Question.—Is not the same thing true in regard to the Superior Courts?
Answer.—You will not expect me to answer that question, I think.
Even in the dark ages of 1878 one would have thought he might have risked an affirmative.
One does not quote the eminent solicitor’s opinion merely for the humour that attaches to old-fashioned ideas and prophecies that are brought to light in a new age and found to be absurd. No doubt he was fighting for a substantial thing, in a word—costs, and he was fighting the wreckers that wanted to break up the machinery that made costs, for he naturally disliked to see the smooth, well-oiled machine that worked so well for him replaced by some cheap machinery of one-horse “costs” power. In one thing I confess to his statesmanlike insight. If you want to improve the County Courts, he said, the “only improvement would be to double the salary of the judges at least,” and let the judge reside in his district, “but then you would be establishing superior Courts all over the country.” And the idea of the “country” having similar facilities to London for the trial of actions was too preposterous. It had only to be stated, it was self-condemned, and the matter dropped.
One must not suppose that there were no champions of saner methods in 1878. On the contrary, I think the reformers were the better team of the two, and pressed their opponents hard, although they did not score greatly in the end. What could be more interesting or important than the opinion of Lord Bramwell, who was concerned in several of the Judicature Commissions prior to 1878? His view was that the County Courts should be made constituent branches of the High Court of Justice, and that as a consequence of that, the existing jurisdiction in common law should be unlimited. That is to say every action would commence in the County Court and be tried there unless the defendant chose to remove it to the High Court. It was pointed out that this would practically mean giving to every district, local Courts with full powers, and among other things that it would lead to the “deterioration of the Bar.” Lord Bramwell objected to the phrase, and answered his opponents by saying that the then Attorney-General (Sir John Holker) and Mr. Gully and Mr. Pope and Mr. Higgins, one of her Majesty’s counsel, have belonged to the local Bar, “and I think I may say of my knowledge, that the local Bar of Liverpool is as good as the London Bar.” This is important testimony, inasmuch as any evolution towards district Courts that will injure the assize system is sure to be opposed by those barristers—and there are many in Parliament—who are interested in the assize system, and one argument will be that the client will be deprived of the advantage of London “silk” if his case is tried in the County Court. Lord Bramwell disposes of that argument very shortly. “If there is any disparagement or injury to the Bar for the benefit of the public, the Bar must undergo it; that is all.”
In other words, the Courts of the future must be made convenient to the public as well as convenient to the profession; and where interests clash the public interest must be considered before the professional interest. This looks when written down an obvious platitude, but the history of the efforts to obtain and improve County Courts since 1830 will convince the legal reformer that it is worth re-stating.
Some years ago I made some elaborate calculations from the Blue Books, the results of which were rather surprising even to myself. I investigated the figures of ten typical urban Circuits in the centres of industry and of ten typical rural Circuits in agricultural districts. I found that in the former Circuits in ten years there had been a large increase in business. Nearly £40,000 a year more was paid to the Treasury in fees, and more than £150,000 was the increase in monies collected for suitors. In the same ten years similar figures for the rural districts showed a marked decrease. When one compared the turnover of the ten urban Circuits as against the turnover of the ten rural Circuits, it was as ten to one. I wondered what a Harrod or a Lipton or a Whiteley would have done with these Courts if he had found in auditing their accounts over many years that ten of them were non-increasing in a business sense, and that the other ten were increasing; if he found that he drew £150,000 as an income from one set and £40,000 from the other set. Would he not consider whether there was not a class of business being done by the urban circuits worthy of special consideration and encouragement?
For what did these figures show? They showed on the one hand a stagnant and non-increasing business, and on the other a business increasing by leaps and bounds. What business man would hesitate to extend ten branch concerns capable of so great an improvement in turnover in the course of a few years? I am frankly an enemy to making the suitor pay for his law. I believe, as Lord Brougham did, in free law; but if the system is to continue, why should a suitor in Birmingham pay more for his law than is necessary in order that a suitor in Ambleside may pay less for his law than it costs?
The Courts are, no doubt, not paying concerns, but how far some Circuits are run at a profit it is impossible for anyone outside the Treasury to ascertain. There is no doubt, however, that the loss in small Courts is very great, and whether they are of any great value to a district in these days of postal facilities and cheap railway transit I have grave doubts. I have always thought that the Post Office might work a great deal of the pure debt-collecting business in connection with the County Court, if it were thought desirable. It would, to my mind, be a natural co-ordination of two public offices, and might adapt itself very well to the needs of rural districts. If a country debtor could pay his debt to the nearest post office, and get an official receipt there, many small Courts and offices would become wholly unnecessary, and with a post office cash on delivery system one excuse for giving credit would be removed.