The Governments of Europe

by Frederic Austin Ogg

II. The Inferior Courts

177. The Hierarchy of Tribunals.—In the majority of continental countries a distinction is drawn between ordinary law and what is known as administrative law, i.e., the body of rules governing the conduct of public officials and, more particularly, the adjudication of disputes between these officials, in their public capacity, and private citizens. This differentiation of law entails customarily the maintenance of administrative courts, separate from the ordinary tribunals, in which administrative cases are heard and decided. In Great Britain, however, there is no such thing as administrative law, and in consequence there is no need of administrative courts. Public officials, from the ministers downwards, are amenable to the processes of the ordinary tribunals precisely as are all other classes of people. Simpler, therefore, at this point than the continental systems of courts, the English system is none the less one of the most elaborate and complicated in the world. There are features of it which in origin are mediæval, others which owe their existence to the reforming enterprises of the earlier nineteenth century, and still others which have a history covering hardly more than a generation. Reduced to its simplest aspect, the system comprises, at the bottom, three principal varieties of tribunals—the county courts for civil cases and the courts of the justices of the peace and the borough criminal courts for criminal cases—and, at the top, a Supreme Court of Judicature in two branches, i.e., the High Court of Justice and the Court of Appeal, in addition to the Judicial Committee of the Privy Council, the House of Lords, and a number of other occasional or special central tribunals.[242]

178. The County Courts.—The county courts of the present day were established under provision of the County Court Act of 1846, and it is to be observed that they are in no manner connected with the historic courts of the shire or county. They are known as county courts, but in point of fact the area of their jurisdiction is a district which not only is smaller than the county but bears no relation to it. There are in England at present some five hundred of these districts, the object of the arrangement being to bring the agencies of justice close to the people and so to reduce the costs and delays incident to litigation.[243] The volume of business to be transacted in a district is insufficient to occupy a judge during any considerable portion of his working time, and the districts are grouped in some fifty circuits, to each of which is assigned by the Lord Chancellor one judge who holds court in each district of his circuit approximately once a month. The judge sits almost invariably without a jury, although unless the amount involved is very small either party to a suit is privileged to request the employment of a jury of eight persons. The jurisdiction of the county courts has been enlarged a number of times, notably by a statute of 1905, but it is still not as extended as many people believe it should be. In a few matters, such as certain claims of workingmen for injuries, this jurisdiction is exclusive, but at most points it is concurrent with the jurisdiction of the High Court of Justice, and Common Law, equity, bankruptcy, probate, and admiralty cases may be brought, at the discretion of the plaintiff, in either tribunal, subject to the restriction that the county court may not assume jurisdiction when the value in dispute exceeds a certain amount, commonly £100 in Common Law cases and £500 in cases of equity. On all points of law appeal lies to the High Court; but appeals are rare.[244]

179. The Justices of the Peace.—The county courts exist for the adjudication of civil cases exclusively. The corresponding local tribunals for the administration of criminal justice are the courts of the justices of the peace, and, in certain towns, other courts to which the powers of the justices have been transferred. The county is normally the area of the jurisdiction of the justices, and with a few exceptions every county has a separate "commission of the peace,"[245] consisting of all the judges of the Supreme Court of Judicature, all members of the Privy Council, and such other persons as the crown, acting through the Lord Chancellor, may designate as justices on recommendation of the Lord Lieutenant or independently.[246] The Lord Lieutenant is chief of the justices and keeper of the county records. In many counties the list of justices contains three or four hundred names (in Lancashire eight hundred), but it is to be observed that some of the appointees do not take the oaths required to qualify them for magisterial service and that the actual work is performed in each county by a comparatively small number of persons. The justices serve without pay, but the office carries much local distinction and appointments are widely coveted. Until 1906 a property qualification[247] was required of all save certain classes of appointees whose station was deemed a sufficient guarantee of fitness, but in the year mentioned the Liberals brought about its abolition. The justices are drawn still, in large part, from the class of country gentlemen. They are removable by the crown, but tenure is almost invariably for life.

180. Powers of the Justices.—At one time the functions of the justices of the peace were administrative as well as judicial, but by the Local Government Act of 1888 functions of an administrative nature were transferred all but completely to the newly created county councils,[248] and the justices to-day are judicial officials almost exclusively. Their judicial labors may be performed under three conditions, namely, by justices acting singly, by two or more justices meeting in petty sessions, and by the whole body of justices of the county assembled in quarter sessions. The powers of a justice acting alone are those largely of the ordinary police magistrate. He may order the arrest of offenders; he conducts preliminary examinations and releases the accused or commits them for indictment by a grand jury; and he hears cases involving unimportant breaches of the law and imposes small penalties. The justices sitting by twos in petty sessions exercise an extensive summary jurisdiction over offenses specified minutely by the law.[249] They sit without a jury, but appeal can be carried, as a rule, to the justices at quarter sessions and even, on questions of law, to the High Court. Four times a year all of the justices of the county, or such of them as care to be present, meet in quarter sessions. The jurisdiction here exercised is in part appellate and in part original. The court tries, without a jury, all cases appealed from petty sessions, and it tries, with a jury, and after indictment by a grand jury, all cases involving offenses not of a minor nature, save that the most serious offenses, punishable in most instances with death or life imprisonment, are reserved for trial in the assizes, i.e., by judges from Westminster travelling on circuit. By means of the writs of mandamus and certiorari the actual proceedings of quarter sessions are controlled not infrequently by the superior courts.[250]

181. Special Borough Arrangements.—The smaller boroughs, having no separate commissions of the peace, are for purposes of criminal justice merely portions of the counties in which they lie. In many of the larger ones, however, there have been set up judicial arrangements in consequence of which the borough is withdrawn from the county jurisdiction. Some have a commission of the peace but no quarter sessions. In them the justices can exercise, in addition to the usual functions of police magistrate, only a summary jurisdiction. Others have a court of quarter sessions; though it is to be observed that where this tribunal exists its work is performed actually by the recorder, a barrister appointed by the crown and paid by the borough.

III. The Higher Courts

182. Supreme Court of Judicature: the High Court.—The higher tribunals within the judicial system were once numerous and extremely complex. As reconstituted, however, by the great Judicature Act of 1873, which, together with an Amending Act, took effect near the close of 1875, they have acquired a considerable degree of orderliness and even of simplicity. The measure of 1873 abolished the appellate jurisdiction of the House of Lords, but the Amending Act three years later rescinded this modification, and, as has been explained elsewhere, the House of Lords is still a court of very great importance.[251] Aside from the Lords, however, the higher courts of the realm—the Chancery, the three great Common Law courts, the Admiralty, Probate, and Divorce courts, and the intermediate courts of appeal from these tribunals of first instance—were consolidated by the legislation of 1873-1875 to form one grand organization, the Supreme Court of Judicature, which was thereupon cut into two branches, the High Court of Justice and the Court of Appeal. The High Court of Justice was assigned a general jurisdiction, civil and criminal, as a court of first instance and also as a court of appeal from inferior courts. Its jurisdiction represents essentially the aggregate of jurisdictions of the tribunals which it superseded, and the various divisions into which it falls perpetuate in a measure the names and functions of those tribunals. There were originally five of these divisions. To-day there are three: Chancery, King's Bench (with which the Common Pleas and Exchequer divisions were united by order in council of December 16, 1880), and Probate, Divorce, and Admiralty. Any High Court judge may sit in a tribunal belonging to any one of these divisions. The Lord Chancellor presides over the Chancery division, the Chief Justice over the King's Bench. The number of judges is variable. The Chancery division contains at present six, the King's Bench fifteen, and the Probate, Divorce, and Admiralty division but two. All save the Chancellor (who is a cabinet official, owing his position to selection by the premier) are appointed by the crown upon advice of the Chancellor, and all hold office during good behavior but may be dismissed on addresses of the two houses of Parliament. The judges of the High Court sit both singly and in groups. The ordinary trial of cases is conducted, under a variety of stipulated conditions, by a single judge, either at Westminster or on circuit. The judges who go on circuit are taken as a rule from the King's Bench division, and when both civil and criminal cases are to be adjudicated they travel ordinarily in pairs, one attending to the civil and the other to the criminal business. Judges sit also, without juries, in divisional courts, composed of two or more members, to hear appeals from inferior tribunals, motions for new trials, and applications for writs. The High Court never sits as a single body, nor does even the Chancery or the King's Bench division.

183. Supreme Court of Judicature: the Court of Appeals.—The second branch of the Supreme Court of Judicature is the Court of Appeal. This tribunal is composed of the Master of the Rolls and five Lords Justices of Appeal, all appointed by the crown upon the advice of the Lord Chancellor. The presidents of the three divisions of the High Court are also members, but they rarely participate in the work of the court; and since 1891 men who have occupied the office of Chancellor are ex-officio members, although they sit only if they choose to comply with a request of the Chancellor that they do so. The court performs its functions regularly in two sections of three members each, although for some matters the presence of but two judges is required. Sittings are held only in London. The jurisdiction of the court is exclusively appellate, and its business consists very largely in the hearing of appeals in civil cases carried from the High Court. Prior to 1907 there was no general right of appeal in criminal cases. By the Criminal Appeal Act of that year, however, there was established a Court of Criminal Appeal to which any person convicted may appeal on a question of law and, under stipulated conditions, on a question of fact also. This tribunal is composed of the Lord Chief Justice and eight judges of the King's Bench appointed by him with the assent of the Lord Chancellor. It, therefore, has no immediate connection with the Court of Appeal.

184. The House of Lords and the Judicial Committee.—Of superior tribunals there are two others of large importance, the House of Lords and the Judicial Committee of the Privy Council. The functions of the House of Lords as a court of last resort have been described elsewhere.[252] By the act of 1876 the appellate jurisdiction of the Lords, withdrawn by the act of 1873, was restored and provision was made for the strengthening of the legal element in the chamber by the creation of life peers to be known as Lords of Appeal in Ordinary. Under existing law appeal lies to the Lords from any order or judgment of the Court of Appeal in England and of all Scottish and Irish courts from which appeals might, prior to 1876, be carried. The Judicial Committee of the Privy Council was constituted in 1833 to assume jurisdiction over a variety of cases formerly heard and decided nominally by the Council as a whole. The composition of the body has been changed a number of times. The members at present comprise the Lords of Appeal in Ordinary, such members of the Privy Council as hold or have held high judicial office, two other Privy Councillors designated at pleasure by the crown, and, as a rule, one or two paid members who have held judicial office in India or the colonies. The membership is thus large, but only four members need be present at the hearing of a case, and it may be pointed out that the working members of the Committee are predominantly the four "law lords" who comprise also the working judicial element in the House of Lords. It is the business of the Judicial Committee to consider and determine any matter that may be referred to it by the crown, but, in the main, to hear final appeals from the ecclesiastical courts, from courts in the Channel Islands and the Isle of Man, from the courts of the colonies and dependencies, and from English courts established by treaty in foreign countries. Its decisions are tendered under the guise of "advice to the crown" and, unlike the decisions of the Lords, they must bear the appearance, at least of unanimity.[253]