Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow 327.: THE APPOINTMENT OF JUDGES UNDER THE NEW LOCAL COURTS ACT MORNING CHRONICLE, 12 NOV., 1846, P. 4 - The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III

Return to Title Page for The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III

Search this Title:

Also in the Library:

Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

327.: THE APPOINTMENT OF JUDGES UNDER THE NEW LOCAL COURTS ACT MORNING CHRONICLE, 12 NOV., 1846, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III [1835]

Edition used:

The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


327.

THE APPOINTMENT OF JUDGES UNDER THE NEW LOCAL COURTS ACT

MORNING CHRONICLE, 12 NOV., 1846, P. 4

The passage of the Act establishing local courts, 9 & 10 Victoria, c. 95 (An Act for the More Easy Recovery of Small Debts and Demands in England), which received royal assent on 28 Aug., 1846, was stormy, its history going back to the agitation begun by Brougham in 1828, which was effectively blocked by Lord Lyndhurst. The Act came into effect in England and Wales in March 1847. This unheaded first leader is described in Mill’s bibliography as “A leading article on the appointment of judges under the new Local Courts Act, in the Morning Chron. of 12th November 1846”

(MacMinn, p. 63).

an act will shortly come into operation, enacted during the last session of Parliament, which in the importance of its eventual consequences may rival even the great measure of commercial enfranchisement1 which has made that session memorable. We refer to the Act for the Establishment of Local Courts, and our reason for at present adverting to it is that the distributors of patronage must be at this very time actually occupied with the pleasing task of filling up the numerous judicial offices created by it; a function of which it is no exaggeration to say, that according as it is well or ill performed, the new courts will be the most important step ever yet made in England in the reform of law proceedings, or a ridiculous and disgraceful failure.

The arguments for local courts are sufficiently obvious and familiar. If there is any use in having an administration of justice, it must be useful that the justice administered should not be too far off to be reached, nor too expensive and troublesome to be worth seeking. The elementary and self-evident character of this truth, or truism, does not at all diminish the necessity for vigorously insisting on it, since the most obstinate resistance is often that which is maintained against the most manifest truths. Obstinate and protracted was the resistance to this. But at length we see it practically admitted, taking its place among propositions legally recognized, even to the extent of founding an institution upon it. Up to twenty pounds, it is good for Englishmen to have justice all the year round, and in their own neighbourhood, at a moderate expense, and with no more forms and technicalities than those which really conduce to bringing the disputed question in a more perfect state before the judge.2 Tardily, and with terrible pangs and throes, the courts at Westminster have loosed their hold of a class of causes which were not of sufficient pecuniary value to be worth their keeping, and which had almost ceased to be brought before them. After so heroic a sacrifice there are few things which may not be hoped; and at the ordinary pace of legal improvement, we may flatter ourselves that successive generations may see first twenty-five pounds, then thirty, and at last, perhaps, even forty pounds assigned as the sum which the right owner shall be permitted to recover from persons unlawfully detaining it, in other towns of England and Wales besides London, at all seasons of the year, and without unnecessary expense; or, at least, with no more of it than the contrast afforded by the superior courts may render the injured litigant only too happy to tolerate.

The most enlightened school of law reformers have long been deliberately of opinion that the proper function of local courts is, not some wretched little fragment of the business of judicature left to them because their betters cannot stoop low enough to pick it up, but the whole judicial business of the country in the first resort. The courts at Westminster, much improved and simplified in their rules of practice, should, in the opinion of these reformers, exist solely as courts of appeal from the local tribunals, and as an authority to maintain uniformity of principles, and to declare the law in all cases of doubt; in which character and office there is surely more than enough to satisfy the appetite for power and dignity of the most eminent heads of the profession. We think this a just view of the ultimate destination of local courts; and we should have rejoiced if some account of that ultimate destination had been taken in first constituting them. But the tentative character which very often ought to belong to reforms, and which at any rate always does, made it inevitable that when local judicature was attempted, it would begin its career with some miserable scrap of jurisdiction; and unfortunately this is not one of the cases in which the slow path is the path of safety, in which there is less risk of failure by attempting little. To attempt little is here the sure way to render failure probable.

Many years ago, when the time of Parliament and the thoughts of the profession were first seriously occupied with the question of local courts—when Lord Brougham, in his better days, reaped in this cause some of his best-earned laurels, and Lord Lyndhurst added largely to his peculiar kind of fame by the dexterous sophistry with which he resisted a great principle3 —it was then the prediction of judicious and experienced friends of the cause, that the real difficulty of local courts would be found to be the lamentable scarcity of persons fit to be judges.4 The wider, however, the extent of authority given to the courts, the less this difficulty would be felt. Supposing, as an extreme case, that to these courts should be entrusted the original hearing of all causes, or even of all civil causes, an appeal lying to the superior courts, the importance of the office would be sufficient to make it be sought by every member of the bar who was fit for it. It would be sought for itself, as an office of great dignity and usefulness, affording an ample field for every quality or talent, natural and acquired, of the ablest and most instructed lawyer; and it would be sought also as a road, not the sole, but certainly one of the most frequented roads, to the highest station in the profession—the situation of an appeal judge. The importance also of courts which would transact the whole judicial business of a district equal in average size to an English county, would secure to the judge, in addition to his own qualifications, the valuable aid, and the not less valuable surveillance, of a bar. It may be remembered, that one of the most potent of Lord Lyndhurst’s weapons in his controversy against local courts was the argument, that no reliance could be placed on either the judicial acumen or the legal knowledge of a judge when unfurnished with a bar for the double purpose of informing and of checking his judgment.5 That mode, therefore, of constituting local courts which gives them most chance of an adequate bar to practice in them, either habitually, or at all events occasionally, would have been not only the best in itself, but the safest to begin with, the most likely mode of making the experiment successfully. The case is one of those more frequent than statesmen are aware of, in which the more they attempt the more they are likely to succeed in, while, by a timid and paltry willingness to content themselves with little, they incur an almost certain risk of not attaining even that little.

At present the danger is, that in courts limited to the cognizance of small causes—that is, causes which are only important to small people—any person of decent character, who has been a few years at the bar, will be thought perfectly fit to be a judge: and that the local judges will be chips of the same block out of which the magistrates of the metropolitan police-courts have generally been cut. If so, the new courts will either become the laughing stock of the country, or will plod on in unnoticed mediocrity, doing their business just carefully and just intelligently enough not to be scouted as a nuisance. Should this happen, the principle itself will be permanently discredited, and it will be long before we see another advance made towards bringing cheap justice home to every door. This is not the spirit in which so truly important a selection should be made. We have full confidence in the purity of intentions of the Chancellor, Lord Cottenham,6 and as much reliance on his judgment as on that of any other dispenser of patronage, provided he can be induced to look at the matter in the serious light which it deserves. In nominating men to these stations, he ought to regard himself as doing much more than appointing people to try cases of debt under £20 value. He is choosing men to be an example and a proof of what local judges ought to be. He is appointing men to extort a progressive enlargement of jurisdiction for the courts over which they preside, by showing themselves fit to be invested with it. No one should be nominated to these posts who is not fit for something much higher than what they are at present entrusted with; who is not fit for any judicial duties whatever, subject to the eventual revision of a superior tribunal.

Even with the best intentions, and the deepest conscientious sense of the importance of the trust, the Lord Chancellor will find his choice grievously narrowed by the narrowness of the jurisdiction itself, which holds out no temptation to any barrister of ambition and ability enough to aspire to the high prizes of his profession. It is doubtless from a foresight of this difficulty that the act has provided that the judges shall not be prohibited from practising as barristers;7 in hopes of making the office worth holding to the same class of rising men who now, during a few years of their upward career, willingly accept the post of recorder of a corporate town.8 But a recorder’s attendance is only required at quarter sessions, and for a few days at a time. The sittings of the new courts, if they are to be more than a mere name, must occupy a very large portion of the time of the judge, and ought, without doubt, to occupy the whole. It is a deviation from the principle, and a great abatement of the characteristic usefulness of a local court, not to be constantly open. This sacrifice of usefulness was worth making, for the chance of obtaining a somewhat better qualified class of judges; but let us not forget that it is a sacrifice.

[1 ]The Repeal of the Corn Laws by 9 & 10 Victoria, c. 22 (1846).

[2 ]Stipulations in Sect. 58 of 9 & 10 Victoria, c. 95 (1846).

[3 ]In 1830, Brougham introduced (PD, n.s., Vol. 24, cols. 243-74) “A Bill for Establishing Courts of Local Jurisdiction,” 11 George IV (21 June, 1830), PP, 1830, I, 123-66 (not enacted). Then in 1833 he brought in “An Act for Establishing Courts of Local Jurisdiction” (see No. 219, n15). The remarks of John Singleton Copley, Lord Lyndhurst, were made on 9 July, 1833, during discussion of this legislation (PD, 3rd ser., Vol. 19, cols. 312-29).

[4 ]See, e.g., Arthur Symonds (ca. 1806-77), “Progress of Law Reform,” Westminster Review, XIX (July 1833), 42-74, esp. 59 and 66-9.

[5 ]Copley, speech of 9 July, 1833, col. 317.

[6 ]Charles Christopher Pepys (1781-1851), 1st Earl of Cottenham, Whig law reformer, M.P. until appointed Lord Chancellor in 1836, succeeding Lyndhurst, who again took office in 1841, to be replaced again by Cottenham in 1846.

[7 ]See Sect. 9 of 9 & 10 Victoria, c. 95.

[8 ]Recorders were the principal legal officers of cities or boroughs that had separate quarter-session courts. The recorders, who had to be experienced barristers, were appointed by the Crown to sit as sole judges during the quarter sessions. The position was defined in Sects. 103-5 of 5 & 6 William IV, c. 76 (1835).