LORD BROUGHAM'S BILL FOR THE FURTHER CHEAPENING OF JUSTICE.
Winn the Government, with caponlike assiduity, still broods over its single measure of comprehensive law reform, Lord Brougham, with gallic spirit, marches forth the proud father of a new batch of proposals for minor but substantial amelioration. If one hopes but faintly that the solitary Government egg may not turn out a mere cuckoo measure, a mere voice of the season, one sees with pleasure that the chickens of the Brougham brood, though of bantam stature, are genuinely bred and well-shaped, and pro- mise to do good service in the business of life. In his explanation of the bill which was read a first time by the Lords on the 7th instant, Lord. Brougham specified four leading subjects as within the scope of his measure,—Bankruptcy, Equitable Jurisdiction, Arbitration, and a Court of Reconcilement. We find but three of these subjects in the bill which was then or- dered to be printed ; but on the other hand, there are other mat- ters included, of considerable interest. Relying on his explanation as to what he intends regarding Bankruptcy, we observe that Lord Brougham proposes not to alter the bankrupt law in anywise, but to absorb in the j 'etion of the County Courts the existing jurisdiction of the p ' vinnial
branches of the Bankrupt Court ; and to render the country jurisdiction of the Bankruptcy Court and the jurisdiction of the County Court one and the same thing. The London jurisdiction he leaves intact : the machinery which the London Commission have at their disposal, their ability, and the very great experieist4 they have gained in twenty years of administration, enable them to render an assistance to the Court of Chancery too valuable to be dispensed with. In dismissing this proposition to extend the Jurisdiction of the County Courts to bankruptcy matters, which Lord Brougham deems it advisable to leave in " other hands," we may recall his recent statement in its favour, that it would effect a saving to the country of nearly 50,000/. a year.
The other matters were those of arbitration, reconcilement, and equitable jurisdiction ; and at the end of the bill we find also what we may call voluntary submission to local jurisdiction over un- limited amounts. This last point, as the most related to the pre- sent constitution of the courts, seems naturally to come first ; then arbitration, and equitable jurisdiction, and last of all recon- cilement.
The voluntary jurisdiction clause enacts that if both parties to any action or intended action shall agree to have it decided by any County Court, such Court shall have the power to try it, whatever its kind or amount. This clause is simple and comprehensive : it would perhaps be as well to add to the power the duty of enter- taining the action ; and unless interpretation acts render the pre- caution unnecessary, other words than the technical common law term of " action" should be introduced.
But as it constantly happens that there are rights, the demand of which cannot be set forth within the narrow limits of those technical descriptions which at present commence every legal cause, and as rights arise which modify and evanish even during the progress of litigation, the mode of what is called arbitration has long been a favourite mode, especially with the peace-loving honest commercial mind, of settling a vast number of complicated disputes. Lord Brougham proposes to add to the regular judicial powers of the County Court Judge the competency to arbitrate on " any matter in dispute " between two parties, who shall agree by a memorandum to refer such matter to the arbitra- ment of such judge. The judge is to hear it at the times he him- self appoints, and his decision is to be final; subject to the usual arbitration provisions, which entitle either party to apply for a revision or reversal of the decision by the Superior Courts if the award exceed the terms of the reference : and upon the award of the judge, an execution or attachment shall follow as on the award of a common arbitrator. The main principle of this enactment is in every respect good. Reduced to law, it simply enacts that a public and responsible functionary, paid by salary and not by fees, shall decide those matters which are now decided with less weight, and at infinitely greater cost, by gentle- men of the bar who devote themselves to this species of judicial practice, or by merchants and private persons proceeding in the dim light of their untrained sense and unguarded feelings. It is not quite so plain, however, that the subsidiary machinery of arbitration, as it is now framed, is the simplest and best that could be devised for the citizen. One does not feel convinced of the necessity for perpetuating over highly qualified judges those legal and moral checks which were devised by draftsmen to guard parties sub- mitting to unjudicial arbitrament from decisions too broad or too narrow, defective in law, or biassed in feeling. Why, there- fore, should not the decision of the judge on such matters be placed on the same, or a much more closely similar footing, with his decisions in the matters at present within his jurisdic- tion ? Why must a party to an arbitration wait months for execution on his award, while the same party in an action will get execution on his judgment in a week ?—except it be to add another difficulty in the way of a division of the legal year into more rational intervals of work and rest, or simply to propitiate a section- al feeling that may be shocked, and a sectional interest that may be menaced, in the matter of fees ? Attempts of this sort to dovetail modern improvements with old forms are the most difficult of all feats : it is only the minds conversant with all details, and yet supe- rior to them, that can safely raise new buildings on old foundations. In this instance, some rubbish seems to be preserved ; instead of re- moved or "built round," with cautions to make no attachments that cannot easily be ruptured when future occasion shall need. The clauses which give to the County Court Judges the equity jurisdiction of Masters ordinary in Chancery seem good, so far as they go : one regrets that they go no further. Any matter of ac- count or inquiry arising out of any matter before the Judges in Chancery, may be referred by such Judges to the Judge of the County■Court, to be conducted by him with the same powers, and in the same course, that the Masters in Chancery now exercise and follow. One does not see why the proposal is still unventured to give the Judges of the County Courts original jurisdiction in all equitable matters, to precisely the same extent that they at pre- sent enjoy it in matters of common law. The County Court Judges cannot well be less competent to deal with equity matters than the present Equity Judges, so far as disposing of them is con- cerned; and if their assistance in the disposing of minor matters would not much relieve the superior Courts of Chancery, it would be so because of a reason that should make legislators blush— that at present equity is denied altogether in every matter not involving at least some hundred pounds' worth of wrong. If we have any objection to this delegation of the duties of the Masters to the Judges of the County Courts, it is that it perpetuates the sys. tem of handing over a portion of a cause to be decided by another person than the judge. When will any one of the Equity Judges volunteer to work out his own decrees ? May we hope that the mew Viee-Chancellor, to be appointed under the bill now pending, will try this experiment ? The portion of the bill which has the newest and most curious interest, is that which proposes to establish Courts of Reconcile- ment. Any person having a claim or demand either at law or equity against any other person, may summon him before the County Court Judge to have the matter in dispute advised upon by such judge ; " which hearing and advice shall be called Pro- ceeding for Reconcilement." The Judge shall appoint his time of hearing. The party summoned may appear or not, as he pleases ; if he refuse to appear, such refusal will be considered on the ad- justment of costs in any future suit on that matter. If they meet, the Judge hears them state personally, and without any sort of professional aid, their case and defence, and then he advises them : if they agree to abide by his advice, he decides the case, and his decision is to be entered in "The Reconcilement Book" under the seal of each party, as their " covenant " in law. If the registered decision under the seal of the parties award money, execution may issue on it; if it do not award money, but some act to be done, or some right to be yet matured, an action may be brought upon it as upon any other sealed " covenant " of the parties. This machinery is wholly new to the English law ; for the ancient imparlances re- ferred to by Lord Cranworth were properly shown by Lord Brough- am to be not at all in point : there the parties " imparled" each other in the presence of their legal advisers, and not before the judge ; a ceremony which in practice most likely differed little from the backing of dogs against each other in the fighting-pit: here the whole process would be before the judge, and before him alone. The objection of the Lord Chancellor, that parties are unable to state properly their own cases, seems reprehensible ; for it assumes that they cannot explain their eases as well to a judge as to their own attorney; or else that the "proper way" of stating their case is one which conceals or glosses, with the object of securing a blind or unjust decision. Practically the new machinery is recommended to us by the experience of the courts in commercial Hamburg and busy Denmark. Of thirty-one thousand cases brought before the Reconcilement Courts in Hamburg, twenty-one thousand were decided in the first instance by the judge ; of the ten thousand not decided in the first instance, six hundred were settled presently afterwards ; and of the remaining nine thousand six hundred, only three thousand were further tried at all. So that nine-tenths of the causes brought before these courts were settled at once, or settled in. immediate consequence of that proceeding. The objection that these courts would be a mere provision of legal advice to suitors at the public expense, may to some extent be met with unflinching admission. When you consider the mil- lions of lines of law which now in thousands of volumes define the duties of the English subject, it is not asking a thing absurd, or a thing even extravagant, but a thing which seems consistent with the plainest sense and the strictest justice, that so much provision as this should be vouchsafed for teaching that law which the sub- ject has at his peril to obey.
A subsidiary but important clause enacts that barristers may appear in the County Courts whether instructed by attornies or not. In some grave points of view this provision is of question- able policy ; but on the other hand, the necessity of the step is be- coming absolute. Already a local bar is growing np in some im- portant provincial centres ; it needs that all the bonds should be loosened which restrict the transport of professional ability to the points where it is most needed, and where it finds its best re- ward. In the Colonies this course is already pursued, without detriment to the character of the profession, and much to the ad- vantage of the public : and at home every facility should be given for toning with the high metropolitan character the pro- vincial vigour of the talent at present segregated under frowns of professional etiquette. It may be added, that the presence of a local bar would exercise by far the most effective check over the only objectionable development of the Local Courts system—the provincial bias in the judge.
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