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contrasted. Here Sir James Stephen must be his own interpreter :
“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 re-tried by three Judges who also decide both on the fact and the law. The appeal is, in fact, a re-hearing. 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."
The two forms of appeal being thus by the definition shown to be distinct, it, of course, follows that, to that extent there is a difference between cases tried before a jury, as they usually are in the Common Law Divisions, and cases tried without a jury, as they always are in the Chancery Division. But how does this assist the proposition that the One-Judge System cannot be carried out fully in the Common Law Divisions without abolishing trial by jury in civil cases, unless, indeed, we are to attribute to the word “ fully” a meaning which renders the proposition valueless ?
The truth is, that the form of appeal does not properly enter at all into the idea of the 'One-Judge System, as is shown by the fact that this system is compatible with either of the forms of appeal mentioned by Sir James Stephen, namely, an appeal strictly so-called, or a motion for a new trial. Both forms of appeal are familiar to practitioners in the Chancery Division where the One-Judge System obtains. If a Judge of that Division improperly rejects evidence, or nonsuits the plaintiff without hearing the defendant's witnesses, an appeal from his decision may, and, in practice, has been known to, result in a new trial
being ordered, and although a new jury is not summoned because there was no jury on the first trial, this is clearly not of the essence, so far as the appeal is concerned. Where, on the other hand, the Chancery appeal does not lead to a new trial, but is disposed of on the evidence adduced before the Court below, it is not strictly correct to say, if the evidence was oral, that the case is re-tried by the Court of Appeal. The Court of Appeal, except in very rare and peculiar cases, does not see the original witnesses, and can never judge of their veracity, or the weight of their testimony by observation of their demeanour at the time when it was given. This is the exclusive privilege of the Judge of First Instance, and is sometimes the surest guide to truth. It consequently happens that Chancery Appeals when they turn wholly on questions of fact, or as it is sometimes expressed, are 'appeals from the jury-half of the Judge's mind,' very seldom succeed. There were nineteen appeals in all last year from the Court at Lincoln's Inn, to which we have already referred; of these, fifteen failed, and the remaining four succeeded, but of these last only one, so far as we have been able to ascertain, succeeded on a question of fact.
What the advocates of the One-Judge System usually mean when they contend that it should be fully worked in the Common Law Divisions, is that each Judge of those Divisions should expound the law at the trial, or reserve it for his own consideration after the trial, instead of leaving it to be dealt with at a future time by some other Judge, or bench of Judges. In short, that he should not be reduced to the level of a Commissioner of Assize, deputed to try issues of fact only, leaving the issues of law to be decided by the Court in Banc. This alteration has, however, been effected by the Appellate Jurisdiction Act, 1876, so that the only point that has now to be considered is the proposal that motions for new trials in jury causes should be made to
the Lords Justices of Appeal, instead of to a Divisional Court. If the Court of Appeal can, and, as already shown, does, entertain inotions for new trials in Chancery cases, it is not easy to see why it should not do so in all ; still less why by so entertaining them it will destroy civil trial by jury. The only difference in the result will be that the appeal judgments will never be final in jury cases when a new trial is ordered, but neither are they final, when that happens, in non-jury cases.
It will doubtless be said that on the hearing of a motion for a new trial, which proceeds on alleged misdirection to the jury, or misruling on a point of evidence, it is allimportant that the Judge appealed from should himself be present, othewise there is a risk of miscarriage of justice from ignorance or perversion of what really took place at the trial. This is perfectly true, but there is an existing power in the Court of Appeal to request such Judge to attend it; and if there were not, it would seem desirable to confer it; at all events, in the absence of an agreed shorthand writer's note of what the direction or ruling was, it is obvious that there should be the fullest liberty of communication between the Nisi Prius Judge and the Court of Appeal.
The apprehension felt in some quarters that the fullest extension of the One-Judge System would, without the abolition of trial by jury in civil cases, lower the dignity and efficiency of the Bench, seems to be scarcely well founded. It is feared that its effect may be to relieve the Judges of the Common Law Divisions of the responsibility of deciding matters of law, and of making them mere reporters to the Court of Appeal of facts ascertained by the help of a jury. Such a result, if brought about, would certainly be disastrous; but it is almost inconceivable that it should occur. In the first place, if a question arises at a jury trial whether evidence shall be admitted or not, or how
the jury shall be directed, the presiding Judge has to dispose of it at once, and an immense demand is thereby made on his responsibility, stored-up learning, and good
If the matter can be discussed after the trial, he has full authority under the Act of 1876 to reserve it for further argument before himself; and when it is so discussed he is in exactly the same position as a Judge of the Chancery Division. In the next place, the Judges of the Common Law Divisions are by no means wholly occupied, as the Law Reports testify, with trials by jury; they have many other opportunities of listening to the arguments of the best lawyers at the bar, and considering the points so raised ; as, for instance, when they sit on appeal from the judgments of inferior Courts-a practice with which the full extension of the One-Judge System need not in any way interfere.
Although we may thus combat the arguments against the changes involved in the Order now before Parliament, it is not necessary to contend that the present arrangements of our Judicature are perfect. The institution known as the Divisional Court has, it must be admitted, caused general dissatisfaction, and this dissatisfaction appears to be shared by Sir James Stephen. It was established by the Act of 1873, to discharge two distinct functions : ist, as a substitution for the old sittings in banc, that is to say, as an intermediate Court of Appeal; 2ndly, as a Court of final appeal from Sessions, County Courts, or other inferior tribunals, except so far as special leave might be given to appeal to a higher tribunal. It is in their character of intermediate Courts of Appeal, and in that only, that the Divisional Courts have worked badly. If the complaint is that a Judge at Nisi Prius has misdirected the jury, which he can only have done by misstating the law applicable to the facts as proved, the Divisional Court is empowered to entertain a motion for a new trial, and this is, in substance,
an appeal on a point of law. If the complaint is that the jury has gone wrong, and that the verdict is against the weight of evidence, the application to the Divisional Court also takes the form of a motion for a new trial, but in this case no question of law is involved, the only question being one of fact. Whichever form the motion before the Divisional Court takes, it may be reversed in the Court of Appeal, and the judgment of the Court of Appeal may, in its turn, be reconsidered by the House of Lords, making no less than three appeals in all. But the inconvenience does not stop here. If an order is made by a Master in Chambers, of however trifling a character, an appeal from it lies to the Judge in Chambers, from the Judge in Chambers to the Divisional Court, from the Divisional Court to the Court of Appeal, and from the Court of Appeal to the House of Lords, thus making four appeals in all. It is obvious that in each of these cases there is, to use Sir James Stephen's words, at least" one appeal too many."
one appeal too many.” In the Chancery Division no such, unnecessary expense or delay is incurred. There, when a question has been argued before the Judge himself in Chambers, an appeal may be made direct to the Lords Justices without leave, although, in the absence of special circumstances, their Lordships require a certificate from the Judge below that he does not desire to hear further argument upon it in his own Court. Such a certificate is generally granted as a matter of course.
Numerous other similar anomalies in the working of the Divisional Courts, as contrasted with the One-Judge System, might be instanced. Some of them are collected by Mr. M. D. Chalmers, in a recent letter addressed by him to Mr. Baron Pollock.* “ The most important cases,” says Mr. Chalmers, “ which come within the jurisdiction of County Courts, are Admiralty and Bankruptcy Cases. In Bankruptcy their jurisdiction is unlimited, yet Admiralty and
* Stevens and Sons, 1880.