Reform of the judicial system: new county courts; how the curia regis was sub divided; mighty task of reorganizing and systematizing the entire scheme of political administration, central and local, they were not unmindful of the many defects existing in the antiquated judicial machinery of the kingdom that had remained practically unaltered for centuries. As heretofore pointed out, the creation of inability of the ancient county courts to provide for local justice in small matters prompted the creation in 1846 of a system of statutory county courts, differing from the old not only as to procedure and limit of jurisdiction, but also as to the geographical areas over which such jurisdiction extends.1 The drastic hand of innovation that thus began at the roots of the judicial fabric reached in due time the great central courts at Westminster, which have been consolidated into a single tribunal, whose procedure has been placed upon a strictly modern basis. An account has already been given of the process through which the curia regis of Norman and Angevin times three courts was finally divided into the three distinct courts of exchequer, common pleas, and king's bench, whose severance from each other was completed when during the reign of Henry III. each received a distinct staff of judges, whose last connecting link was broken by the abolition of the office of justiciar in the reign of Edward I.2 After that event the only remaining trace of their former unity was represented by the court of exchequer chamber, which sat as a court of mere debate for the hearing of causes of great moment, and also as a court in which judgments of each of the superior courts of common law were subject to review by the judges of the other two courts sitting collectively as a court of error and appeal.* Alongside of the three law courts sat the court of the chancellor, administering equity as distinct from common law; the court of admiralty, with jurisdiction over maritime cases; 5 of common law; courts of chancery, admiralty, probate, and divorce; 1 See above, pp. 579, 580. 8 In that capacity it heard Calvin's and 1 Will. IV. c. 70, s. 8, both were abolished and a new court constituted, in which judgments of each of the superior courts of common law were subject to review by judges of the other two courts sitting collectively as a court of error in the exchequer chamber. Cf. Stephen, Commentaries, vol. iii. p. 428. By the Judicature Act of 1873 (s. 18) the jurisdiction of that court was merged in that of the new court of appeals. 5 Vol. i. pp. 250, 547-551. between made in the court of probate, substituted by statute1 in 1857 for the ecclesiastical courts of each diocese that formerly exercised jurisdiction over wills and intestacies, in respect of personal property; and the court of divorce, established at the same time by a statute that vested in it the jurisdiction over matrimonial causes previously exercised by the ecclesiastical courts, together with the power to decree the dissolution of a marriage, until then exercised by parliament alone. The chief difficulty that arose in practice out of this complex system of tribunals administering different codes of law through widely different methods of procedure was that embodied in the con- the conflict flict between law and equity, whose divergencies were so great law and that it was often said that a litigant might be pronounced equity; clearly right on one side of Westminster Hall and clearly wrong on the other. To prevent the confusion that thus arose, a feeble and partial effort was first made to declare by statute whether the rules of law or equity were to be followed in particular instances, - the rule of law always being favored by such statutes against that of equity. Not, however, until first effort 1850 did parliament make the first decided attempt to end 1850 to the conflict by providing for the administration of law and blend the equity in a single tribunal. Then it was that a royal commis- tems in one sion appointed to consider the reform of the law courts finally reported that "a consolidation of the elements of a complete remedy in the same court was obviously desirable, not to say imperatively necessary, to the establishment of a consistent and rational system of procedure;" and in the next year the chancery commissioners, looking at the matter from the other point of view, made a report to the same effect. After the Common Law Procedure Acts of 1852 and 1854 and Lord Cairn's Equity Procedure Act of 1859 had failed to attain the end in view by conferring upon each of the conflicting tribunals some of the powers of the other, the Judicature Commis- Report of Judicature sion, appointed in 1867 to inquire into the working of all the Commis courts, reported in 1869 that "the first step towards meeting sion, 1869; and surmounting the evils complained of would be the consolidation of all the courts of law and equity into one court, in which could be vested all the jurisdiction exercisable by each and all 1 20 & 21 Vict. c. 77. 2 20 & 21 Vict. c. 85. 8 II Geo. IV. and I Will. IV. c. 46; 30 & 31 Vict. c. 48, and 31 Vict. c. 4. two sys court; Act of 1873; Judicature the courts so consolidated." 1 As the result of that report was enacted the Supreme Court of Judicature Act,2 1873, which provided that "the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated together, and shall constitute, under and subject to the provisions of this act, one Supreme Court of Judicature in England." The one Supreme Court Judicature; thus constituted consists of two parts,-"Her Majesty's High Supreme Court of the High Court of how constituted; the court of appeal; appellate jurisdiction of lords, Court of Justice," and "Her Majesty's Court of Appeal." The first part, which possesses original jurisdiction, was at first organized in five divisions, called the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division. But by an order in council made under the authority of the act, the five divisions were reduced to three "by the consolidation and union in one division of all the judges now attached respectively to the Queen's Bench Division, the Common Pleas Division, and the Exchequer Division." The High Court of Justice is constituted of the lord chancellor, the three chiefs of the former common law courts, the master of the rolls, the three vice-chancellors, twelve of the puisne justices and junior barons of the former courts of common law, the judge of the probate and divorce courts, and the judge of the high court of admiralty. Thus the old courts were not abolished but consolidated in a single tribunal, that administers in its several divisions law and equity concurrently under a system of rules that favor the principles of equity in cases of conflict. The second part, which possesses appellate jurisdiction, was originally intended to be a court of last resort, and as such the depository of the appellate jurisdiction of the house of lords and of the privy council; but in 1876 it was 1 Lely and Foulkes, Judicature Acts, Judicature." As to the constitution Introd. pp. xlvii-li. 2 36 & 37 Vict. c. 66. 8 That clause was repealed by the Judicature Act of 1875, s. 9, which provides that "The London Court of Bankruptcy shall not be united or consolidated with the Supreme Court of of that court, see Bankruptcy Act, 1869 (32 & 33 Vict. c. 71). 4 For the full text of the consolidating order of December 16, 1880, see Lely and Foulkes, Judicature Acts, pp. 561-565. finally decided to retain the appellate jurisdiction of the former. It was provided, however, that no appeal should be entertained in the upper house unless there shall be present at least three "lords of appeal," that is, peers who have held high judicial office.1 The court of appeal as now constituted is judges therefore an intermediate court between the high court and court of the house of lords, and as such it is composed of five ex officio appeal. judges, of "ordinary" judges, whose number depends upon the will of the crown, and of "three additional ordinary judges, -at present nine in all. composing 1875 took dated court It was originally intended that the act of 1873 should come When Judicature into operation in November, 1874; but it was found necessary Acts of to amend it twice, and in that way the second amending act, 1873 and the Supreme Court of Judicature Act of 1875,2 together with effect; the principal act of 1873, did not take effect until the 1st of November, 1875. As early as 1865 parliament had authorized the construction of the splendid pile known as the "Royal Courts of Justice," for the express purpose of "bringing together into one place or neighborhood all the Superior Courts. of Law and Equity, the Probate and Divorce Court, and the Court of Admiralty." 8 In 1882 the new structure was dedi- consolicated by the queen, and at the beginning of the Hilary sit- took postings, 1883, the consolidated court, moving from its old habita- session of tions in Lincoln's Inn and from the quarters adjoining West- home in minster Hall, took up its abode in one place, where it can the more conveniently execute its mission of administering law and equity concurrently. The entire code of procedure of the its code of Supreme Court of Judicature was originally embodied as a whole in the schedule to the act of 1875; and as such it was divided into orders, each order being subdivided into rules. The power to alter such rules is vested in the "Rule Committee" of the judges, who are directed to present all changes to each house of parliament; and upon the address of either house the crown may be required to annul the same by an order in council.4 8. Such in brief is the present condition of the vital organs 1 The Appellate Jurisdiction Act, Concentration Act, 1865, 28 & 29 Vict. 1876, s. 5. 2 38 & 39 Vict. c. 77. C. 49. 4 Upon the whole subject, see the 8 Preamble to the Courts of Justice excellent treatise of Lely and Foulkes, its new 1883; procedure. Judicature Acts, 4th ed. of the ministerial system; shifted the centre of gravity of the state from the crown to at first but little more finally through the the elector ate from Summary of the English constitution, and such their relations to each growth of other at the end of ten centuries of unbroken development, the modern which has adapted the primitive institutions of the Old English commonwealth, without any break in their continuity, to the ever-increasing wants of one of the most progressive and powerful of modern societies. As heretofore explained, the Revolution result of the Revolution of 1688 was to shift the centre of of 1688 gravity of the state from the crown to the popular branch of the legislature. The statesmen of the Revolution did little more, however, than establish irrevocably a political theory which their posterity have been able to press only in our time the popular chamber; to its ultimate and logical conclusion, a conclusion which was not fully reached until the reform bills of the last sixty than a polit- years widened the electorate of the house of commons from theory, about 400,000 in 1832 to nearly six millions and a half in established 1897. From that electorate the popular chamber, that emwidening of bodies and enforces the new principle of sovereignty to which the Revolution gave birth, draws its authority. The mighty which the transformation thus brought about in the internal mechanism of the constitution has been effected with the least possible change in its outward forms. As Bagehot has happily extion with pressed it, this "ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth; what you see of him is still the same; what you do not see is wholly altered." That profound change thus concealed beneath ancient forms is embodied in the practical effect finally given to the results of in the fun the Revolution, by virtue of the arrangement under which the cabinet as a representative chamber now administers the royal authority through a committee of its own members called the cabinet. The outcome of the first efforts made to establish such an George III. arrangement during the reigns of William III., Anne, and the in retarding first two Georges was so unsubstantial that George III., during the growth of the new the first ten years of his reign, was able to eliminate it almost entirely. So completely was he successful that when the mempart of his bers of the federal convention that met at Philadelphia in 1787 took the English constitution for their model, the modern cabneither in inet system was found to have no place in it either in theory or in fact. That it did not then exist in theory is put beyond lower house but little change in outward forms; the real change embodied tions of the committee of the house of commons; success of system; during a reign it existed theory nor in fact; 1 The Eng. Const., p. 2. |