The Ashburton Guardian. Magna est Veritas, et Praevalebit. THURSDAY, JUNE 16, 1881. Report of the Judicature Commission.
TOWN EDITION. [lssued at 5.10 p.m.]
Though it may be an illustration of the Ministry’s weakness, it is also a sign of their prudence that they have lately taken to referring all difficult questions which need settlement to Commissions to report upon. Retrenchment in the Civil Service, railway construction, establishment of local industries, and native disturbances on the west coast of the North Island, have already been disposed of in this way, and perhaps education and one or two other subjects may follow suit. For the advantages are obvious. If the Ministry don’t quite understand a subject, they can take the evidence of experts to enlighten them as to the facts of the case, and ponder over that evidence in a concise form at their leisure. If, on the other hand, they have already formed definite opinions, they can produce the reports of the Commissions to back up their own authority, when it requires strengthening. The acute Mr Spenlow can always refer, in case of need, to an imaginary imperious Mr Jorking in the back office, who insists that an unpleasant duty shall be discharged. The latest published of these Commission reports is that which appears in our columns elsewhere, and is the result of the wisdom or otherwise of the Judicature Commission. As usual, it is a mixture of sound sense with unsound crochetiness. It purports to simplify legal proceedings and lessen law costs, both of them most desirable objects. It is doubtful, however, if the simplification is to be attained by the correct method. Thus, for instance, it is doubtless desirable that where the Supreme Court holds its sittings for the trial of the heavier civil cases, local Courts should be established with a jurisdiction for petty debts up to LSO, for these cases must be heard, and it cannot be expected that the Supreme Court Judges will have time to hear them. But we see no reform whatever in the extension of the jurisdiction of the local Courts to L2OO in places where there are no Supreme Court sittings. Too much is at stake for it to be left to the decision of either a non-legal Police Magistrate or of an ordinary District Judge, a barrister certainly, but as often as not of no standing in the profession. Still more objectionable by far than this proposed alteration is the next one suggested, for trial without juries by the Supreme Court in cases up to LSOO. A strong dislike to juries has been openly expressed of late years by the legal fraternity. Practically the craft of Demetrius, the silversmith, is in danger, and that is the reason why. We are not going to rave about the glorious right of trial by jury, the Palladium of British liberty—whatever that may be, and so on. But we are very certain, and so are thinking laymen generally, thatriotwithstanding the numerous blunders of juries, judges make quite as many, and those of a more dangerous kind. For the twelve laymen in the box almost always aim at awarding substantial justice, which is really che ultimate end of the existence of all Courts, judges, and pleaders. On the other hand, the judge frequently aims at nothing of the kind, but at a decision in accordance with a technical something which he calls the law, a totally different matter very often. An acute District Judge in a neighboring colony was once remonstrated with by a learned counsel upon the injustice done to his client by a decision of the bench. “Justice! Justice! Mr So-and-so,” said his Honor, “ you are quite mistaken; this is not a Court of justice, but a Law Court; we have not the article you speak of in stock.” Indeed, it is notorious that the most conscientious counsel prefer greatly to win a verdict on some technical law point, not in the least affecting the merits of the case, to obtaining it by the mere force of the obvious facts. An ingenious technical law point raised secures kudos and future pelf for the practitioner; a clear and forcible statement of facts, and the necessary deduction fo be made from them only shows that the client was in the right in coming into Court. In one other respect, namely—in abolishing the division between law and equity procedure, we are entirely at one with the Commission. The fancy of many of the uninitiated that the so-called Equity Courts are established for the administration of justice rather than of mere law is one of the wildest delusions. For the Equity Courts are really nothing but Law Courts, with numerous adjuncts in procedure, apparently established only for the purpose of putting heavy fees into learned counsel’s pockets, and of swelling up expenses. Swift tells us that Gulliver’s father lost a large fortune by gaining a Chancery suit, which is the same as an equity suit in the colonics —for Li 5,000, and costs. And nothing
that even Swift ever wrote could well be a more bitter satire on the procedure of our Equity Courts than a case which came before our own notice some years ago. A dispute between two merchants respecting the sale of a piece of land, which could have been settled by arbitration by any two merchants or land agents in an hour’s time, was taken into the Equity Court. The case lasted thirteen months before it came on for hearing; five days were occupied in taking evidence, and two days by counsel’s speeches. The costs ran up to L6oo, or four times the amount at issue; the person whom the judge stated to be the only one entirely free from blame in the whole transaction, namely —the defendant, was the heaviest loser, and to crown the absurdity, within a fortnight from the time when the verdict was given, the learned judge privately informed the defendant’s counsel that he was not sure whether he had given the right decision ?