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All these restrictions upon the issue of process in local courts are quite opposed to the practical adoption of the important rule already discussed, that the initiation of proceedings in local courts should have no limit as to the nature or amount of claim or the area of jurisdiction. If an exclusive power of initiation is to be given, it will be absolutely necessary that the rule should be fully carried out; that every complainant "should be the dominus litis, as in the superior courts, and should have the option of suing in whatever court he thinks fit; but that the court in which he elects to sue shall be empowered to change the venue at the instance of the defendant on special grounds." This is the simple but admirable expedient which was suggested so long ago as 1855, by one of our ablest county court judges. That the defendant should be placed at no disadvantage, Mr. J. Pitt Taylor proposes that the summons should contain a distinct notice of the defendant's right to change the venue upon his transmitting an affidavit to his own county court, stating that he has a defence on the merits, and that some good cause (to be specified) exists for its removal. This affidavit would be at once sent by post to the registrar of the plaintiff's court. If the plaintiff objected to the change of venue, he would have to show cause against the application, by an affidavit similar to that of the defendant. Upon these two affidavits the judge of the local court would decide whether the application would be granted or rejected. The only objection that appears to have been raised to this proposal is that it is complicated. But its author denies that it is complicated, and justly asks," what can be more simple than the mere transmission of an affidavit?" Under these conditions, one broad line of exclusive jurisdiction as to initiation of proceedings might be safely drawn in all common law actions, certainly up to £50, if not higher. For the reasons which lead me to draw this line without any distinction as to actions on contract and actions on tort, I refer to the admirable argument on the subject contained in the observations just referred to. The rules here laid down are of course applicable to every kind of local judicature that may be established, and would include the equitable jurisdiction of our local courts. It would, however, be premature to offer any decided opinion as to the point at which the line of exclusive jurisdiction in initiating equity proceedings should be drawn, though the limit fixed for concurrent jurisdiction will probably be found the proper line.

Procedure.-It has been urged as a ground of objection to any extension of the jurisdiction of our local courts, that it has no process for the development of the issue between the parties; and the separation of questions of law from those of fact. Of course if any system of written pleadings were found necessary for raising the issue in fact or law, they could be as easily adopted in county courts as in a higher court, just as some of the local borough courts of

Observations of Mr. J. Pitt Taylor, at the end of Royal Commissioners'

Report.

record have adopted the present system of common law procedure. But I venture to submit that no such process is wanted. The argument in favour of its rejection, even in the superior courts of common law, has been maintained with some force by a recent writer on the subject.* He urges that the written pleadings interchanged between parties to a common law action are framed, not with a view of informing the court, but of misleading the opposite side; and fail to give, or only imperfectly afford any information as to the real nature of the dispute.

There can be no doubt that the interchange of these written statements is the source of much delay and consequent expense, while it enables litigants to raise defences which could never have been raised if the parties or their agents had been brought together and obliged to state distinctly, in the presence of the judge, the ground or theory of their respective cases. He urges, therefore, that the natural course of a civil contention should be to bring the parties or their agents before the judge in the first instance, and allow him to elicit the real question at issue. This single meeting would supply the place of the present tedious and expensive course of written pleadings. If a substantial issue were raised it could be at once judicially reduced to writing. It would be beside the purpose of this paper to discuss this bold proposition, which deals in such an uncompromising manner with a science that has been looked upon with mysterious reverence by many successive generations of lawyers; and which, even now, when so much shorn of its former technical grandeur, is regarded by the profession as the only orthodox way of unravelling a grave dispute. But the common sense of the age and the experience-now twenty years oldof our county court procedure, will, I think, justify the opinion that no extension of local jurisdiction in civil cases such as I have suggested would make it necessary or desirable to introduce into its practice any artificial system of pleading.

These, then, are the conclusions to which I believe everyone must come who gives any attention to this important subject; that the broad and comprehensive principle upon which alone a complete system of local judicature can be built up, has only been very partially and imperfectly adopted; and that until it is fully adopted our local courts must fail to realise the great object of their constitution-a cheap, uniform, simple, and rapid administration of civil justice throughout the kingdom. These conclusions are stated, however, in no captious or unreasonable spirit. It would be equally unjust and unwise to complain that the genius of this country is em pirical; that its advances in every direction of human progress are always experimental, and never the consequence of preconceived theories. For in this very fact lies the secret at once of our stability and our greatness. To such commanding advantages we may well

* "Natural Law Procedure," by James Walter Smith, LL.D.

This method of oral pleading or loquela was practised in our Courts until the reign of Henry III.; probably much later.-Reeves' "Hist. Eng. Law," vol. 1, p. 95.

make the sacrifice of a little patient waiting until each successful experiment has borne as its fruit the theory which underlies it. I would, however, confidently urge that this is now the position of the local courts' experiment; that the tentative legislation which, during the last twenty years, has so clearly proved their value, should be replaced by a general measure founded on the principle, and constructed with some such rules as I have suggested. I do not hesitate to say that no practical measure of law reform would confer greater benefits on the body of the people; and none, therefore, is more worthy of the earnest attention of the Department.

Mercantile Courts. By JAMES HALL, Newcastle-on-Tyne. PUBLIC attention has lately been directed to the efforts that have been made by the commercial community for the establishment of a more expeditious, less expensive, and more satisfactory means of legal procedure than at present exists for the settlement of commercial differences.

Acting upon the suggestion of one of the greatest living authorities on law, and as one of the principal promoters of a Bill laid last session before Parliament, for the attainment of greater facilities in the settlement of matters of dispute relating to ships and their cargoes, matters which above all others are apt to give rise to litigation, I shall endeavour to explain the principle upon which the above Bill was framed, and to show what has already been done in furtherance of the views of the commercial world on the subject.

The principle of having justice promptly administered, that on which the constitution of tribunals of commerce is based, is not new; nor is the practice of submitting merchants to the jurisdiction of their compeers of recent date. Antiquity furnishes more than one instance of it. The celebrated Montesquieu, in his work entitled "Esprit des Lois," says, "Xenophon felt the necessity of the consular jurisdiction, and Demosthenes, in his orations against Apaturius and Phormion, informs us that at Athens there were particular magistrates for commercial differences. These magistrates went on board of ships, listened to the disputes of merchants, and in order that the interests involved might not suffer from delay, they adjudicated thereon immediately. At Rome, also, there were judges for every profession, to settle disputes between parties of the same calling. They had absolute jurisdiction, and their decisions were final."

If the legislators of Greece and Rome experienced the utility, or let us rather say the necessity, of mercantile courts, the same necessity has been equally patent to the legislators of almost all modern states. The consular jurisdiction was first founded in Italy, the cradle of modern commerce, and at the time of the Crusades, when

the Italian republics extended their commercial operations towards the East, courts were formed, based upon these principles.

Then, as now, in France and elsewhere, these courts were characterised by four essential principles

1. The judges were required to be experienced in shipping and commercial matters.

2. Simplicity in the debates between the parties.

3. An expeditious and inexpensive procedure.

4. Prompt execution of the judgments.

This last consideration is an important one. To delay justice, in matters of shipping especially, is often to deny it.

The old courts of "Piepoudre," formerly held in our own boroughs on special occasions, confirm the principle of prompt justice. For instance, in cases of dispute during a fair, the parties, with the dust upon their feet, as the word "Piepoudre " implies, went before the authorities to have an immediate settlement of their differences.

It may not be uninteresting at this juncture to call attention to the fact that a kindred institution to that here advocated was in existence in this country, as far back as three quarters of a century ago, and the late Mr. Clarkson, in his "Portraiture of Quakerisin," gives the following account of it.

"In the town of Newcastle-upon-Tyne," he says, "a number of disputes were continually arising on the subject of shipping concerns, which were referred to the decision of the law.

"These decisions were often grievously expensive. They were, besides, different from what seafaring persons conceived to be just. "The latter circumstance was attributed to the ignorance of lawyers in maritime affairs. Much money was therefore often expended, and no one satisfied. Some Quakers in the neighbourhood, in conjunction with others, came forward with a view of obviating these evils. They proposed arbitration as a remedy. They met with some opposition at first, but principally from gentlemen of the law. After having, however, shown the impropriety of many of the legal verdicts that had been given, they had the pleasure of seeing their plan publicly introduced and sanctioned; for, in the month of June, 1793, a number of gentlemen, respectable for their knowledge in mercantile and maritime affairs, met at the Trinity Hall, in Newcastle, and associated themselves for these and other purposes, calling themselves The Newcastle-upon-Tyne Association for General Arbitration.'

"This association was to have four general meetings in the year, one in each quarter, at which they were to receive cases.

"For any urgent matter, however, which might occur, the clerk was to have the power of calling a special meeting.

"Each person, on delivering a case, was to pay a small fee. Out of these fees, the clerk's salary and incidental expenses were to be paid. But the surplus was to be given to the poor.

"The parties were to enter into arbitration bonds, as is usual upon such cases.

"Each party was to choose out of the association, or standing committee, one arbitrator for himself; and the association were to choose or to ballot for a third. Here it will be proper to observe that this standing association appeared to be capable of affording arbitrators equal to the determination of every case; for if the matter in dispute between the two parties were to happen to be a mercantile question, there were merchants in the association; if a question relating to shipping, there were shipowners in it; if a question of insurance, there were insurance brokers also. A man could hardly fail of having his case determined by persons who were competent to the task.

"Though this beautiful institution was thus publicly introduced, and introduced with considerable expectations and applause, cases came in but slowly. Custom and prejudice are not to be rooted out in a moment. In process of time, however, several were offered, considered, and decided, and the presumption was that the institution would have grown with time. Of those cases which were determined, some relating to ships were found to be particularly intricate, and cost the arbitrators considerable time and trouble. The verdicts, however, which were given, were all of them satisfactory. The institution at length became so popular that (incredible to relate) its own popularity destroyed it. So many persons were ambitious of the honour of becoming members of the committee, that some of inferior knowledge, judgment, and character, were too hastily admitted into it. The consequence was, that people dared not trust their affairs to the abilities of every member, and the institution expired, after having rendered important services to numerous individuals who had tried it.

"When we consider that this institution has been tried, and that the scheme of it has been found practicable, it is a pity (Mr. Clarkson remarks) that its benefit should have been confined, and that for so short a period, to a single town.” ▸

Napoleon has said that his fame in the eyes of posterity would rest. even more on the code bearing his name, than on all the victories he ever won'; and "its permanent 'establishment," adds Sir Archibald Alison, commenting on this passage, "as the basis of the jurisprudence of half of Europe, has already proved the truth of the prophecy." One of the distinguishing features of the French code is the elaborate provision it makes for the establishment and working of tribunals of commerce.

In France, these tribunals consist of a president, judges, and assistant judges (all commercial men). The number of judges must not be less than two, nor more than fourteen, exclusive of the president. The number of judges and assistant judges for each tribunal, is fixed by Government.

The members of the tribunals of commerce are elected at a meeting of the most note-worthy merchants, principally the seniors of the longest established firms, whose probity, rectitude, and experience, are well known. They are appointed for two years. To each

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