The Strand Magazine/Volume 1/Issue 4/The State of the Law Courts

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The State of the Law Courts.

I

VIVID public interest has of late been aroused in regard to the administration of justice in this country. The wholesome feeling of reverence that formerly attached to our judges seems now to be on the wane, and in private circles, especially among the legal profession, the conduct of the judicature has been severely commented upon, while the Press has occasionally ventured to darkly hint that the retirement of one of our most eminent judges is desirable in the public interest. On all sides it is agreed that his infirmities unfit him for the efficient discharge of his duties, his judgments show the melancholy decline of a once brilliant intellect, and the continued occupation of his seat upon the bench is a source of danger to the public. And yet such is the state of our legal machinery that his retirement is practically in his own hands. Only by an address of both Houses of Parliament to the Crown can his removal be brought about—an odious and invidious task, which the legislature naturally delays as long as possible, and will only undertake as an extreme measure. Although of recent years there has been a marked improvement in the personnel of our judges, so far as bodily vigour is concerned, there are still on the bench aged and infirm men who would have retired but for the necessity of completing the statutory period of fifteen years, at the expiration of which only can their pensions be earned. It is pitiable to see these old public servants, who once ranked among the most brilliant men of their day, attempting to discharge their duties with an obvious effort and at great physical fatigue.

More than enough instances have recently arisen of judges being incapacitated by deafness and other infirmities, and refusing to retire. But public opinion has hitherto been very tolerant, and these distinguished men have been permitted in their declinng years to exercise functions demanding the highest mental activity without exciting adverse comment. That there are defects in our judicial system, not the least of which is the absence of any controlling power over our judges, becomes more and more apparent, and it will be useful, therefore, to bring some of those which are most notorious in the legal profession under the notice of the public.

The judicial system in this country is the most expensive in the world. Our judges, it is true, are men of the highest integrity, and the confidence of the public in their incorruptibility is absolute. In this respect, no doubt, we compare favourably with many foreign nations. But the public have a right to look for something more than a strictly honourable bench, and it is desirable to inquire what we get in return for the enormous annual outlay on our judicature. For the sake of convenience let us begin with the higher tribunals. It will be interesting, in the first place, to study the following table, which shows the numerical strength of Her Majesty's judges, together with the salaries they receive:—

1	Lord Chancellor	£10,000
4	Lords of Appeal (£6,000)	£24,000
1	Master of the Rolls	£6,000
5	Lords Justices (£5,000)	£25,000
5	Chancery Judges (£5,000)	£25,000
1	Lord Chief Justice	£8,000
13	Common Law Judges (£5,000)	£65,000
2	Admiralty Judges (£5,000)	£10,000
1	Judge Court of Arches	£5,000
33		£178,000

There are, besides, a great number of highly paid officials known on the Common Law side as masters, and in the Chancery Division as chief clerks, who assist the judges by performing minor judicial functions. These gentlemen receive £1,000 a year each. There are also Clerks of the Crown and Associates on the various circuits who receive liberal salaries, as well as a multitude of clerks and other officers who are paid out of the public funds. But it is not our present purpose to consider these minor functionaries, our object being to afford a general conception of the working of the High Courts of Justice without going into unnecessary details. For the information of the curious, however, we may state that the total expenditure for law and justice last year was more than four and a half millions sterling, a sum which it should be understood includes the charges for maintaining prisons and other expenses incidental to the administration of justice.

In face of such stupendous figures the intelligent foreigner may well imagine that we have a judicial system well-nigh perfect, or at least quite adequate to the requirements of a great commercial community. And yet what are the facts? Among members of the legal profession it is a matter of common observation and lament that commercial cases are year by year growing less frequent. For a long time they consoled themselves by attributing this to commercial stagnation. But of late their eyes have been opened to the real cause, and neither by their smiles nor their tears can they win back the vanished litigation that once so satisfactorily brought grist to their mill. On all hands business men declare that, so far from being satisfied with their expensive legal machinery, they absolutely dread the law. They dare not risk its dignified delay, they fear its endless expense, they are terrified at the prospect of being dragged from Court to Court on Appeal, and they have no confidence in the ability of a large proportion of our judges to decide rightly on commercial disputes, especially those involving technical matters.

"Mr. Justice Stephen."

This feeling has doubtless been intensified by the recent case of Vagliano and the Bank of England. It is needless to go into the details of this matter, which are well known to the public. Suffice it to say that a judge of the High Court in 1888 gave a decision contrary to the feeling of business men and subversive of commercial custom in regard to bills of exchange, which was upheld in the Court of Appeal by a majority of five to one. This decision was, however, reversed in the House of Lords in March of this year by a majority of six to two. Thus, after long delay and enormous expense, the case having been heard by fifteen judges, a final decision was obtained that satisfied the commercial community. But the uncertainty of the law is exemplified by the fact that the verdict of seven judges, i.e., six in the House of Lords and one in the Court of Appeal, outweighed that of the remaining eight. And there is no reason to suppose that the judges of the House of Lords who carried the day are men of higher legal ability than those in the Court of Appeal.

Instead, therefore, of waiting months for their cases to be tried, paying enormous fees to leading counsel, and possibly enduring the risk and delay of appeal, men of commerce prefer to submit their disputes to the arbitration of others in their own trade, and thereby get them decided without any delay or legal expense. Innumerable disputes are in this way settled in the City every year, and in some businesses it is a matter of etiquette for men to accept the office of arbitrator when asked to do without any fee, they knowing full well that the time is sure to come when they themselves will require to have a matter decided in the same onvenient and expeditious manner.

It is undoubtedly a great hardship for a commercial community to have to put up with rough and ready justice in this way, instead of having the advantage of highly trained legal minds. But business men cannot afford to wait for the slow machinery of the law, and though they have to maintain the Courts of Justice, they decide to do without them. Doubtless many others would gladly do the same had they equal facilities for arbitration.

The result of this widening breach between law and commerce is that a large and increasing proportion of the work of the High Court consists of libel, slander, malicious prosecution, and cases of a similar class, together with actions varying in character not at all, and in the amount sought to be recovered only infinitesimally, from those which come within the jurisdiction of the County Court.

But though a great number of the suits may be of slight importance, the cost of litigation is by no means insignificant. The court-fees, it is true, are not proportionately so high as in the County Court, although they might with advantage be largely reduced; but the average charges for legal assistance are enough to make the boldest litigant pause.

In an ordinary action for £100, supposing the defendant to be unsuccessful, he will probably have to pay, in addition to the £100, not less than £120 to his opponents' solicitor for the costs taxed against him, as well as, say, £150, the little account of his own attorney. Supposing he conscientiously believes the verdict to be unjust, and determines to go to the Court of Appeal, he will have to pay at least £100 more if unsuccessful. This brings his bill up to £470, instead of the original £100. A rational litigant would in such a case be unlikely to want to go beyond the Court of Appeal, but supposing he should desire to avail himself of the highest tribunal that a generous country places at his disposal, and takes his case to the House of Lords, he will be put to a further expense of about £200.

On the other hand, the successful suitor would also be at a considerable loss, the costs that he would have to pay being far in excess of the £100 recovered. By such a system a powerful and dangerous weapon is undoubtedly placed in the hands of a wealthy litigant who chooses oppressively to take his opponent from court to court. In many cases the costs are augmented to a scandalous degree by the multiplication of interlocutory proceedings. It is monstrous that in an action to recover a sum of £100 a wealthy and perverse litigant should have the power, on some incidental question of interrogatory, to take his opponent from the master to the judge, from the judge to the Divisional Court, from the Divisional Court to the Court of Appeal, and from the Court of Appeal to the House of Lords.

Appeal court.

An evil hardly less grave than the law's expense is the law's delay. In a common law action of the simplest character, with little or no interlocutory proceedings, the period that must elapse between the issue of the writ and the trial of the action is little short of twelve months, while in the event of appeal nearly another year will be lost. In the Chancery Division the delay is still more marked.

At the commencement of the legal year, namely, October 24, 1890, there were 448 Chancery cases set down for trial. Of these, when Christmas arrived, only 74 had been decided, that is, after about one-third of the judicial year had elapsed. At that rate of progress—without allowing for the setting down of additional causes, which is, of course, continuous throughout the year—there would only be, of the 448 causes set down in October, 1890, 222 disposed of by October, 1891, thus leaving still unsettled half the cases that litigants were ready to try twelve months before.

The appointment of an additional Chancery judge is by many advocated for the purpose of battling with these arrears. It is, however, notorious that, owing to the higher scale of costs in Chancery than in Common Law, solicitors prefer the former for the purpose of trying their actions. In consequence of this, a large number of cases that should properly come before the Common Law judges are tried in the Chancery Division. Surely the effect of removing this gross anomaly should be seen before further expenditure be imposed upon the nation.

Few probably will go so far as Jeremy Bentham in laying down that the State should provide for the administration of justice free of expense to litigants; but there is a very general consensus of opinion in favour of a simplification of procedure and a limitation of the powers of appeal, and these are reforms that a willing legislature might well undertake.

Mr. Justice Jeune. To return to the judges of the High Court, it will be instructive to inquire how they earn the liberal salaries set forth in the foregoing table. Commencing at the top, it will be well to consider the position of that august official the Lord High Chancellor of England. And whatever remarks we may find it necessary to make, we wish it to be distinctly understood that we mean no disrespect to Lord Halsbury, the present learned and capable occupant of the post. It is merely our object to criticise the office, and our observations, therefore, will have no personal bearing. In the first place, it is worthy of note that the most highly paid temporal office in England—that of the Lord Chancellor—is given rather as a reward for political than for legal success. Of course, to occupy the post of Attorney-General, the stepping-stone to that of Lord Chancellor, a man must be a lawyer of considerable ability. It has, however, been very well said that a good lawyer can be nothing else; and it is obvious that an Attorney-General must be a man of some political as well as legal capacity. It is quite conceivable that there may be a dearth of legal talent on any political side, and that a moderate man may be chosen as the chief law-adviser of the Crown in consequence. Indeed, such a state of things has happened before now. It by no means follows, therefore, that the Lord Chancellor is necessarily a man of transcendent legal ability. It is probable, in fact, that, as a rule, he is not so good a lawyer as the judges who receive half his salary. And here it may be well to remark that, although the Lord Chancellor is nominally at the head of the bench, he can exercise no efficient control over the judges. He can make appointments to the bench, but judges, once made, can, as already stated, only be removed by the act of both Houses of Parliament. Thus a judge, even if obviously suffering from mental decay, may continue to exercise his functions, to the miscarriage of justice, for a considerable period before the legislature can be set in motion to bring about his retirement.

The Lord Chancellor occasionally (when any of the Lords Justices are absent from illness or other cause) sits in the Court of Appeal, which is held in two sections—one hearing cases from the Common Law side, and the other those from the Chancery Division. The principal duty of the Lord Chancellor, however, consists in presiding over the House of Lords—the final Court of Appeal both in Common Law and Chancery matters. The House of Lords, as an appellate court, consists of the Lord Chancellor, the Lords of Appeal, and such peers as are, or have been, holding high judicial office. Ordinary peers, however, have also the right of sitting and giving judgment, and, in consequence of this anomaly, the judges of final appeal have sometimes had the assistance of an eccentric nobleman endowed with a fancy for the law, whose vote has carried as much weight as that of the Lord Chancellor himself. The judicial work of the House of Lords is light. Indeed, it will not be understating the case to say that the House does not dispose of more than sixty or seventy causes in the year. It is thus not difficult to calculate, supposing these cases to occupy an average of half a day, and taking into consideration the salaries of the Lord Chancellor and the Lords of Appeal, together with the heavy pensions paid to ex-Chancellors and other expenses, that the Court of Final Appeal exercises its judicial functions at a cost of something like a thousand pounds a day!

Besides the Lord Chancellor, the Lord Chief Justice is by some legal fiction supposed to exercise control over the judicial bench. As a matter of fact, however, the judges are practically under no control whatever save that of public opinion, as represented by the press, which should never hesitate to expose their shortcomings when they come to light. It is the duty of those on whom, by force of circumstances, the public are obliged to rely to safeguard their interests, not to relax their supervision out of deference to the high repute in which our judges are held. Under the old system, when the Courts of Common Pleas, Exchequer, and Queen's Bench existed, each division had a chief who was responsible for the work of his court and the mode in which it was administered. The judges now hold a meeting, at which they make their own arrangements for circuits and for appointments to the various courts. Although the Lord Chief Justice is supposed to control the order of work, the judges in effect have a free hand as regards their own duties.

Admiralty Court.

With the development of modern civilisation and the increase of democratic strength, the social status of the judges has materially changed, and it is by no means in accordance with "end of the century" ideas to grant them the almost despotic power that they held of old.

The Judicature Act did something towards diminishing their prestige, and nowadays many of them are disappointed perhaps to find that their office does not command a high social position.

Notwithstanding the decadence of the social status and prestige of the judges, on circuit they maintain a pomp and splendour, it is true somewhat tawdry, which finds its only counterpart in the mimic state of the Lord Mayor. Quiet gentlemen who have been accustomed all their lives to carry their own bags down to chambers, suddenly find themselves, after being raised to the Bench and especially when going on circuit, surrounded with unwonted splendour. They are attended by a smart young gentleman who costs the country three guineas a day while the Assizes last, as his reward for acting as judge's marshal, or a sort of groom-in-waiting. If he fulfilled the functions of clerk, perhaps there would not be much cause for complaint; but the judge has a clerk of his own, to whom the nation pays a liberal salary, and the marshal's duties are purely ornamental.

It is true the cost of the splendid equipage, generally drawn by four hack horses from the local livery stables, the trumpeters, the javelin men, and all the paraphernalia of the judge's progress from his lodgings to the Court, falls upon the High Sheriff, and not upon the country; but it is, nevertheless, a vexatious impost and an intolerable anachronism.

Hats and wigs.

The prerogatives of the judges still far exceed those of any other public servants; they are permitted to perform their duties almost at their own pleasure; even the Legislature refuses to recognise any power over them, and they have also much patronage vested in them, such as the appointment of revising barristers, chief clerks and masters, who exercise judicial functions.

The holidays enjoyed by the members of the judicature are far in excess of those in any other profession.

The following figures will give an idea of how many days out of the 365 are occupied by the judges in earning their salaries:-

Christmas holidays.	21	days.
ChristmasEaster holidays"	12	days."
ChristmasWhitsuntide holidays"	10	days."
Long Vacation	72	days."
Queen's Birthday	1	days."
Sundays (besides those included above)	36	days."
Courts sit	213	days."
	365

Luncheon.

Although there is no statutory authority for the closing of the courts on the Queen's birthday, the judges have recently, with one or two exceptions, made a point of showing their loyalty by doing no work on that day. Many of them also are frequently absent on ordinary working days from other causes than illness. These delinquents are well known to the members of the legal profession, and it is unnecessary to mention their names.

The hours of sitting are nominally from 10.30 in the morning to 4 in the afternoon, with an interval of half an hour for lunch. Some judges, however, do not generally take their seats until a quarter to 11, and often later, and one or two are known occasionally to steal a little time from the end of the sitting. It is also a

matter of common observation that the orthodox half-hour for lunch is very often spun out to three-quarters. So that, including the short sitting on Saturdays, when the courts rise at two o'clock, the judges do not sit much more than an average of four hours a day.

Even if we give them credit for 4½ hours a day, reckoning their salaries at £5,000 (though many of them receive more) we find that the payment they receive for their work comes to over £5 an hour. At such a price it is only reasonable to expect them to give the fullest attention to their duties. But, alas, for human fallibility! Even judges sometimes nod.

It is true that our system is at fault in permitting our judicature to be conducted by men whose physical infirmities prevent them from giving due attention to their work. But such considerations do not soothe the breast of the unfortunate litigant who has paid an eminent counsel a hundred guineas to address a sleeping judge, or one whose deafness prevents him from comprehending the weighty arguments offered for his consideration.

A messenger.

It is part of the duty of the fourteen judges of the Queen's Bench Division to go on circuit, and during the time of the circuits, as a rule not more than two or three puisne judges are left in London. These judges are absent from town, in fact, fully one-half of the judicial year, and the occupants of the bench are not in the metropolis in their full strength for more than a third of that period. As a result of this arrangement, the business of the high courts, so far as the trial of actions is concerned, is absolutely at a stand-still during the greater part of the year. The cause lists become congested, suitors wait vainly for their cases to be settled, and a multitude of the suits entered never come on for trial at all, many of them being more or less amicably arranged out of court, while others bring about their own culmination through death or other causes. It is notorious that many of the judges, when they observe that a case is of a complex character, involving long and tedious investigation, will bring strong pressure on the parties to induce them either to settle the case or to refer it to an arbitrator. Such pressure it is dangerous for either side to resist, and it results in further fees, further costs, and further delay.

The judges, while on circuit, receive a travelling allowance of seven guineas a day. This is a comparatively recent arrangement, the travelling expenses having formerly been paid in a lump sum. It would be interesting to compare the average length of time occupied by the judges on circuit under the old and under the new system. A great deal of time is utterly wasted. For instance, a whole day is devoted to what is termed "Opening the Commission." This is nothing but an antiquated ceremony of no possible use, consisting of the reading of the Royal Commission under which the judges hold the assizes. It occupies about a quarter of an hour, the remainder of the day being lost. The assizes are often concluded within a less number of days than the time assigned to them, and the judges take advantage of this to enjoy a welcome holiday, with a solatium for their enforced idleness of seven guineas a day.

Our present circuit system undoubtedly leads to a scandalous and deplorable waste of judicial time and public money. For instance, on the South-Eastern Circuit, the largest towns of which are Cambridge and Norwich, there is practically no business whatever; and yet all the paraphernalia and expense of assizes goes on for eleven or twelve weeks every year in respect of cases that might be disposed of in London in about a week by one judge. On other circuits, too, time is wasted in an equally reckless manner, the judges on several days being absolutely idle.

Surely there is no necessity to allow a week for the judicial work at a town where there are only a few cases that could easily be disposed of in a couple of days. The public, who pay the bill, unfortunately have but little opportunity of having the shortcomings of the judges brought under their notice. Not only are the latter protected by the respectful feeling, the result of ingrained reverence, that the judicial bench has always been able to inspire; but it is also a fact that those whose position makes them most capable of criticising the judges find it contrary to their interests to do so. Barristers who have to make their way at the bar, and who are well acquainted with the peculiarities of the judges, are afraid to speak of them, for to do so would be to their own professional detriment, and clerks and underlings, who have to rely on the patronage of the judges, cannot be expected to tell what they know.

In the present article it is to be hoped we have done enough to show that defects exist, and that one of the most needed reforms is the establishment of a complete and efficient controlling power over our judicial bench, for judges, after all, are only human, and no human beings, however honourable, can be relied upon always to perform their duty to the public with thoroughness and energy if left entirely to their own devices.

The fact that private arbitration, especially in commercial cases, has in a great measure superseded the Courts, forms a most damaging comment on our judicial system. The case, then, that we allege against the judicature may be briefly summed up, the chief points being as follows:-

1. Excessive cost.
2. Unreasonable delay in getting to trial.
3. Unnecessary multiplication of appeals with consequent delay and expense.
4. Waste of judicial power on Circuit and Divisional Court arrangements.
5. Incapacity of individual judges.
6. Unreasonably long holidays.

It is our intention in subsequent articles to bring forward further particulars, and without going so deeply into technical details as to be uninteresting to the ordinary reader, to suggest remedies with a view to bringing our judicature more in touch with the people, and making it adequate to the needs of a great commercial community.