The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-03-28
LAW REFORM.
Changes In the English Judicial sSs-
tenn.

Changes In the English Judicial Sys-
Now that the attention of the bar anu Oh tne
people is directed to the action OF the Generai
Assembly in the direction of modifying the
old legal system of the State, the following
remarks of the English High Chancellor, Lord
Hatherley, will be found OF great interest.
They show the direction of the English judi
cial mind in this matter of law reform:
The Lord Chancellor said that, in rising TO
move the first reading of the Judges Jprisoic-
tion bill, he could state its object in very
few words Its object is simply to enable an!
Judge OF any one Of the superior courts r.;or of
Westminster to sit, on request OF the ,r. or,rti
Justice or Chief Baron, in any otner Co9t'
for eyery purpose and with the same JuItssaii. i
tion and powers as if he was Juags VI .ne
court to which he was invited. ~ a.sO eu%, "a,
hIes the indres of any court to sit IN oanco III
two divisions. if that shall be found convenient,
and gives poWers for two courts to sit togetner
in London and at Westminster at ntSt prtas.
The cause which had led him to introduce tlie
bill was that, while the Court Of Queens Bencn
has since the death of Mt. Justice Hayes,
heen oyerburthened with business, there are
more Judges than are required in the other
commoa law courts. For the same reason, 1t
is not thought necessary to fill up the vacancy
in the Court of Queens Bench; because seven
teen Judges, if their services can be maze
available in every court, are quite adequate 10
the transaction of the common law business
of the country. 1t had in like manner not
been considered right to fill up the vacant
lord justiceship in Chancery, because tnere
are only thirteen appeals waiting for nearing,
and of these the three oldest only dale ttom
December last. while the remainder were set
down in January. His lordship then salu t.iaC .s
he now proposes TO call the attention OF tne
House to the measures which the government
proposed to introduce in order to carry out
the recommendations OF the Judicature COM
mission This commission took its rise mainly
on the conviction which has been entertained
for some time, that we have sufiered severely
both in our judicature and our Jurisprudence
from the total separation of courts OF law and
equity No such separation existed in Rome
in the best days of its jurisprudence, nor did
such q state or things prevail IN Scotiand,
France or in any other Continental system.
After tracing the steps by which the separate
jurisdictions OF the common law courts and
the courts of equity had grown up, his lord
ship said that the result Is that there are two
species of right coexisting constantly in the
same individual. BY virtue of one OF those
rights, he may be entitled to remedy at COM
mon law; while, on the other hand, his oppo-
nent may be able, By applying to court ol
equity, not only to restrain him from proceed
ing in the court of common law, but actually
to mulct him In costs for proceeding before q
tribunal where he must have succeeded had ne
been allowed to 60 on: That never was ana
never could &c nynt \. .s &c clear tnat man
should be able to have the whole Oh ms Sc ca,s nmo
determined, and complete right done oy oMe ie
court, whatever that might be. Ana tDat tIls
was SO was seen clearly so long ago as the
time of Cromwell, by Mr.. Shepherd, an emf,
or bof lot. tpbn rQn0mmnnnpu
in book called "England's Balm" that causes
should no longer be sent from law to equity,
or uice uersa, but that whichever court cause
trst came before should have power to dispose
inally of every question that arose in its
course. The reforms which he recommended
had been partially carried out Of late years Oy
the acts which gave the courts OF law power
to grant iniunctions or to entertain equitable
pleas, which, enabling the courts OF equity 10
decide points of law, and to try causes Dy jury.
Still much remained TO be done In order to the
complete fusion of law and equity, and It was,
as he had already said, a conviction tnat IL Is
desirable to carry the process mucn lnrtner
nointment of the Judcature Commission.
That commission was appointed in Septem-
ber, 1867, and reported In March, 1869. 1t mad
submitted to its investigations the coults OF
common law and equity, the Court OF AZ
mlralty, Probate Court, and the Court OF Di-
vorce With the exception OF the Judge OF the
Court of Admiralty, all the commissioners
came unanimously to the conclusion that the
whole Of the courts should be consolidated
into one court of judicattre; that that court
should have power to divide itself into sepa-
rate divisions, not to continue the separation
OF the Jurisdiction of common law and equity,
bnt for the purpose of handing over to each
division the business most appropriate TO 1t.
This division of business would be subject to
this reservation: That any Judge may SIT IN
any division, and, from time to time, II 1t De
desirable, cause may be transferred bodily
from one division to another. ~ aodS also
recommended that pleddingS should De rendered
as simple as possible, and that some alterations
that he could not then adrert to should De maze IN
the mode of taking evidence He then came TO
the Court of Appeal. 1t is thought desirable
that the Court Of Appeal should consist mann
IL of Judges devoted to this work, anu IL was
also considered eXpedient that the Master OF
the Rolls should cease TO DC }uuse Oh nrSI
instances, and should become q judge OF appeal.
In order to supply the deficiency in the judges
of first instance in the Court OF lhancery
created by the removal Of the Master OF the
Polls TO the Appeal Court, the chief judge in
bankruptcy would be added to that division OF
the courts. AS to the common law courts,
each division would consist OF FIVE judges,
while another division would consist of the
two remaining judges and the judges Of the
Courts of Probate and of Admiralty. The
Court of Appeal would be composed of the
Lord Chancellor, the Master of the Rolls, of
four permanent judges, and of three judges to
be selected by her Majesty, from time to time,
from the courts of first instance. The Court
of Eycheqler Chamber, which has not been
found TO work well, would be abolished.
Another provision of the bill would be the
abolition of the Home Circuit, the business of
which would in future be transacted in Lon
don. He did not intend ut present to legslate
on the subject, but he thought it would be eX-
pedient to take measures to facilitate the dis
patch of the appeal business of the House.
With that view, he would suggest that that
House should appoint a judicial committee,
which should have the power TO summon to
their MD members of the Judicial Committee
of the Privy Council. This committee would
have power to sit during the recess, reporting
its decisions, as recommendations, to the
House, by whom they would be formally
authorized The noble lord concluded by
stating that he should introduce two bills, on"
relating to the courts of first instance, and the
other to the appellate courts, and by dwelling
upon the facilities which the construction Of
the new courts of justice would give, by bring
ing together, in one building. body OF Judges
inspired with the desire and possessing the
power to do co;cplete, substantial and speedy
I,,cfi