30 years of amendment, is badly in need of revision; that was recognised as far back as 1894, when Lord Herschell had a revision put in hand, which, though completed two years later, was never accepted by the Rule Committee.

Another possibility, for making easier the authoritative interpretation of passages in the Rules, is that the Rule Committee should have some share in deciding appeals taken from interpretations put upon Rules in Chambers. Some time ago, before the present arrangement of a Judge in Chambers was devised, there was a demand for a special Practice Court, or at least for the regular allocation of practice appeals to the list of one particular judge, who should be expert in the subject.1 The creation of the Judge in Chambers largely satisfied that demand, without running counter to the modern distaste for separate Courts of special jurisdiction. But there is still the difficulty that the Judge in Chambers changes from month to month, and often from week to week; also that his decisions are not reported, and are, therefore, not available as precedents; so that there is no certainty of uniformity in his decisions. Appeals may be taken to him from the Masters repeatedly on the same point, and each time he will consider the point de novo, except so far as he chooses to be guided by hints as to what other judges have decided in Chambers. Parties may and often do, with his leave, appeal from him to the Court of Appeal, and there, of course, the reported decisions give some indication of how the Court will decide. But it is hard for a litigant to understand why he should have to pay the costs of having the Court of Appeal interpret rules apparently made by the judges for their own guidance.

To remedy this, the suggestion is that the Judge in Chambers might, under the power of the Court to order special references, order practice questions of first impression to be referred specially to the Rule Committee, for them to report

1 See article in 38 Solicitors' Journal, 19 (November 11, 1893).

whether or not the rule in question, as they understand it, applies to the case in point. This would require some such special assistance for the Rule Committee as has been mentioned in the preceding pages. Such decisions, if reported, might well be considered binding interpretations of the Rules, especially in view of the fact that the Rule Committee have, over a score of times since 1883, passed Rules intended to counteract judicial decisions in which not only the Court of Appeal, but even the House of Lords have sought by construction to limit or restrict the operation of particular Rules.1

In conclusion, it may not be supererogation to point to the development of English civil procedure since 1875 as the result of careful and intelligent study by some of the best minds of the English Bench and Bar. The close association of the rule-making body with the Lord Chancellorship has been a factor of great potency in keeping its work up to a standard befitting the dignity of that office, but even apart from that influence, the Rule Committee has, with few breaks since it was established, uniformly benefited by the services of the most able lawyers in England. Starting its career under the auspices of two such giants as Lord Selborne and Lord Cairns, careful not to throw aside too much of the procedure with which older practitioners were familiar, but constantly changing and developing the Rules entrusted to its care, it has brought civil procedure to a point where the following words, written of it by Lord Bowen in 1887 and still true to-day, are not a whit too high in its praise 2 :

1 See O. 3, R. 6 (F); O. 11, R. 1 (a); O. 16, R. 1; O. 16, R. 8; O. 16, R. 54 (A); O. 31, R. 29; O. 48 (a), R. 7; O. 65, R. 6 (A), etc.

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2 The passage is from an essay on the Administration of the Law, in a jubilee symposium entitled The Reign of Queen Victoria, Vol. I, p. 309 (London, 1887). It is quoted in Dicey, Law and Public Opinion, p. 207 (London, 1905), with the following comment : Any critic who dispassionately weighs these sentences, notes their full meaning, and remembers that they are even more true in 1905 than in 1887, will partially understand the immensity of the achievement performed by Bentham and his school in the amendment of procedure-that is, in giving reality to the legal rights of individuals."

"A complete body of rules-which possess the great meri of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear-governs the procedure of the Supreme Court and all its branches. In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes-upon oral evidence or affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading, or proceeding, that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move."

This is, as Professor Dicey remarks, a masterly picture of the actual administration of the law drawn by one of the ablest and most enlightened of the English judges, and it leaves no room for doubt upon the merits and success of the English rule-making authority.

SAMUEL ROSENBAUM.

II. TRIAL BY COURT-MARTIAL.

O civilian within the United Kingdom is prepared to

N°

question any steps which may be found necessary or expedient to be taken by Parliament, either for the protection of the realm or for the furtherance of the war. All loyal subjects are only too anxious that for both these purposes the Government should be armed with the fullest and most stringent powers possible. It was in this spirit that the

Defence of the Realm Consolidation Act 1914, which received the Royal Assent on November 27th last, passed through the House of Commons without any discussion whatever upon the most serious change in the law conceivable. It was otherwise, however, in the House of Lords. Here the Bill met with powerful opposition and mordant criticism.

The spirit of loyalty was just as strong, but it was not displayed by mere dumb acquiescence. It was at once realised by legal Members on both sides of the House, that certain of the powers conferred upon the Government were in the present circumstances neither necessary nor expedient, and were fraught with consequences of the utmost danger to the liberty of the subject and the law of the land.

The Bill, argued Lord Loreburn,' placed at the option of the Executive the power to deny to any British subject, when they thought fit, the right, which he now has, to have the trial for his life before an ordinary tribunal. By this Bill, the life of a British subject might be placed at the mercy of a military court-martial, even though the Court of Assize might be sitting within fifty yards. If it could be shown that the Courts of law were not available, or that they were not deserving of confidence, that was another matter, but this power ought not to be given when these Courts were available, and quite as able to do justice as at any period during the last hundred years. Equally emphatic was Lord

Halsbury :

"I see no necessity," he declared, "for getting rid of the fabric of personal liberty that has been built up for many generations. Although there are things which should not necessarily be insisted upon in time of war, it seems to me that this wholesale sweeping away of them is greatly to be deprecated. I hesitate very much to surrender all the liberties and protections which have been built up, as I say, for

1 Parl. Debates, H. L., Vol. 18, No. 7

many generations, just because at this particular time there are some things that you may wish to do more quickly than at any other time. I quite agree that the jurisdiction which an officer has over his own soldiers is such that we ought not to interfere with it, and, therefore, I should certainly agree to that extent to the giving of this jurisdiction, at the same time reserving the right of any civilian who is not bound by the military oath, to claim the right to be tried by a judge and jury. I believe a judge and jury would be perfectly able to do justice in those cases, and I do not think that the liberty of the subject is so trifling a matter that it can be swept away in a moment, because some of us are in a panic."

"I am not aware," said Viscount Bryce, one of our greatest living constitutional lawyers, "that there has ever been any precedent for such a proposal. . . . . If it was a case of invasion or of civil war, then, of course, the Courts would not be available; but while the Courts are available, surely some further reason should be given to us than has been given for such an extraordinary departure as this from historic precedent. I need not say that we are all heartily and entirely with the Government in desiring to give the amplest power for the arrest and detention of offenders, and we all agree that no crime could be worse than this crime of aiding the enemy if committed by a British subject. The only question is, whether the British subject is not entitled, as he always has been in times past, to have the constitutional protection of being tried by a Civil Court when there is a Civil Court there to try him."

Lord Parmoor spoke to the same effect, arguing that the question at issue was the mode of procedure :

:

"I do not believe," he said, "there is any precedent for taking away the rights of a British subject as regards ordinary trial by a jury directed by a skilled judge. I do not wish to throw any aspersion on Courts-martial. The difference between the two bodies is that Courts-martial have neither the procedure nor the experience that our ordinary Courts have. They have not, in fact, the safeguards that we have built up in the Civil Courts, to protect an innocent man who may be wrongly charged."