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Bankruptcy appeals from County Courts are heard before a single Judge, while in ordinary cases an appeal must be heard before a Divisional Court.
A Chancery Division Judge sitting alone, daily grants perpetual injunctions, yet a single Judge cannot grant a prerogative writ of mandamus although an appeal lies as of right from his decision, A single Judge of the Chancery Division can issue a writ of prohibition, but if the prohibition be applied for on the Crown side of the Queen's Bench Division, the application must be made to a Divisional Court." These facts speak for themselves, and require no comment.
In order to redress the inequalities above noticed, without overburdening one part of the Judicature at the expense of another part, two proposals have been made, which are more or less interconnected, viz. :
I. To abolish the Divisional Courts in toto. 2. To abolish the present Court of Appeal. The first proposal is of mainly professional interest, as being a matter of convenience of arrangement, the second is of moment to the public at large.
1. It is more than questionable whether it would be desirable wholly to abolish the Divisional Courts. When they are engaged in hearing appeals from the inferior Courts, or cases reserved by Magistrates in the exercise of their summary jurisdiction, they are doing valuable service, In the vast majority of cases so heard, their decision will be final, while their discretionary power of granting or refusing leave for a re-hearing before the Court of Appeal is one that may be reposed in them with perfect safety. It is analogous to the power reposed in the Court of Appeal itself of granting or refusing, in certain specified cases, leave to appeal to the House of Lords. Interest reipublicæ ut sit finis litium is a maxim that may be well applied when the case has been sifted by two tribunals, and the members of the Divisional Court feel no reasonable doubt about it.
By analogy, however, to the Court of Appeal, which, except. when engaged on interlocutory business, must consist of not less than three Judges, we would suggest that the members of the Divisional Court, when transacting noninterlocutory business, should not consist of less than three. Unless the three members differed among themselves, it is not likely that leave to appeal would be granted in any case, while a Court of two might not feel sufficient confidence in its own conclusion to refuse an appeal in a final matter, where it reversed the decision below. This arrangement would go far to prevent the Judges of First Instance sinking to the level of mere Judges of fact, whether trial by jury in civil cases were ultimately retained or not.*
The point in which the Divisional Courts seem to require modification, is their jurisdiction to hear motions for new trials and appeals from orders made at Chambers. We have already stated reasons why, on the principle of the One-Judge System, this jurisdiction may be more properly and more economically reserved for the regular Appellate tribunal, whatever form that tribunal may assume. It may be urged that the tendency of this reform will be to add to the arrears of appeals, and that these are already heavy enough ; but even if this be not avoided, as it might be, by increasing the number of Appellate Judges, it is better that appeals should be in arrear than that they should be unduly multiplied in individual cases.
2. The proposal to abolish the present Court of Appeal, by way of solving the problem, comes from Sir James Stephen himself. Subject to the three exceptions of the Lord Chancellor, the Master of the Rolls, and the President of the Divorce Court-officers with whom he does not propose to interfere—he would have all the Judges called by the same
* A good deal is to be said in favour of confining trial by jury to criminal cases, or, at all events, of restricting it within limits; but the country is hardly ripe for this, and the subject is too large to be more than glanced at here.
title, receive the same pay, and take precedence according to their seniority. In the place of the Court of Appeal, he would have Appellate benches consisting either of three or two Judges, according to the nature of the business to be disposed of, the Judges of each Division deciding amongst themselves by a rota who should sit on Appellate benches, and who at Nisi Prius. Whether it is intended, as a corollary to this proposal, wholly to abolish the Divisional Courts, Sir James Stephen does not say, but it may be presumed that it is, and that all business now transacted by the Divisional Courts shall be transacted in future by the new Appellate tribunal, so as to dispense with the objectionable intermediate appeal, and, at the same time, give a greater air of authority to the decisions on appeals from the inferior Courts.
So far the plan is excellent, but would it give satisfaction to the public ? Would it not rather revive some of the old causes of dissatisfaction which the Judicature Act effectually removed ? Sir James Stephen says that his scheme is not a reinstatement of the Court of Exchequer Chamber; but, with great respect to him, it is an approximation to it rather than, as he contends, a movement in the reverse direction. One of the strongest objections to the old Exchequer Chamber was that pointed out by the Judicature Commissioners in their First Report, namely, that "the Judges who had been overruled to-day might to-morrow sit in appeal from some decision of the Judges who had taken part in overruling them.” Such a state of things is stigmatised by the Commissioners as “eminently unsatisfactory,” and those who so thought included the present and the late Lord Chancellor, Lord Blackburn, now a Lord of Appeal in ordinary, the present Lord Chief Justice of England, and two of the present Lords Justices, Sir W. M. James and Sir G. Bramwell. With such great names arrayed against it, the principle of the Court of Exchequer
Chamber may be regarded as 'past praying for,' and Sir James Stephen's scheme, which involves a good imitation of it, appears to have little chance of being realized in the lifetime of the present generation of lawyers.
Instead of resorting to the system of 'levelling up,' by making every Judge of First Instance an Appellate Judge in his turn, would it not be better to provide that no one should be qualified for a Judgeship of Appeal who had not served, say, for two years, as a Judge of First Instance ? Would it not also be better to strengthen the Appellate tribunal, by adding to its number (if necessary), by increasing the pay of its members, and by relieving them, after twelve months' service or more, from the arduous duties of Circuit? If the Divisional Courts are abolished or modified, the Court of Appeal will have more to do, and it is reasonable that its members should be more highly paid, and not be liable to have their labours interrupted by the distraction of officiating as Judges of Assize. These slight alterations would obviate the danger suggested by Sir James Stephen of Judges of Appeal proving unfamiliar with the details of practice, for after such a training as they would then have undergone, both at the Bar and on the Bench, they could not fail to be equal to any legal emergency. Moreover, under this arrangement, it could no longer be objected that the law officers were not adequately attracted to the Bench, for if all Judges must begin by being Judges of First Instance, no law officer would decline such a post in the hope that, before the sands of his hour-glass were run out, he might attain a higher appointment. The law officers themselves could not reasonably complain of the change, for they clearly have no vested interest in their own promotion. If they have, some compensation ought to be awarded to those who, by reason of the number of qualified candidates exceeding the vacancies, or by the turn of the political tide, cannot possibly be provided for in the way warranted by their merits.
One word in conclusion. The mode in which justice is administered in England has unquestionably gained the confidence of the suitors and of the public generally. And this confidence has been largely engendered by an absolute belief in the integrity, the learning, and the wisdom of our Judges. For the improvement of the machinery by which they act, we have to thank the authors of the Judicature Acts, and those who prepared the way for those Acts by their labours on the Judicature Commission. It would, as we venture to think, be a mistake to infer that because that machinery has been found to be faulty, it is substantially out of gear, or to suggest that it is possible to make violent changes in the fundamental relations of the component parts of our Judicature, or to revert in any shape to antiquated forms of it, without shaking the faith of the country in one of the most valuable of its Institutions.