as an Attorney or Solicitor-General, is more likely to possess these qualities than the most learned lawyer who has not. Therefore (4), an Attorney or SolicitorGeneral is pre-eminently fit to preside over a jury trial. A good deal of this may be conceded at once; but surely Mr. Justice Stephen would not admit that a man need be an Attorney or Solicitor-General in order to have a knowledge of the world, or that there are not many practising lawyers who would make excellent Judges of First Instance, though they have never aspired to either of these offices by taking the trouble to secure a seat in Parliament. SirJames Stephen himself furnishes a complete refutation of his own argument, for none would deny him temper, good manners, knowledge of the world, or self-control, and yet he makes an admirable Judge without ever having been a law officer, or even having occupied a seat in the House of Commons. Many other like instances, which will occur to every lawyer, might be cited from amongst both the living and the dead. It is true that this is not all that Sir J. Stephen has to say on the point, for he adds that a great Judge of First Instance “ must have an understanding of, and sympathy with, popular feeling,” and that these gifts are found in those who, like the law officers, “have had occasion to look at law and the administration of justice from the
political point of view, and to acquaint themselves practically with the feelings and sympathies of popular bodies.” If by this is meant that it is part of the business of a Judge to know what is going on in the world, with the affairs of which he has to deal, the proposition is self-evident; if it means more, it may suggest, to the uninitiated, a rather dangerous piece of advice. The late Lord Chief Baron Kelly, as each Lord Mayor’s day came round, used to demonstrate his sympathy with a large popular body, to wit, the Conservative Party ; but it is more than doubtful whether these ‘sympathetic ’ utterances added to his judicial reputation.
To speak more seriously; it has often been remarked, and experience proves the fact, that the most successful advocates—who are always men of the world, but often have no great knowledge of law—-commonly make but indifferent Judges; while those who are not so successful, but are sound lawyers, as commonly make exceedingly good ones: one reason being that a Judge who is weak in his law increases litigation by encouraging appeals, and another reason being that he lowers the dignity of the Bench by being placed at the mercy of his Bar, and being ruled by, instead of ruling, the strongest men who practise before him. A law officer of the Crown is nearly always a successful advocate, or he would not be specially selected to support his party in Parliament, but he is not necessarily a considerable lawyer. Both sets of qualities may, or may not,. co-exist. VVhen they do, their happy possessor is so richly endowed that it matters not to him whether he begins his judicial career as a Judge of First Instance, or as a Judge of Appeal ; he is sure to rise to the very highest rank, from whatever point he starts. When the more solid qualities are wanting in a law officer, his professional claims are not, in strictness, stronger than those of any of his equals at the Bar, who have not, from choice or accident, filled so large a space in the public eye. He is, indeed, by force of precedent, entitled to look for further preferment,
but the strength of his case lies in the system of party rewards, which is exempt from all rules, and is, indeed, a ‘ law unto itself.’
Sir James Stepl1en’s next objection to the proposed change is, that to attempt to create a single Common Law Division analogous to the single Chancery Division, is to aim at a uniformity that can never be more than nominal, owing to differences inherent in the subject-matter with which each Division is concerned And he does not disguise his opinion that the Judicature Act of 1873 went too far in establishing one Supreme Court, of which all the Judges are members and all the Divisions are branches; at all events he insists that it would be unwise to carry this kind of simplification further. He admits that a great part of the litigation in the Chancery Division arises out of contracts and wrongs, but he fou11ds a distinction between this litigation and that which takes place in his own Divisions, on the assumption that the former concerns several persons having conflicting claims as between themselves, and so requires intricate and qualified remedies, while the latter concerns only two persons or two sets of persons, and admits of simple remedies. This he illustrates by observing that “ it is not a mere fancy to say that an action of damages” (meaning, it is presumed, an award of damages as the result of an action) “has a resemblance to a surgical operation, and a decree in equity to a course of medical advice.” We venture to think that this part of the learned Judge’s reasoning proceeds on an incomplete realization of what has been going on in the Chancery Division during the last five years, that is to say, ever since the Judicature Act came into force. The fact is, that the "surgical operation ’ of awarding damages has, during that period, been performed by the Judges of the Chancery Division over and over again, for the simple reason that many of the actions tried before them have been in the nature of actions at law. One of the Courts at Lincoln’s Inn, in which, by a process of selection, nearly every case is heard with witnesses, has disposed of a vast number of such actions-, and in that Court the fusion of law and equity may be said to have been complete. If the differences in the subject-matter of the litigation are fatal to the complete assimilation of the two procedures, it would follow that the Judge of the Court in question does not act as a Judge of the Chancery Division during a great portion of his sittings, although he is expressly attached to that Division, and to no other, by Act of Parliament. The only substantial distinction is that no jury is summoned in the Chancery Division ; but this is not a distinction of principle, as cases are not unfrequently tried by the Judges of the Common Law Divisions, in which a jury is dispensed with by the consent of the parties.
There is but little foundation for Sir James Stephen’s notion that the issues of fact in cases tried in the Chancery Division are different in kind from the issues of fact tried elsewhere, or that whereas the latter present a sharp and definite contradiction, the former, as a rule, present no contradiction at all. During the year 1880, more than 600 causes stood ripe for hearing in the Chancery Division list, all of them involving the examination of witnesses in open Court, and in a multitude of those that were heard the cross-examination was as stringent, the conflict of testimony was as great, and the rules of evidence were as closely discussed and adhered to, as in any cause tried during the same period at Nisi Prius by a Judge and jury.
You cannot,of course,as SirJames Stephen says, fuse-thelaw relating to trusts, with which the Chancery Division largely deals, with any other branch of law; neither can you fuse the law of contingent remainders with the law of marine insurance. But this is scarcely an argument against fusion, that is, assimilation, of procedure, or against the same Judge who administers the one law to-day administering the other to-morrow. The Judges of the Chancery Division, it should be more generally known, have got far beyond the interpretation and administration of trusts, to which their early predecessors were mainly confined, and when all of them go on circuit, instead of one only as at present, the sphere of their functions will be still further enlarged. The profession of the law, under the Judicature Act, no more encourages specialists than the profession of medicine does, and the efforts of its members are now directed to endeavouring to master the law as a whole, instead of resting content with being familiar with a part only. But for this, there would
be little prospect of improving the law either in the way of
simplifying its procedure, or of rendering it more certain and uniform, for every specialist has his own particular method of looking at things and his own particular modus operandi. But for this, there would be no fit materials out of which to form a Court of Appeal, for most persons admit that a good Appellate Judge is bound to know the law all round, though some may think that this is not requisite for a Judge of First Instance.
There is one other objection to the proposed change which is urged by Sir James Stephen, and it is the most important of all. It is said to be a prelude to the extension of the Chancery ‘ One-Judge System ’ to the Common Law Divisions, and such an extension is deprecated on the ground (1) that such an assimilation of the two procedures cannot be carried out fully without the abolition of trial by jury in civil cases; (2) that any attempt to carry it out fully without such abolition will greatly lower the efficiency and dignity of the Puisne Judges of the Common Law Divisions.
The drift of this reasoning is not apparent at first sight, and in order to appreciate it, it is necessary to understand with precision what is meant by the Chancery One-Judge System as distinguished from the system with which it is