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.