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of nature, for he draws no distinct line between laws of nature, laws of God, and human laws, and merely says that the laws which he proposes to consider are the rules of human action or conduct, which he considers part of the rules or principles governing the universe. Yet Blackstone himself points out that the functions of irrational beings in obedience to natural laws “are not left to chance or the will of the creature itself, but are performed in a wondrous involuntary manner," which sufficiently distinguishes the "unerring rules" laid down for their guidance from the rules of positive law.
As Austin did not criticise these oversights of his predecessors we may assume that he agreed with their conclusions and was influenced by their arguments. But the circumstance which gave the peculiarly positive tinge to his doctrines was his strong prejudice against the metaphysical and theological school of jurists, especially against the writers on the Law of Nature. " Muddiest sources," “ fustian styled the Law of Nature," "needless and futile subtility," "misleading and pernicious jargon,” are the expressions which Austin never fails to use when it is suggested that law can have any other origin than the conscious and specific act of a determinate sovereign. “Specious but hollow treatise” is his epithet for Savigny's immortal essay, “Legislation."* After having read the account of the origin of law given in that work Austin had no excuse for adhering to Hobbes's theory of “commands," contaminated as it is by the false theory of the social compact. Austin himself wonders that Hobbes should have arrived at conclusions similar to his own with the aid of such a “figment.”+ But it is plain that the positive scheme of Hobbes suited Austin's mind, trained in the codifying school of Bentham, and that his dislike to the theories of other writers prevented him from even understanding their views. I
* Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft.
† 1. 287 seg., n.
IV. The point of resemblance common to all kinds of laws, is the uniformity of action which results or is expected from them. Positive laws (i.e., rules of positive law) differ from all others in these respects: they are of human origin, i.e., they cannot exist without human beings, and they can be enforced politically, i.e., either by a machinery forming part of the constitution of a given society, and capable of being set in motion as a matter of course whenever a rule is violated, or by the fear of political inconveniences, as in the case of International Law and Constitutional Law. Law in its widest technical sense is the abstract aggregate of these rules. Jurisprudence, as a branch of philosophy, is concerned with the origin of law, its nature, and its connection with the other phenomena which make up the universe. Jurisprudence as a science investigates the sources of law, or the mode in which it obtains (and loses) its binding force, the connection between its departments and individual rules, and the mode in which legislation i.e., the formal expression of law) its interpretation and practical application can best be effected. Jurisprudence as a science is necessary for the consistent development of law as a practical art; as a branch of philosophy jurisprudence is necessary to discover the true principles of the science.
VI.-COUNTY COURT AMENDMENT BILL.
was with no little surprise that we, a few days ago,
discovered the existence of a County Courts Bill now before the House of Lords. It is entitled, “an Act to amend the Acts relating to the County Courts.” It is short, consisting of only ten clauses. However, short as it is, it is intended to have a wide operation.
The first two clauses of the Bill are much needed reforms, and remove serious defects of the present state of the law under the County Court Acts. In liquidated claims for more than £5 provision is made for a plaintiff obtaining judgment without attending on the day of hearing to prove his claim (unless the defendant gives to the registrar six clear days' notice, in writing, of his intention to dispute the claim), the plaintiff is to be at liberty in such case to prove the service of the summons by affidavit; or, if it is served by the bailiff, by the certificate of the bailiff. This amendment of the present law will be very acceptable to the attornies, or rather solicitors, as they are to be called, from whose hands the County Courts Acts have hitherto taken the control of the service of process in those Courts. This Bill authorizes a new and therefore, presumably, a more liberal scale of professional costs, irrespective of amount of debt recovered, but is silent as to the Court fees, which we believe to be a much more important matter. We would strongly urge provision being made by the Bill in the case of service by the plaintiff, or his attorney, for a diminution in the court fee.. It would be very inequitable that the same fee should be charged where the officer of the Court serves the process as where he does not, and where the plaintiff either takes this trouble himself or pays an attorney for it.
The concluding sentence of clause 2 is open to objection. It provides that any bailiff who gives a false certificate of the service of the summons, “shall be deemed guilty of perjury,” that is to say, that a person who has not committed perjury shall be deemed to have committed perjury. We think that the object of the clause would be best answered by providing that a bailiff who so offends shall be liable to the penalties of perjury.
Clause 3 provides a very necessary power for County Court judges, viz. : That they shall have the same power over causes within their jurisdiction as superior judges at chambers have over causes within their jurisdiction. We
would suggest that the words, “Her Majesty's Superior Courts” should be changed for the words “Her Majesty's High Court of Justice,” seeing that the Judicature Act provides for the Superior Courts becoming divisions of the High Court of Justice. This section, however, provides no form of appeal from such a division of a County Court judge. If it is intended that the present practice of appeal by special case should apply, then we most emphatically say that such a mode will be too cumbrous, expensive, and dilatory, and will put too much power into the hands of the most arbitrary class of judges in the country. The best way of providing an appeal from Chamber decisions of a County Court judge would be by placing their decisions on the footing of Masters of the Superior Courts, and allowing a summons to be taken out at Chambers in town, which could be disposed of within a few days, at a smaller expense than simply drawing a case would involve, and which might be referred to the court, if the judge at Chambers thought fit.
Connected with this subject of appeal, we would remark that we regret to see that it is proposed to repeal sec. 26 of 19 & 20 Vict. c. 108, as this is the only provision which exists, enabling a suitor to appeal from the decision of a County Court judge, without the circuitous method of a special case, and without first giving security for costs. It is possible, under this section, to move the Superior Court, after a trial in a County Court, just as if the trial had occurred at the Assizes. Under secs. 7 & 1o, of 30 & 31 Vict. c. 142, the only method of appealing from a County Court judge is by the dilatory and circuitous method of a special case stated by the judge, and with the vexatious condition of security for costs. The foot note to Schedule B of the Bill, stating that under 19 & 20 Vict. c. 108, s. 26, the attornies go on with the pleadings to issue for the sake of costs, is an unfair statement. The last judicial statistics show that only 332 actions were, under that Act, sent for trial in the County Courts.
another induces suitors to resort to the operation of 19 & 20 Vict. c. 108, s. 26, rather than to 30 & 31 Vict. c. 142, s. 7, it is because of the easy form of appeal we have noticed, and also because there are pleadings on both sides, so that each party knows what case he will have to meet. The present Bill affords an excellent opportunity for enacting that it shall be open to any suitor to move a division of the High Court of Justice to set aside or reverse the decision of a County Court judge, and that such Divisional Court shall have power to grant such motion on such terms as may be considered fit as to security for costs, or otherwise. Security for costs could thus always be enforced in case of a vexatious appeal, and a poor suitor would not be deprived of an appeal in a proper case.
We regret to find that by clause 5 of the Bill provision is made for the registrars and high bailiffs receiving fees for their own use; it is true that the subsequent part of the clause provides for these officers being paid by allowances instead of by fees. We thought that the days of paying by fees officers connected with the courts of the land had quite passed away, and that the principle had been condemned as bad, which allowed officers of Courts to have an interest in the amount of business transacted. We cannot see any difference between subordinate officers being remunerated by fees and judges being so remunerated. If a judge can be properly and sufficiently paid by salary, we cannot see why a subordinate may not be so paid. The evil and anomaly of paying a judge by salary and a subordinate officer by fees appeared very clearly under the recent bankruptcy judicature, under which the judge and registrar was paid by salary, and the official assignees and messengers by fees; this resulted in most cases in the official assignees and messengers having larger salaries than the judges of the Court, and in some cases, to the best of our recollection, the remuneration of the official assignees amounted to double the amount of the salary of the judge. If it is intended that such a result should occur, we can say nothing