ficient to defray the expenses which arise out When one party only is chargeable with of the particular suit. I mean the principle culpable litigation, the exaction of a penalty that culpable litigation is an offence from from the party who is not so chargeable with which men must be deterred by the fear of a right to recover it if he can, from his antagopunishment. The punishment of this offence nist, produces, as in the case last supposed, (fine enforced by imprisonment) is to be in- pure and gratuitous mischief, but of a more flicted according to the scheme of judicature aggravated kind. It tends to deter the innoproposed for Ceylon, not indirectly nor under cent party from maintaining his just rights, a feigned name, but expressly as a punish- and not only does not tend to deter the guilty ment for the offence. The nature of the of-party, but actually encourages him in his mafence is to be declared openly by the Judge, lignant purpose by making an oppressive or the opinion of the assessors is to be taken and vexatious lawsuit a sharper instrument of torrecorded, and the quantity of punishment is ture than it otherwise would be. to depend upon those considerations which determine it in respect of all other offences. The penalty, even when, by the adjudication of costs, it has been at last directed Whether or not the specific money with upon the right party, is still not at all prowhich these fines are paid, should be paid portioned to the nature of his offence, and beover to the Judges as part of their salary;ing mixed up with the real costs of the suit, whether or not the sum so raised should be set loses the appearance, and with the appearin the public accounts against the expenses ance, the efficacy of a punishment. of the judicial establishment, seem to me to be mere questions of fiscal arrangement with will have any extraordinary difficulty in deI cannot myself perceive that the Judge which we have no concern in this discussion. ciding whether either or both of the parties The imposition of fees and stamps can only has conducted the litigation in such a manner be justified, I apprehend, upon the ground as to justify the infliction of a penalty; but that they operate as a punishment upon cul- whatever the difficulty may be, it is the same pable litigation. The only other imaginable and no other than that of deciding which of ground of justification is that they are a good the parties is to pay the costs of each step tax, which is so manifestly untrue that I need taken in the course of the suit, which is not waste argument upon it. They have in-imposed upon every Equity Judge in Engdeed, when considered as a tax, nothing to re-land. commend them even to the fancy, but the circumstance that they are levied in Courts of Justice, and usually applied to defray the cost of those establishments. My learned friend says, "supposing that no outrage has been committed amounting to a contempt of Court and requiring immediate and summary punishment, the legitimate authority of the Judge who has pronounced his decision upon the matter in controversy is Considered as a punishment, fees and stamps appear to me in all repects less efficacious than the fines which Mr. Cameron has propos-limited to a control over the costs of the suit." ed to substitute for them. But in the costs of the suit are included the stamps and fees; so that in this legitimate authority is included the power of directing on whom they shall ultimately fall, and what I ask is, that they should be suspended until The actions from which it is intended that men should abstain through fear of this punishment are those which may be described generally as dishonest, or vexatious, or frivolous litigation. In one word culpable litiga-the Judge is in a condition to say who that tion. is. I further ask, indeed, that the judge inThe penalty intended to be the consequence beyond the real costs of suit (as he in fact stead of imposing a fixed amount of penalty of these actions, when it assumes the shape of does when he decrees that a party shall pay fees and stamps, falls in the first instance upon the stamps and fees upon the whole proceedevery body who may by possibility have incured it or be about to incur it. Afterwards inings) shall have the power to graduate the deed it is shifted on to the person who has ac-and to abstain from inflicting it altogether penalty according to the degree of the offence, tually incurred it if any such person there be, when no offence has been committed. This and provided he happen to be of ability to pay it. But otherwise it is suffered to remain seems so reasonable in itself that I know not where it first alighted. how to make it appear more so. If it be objected that this is to punish a man without a Where neither of the parties to a suit is just-separate trial for the supposed offence, I anly obnoxious to any penalty, as when they are swer that, where the supposed offence is the merely applying to Judicial authority for the misuse of legal proceedings in the course of solution of a question of law which the legis- a cause, the judge and the assessors who have lature has not adequately expounded, the ef- tried that cause, are more competent to adjufect of the penalty is pure, gratuitous mischief. dicate upon this incidental question than any The money taken from these innocent men for other judge and assessors assembled at some the performance of an innocent action may future period to try it as a separate cause can indeed be employed for some beneficial pur-be; and it seems to me that whoever denies pose; but this attribute belongs to fees and this must also contend that there should be a stamps considered as a tax, not as a punish-separate trial before the question of costs can ment, and is common to this with the worst be properly adjudicated; and, as the question tax that can be imagined. of costs must also arise in this second inves tigation, every suit would generate suit after | adoption. suit ad infinitum. In our own irregular and complex system the Court sometimes finds means of punishing a party who misuses legal proceedings, besides condemning him in costs. Many applications are made in the progress of a suit which it is in the discretion of the Court to grant or refuse, and the Court is constantly guided in the exercise of this discretion, by the conduct which the party applying has observed in the use of legal proceedings; if he has abused them, as, for example, if, having the choice of two forms of action, he has adopted one with a view of unfairly embarrasing his adversary, the Court will tell him that he is not entitled to any favor. Upon the same principle, too, the Court will stipulate, as the price of its judicial favors, for the future good conduct of the applicant. Now all this seems to me to be only a mode of enabling the judge to do clumsily, indirectly, clandestinely and occasionally, that which Mr. Cameron proposes he should do appositely, directly, openly and constantly. The whole doctrine I wish to enforce on the subject may be well illustrated by a particular example. Lord Tenterden at Guildhall refused to let a plaintiff have judgment of the term because he had brought an action of debt instead of an action of assumpsit. The facts of his case were capable of being stated in either form consistently with the rules of pleading, but the form he chose was the most burthensome to the defendant and his counsel was unable to suggest any other reason for its Now Lord Tenterden did this case, because it so happened that the rules of procedure permitted, what I wish the Judge should be enabled to do, in a more effectual way, in every case of the kind. The plaintiff had used his strictly legal rights in a way needlessly oppressive to his adversary, and was therefore a fit subject of punishment. The facts of the case and the form of action in which the plaintiff chose to alledge them, were all before the Court, and his counsel could give no other explanation of his conduct than the one which admitted the impropriety of it. No one will say that in such a case the law ought to require that a man should be indicted for having sued in debt instead of in assumpsit; nor yet that he ought to escape with impunity, when he has once sued with no other object than of unjustly harassing the defendant. I am not myself afraid of trusting a Judge sitting in public and checked by assessors, with the most unlimited discretion in this matter, but I see no practical objection to the fixing a maximum beyond which the fine or imprisonment by which its payment is to be enforced, shall not extend. Mr. Cameron probably did not recommend this course in his report, because he did not think there is any real necessity for it. The discretion of the judges in punishing contempts of Court by fine and imprisonment is unlimited, and I never heard of a case in which it was even alleged that this discretion was abused, and yet a contempt of Court may assume a form far more irritating to a judge than the abuses of legal proceedings by which the parties seek to oppress each other. LETTER IV. an inconsistency could have found a place in them. However, the argument contained in the second letter must stand or fall by its own merits; and I shall therefore proceed to reply to it as if no such incautious admission had been made as that above adverted to. I now proceed to answer my learned friend, I done and will content myself wth remarking the ENGLISH LAWYER'S second letter, but, be- that the letters signed" AN ENGLISH LAWYER" fore doing so, I must notice a singular discre- must, it appears, have been the production, pancy between his first and second letter. At not of one, but of at least two English Lawthe commencement of his first letter the fol-yers; else how is it possible that so glaring lowing admission is made." It appears to me that the Regulations for introducing complete uniformity into the Judicial Establishment and for giving every court of original jurisdiction, with the specified exceptions, exclusive jurisdiction over all causes, civil and criminal which arise within the limits of its district, is a great improvement in the ad- It must be admitted that the highest degree ministration of Justice," while the whole of of judicial skill is rare in every country comhis second letter consists of an argument pared with the inferior degrees of it, and that against this exclusive jurisdiction, the advan-in no country is there enough of the highest tage of which had been admitted by him in his first, and in favor of the plan of establishing separate Courts for great and small causes, which in the great majority of cases is The practical question then is, how can jutantamount to establishing separate Courts dicial skill, being subject to such conditions for the rich and for the poor. I will not stop as above, be most usefully applied to the comto draw all the conclusions from this extra-plete investigation of all the causes to be ordinary discrepancy which might fairly be decided in a country? degree for the complete investigation of all the causes to be decided. The mode approved by my learned friend covered which are the causes involving diffiand usually adopted, is to attempt a division culties, and worthy on that account to be of causes into those involving great diflicul- separated from the mass and submitted to ties and those involving little or no difficul- that high judicial talent of which, it is agreed ties. To apply the highest judicial skill only on all hands, there is not enough for every day to the former class and to leave the other use, to let these causes be carried up in appeal class to be decided by the inferior degrees. to the higher tribunals. According to this plan it is obvious that the If it be objected that this is to allow each suitor to decide for himself whether the diffidivision of causes must be effected by means of some external mark from which the difi-culties of his cause are such as to entitle it to culties of a cause may be known or conjec- think it sufficient for the present purpose to an examination by the highest tribunals, I tured prior to the actual investigation of it. answer that the objection applies not only to The external mark usually selected for this his plan of an universal appellate judicature, purpose and approved by my learned friend, but to all appellate judicatures, and that apis the value in dispute. pellate judicature is nevertheless admitted to Admitting, as I do, a great part of what he be an excellent thing. But I am quite presays in favor of this external mark, it is still pared, if it is desired, to set forth the provia very imperfect criterion. Many of the sions which will obviate in this, as in all other causes which, according to the spirit of this cases, the mischief on which this objecton is plan, ought to have been referred to the higher founded. tribunals, will be by this criterion referred to the lower, and vice versa. Hence on the one hand excess, on the other hand defect in the application of Judicial skill. But there is another and much more serious objection to this criterion than its imperfection for the specific object of determining the relative importance of causes, viz. that it divides causes into two portions of which the one contains all the important causes of the rich while the other contains all the causes of the poor, together with the unimportant causes of the rich. The privilege thus given to the rich of monoplizing the best judicatures seems to me most invidious and pernicious, and I doubt not that it would be so considered by my learned friend himself if it were confered up on the rich expressly as an aristocratical pri vilege. If this is really his view of the matter, and if I can point out a scheme by which, without any invidious distinction, the highest judicial talent may be confined to the decision of difficult causes with a much nearer approach to accuracy than is made by dividing the whole mass of causes according to the value in dispute, my learned friend will be ready to substitute that scheme for the one commonly resorted to. The scheme I mean is to have all causes tried in the first instance by those Judges who alone are sufficiently numerous for the task, viz. those who do not possess the highest judicial talent, and when actual investigation has dis One of the most striking advantages of this plan over that approved by my learned friend, is the effect it is calculated to produce upon the inferior Judges. According to the plan approved by my learned friend, those Judges would only have to decide causes which attract none of the public attention and are on that account not likely to attract much of the attention of the judge,-causes which though sometimes involving very considerable difficulties of fact and law present no motive by which the judge is likely to be stimulated to the exertions necessary for the solution of those difficulties. The only ambition of such a judge is to knock off as many causes as possible in a given time. No one will take the trouble to examine into the quality of his performances, but as the quantity may be seen by casting the eye upon a sum total, the praise of doing much is within his reach. I have myself seen Justice marching at so rapid a pace under these circumstances that her balance could not perform its functions. could be stimulated to exert their faculties The only way in which the inferior Judges to the utmost, is to let them try causes which attract the public attention, because they involve the interests of the rich and great. The public care nothing about the difficulties of a cause or the learning and talents which may be displayed in the solution of them, if the only result of the decision is that one of two obscure individuals receives a few pounds from the other. The benefits of publicity have been so strikingly exemplified in the judicial history of England, and are indeed so universally acknowledged, that it would be an impertinence in me to argue in support of them. But publicity exists only in name for a Court which is never permitted to examine a cause in the decision of which any one but the plaintiff and defendant feel the slightest interest. It is unfortunately true that one cannot by any contrivance completely supply a motive by which the public may be induced to give to the affairs of the labouring class, considered as individuals, the same attention which But there is no natural connection between the inaptitude of the judge and the summariness of the procedure, though it is perfectly true that accidentally they have in general been found in connection. the affairs of noblemen and gentlemen natu- causes of small amount would be better off rally attract to themselves; but a great deal with a good judge and a bad procedure, or may be done towards this desirable end by with a bad judge and a good procedure. mixing up the affairs of all classes together, by providing that the causes of all shall be tried in the first instance in the same place and by the same judges. A man who has come from his home to the Court of Justice to hear a cause about which the whole town is talking, will listen to what is going on while he is waiting in Court, though he may hear nothing for the sake of which he would have postponed his other avocations. But by far the most important effect of this argument is that produced upon the mind of the judge by trying causes of general interest. This effect consists partly of the legal knowledge which he is stimulated to acquire, partly of the habit which repeated efforts induce upon his mind of applying, without present effort, that knowledge to individual cases and partly by the habit, similarly induced, of exerting, without present effort, a vigorous and sustained attention. A benevolent and con concientious Judge would indeed be ashamed need to ask any thing of his benevolence; it Causes of different sorts require different incidents of procedure, but they do not therefore require different judicatures. A cause involving accounts must be referred to some person appointed by the Court to examine and report apon them, a cause not involving accounts needs no such proceeding. Does it follow from this that you must have two sorts of tribunals, one to decide causes involving accounts and another to decide causes involving none, instead of having one tribunal to decide both sorts of causes with a power to refer accounts when there are any? And if this does not follow, what is there to prevent one and the same judge from trying every class of causes according to that form of procedure which is found best adapted to it? All the different forms of procedure should indeed be carefully described before hand, but when that has been done, there is no danger in allowing the Judge adjudicating in public, and subject to an appeal, to apply to the cause before him that form by which it will most speedily arrive at a legitimate termination. The rule then which provides that all causes shall be tried by the same Courts does by no means necessarily imply that they should all be tried are investigated by the two Cheif Justices of according to the same forms of procedure. the King's Bench and Common Pleas. It is very true that such causes are tried at an expense which compared with the value in dispute is enormous, and this leads to the consideration of what are called summary modes of proceeding. Another great advantage of this plan is that it economizes far more effectually the time of the superior Judges than the plan approved by my learned friend. According to the latter plan much of the highest Judical skill is wasted in deciding matters of the simplest kind. For though it be true, as he says, that a small debt does not usually involve a very long account, and that “a dispute about a cottage does not often depend upon an intricate title" and that" a claim of £100 rarely makes it necessary to explain the doctrines of trusts and uses", yet it is not It is no doubt of great importance to men who are litigating about small matters that the proceedings by which they are to arrive at the desired object should neither be expensive nor dilatory, and if none but an ignorant and inattentive judge could be got to preside in a Court where the proceedings are summary, it might be a question whether the suitors in true that a claim for a large sum necessarily involves any difficulty. The difficulties in an With respect to the parties. It is manifestly action upon a bill or bond seldom bear any not the absolute amount of that which is proportion to the amount which happens to be in dispute, but its relative amount to their secured by those instruments. Moreover even entire possessions which constitute its importin the most intricate cause there is always ance. £10 is not only as important to a man much matter which is not intricate in attend- who has but £100 in the world, as £10,000 is ing to which the time of the most highly gifted to a man who has £100,000, but it is even conjudge is wasted. Whereas in the plan I advo-siderably more important. cate all the unimportant parts of a cause are finally disposed of by the inferior tribunals, and nothing remains to occupy the attention of the superior but those knotty points which can only be solved in a satisfactory manner by the highest judicial sagacity. Moreover, too, the poor man depends far more upon a good and cheap administration of justice for the security of his £10 from fraud and violence, than the rich man does for security of his £10,000. neighbouring despot. himself to some In the most barbarous and lawless society a Again, it is to be considered that if there are a hundred cases involving the same questions of great man can by sacrificing part of his prolaw, it is the one first tried only which involves perty protect the remainder. A man of low any legal difficulty; the ninety-nine involve condition can only hope for security from the no difficulty at all, for the solemn argument casual spoiler, by selling and decision of the question have removed it. Yet, according to the plan approved by my learned friend, the facts of all the hundred must be tried by the superior tribunal if the value in dispute happens to reach the requisite amount. In the plan which I recommend the ninety-nine would all be finally disposed of by the inferior Courts. To sum up then, these two propositions, 1. That the highest judicial skill never exists in sufficient quantity for the decision of all the causes in a community. 2. That the poor cannot have the benefits of the good judicature unless they are permitted to bring their causes before the judges who decide the causes of the rich and great. These two propositions, I say, both point to the same system of judicature: and, as these two propositions are entirely independent of each other, they furnish two entirely distinct arguments in favor of that system. And hence appears the preponderant importance to the whole community of rendering good judicature accessible to the lowest classes; for upon this depends their secure enjoyment of the fruits of their industry; upon the secure enjoyment of the fruits depends their industry itself, and it would, I suppose, be superfluous to enlarge upon the immeasurable benefit to the whole society of an industrious labouring class. I beg it may be observed that throughout this discussion I have not disputed my learned friend's propositions that "it is desirable to have some (Courts) of a more powerful constitution than can be imparted to all, for the purpose of dealing with those classes of cases in which the greatest difficulties are to be over come." My difference with him is wholly as to the mode in which the cases to be submitted to the Courts of the most powerful constitution, are to be selected from the whole mass of litigation. When I said above that I admit a great part of what my learned friend says in favor of considering the value in dispute as a criterion of deciding whether the cause is one requiring the highest Judicial talent for its solution, I meant that I admit the value in dispute to be in some degree a criterion of the difficulties of the cause, but I am very far from admitting that it is any criterion of how far the correct decision of the cause is of importance to the-Hurkaru. parties and the community. He proposes the amount in dispute as a criterion, which he thinks the best he can found, though doubtless he would admit it to be a very imperfect one. I propose the power of carrying up the cause in appeal when its difficulties have become apparent by actual investigation. AN INDIAN LAWYER. |