CHAPTER V.

THE HIGH COURT AND THE COURT OF APPEAL.

WE turn now to that Supreme Court of Judicature which was created in 1875. It consists, says the statute that made it, of two permanent divisions—the High Court of Justice and the Court of Appeal. Really, each of these divisions is a distinct tribunal. There is convenience in having a name which may stand for the two taken together; in being able to say, for instance, that a committee of the judges of the Supreme Court can make rules for the Supreme Court; but still no judicial work is done by the Supreme Court that is not done either by the High Court or by the Court of Appeal.1

Of the High Court there are twenty-three judges, of the Court of Appeal nine; of the two taken together twenty-nine. This falls out thus: of the High Court there are three divisions; the Chancery Division has five judges besides its president the Chancellor : the Queen's Bench Division has fifteen judges, of whom one,

1 As "the Supreme Court" and "the High Court" must often be mentioned hereafter, the difference between them should be noted. These names are not very happy, but Parliament has forced them upon us.

the Lord Chief Justice, is its president: the Probate, Divorce, and Admiralty Division has but two judges, one of whom presides over the other: the Court of Appeal has six ordinary judges, one of whom is the Master of the Rolls, while the other five bear the title Lords Justices; but the Presidents of the three Divisions of the High Court are also members of the Court of Appeal.

1

Of the Chancellor's position hereafter; the other judges are appointed by the Queen;2 they are paid by salaries charged on the consolidated fund; they hold office during good behaviour, but the Queen can remove them on an address presented by both Houses of Parliament. A barrister of ten years' standing may be appointed a judge of the High Court; to be an ordinary judge of the Court of Appeal one must have been a barrister for fifteen years, or a judge of the High Court for one year. The judges cannot sit in the

House of Commons, but it often falls out that at least one judge is a peer, and can sit and vote in the House of Lords. Of late a fashion of appointing to judgeships none but friends of the Ministry has been disregarded; but at no time on this side of the Revolution has there been much cause for complaining that judges have been political partisans. The presidents of the three divisions have a certain power of arranging the work of their divisions; the Chief Justice and the Master of the Rolls have also a certain honourable pre-eminence and some special powers aud duties (the latter, for example, is head of the Public Record Office), but in general the judges are equals.

Now the High Court is a court for the whole of 1 See below, p. 64. 2 See below, p. 65.

England, and, subject to what has been said about cases which must be taken in the first instance to some inferior tribunal,1 it is an "omni-competent" court of civil jurisdiction, that is to say, it can entertain actions of every kind and give to every one whatever remedy our law (including our equity) has for his case. Then, again, it is the court to which appeals can be brought from the county and other inferior courts. Then again, as we shall see hereafter, it is the great court for criminal justice. But also it does a great deal of work, the nature of which will perhaps hardly be suggested by the words civil and criminal jurisdiction. It exercises what we may call a corrective control over the proceedings of all lower courts and magistrates, ordering them to hear and determine this case which lies within, prohibiting them from meddling with that matter which lies beyond, their jurisdiction. But further, the King's Bench had and the High Court has, a large power of compelling public officers of all kinds, public corporations of all kinds, to perform this or that public duty. The direct control thus exercised over public officers not by an official bureau, but by a court of law, has been a very remarkable feature of English justice. Hitherto we have done almost entirely without any special tribunals to entertain such complaints as a man may have to make against those who are entrusted with public duties or coercive powers. Such complaints came before the old courts, they come before the High Court, as litigious proceedings to be heard and determined in the ordinary way according to the law of the land. Some special

tribunals there are for the decision in a more or less judicial, a more or less administrative, fashion of 1 See above, p. 28.

questions touching certain public duties; the Railway Commission is the most serious instance, the Charity Commission is another; but hitherto such tribunals have not played a large part in English history, and the writ of prohibition whereby the King's Bench used to keep the ecclesiastical courts from transcending their proper bounds has of late been often used to teach the Railway Commission that it is but an inferior court. Occasionally, too, the final decision of a question of law is committed by statute to one of the great departments of the central government for instance, to the Local Government Board-but this also is as yet rare.1

To each division of the High Court certain business is specially assigned. Often a plaintiff has a choice; sometimes there is but one division to which he ought to go. Now this distribution of business though it may be the result of, is none the less a very different thing from the old distinction between courts of law and courts of equity. Any division can now deal thoroughly with every action; it can recognise all rights whether they be "legal" or equitable; it can give whatever relief English law (including "equity") has in store for the litigants. Also it is a mere matter of convenience which rules made by the judges might at any moment alter and the divisions themselves might be abolished without any Act of Parliament by an Order in Council

66

1 I refer more particularly to the power the Board has under Acts relating to the relief of the poor of deciding that expenditure was or was not lawful, and the power the same Board has under the Public Health Act of hearing what is called "an appeal." As to the so-called " equitable jurisdiction" of this Board see T. W. Fowle, The Poor Law, p. 108, as to the Railway Commission, Sir T. H. Farrer, The State in its relation to Trade, p. 117.

own.

made on the recommendation of the judges.1 If now a plaintiff makes the mistake of going to the wrong division, it is a mistake which will occasion but little trouble; there is a mode whereby an action at any stage of its existence may be transferred from one division to another, and the division to which it comes by mistake can retain it and do justice in it. The separation of testamentary and matrimonial causes from all other litigation is not unnatural, for an action to obtain a divorce or probate of a will is unlike other actions. In a less degree the same is true of maritime causes, so the Probate Division has a well-defined province of its It is more difficult without an enumeration of particulars to describe the special work allotted to the Chancery and the Queen's Bench Divisions, for in part the allotment is only explicable by the fact that cases of a certain sort used to go to the Chancery, others to courts of law. But also in part the allotment is determined by the existence in the Chancery Division of a machinery for taking accounts. A great deal of the business in this division is not contentious litigation. That love of making elaborate dispositions of property, which "equity" fostered, turned the Chancery into a large property office taking charge-not gratuitously-of a vast amount of wealth, and administering (after payment of costs) the various complicated trusts to which that wealth was subject. This work is still done by the Chancery Division, and upwards of seventy million pounds is so invested as to be subject to its orders. To it, for example, are assigned actions for the taking of partnership and other accounts, for the sale

1 The Common Pleas and Exchequer Divisions were abolished by Order in Council of 16 December, 1880.