Absurdities and Delays in Administrative Justice.

Magna Charta says that justice shall neither be denied, sold, nor delayed. With the single exception of guarding the country from foreign aggression, the only object for which governments have been instituted is the administration of justice. It is to attain this end that all taxes and contributions from the people were originally intended. They were not meant to support useless placemen and pensioners, nor to maintain standing armies, nor to defray the interest of debts contracted in unnecessary wars; but to protect every individual in the community from oppression. Justice ought not only to be speedy, but, above all things, cheap. To render the expense of legal process exorbitant, is not delaying—it is absolutely denying justice to all but the rich: it is affording the protection of the law to those least in need of its aid, and refusing it to those most exposed to oppression.

In England, justice is not only delayed, but, from its dearness, often unattainable. These evils result from causes much too numerous and complex to be here specified; but the most palpable appear to be the unequal distribution of business in the several courts of law—the consumption of the time of the judges in matters either irrelevant or derogatory to their more important functions—the monopoly of practice vested in different classes of practitioners—the retention of useless, absurd, and antiquated forms of procedure—the confusion, obscurity, and inconsistencies in the laws themselves—and, in short, from the entire fabric of judicial administration being inadequate and unsuitable to the wants of the age, and only adapted to a state of society wholly different from that which now exists.

To point out the manifold absurdities of the legal system we shall make no pretension; still we cannot help noticing the more striking anomalies.

If, for example, twelve judges were necessary to administer justice, centuries ago, why not nearly double the number at the present? Consider the augmentation in wealth, commerce, and population; consider the increase of lawyers, attorneys, criminals, and suitors; why not a corresponding increase in judges? But then there were only twelve apostles to preach the gospel, therefore there must be only twelve judges to preach the law. What a reason for John Bull—yet he swallows it.

If circuits have been gradually altered from septennial to annual, and from annual to twice in a year, and three times in the home circuit, why not go on? Why not have gaol deliveries as frequently in the country as in London? Why should a man be confined six months before trial in Yorkshire, and only six weeks in London? Why, again, should a person, charged with an offence in one part of the metropolis, be imprisoned only four or five weeks, while, under precisely similar circumstances in another part, he is imprisoned two or three months? Are we never to have uniformity in justice—are the claims of common sense to be for ever stifled by the logic of lawyers, the allegations of custom, antiquity, and local usage?

If the lord-chief-justice require three or four assistants, why not a lord chancellor similar aid? Does it require more grave deliberation to adjudicate trumpery suits of £10 or £15 than suits which can never be commenced for less than £100? Does it require a greater mass of collective wisdom to administer a written, fixed, and known law than one only inscribed on sand—remarkable for complexity—often to fabricate on the spur of the occasion—and having no immutable standard beyond the varying conscience and intelligence of the judge? Shame on the legislature, which tolerates, year after year, a system so repugnant to reason!

If it be necessary to have circuits to administer common law, why not equity? This is the practice in some of the states of North America; and why should not the precedent be followed, although the people of those countries be so deplorably unfortunate as neither to have a national debt, an established Church, nor hereditary Peerage.

If the evidence of a Gentoo, a Jew, or a Turk may be received in judicial administration, why should the judges suffer the ends of justice to be defeated by rejecting the testimony of an Englishman who happens not to believe in the divine authority of the Holy Scriptures, but who is assuredly as good a Christian as the infidels we have mentioned?

Why should justices of peace, in quarter sessions, have such great power over the person and none over property? Is it a less serious thing to transport a poor man from his country, his wife, and his children, for fourteen years, than to decide a few pounds’ debt, a trespass, tort, or other civil injury? If the country magistracy are not learned enough to administer the laws of property, why not simplify them? or, why not let them have the aid of an assistant barrister, and thereby expedite justice, save enormous expense to suitors, and lighten the pressure of business at the assizes? Would not this be a more practicable and economical improvement in domestic judicature than the introduction of an entirely new machinery of local tribunals, as a great, but, as we humbly think, in this point, a mistaken man has recently proposed?

Again: the meaning of wills, bonds, and other legal instruments being of such vast importance, why are they not punctuated and drawn up according to the ordinary rules of composition, to prevent misapprehension? Is the contrary course followed as more conducive to obscurity and litigation?

Lastly, we may inquire, why do attorneys and solicitors delay their suits and impoverish their clients by cramming their briefs into the bags of what are called king’s counsel, or leading counsel, who are so overwhelmed with business that they have seldom time to read them—to master the law respecting them—or be present in court when the cause comes on, while there are hundreds of worthy men at the bar, with leisure, talent, and industry, but failing opportunity, name, or connexion, who are condemned to penury and obscurity? Are lawyers all aristocrats; are they like the rich clergy, without bowels for the more unfortunate brethren of their own order?

These are a few of the incongruities in the administration of justice which present themselves to the contemplation of an impartial observer. But the Court of Chancery has unquestionably been the least defensible part of our judicial system, and the most pregnant in abuse and delay. Before this tribunal a cause might be pending for years, and, even after it had gone through, and was so far matured as to be what the lawyers call ripe for decision, it might wait three years for judgment. Mr. Williams relates a singular instance of dilatoriness in this court: the suit involved considerable property, of which part was a windmill. A bill was filed in 1703; in 1796, the cause had progressed as far as the master’s office, where it was stationary till 1815, when it was found, on inquiry, the windmill had disappeared, and there was no longer any trace of its existence. Time, it seems, had been at work, while equity wes sleeping. The immense mass of property locked up in chancery almost exceeds belief. In the year 1756, the amount of suitors’ effects fell short of three millions; in 1829, they had accumulated to £38,886,135. Of this enormous sum there is more than one-third which, from the procrastinated delay of suits, should either have belonged to persons deceased without representatives, or persons living, but ignorant, from the books not being open to them, of their claims altogether, or, if acquainted with their claims, ignorant in what manner or names their property is vested.

Now, to people living out of the atmosphere of corruption and intrigue, there appeared little difficulty in suggesting remedies for this monstrous oppression. 1. By separating the political from the judicial character of the lord chancellor, and clothing him with that independence in the exercise of his legal functions, which is considered so great an excellence in the status of the common-law judges. 2. By separating the appellate jurisdiction in the House of Lords, and abolishing the absurdity of appeals from the lord chancellor on the bench to the lord chancellor on the woolsack. 3. By the relieving of his lordship of his duties in bankruptcies, which was the more reasonable, since the exercise of jurisdiction therein was comparatively of recent occurrence. Lastly, by a thorough reform in the offices of the masters and registrars.

These reforms were recommended over and over again by Mr. M. A. Taylor, Mr. John Williams, and others during the ascendancy of the Tories; and the only reasons we could ever discover why they were not adopted may be comprised in a very small compass. Our readers are aware what a tempting acquisition the see of Canterbury is to all aspiring churchmen; and what an itching the Philpotts and Blomfields have to clutch the magnificent revenues and patronage of the arch-diocese. Well, what Lambeth is in the Church, the Chancellorship is at the Bar. It is the glittering prize of ambitious, intriguing, and time-serving lawyers; it is the goal of desire to all gentlemen of the long-robe, for every one has more or less confidence in his good fortune and abilities, and few but hope to reach it at last. Hence there was little prospect of effective reform in equity, while Tory law-craft was so predominant in the legislature. But the dynasty of the anti-reformers has expired in principle, if not in its personal representatives; and the accession to power of Earl Grey’s ministry has been signalized by some vigorous innovations on judicial abuses. Lord Chancellor Brougham was pledged by his previously expressed opinions to the Herculean task, and he has entered upon it by clearing off the vast arrear of business accumulated by his predecessors, and by projecting efficient reforms in the constitution of his court. The establishment of a Court of Bankruptcy has removed one of the popular objections we have enumerated to the practice in chancery; but this is only one of a series of renovating measures intended to apply to the offices of the masters and registrars, and other branches of the equity department. We shall conclude the section with a few remarks on the economy, and next on the judicial improvement effected by the first of Lord Brougham’s legal reforms.

The bankrupt business of the metropolis has hitherto been transacted by seventy commissioners, appointed for that purpose by the Lord Chancellor, who held their offices during pleasure. They were paid by fees out of the bankrupt estate. The average income from these fees to every commissioner, by a return made to the House of Lords, was £389 : 5 : or, according to the secretary of bankrupts’ return, in round numbers, £380. The total expense, therefore, of the seventy commissioners, at an average of £380., was £26,000. The other expenses under the old system, together with the sum paid to the commissioners, were estimated by Mr. Vizard at £70,000.

The salaries of the judges, commissioners, and registrars under Lord Brougham’s act are:—

The office fees of suing out a commission under former practice were as follows:—search for docket, 1s.; bond, 7s.; petition for commission, 11s.; fiat answering petition, or filing affidavit, £1 : 2; commission and hanaper fee, £5 : 2 : 8; tin-box, 2s.; if a private suit, £2 : 2 : 6; messenger, when the Chancellor was in the country, £1 : 5; office copy of petitioning creditor’s affidavit, 3s. 2d. Under the new act a fiat is substituted for a commission, for which the fee is £10, and various other sums payable to secretary of bankrupts. A sum of £20 is payable to the secretary of bankrupts’ account by the assignees. It is impossible, however, to exhibit an accurate comparison of the expense of proceedings under the old and the new system; some of the charges are contingent, others terminable, and others depend on the number and length of copies, affidavits, folios, &c. Compensations are to be provided for fees and offices abolished, and the remuneration to the official assignees is discretionary in the commissioners.

The opinion of some persons is that the expenses of a proceeding in the smaller bankruptcies, where the assests do not exceed £4000, will be nearly equal to what they were under the former system; but it is impossible to arrive at an accurate conclusion on this point, till the new machinery has been brought fairly into operation. It is certain, however, that there will be no future harvest of spoil, like that of Howard and Gibbs, when £20,000, was netted; nor even like that of Chambers, when £10,000 was swamped by the legal, accounting, and assignee agencies.

One striking advantage of the Bankruptcy Court is, that it substitutes a tribunal effective for its purpose for one notoriously ineffective. There will be also greater responsibility in the judges, as well as increased despatch in their proceedings. A saving of time is a saving of expense to suitors, as well as of that which is more painful than expense—doubt and anxiety. So far the improvement is positive. But ought not a tribunal, which costs £24,000 a-year in fixed salaries, to have been final in its adjudications? Why such a gradation of appeals from a commissioner to a Sub-division Court, from thence to the Court of Review, and upwards—though the cases of such higher appeals are limited by the act—to the Lord Chancellor and the House of Lords?

The branch, however, of the new arrangement about which we have any serious misgivings, is not the judicial, but the ministerial or accounting department. Will the official assignees be less costly and more expeditious than the creditor assignees have been? May they not be as dilatory in settling accounts as masters in Chancery? or may they not in certain emergencies employ the proceeds of the bankrupt estate in a stockjobbing or mercantile adventure in preference to the payment of them promptly into the Bank of England?—Nous verrons, as the French say.