Chapter II: The Law Courts

I shall not deal fully with the Law Courts as such in this chapter but only with the obvious tendencies of our day towards the decentralization and specialization of justice. It is said that justice must be brought to the poor man’s door; therefore the County Courts should have divorce jurisdiction in addition to other powers. Judges should sometimes have more than a general knowledge of the subject matter which comes before them; therefore a Commercial Court was set up in 1895 and a special judge is appointed to sit in it. Some litigants, however, in commercial as well as other disputes prefer to appoint expert arbitrators who rely for legal guidance on their personal experience of law and on the eminent counsel practising before them. Supporters of this movement towards specialization quote with approval the very fair decisions of Courts Martial or the Law Society’s Discipline Committee, while pointing out the comical blunders of the Chancery division judges when they were sent on circuit shortly after the Judicature Act of 1873.

The Commercial Court has certainly done very good work in its thirty years of existence. It helps on the assimilation of laws in different countries on such subjects as bills of exchange, and it would be more important if there were more trade and if the practising Counsel’s clerks demanded less enormous fees. These two drawbacks should surely be remedied in the future and this Court is not likely to be replaced by any big international court working on Admiralty lines.

The Admiralty Court has acquired remarkable prestige because nowadays foreigners more and more often refer marine disputes by consent to its jurisdiction, and it looks as if the Admiralty Law of England might soon spread all over the world like the Roman _Jus Gentium_. Even the Germans handsomely acknowledge the scrupulous equity of the English Courts as between a British subject and alien.

How far divorce work can be properly specialized I shall discuss in a later chapter. The trend of present opinion is to resent the limitation of matrimonial causes to special judges because

(1) This principle of limitation is rooted in the old idea that only ecclesiastical lawyers can properly deal with the institution of marriage and

(2) The admission of the principle is the main obstacle to the decentralization of divorce.

The ordinary Englishman still has the Athenian ideal of public duties being performed by ordinary citizens in rotation. He likes trial by jury and looks kindly on the patriotic efforts of an unpaid Magistracy. The work of the expert and professional is often unexpectedly illuminated by the criticism of the amateur. The liberal humanism of the first Lord Gorell, of Lord Birkenhead, and of Mr. Justice Swift――to name only three men of Liverpool――has blown away many ancient quasi-ecclesiastical cobwebs of the Divorce Court. The ancient wisdom of the Common Law has often efficiently protected the liberties of Great Britain from the tyranny of king, baron, and bureaucrat.

The same revolt against what is conceived to be legal pedantry emerges in the undiscriminating support that Lord Birkenhead received in carrying the Law of Real Property Act through Parliament. But for the hatred of the Statute of Uses with which he infected the mind of our legislators, the necessary reforms could have been made simpler and better. The probable result will be the compulsory registration of title to land in preference to the less cumbrous system of Conveyancing inaugurated in 1882. Much the same conflict emerges in the controversy whether the legal profession should remain divided into barristers and solicitors. I think that this division will remain because it corresponds to a real division of labour; but with this I will deal later.

It is difficult to prophesy how all these problems will be solved; but it may fairly be conjectured that justice of first instance will be more and more specialized and localized to suit modern convenience and the obvious needs of the poor, and that specialization will not be allowed to stand too much in the way of decentralization.