Transfer of personal Dr. R. in many important particulars. Under this last head should be noted the duty of the board to audit the accounts of most of the local authorities, excepting the municipal boroughs and counties, and to pass upon the making of local loans not authorized by special acts.1 There can be no doubt that this reorganized and businessobligations like system of local self-government directed by a central of citizen- bureau at London does differ in several material particulars ship to paid officials; from the ancient régime it has superseded,—one of the greatest of such differences consisting of the transfer of the personal obligation and responsibility of every member of a local community to perform public functions to paid officials, who the case as assume their exercise for a definite compensation. Dr. Rustated by dolph Gneist, notable for his researches into the history of self-government in England, ventured not long ago to prophesy that the apparently vital change thus made at the very foundation of the English constitution would produce gravely disastrous consequences throughout the entire superstructure. He declared that "With this fatal step, that of doing away with every personal obligation and responsibility within the communa, the roots of the whole structure have been eradicated, and this change, but little noticed, will be productive of more momentous consequences for England than the abolition of universal military service would for modern Germany. Here is the organic fault in the political system of modern England, a fault productive of even acuter symptoms. With this abolition of the personal duties of citizenship, the community actually passes into a limited company system, which quite erroneously goes by the name of self-government. . . . Thus arose the modern system of internal government by 'boards,' which, in its centralization and tutelle administrative,' is very similar to the French. But, together with the responsibility, the essential part of the official influence passed to the paid officials, and left only inferior functions to the remaining local commissions and honorary officers, so much so that the inclination of the upper classes to take part in it disappears more and more, and more still that of the justices of the peace to share in such a 1 As to the powers of the board, see Shaw, Municipal Government in Great Britain, p. 68; Chalmers, Local Government, pp. 151-160; Traill, Central Government, pp.133-139. tions based assump piece of business, where they are even made ex officio members." This desire to escape from personal responsibility, the author declares, has given rise to the "demand for a ballot, by which the elector completely isolates himself, and declines all moral responsibility, just as the representative of the parish refuses all legal responsibility. The bureaucracy humored public opinion here also, by the invention of nomination papers, sparing the electors all trouble of meeting, deliberating, consulting, and counting; thus reducing the act of electing to a few strokes of the pen, which the elector puts upon his voting paper. This is the last residuum of self-government, the sole trouble with which the industrial society of these days believes itself capable of exercising and asserting the 'sovereignty of the people.'" Nothing has transpired during the sixteen his predicyears that have elapsed since that rashly premature prophecy upon an was made to indicate that it rests upon any substantial founda- unfounded tion whatever. The fundamental error upon which it proceeds tion; is the assumption that as a society progresses along a line of development that continually demands changes in the methods in which political duties must be performed, such changes cannot be safely made even when there is no departure from the essential principles upon which the constitutional fabric is founded. That no such departure has actually taken place during the statutory process through which the ancient system of local self-government in England has been remodelled and adapted to changed conditions would no doubt have been clear to Dr. Gneist if he had been one of the English people, with conceptions of English law imbedded in his mind as a natural instinct. In that event he would no doubt have perceived that in the recent sweeping reform of the system of local selfgovernment, as in all other English reforms, "The new build- the new building ing has been raised upon the old groundwork; the institutions of one age have always been modelled and formed from those the old of the preceding, and their lineal descent has never been inter- work. rupted or disturbed." 2 While the reformed parliaments were thus absorbed in the 1 Gneist, Hist. of the Eng. Const. (Ashworth trans.), pp. 733, 734. The author's preface is dated Berlin, 1882. 2 Sir Francis Palgrave. See titlepage. It is appalling to think what the burdens of English citizenship raised upon ground Reform of mighty task of reorganizing and systematizing the entire the judicial scheme of political administration, central and local, they were system: courts; how the curia regis was sub divided; of common not unmindful of the many defects existing in the antiquated judicial machinery of the kingdom that had remained practically unaltered for centuries. As heretofore pointed out, the creation of inability of the ancient county courts to provide for local jusnew county tice in small matters prompted the creation in 1846 of a system of statutory county courts, differing from the old not only as to procedure and limit of jurisdiction, but also as to the geographical areas over which such jurisdiction extends.1 The drastic hand of innovation that thus began at the roots of the judicial fabric reached in due time the great central courts at Westminster, which have been consolidated into a single tribunal, whose procedure has been placed upon a strictly modern basis. An account has already been given of the process through which the curia regis of Norman and Angevin times three courts was finally divided into the three distinct courts of exchequer, common pleas, and king's bench, whose severance from each other was completed when during the reign of Henry III. each received a distinct staff of judges, whose last connecting link was broken by the abolition of the office of justiciar in the reign of Edward I.2 After that event the only remaining trace of their former unity was represented by the court of exchequer chamber, which sat as a court of mere debate for the hearing of causes of great moment, and also as a court in which judgments of each of the superior courts of common law were subject to review by the judges of the other two courts sitting collectively as a court of error and appeal.* Alongside of the three law courts sat the court of the chancellor, administering equity as distinct from common law; the court of admiralty, with jurisdiction over maritime cases; 5 1 See above, pp. 579, 580. 2 Vol. i. pp. 248, 249, 398. law; courts of chancery, admiralty, probate, and divorce; 8 In that capacity it heard Calvin's case, the chancellor and all the judges being present. See above, pp. 228, 229. 4 By 31 Edw. III. c. 12 was created the first court of exchequer chamber, with power to determine errors from the common law side of the court of exchequer. By 27 Eliz. c. 8 a second court of exchequer chamber was created to pass upon writs of error from the king's bench. By 11 Geo. IV. and I Will. IV. c. 70, s. 8, both were abolished and a new court constituted, in which judgments of each of the superior courts of common law were subject to review by judges of the other two courts sitting collectively as a court of error in the exchequer chamber. Cf. Stephen, Commentaries, vol. iii. p. 428. By the Judicature Act of 1873 (s. 18) the jurisdiction of that court was merged in that of the new court of appeals. 5 Vol. i. pp. 250, 547-551. between made in the court of probate, substituted by statute1 in 1857 for the ecclesiastical courts of each diocese that formerly exercised jurisdiction over wills and intestacies, in respect of personal property; and the court of divorce, established at the same time by a statute that vested in it the jurisdiction over matrimonial causes previously exercised by the ecclesiastical courts, together with the power to decree the dissolution of a marriage, until then exercised by parliament alone. The chief difficulty that arose in practice out of this complex system of tribunals administering different codes of law through widely different methods of procedure was that embodied in the con- the conflict flict between law and equity, whose divergencies were so great law and that it was often said that a litigant might be pronounced equity; clearly right on one side of Westminster Hall and clearly wrong on the other. To prevent the confusion that thus arose, a feeble and partial effort was first made to declare by statute whether the rules of law or equity were to be followed in particular instances, the rule of law always being favored by such statutes against that of equity.3 Not, however, until first effort 1850 did parliament make the first decided attempt to end 1850 to the conflict by providing for the administration of law and equity in a single tribunal. Then it was that a royal commis- tems in one sion appointed to consider the reform of the law courts finally reported that "a consolidation of the elements of a complete remedy in the same court was obviously desirable, not to say imperatively necessary, to the establishment of a consistent and rational system of procedure;" and in the next year the chancery commissioners, looking at the matter from the other point of view, made a report to the same effect. After the Common Law Procedure Acts of 1852 and 1854 and Lord Cairn's Equity Procedure Act of 1859 had failed to attain the end in view by conferring upon each of the conflicting tribunals some of the powers of the other, the Judicature Commis- Report of Judicature sion, appointed in 1867 to inquire into the working of all the Commiscourts, reported in 1869 that "the first step towards meeting sion, 1869; and surmounting the evils complained of would be the consolidation of all the courts of law and equity into one court, in which could be vested all the jurisdiction exercisable by each and all 1 20 & 21 Vict. c. 77. 2 20 & 21 Vict. c. 85. 3 II Geo. IV. and I Will. IV. c. 46; 30 & 31 Vict. c. 48, and 31 Vict. c. 4. blend the two sys court; Act of 1873; Supreme Court of the High Court of Justice; Judicature the courts so consolidated."1 As the result of that report was enacted the Supreme Court of Judicature Act,2 1873, which provided that "the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated together, and shall constitute, under and subject to the provisions of this act, one Supreme Court of Judicature in England." The one Supreme Court Judicature; thus constituted consists of two parts,-"Her Majesty's High Court of Justice," and "Her Majesty's Court of Appeal." The first part, which possesses original jurisdiction, was at first organized in five divisions, called the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division. But by an order in council made under the authority of the act, the five divisions were reduced to three “by the consolidation and union in one division of all the judges now attached respectively to the Queen's Bench Division, the Common Pleas Division, and the Exchequer Division." The High Court of Justice is constituted of the lord chancellor, the three chiefs of the former common law courts, the master of the rolls, the three vice-chancellors, twelve of the puisne justices and junior barons of the former courts of common law, the judge of the probate and divorce courts, and the judge of the high court of admiralty. Thus the old courts were not abolished but consolidated in a single tribunal, that administers in its several divisions law and equity concurrently under a system of rules that favor the principles of equity in cases of conflict. The second part, which possesses appellate jurisdiction, was originally intended to be a court of last resort, and as such the depository of the appellate jurisdiction of the house of lords and of the privy council; but in 1876 it was how constituted; the court of appeal; appellate jurisdiction of lords, 1 Lely and Foulkes, Judicature Acts, Judicature." As to the constitution Introd. pp. xlvii-li. 236 & 37 Vict. c. 66. 8 That clause was repealed by the Judicature Act of 1875, s. 9, which provides that "The London Court of Bankruptcy shall not be united or consolidated with the Supreme Court of of that court, see Bankruptcy Act, 1869 (32 & 33 Vict. c. 71). 4 For the full text of the consolidating order of December 16, 1880, see Lely and Foulkes, Judicature Acts, pp 561-565. |