143 LOCAL COURTS. Upon what Principle should Local Courts be Constituted with reference to Extent of Jurisdiction and System of Procedure? By ARTHUR JOHN WILLIAMS. BEFOR EFORE we proceed to discuss the constitution of local courts, it will be as well to have before us distinctly the different methods by which civil justice is locally administered at present in this country. Until the year 1845, it may be broadly stated that no claim, however trifling, could be enforced at common law except through the tedious and expensive procedure of the superior courts. There had, it is true, existed, from the time of Alfred, a county court for each county, which was retained by the Norman kings. But, after continuing to be the principal court for the civil business of the kingdom for about a century, it gradually fell into disuse, when Henry II. began to appoint justices for the special purpose of making periodical visitations into each county, and laid the foundation of our present assizes. This county court, which never gained the dignity of being a court of record, received its final death-blow from a statute of Edward VI.,* which limited its exclusive jurisdiction to cases under 40s. It had for centuries fallen into complete insignificance and disuse, and had never been replaced by any efficient substitute. In some of the chief towns an attempt had been made to meet local needs by the establishment of local courts of request, each of which had an independent local jurisdiction. In these local courts, most of which were constituted by separate Acts of Parliament, the parties to local disputes might be examined. They were all, however, based upon no uniform system of procedure, and the proceedings of most of these inferior courts of record were "complicated, costly, and dilatory." In 1845 the jurisdiction of 106 courts of this kind then existing varied from 40s. to £15. Practically speaking, therefore, the country was without any system of local judicature until within the last twenty years. The unfair consequences entailed upon the poorer classes by this state of the law, which in fact rendered all civil justice inaccessible to a large section of the people, had long engaged the attention of law reformers, particularly of our President, who, in the year 1830, brought in a Bill to establish local jurisdictions in this country. The speech with which he prefaced the introduction of this Bill contained a masterly and exhaustive survey of the evils caused by the want of • Statute of Gloucester, 6 Edward VI. "Report of Royal Commissioners on County Courts, 1856," p. 50. cheap local courts, and the way in which these evils should be removed. The Bill was, however, postponed, and the Common Law Commissioners, to whom it was referred, reported in favour of the greater part of it. When again brought forward in 1833, it was lost by a majority of two in the House of Lords. At last, in 1846, after an ineffectual attempt by statute to modify the existing local courts of request, so as to meet the difficulty, the first of our Small Debts Courts' Acts was passed. By this measure, which was mainly due to the exertions of Lord Brougham, the first of a series of most salutary changes was made in the constitution and procedure of our common law courts. They have, in a great measure, effected the object proposed in the preamble to the first Act, "That one rule and manner of proceeding for the recovery of small debts and demands should prevail throughout England." They have devolved upon local tribunals a large share of their minor business, and we have now no less than sixty common law judges holding monthly sittings at every town of any importance throughout the kingdom. At these sittings, so familiar to every one under the old title of "County Courts," † all common law disputes, where debt or damage not exceeding £50 is claimed, may be tried. The procedure has been shorn of all the tedious and complicated machinery of written pleadings. The rules of practice, though founded on the established maxims and principles of the common law, leave to the judge a wide discretion as to their application. His duties are to get at the facts of each case, by the most direct and simple means. The parties, or their attorneys, are brought together in his presence, and, having heard their statements, and the statements of their witnesses, he is in a position at once to administer effectual justice. For this purpose he is made a judge as to fact as well as law; and though the constitutional right of having the facts submitted to a jury is very properly reserved to either party in cases above £5, this right is rarely claimed.t The immediate effects of the constitution of these local courts were most striking. The people at once availed themselves of a tribunal so accessible, so simple in its forms, and, comparatively speaking, so cheap. In the year 1863, a year rather below the average, there were nearly 800,000 plaints in these courts, and these plaints represented claims to the amount of nearly two millions. The experiment has, indeed, been "eminently successful, and benefits have been conferred upon the community by means of these courts, which it is, perhaps, difficult to exaggerate. Honest claims have been enforced, and injuries been redressed which the expense, distance, and delay incident to the superior courts placed, in effect, 8 & 9 Vict., c. 127. This is their proper title, for the Act of 1846 distinctly makes them branches of the ancient County Court. Out of 442,205 causes tried in 1863, only 877 were tried before a jury."Judicial Statistics," 1863. § "Judicial Stat.," 1863. beyond the power of the law. Facility to enforce rights has checked the commission of wrongs, and thus a more desirable state of credit and morality has been produced." * The Court of Chancery, moving in a different orbit, though round the same centre, exercises a distinct jurisdiction over a class of cases with which a Court of Common Law cannot deal. But its duties are of the most important nature. It regulates and controls all those fiduciary relations which are common to mankind in every station, and it gives relief in many cases where the more direct remedy of a common law action is not available. The important duties of trustees, the relations between partners, the administration and distribution of the estates of deceased persons, the specific performance of obligations, are all exclusively under the control of this court. The interests of the humbler classes lie, quite as much as those of the rich, within the scope of this jurisdiction. Yet, until within the last month, it was exclusively central and metropolitan ; and though its machinery had been made much less complicated and expensive, it was still quite beyond the reach of those classes who have often as much need of equitable relief as the wealthy. The great body of the people could not make use of this central tribunal. What they wanted was "a handy and accessible mode of obtaining redress in a class of cases usually involving much hardship, where the existing means of redress were so costly and remote as to amount to a practical denial of justice. Without such a means of redress, the industrious mechanic, the small tradesman or farmer, was at the mercy of those with whom he had entered into relations and engagements over which a court of common law has no control. He could not secure himself against the incapacity or gross misconduct of his partner. He could not enforce specific performance of agreements for the non-performance of which mere damages do not afford adequate compensation. If he had saved and left a little money, there was no court at hand which would be ready to interpose when there were unscrupulous or careless executors, administrators, or trustees, and see that the property was duly administered or distributed, instead of being wasted or improperly applied." † As long back as the year 1833 Lord Brougham urged upon the attention of the Legislature the hardship and injustice of this defect, and introduced into his Local Judicature Bill provisions for establishing cheap local jurisdiction in equity and bankruptcy. Though in this and subsequent efforts he failed to secure the support which was due to such a measure, he has lived to see it adopted and framed into law by others. In the last Session a Bill was presented by the then Lord Chancellor, Lord Westbury, which, with some alterations, has passed into law, and from the 1st of October, 1865, confers upon the "Report of the Royal Commissioners on County Courts, 1856," p. 25. "Report of Standing Committee of the Jurisprudence Department on the County Courts Equitable Jurisdiction Bill." + 28 & 29 Vict., c. 99 L county courts a limited jurisdiction in equity. By the provisions of this Act the judges of these courts are empowered to hear and determine all suits and applications in the ordinary course of equitable jurisdiction, when the subject-matter of the suit or application does not exceed in amount or value the sum of £500. By one section, the court is assigned in which proceedings are to be taken in each of the specified cases where jurisdiction is given. The principle adopted in this arrangement is that the proceedings shall follow the local cause or subject-matter of contention or application where there is one, and that it shall follow the defendant where there is not. * The rules and orders which have just been issued for regulating the practice of the county courts under this important Act make the procedure of these new local equity courts equally simple, direct, and untechnical with that of the existing common law practice in these courts. This is a very striking feature in the new law. Up to a comparatively recent period, the proceedings in Chancery were, as a rule, entirely documentary. And even now, all Chancery proceedings of any importance involve a long and tedious course of formal procedure which is the inevitable source of delay and expense. In the new local courts the evil will be in a great measure avoided. All suits are to be by plaint, which "shall contain a concise statement of the grounds upon which the complainant seeks to obtain relief." This plaint is also to contain "the plaintiff's claim for the specific relief to which he conceives himself entitled, and also a claim for general relief." Except where otherwise provided the evidence is to be taken viva voce, according to the present practice of hearing plaints; and the suit is to be heard in open court, as plaints in county courts are now tried. The sittings for common law and equitable business are to take place at the same time, and law and equity are to be administered to the great body of the people with the same hand throughout the kingdom. Having now before us the main features of our existing local courts, I turn to the question set down for discussion. The leading principle on which local systems of civil judicature should be based I conceive to be this-that they should administer justice in a cheap, ready, and simple, but efficient and regular manner, in all ordinary cases, and leave to the concern of the higher courts that litigation only which is of real moment, either from the magnitude of the individual or the importance of the general interests involved. This fundamental principle would, I believe, be effectually carried out by adhering, in the constitution of these courts, to the four rules which I proceed to lay down. First Rule.-Every system of local judicature should be as much as possible uniform in its jurisdiction. Uniformity is essential to the proper working of any plan for * Proceedings under the trustee clauses, and under the clause relating to infants, are to be begun by petition; and applications for an injunction by notice. Order II. † Order I. + Order III. distributing justice over a large area by means of local courts. Any scheme which is not uniform would be a source of endless confusion and complexity. This fact the Legislature learnt at once when it made its first patchwork experiment in 1845, and tried to meet the demand for a local system by extending the jurisdiction of the existing local courts of record. Each extension was to be made by a separate Order in Council, and the experience of a few months pointed unmistakably to the necessity for a uniform imperial measure. This necessity was, as we have seen, admitted in the preamble to the Act of 1846. At the same time a strong case has been put forward in favour of the reconstitution of these isolated local courts, so as to make them intermediate tribunals between the county court on the one hand, and the superior courts on the other. It has been urged with much force that the large centres of manufacturing industry, population, and commerce, should also be made centres of justice, both civil and criminal, upon a large and independent basis, though, of course, without ousting the appellate jurisdiction of the superior courts. It need scarcely be observed that such a plan, if carried out consistently, would quite come within the rule of uniformity which I have laid down. There could be no more useful provision in a measure for the reconstitution of our local courts, than one which should give to each large borough the power to unite all its separate local courts in one tribunal, presided over by a highly-paid, and therefore efficient, judge, with jurisdiction both civil and criminal-co-extensive with that of the superior courtswith process issuable into every part of the kingdom, with frequent sittings for the deliverance of those criminally accused, and for the despatch of civil business. Such tribunals would be uniform with the higher courts as to their constitution and procedure in all criminal cases, and in all civil cases above a certain amount; and uniform with the county court in all civil cases below that amount. Second Rule.-The second rule involved in the principle I have laid down, is that every system of local judicature should, as much as possible, administer justice of every kind in the same tribunal and by the same judges. Whatever force there may be in the arguments against any fusion of our two systems of jurisprudence, and an amalgamation of our superior courts of law and equity, these arguments in no way apply to the case of merely local tribunals. The line which divides the two systems is admitted on all hands to be artificial and arbitrary, and to draw it anew in our local courts would indeed be absurd. The twenty years' experience of the working of county courts as common law tribunals, has made the judges feel, and express constantly, the want of a convenient equitable jurisdiction much larger than the limited powers incidentally Paper on "Local Courts of Record," by G. W. Hastings. Transactions, 1858. |