Judicature, Judicature Acts
court appeal lords vict
JUDICATURE, JUDICATURE ACTS. The Judicature Acts are an important series of English statutes having for their object to simplify the system of judicature in its higher branches. They are the following :-36 & 37 Vict. c. 66 ; 37 & 38 Vict. c. 83 ; 38 & 39 Vict. c. 77 ; 39 & 40 Vict. c. 59 (the Appellate Jurisdiction Act) ; 40 & 41 Viet. c. 9.
The movement which ended in the Judicature Acts has been promoted by all the recent holders of the office of Lord Chancellor and by most of the leading judges, but it required a long time to bring it to a successful issue, on account of the difficulty always experienced in creating a sufficient amount of public interest in legal reform to overcome the obstacles to legislation. The principal Judicature Act is framed on the basis of a report by a commission which was appointed in 1867. It was carried in the chancellorship of Lord Selborne, but his predecessor Lord Hatherley had in 1870 introduced a measure of the same character. The objects of the Act are threefold - first, to reduce the historically independent courts of common law and equity to one supreme court of judicature, consisting of two branches, a High Court of Justice and a Court of Appeal ; secondly, to establish for all divisions of the court a uniform system of pleading and procedure ; and, thirdly, to provide for the enforcement of the same rule of law in those cases where chancery and common law had hitherto recognized different rules. The Act does not fuse common law and equity in the sense in which that phrase has generally been employed. The chancery division still remains distinct from the common law division, having a certain range of legal questions under its exclusive control, and possessing to a certain extent a peculiar machinery of its own for carrying its decrees into execution. But all actions may now be brought in the High Court of Justice, and, subject to such special assignments of business as that alluded to, may be tried in any division thereof ;, and all divisions must recognize the same principles. Further, the difficulties occasioned by mere technicalities of procedure have been to a great extent removed by a system of pleading, the inspiring principle of which is that each party should state his case in the simplest possible manner. It is in respect of the last point that the operation of the Judicature Act has been least satisfactory, and it is certain that a further simplification of pleading, possibly based on the practice of the Scotch courts, will follow very soon.1 The appellate part of the judicature has after some hesitation been finally settled thus. The House of Lords remains the last court of appeal, as before the first Judicature Act. That Act abolished the appellate jurisdiction of the Lords so far as the new court of judicature was concerned, leaving it still the appeals from Scotland and Ireland. A temporary Act allowed appeals to be brought from the new court, and the Act 39 & 40 Vict. c. 59 made provisions for the permanent hearing of appeals from all courts to the Lords. The judicial functions of the House of Lords have been virtually transferred to an appeal committee, consisting of the Lord Chancellor and other peers who have held high judicial office, and certain lords of appeal in ordinary created by the Act. No appeal is to be heard unless three of such persons shall be present, and the lords of appeal may sit for the despatch of judicial business during a prorogation of parliament, and even by order of the queen during a dissolution. The lords of appeal in ordinary are an entirely new creation. They hold office on the same conditions as other judges ; they take rank as barons for life ; but they are entitled to a writ of summons to attend and vote in the House only so long as they hold office, and their dignity does not descend to their heirs. Two are appointed in the first instance, but an arrangement is provided for by which the four head judges of the privy council may ultimately be the four lords of appeal in ordinary. When two of the privy council judges die or resign, a third lord of appeal may be appointed, and a fourth when the remaining two judges of the privy council cease to hold office. The judicial committee of the House of Lords and the judicial committee of the privy council will then be the same, and the two jurisdictions will be fused. The Court of Appeal, created by the Judicature Act of 1873, with intention of making it a final court, is now subject to an appeal to the House of Lords. It now consists of six judges, and sits in two divisions, which, roughly speaking, take respectively the chancery and common law business of the divisional courts, but the lords justices of appeal sit in either division according to convenience. This part of the rearrangement of the judicature may be pronounced entirely successful. A strong and stable court of appeal has been created, instead of the fluctuating tribunal of former times. The same is true generally of the redistribution of judicial strength effected by the Acts, which has led to a marked improvement in the despatch of business.
The Irish Judicature Act (40 & 41 Vict. c. 57) follows the same lines as the English Acts. The pre-existing courts are consolidated into a supreme court of judicature, consisting of a High Court of Justice and a Court of Appeal. The Judicature Acts do not affect Scotch judicature, but the Appellate Jurisdiction Act includes the Court of Session among the courts from which an appeal liesto the House of Lords under the new conditions. (n. R.)