Law Reform in New South Wales and California.

To the Editor of the Herald.

Sir,—In the letter you did me the favour of publishing on the above subject on July 31, I endeavoured to indicate to my fellow-colonists the true path of law reform as illustrated by the success of the Californian system. I alluded briefly to what the law reformers of that State had done with reference to four important subjects—(1) The codification of the statutes and of the common law as declared from time to time by judicial decisions, and its simplification by the substitution of modern phraseology and the suppression of obsolete forms and terms, which with us make the study of law a black art; (2) the abolition of all lawyers' costs and charges between party and party in courts of justice; (3) constitutional restrictions on the judges generally, and especially on judges presiding at Jury trials, and such amendments of the jury system as to lighten the burden of jury service on the public; and (4) the steady discouragement by the courts and the Legislature of all dilatory proceedings and technicalities, and of that hair-splitting mode of reasoning which was the glory of the learned schoolmen of the Middle Ages, but now only survives in our courts of law. In this letter I would ask your permission to enter more fully into the working of these four reforms, and the effect they have had in facilitating the administration of justice.

The whole system of Californian civil courts is arranged on a connected, harmonious plan. The lowest court in order is that of the justices of the peace, whose jurisdiction is limited to small-debts cases and simple matters. These courts are very much like our justices' small-debts courts, but with the important difference that every facility is afforded for appeal from the magistrates on points of law, so that the administration of the law in those courts is kept uniform with the interpretation of the same law by the other page break courts. Next in order come the District Courts. These are the most important tribunals in the State, and in them the bulk of the judicial business of the country is done. The District Courts only resemble our District Courts in name. In other respects they more nearly resemble our Supreme Court. Their jurisdiction is unlimited as to amount of damages and quality of cases tried, but they deal with each case only up to the termination of its jury-trial. All law points arising on pleadings or reserved during the trial are dealt with only by the Judges of the Supreme Court, which court is in California—purely a law court, dealing with questions of law only. All jury cases of whatever complexity or magnitude in amount are tried before the District Court Judges, with the assistance of a jury of 12, so that these courts might more appropriately be termed "jury courts," for trial of facts. They have certain territorial limitations of jurisdiction, in order to secure that the jury trials shall take place wherever it is most convenient for the parties and their witnesses.

There are 17 District Courts in the State of California, three of which (the fourth, twelfth, and fifteenth) sit in San Francisco; and the salaries of the Judges of these three District Courts are equal to those of the Supreme Court Judges.

The mode of levying execution for recovering the amount of judgments is the same for all courts, and the machinery for that purpose is common to all courts. There is only one sheriff's office for the whole State. In New South Wales we have not only three separate, but three conflicting, systems of levying execution, all these systems clashing more or less with each other, and giving rise to annoyance and expense both to suitors and the public. Our Supreme Court has its own sheriff's department, with its own offices, its own clerks, and its own bailiffs. Our District (or, more properly, County) Courts have for each court its own independent machinery of bailiffs, and its own mode of levying execution; and the magistrates' courts have their own independent system worked through the police. For each of these classes Of court a different set of statutes provides divergent regulations on the subject of levying execution upon the judgments recovered in them; and when the bailiffs of all these different courts chance, as sometimes happens, to levy execution on the same estate under the judgments of their respective courts, their rights are liable to conflict. Under the Californian system, every writ, whether issued out of a Justice's Court or a Chief Justice's Court, is executed from the one sheriff's office, and goes through the one channel; there is but one mode of execution for the writs of all courts, and their power of reaching the debtor's property is the same in all cases. In the event of any third person's rights being interfered with by the levying of any executions, that person has in all cases the one prescribed method of asserting his rights against the judgment creditor or creditors; he is not put to the expense of asserting his rights in each separate court gainst each separate creditor and in each court by a different method, as may happen with us. By this system California is spared the expense of three separate and independent establishments for executing judgments, and the suitors are spared the expense of separate baliffs acting under clashing jurisdictions and making conflicting levies; and, not least, the debtor, the unfortunate victim of all the levies, is not crushed by the cumulative expenses of separate seizures.

In my former letter I described very shortly the position occupied by the judge on a trial of issues of fact before a District Court, and stated that his duties are strictly confined to the determination of the legal questions arising during the trial, and that the incidents of the trial are taken down by an officer of the court called a "sworn reporter." In your leading-article referring to my letter you quoted from an English observer in the Now York courts as follows:—"He (the Judge) took no notes; there being an official reporter. He rarely interfered with the examination of witnesses." This entirely bears out my statement, that the Judge takes no part in the contest. He simply page break presides to keep order, to see that no unfair blows are dealt, and to decide disputed questions of law, and as to the admissibility of evidence. Otherwise he keeps aloof from the fight that is going on before him, just as her Majesty abstains from taking any side in favour of one or other of the political parties who contend in Parliament for the national verdict.

Under the Californian system a jury trial is conducted thus:—First, the juryman are selected—and this is the most tedious stage in the trial. Each man as he comes forward to be sworn is searchingly questioned by counsel on both Bides. The usual questions put are these:—"Are you related to either party to this suit by blood or marriage? Are you on terms of private intimacy with either party? Are you indebted to either party, or is he to you? Have you read or heard from anyone any of the circumstances in dispute in this case; and if so, have you formed any opinion of the merits of those circumstances in favour of either party? I once heard a juryman, in answer to the last of these questions, reply, "Well, yes, I have. I think if what is stated in the newspapers is true, the defendant is as big a rogue as can be found in this State; but I am willing to hear the evidence." The defendant's counsel asked this juryman to stand down.

After the jury is selected the trial proceeds, as with us, by counsel stating plaintiff's case and then calling his witnesses; but, contrary to our custom, the counsel as well as the witness under examination are both seated. Counsel are strictly held to a moderate and courteous tone when examining a witness. On one occasion, in the 12th District Court of San Francisco, a counsel accustomed to the English bar was examining a witness who persisted in giving evasive answers; the counsel then prefaced his further question with a sharply uttered "Sir!" he was at once stopped by the judge, who said, "Mr————, you will be good enough to address a witness in' this court as you would address a gentleman in your own house." It is scarcely necessary to say that such a rule prevents any of the brow-beating and bamboozling of witnesses so much complained of in the colonies; at the same time I desire to add that I have heard quite as effective cross-examination of a witness who was trying to evade tolling the truth in that same 12th District Court as I ever heard in England or here. When, however, counsel comes to make his address to the jury he stands up, and is then at liberty to declaim with all the power he is master of, and if he choose he may abuse the other side to his heart's content.

When the judge comes to charge the jury another peculiarity of the Californian system is observable. That system recognises the fact that of all the lawyers engaged in the trial the judge is the only one who comes to it without any previous special preparation upon the legal questions peculiar to it, and which questions may then, indeed, be arising for the first time in legal history, whereas the advocates on either side come fully primed with the law as applicable to their facts. In our courts the presumption is exactly the reverse; the judge is expected to be infallible, and on Him is laid the responsibility of being so. Counsel, at our jury trials, may, and frequently do, advance the wildest theories; anything, in fact, that may enable them to snatch a temporary victory, relying on the many chances and uncertainties in future stages of the case to enable them to hold the advantage thus obtained. In a Californian Court the practice is this: Before charging the jury with the law the judge calls upon the counsel on either side for a written statement of what he (the counsel) considers the jury should be instructed is the law, and the judge usually charges the jury in the words of one or other of these written statements, and then hands it to the "sworn reporter," to become part of the record. Thus are rendered impossible the evils which with us arise from defective memories of the listeners to the judge's charge, conflicting notes by opposite counsel, and the confused recollection of the judge himself as to what he actually did say as distinguished from what he has since read he ought to have said. The "sworn reporter's" record of the charge is the indisputable ground in case of page break appeal, and if statement so supplied by counsel is found to amount to a misdirection, the verdict he gained by it is lost. The practical result is, that the advocates are careful in California not to overstate the law. Another vital point of dissimilarity from our practice is that on appeals from the misdirection of a judge, the judge whose decision is called in question is not a member of the Court hearing the appeal. This arrangement eliminated from the discussion of a simple question of pure law one of the most disturbing elements in our practice.

Again, the Supreme Court Judges themselves in California are hedged round with safeguards tending to a careful and impartial decision; which safeguards are entirely wanting in our courts. Attached to the court is an officer called "reporter of the decisions," whose official salary sufficiently indicates the importance attached to his functions—it is the same as the salary of the Supreme Court Judges themselves. The court has also an officer, called the "phonographic reporter," who attends the sittings of the Supreme Court just as the "sworn reporter" attends those of the District Court, and his duty is, if there is any "oral" argument by counsel, to report the points made in such "oral" arguments, and also to "take down all opinions of the Court delivered 'orally'" (section 770, Political Code). The reader will observe this word "orally." In California the legal arguments of counsel addressed to the Supreme Court are put in writing, and are filed in court before the case is set down for oral argument, as I shall hereafter more fully explain. These notes of the phonographic reporter are transcribed and handed to the "reporter of decisions," who from them and from the judgment of the court prepares his reports of cases argued during each sitting, submits them to each member of the court for his correction and approval, and when approved they are published and sold at the rate of 16s. per volume, the price fixed by law. Thus the common law of the State, as it is declared from time to time by the judges, is published in an authoritative form binding upon the judges themselves, and hence it becomes a safe guide to legal practitioners when advising clients. At the next quinquennial revision of the code the principles so published as laid down by the Supremo Court in the intervening five years are presented by the three permanent code-commissioners to the Legislature for their enactment and embodiment in the new code, and thereupon the legislature (that is, the country) approves or disapproves, and perhaps abolishes, the common law as laid down in any objectionable instance. Thus the judges, while performing their duties, have always in view this parliamentary supervision which will at the appointed time pass all their actions in review. Nor is this quinquennial revision of the code a mere form. The new decisions when placed in the draft bill of the new code prepared by the three permanent code-commissioners is first laid before a parliamentary committee, called the "Advisory Committee," then it passes to what is called the "Legislative Committee," and after that it finally comes before the Legislature and the Governor of the State. As a further proof that the code is in this process undergoing alteration and amendment, I may state that the index to its provisions is not printed till a very late stage of its progress. The three code-commissioners, in a note to the parliamentary bill of the political code in my possession, apologise for the absence of an index to that volume in the following words: "We have learned from experience that indices prepared for these bills (the codes) will not aid materially in the preparation of indices for the work when adopted. We ourselves on a critical examination of our work, and to perfect its arrangement, change the relative positions of many sections. . . . The Advisory Committee will do the same, and the Legislative Committee will make other alteraations, so that in order to have accurate indices it will be necessary when the codes are adopted to make them an original work."

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Let us now contrast some of the features of the Californian system of arguing, deciding, reporting, and codifying the legal decisions, with our system of arguing cases and publishing the judgments of our courts. I have above referred to the fact that legal arguments in the Californian Supreme Court are for the most part written, not oral. The argument of a law point is initiated by the lodgment of what is called a "demurrer book," which sets forth so much of the pleadings, and of the evidence, and of the ruling of the District Court Judge, as may be deemed necessary by the demurring counsel for the consideration of the questions to be argued, and the counsel adds to this "demurrer book" his argument as appellant in writing, together with a reference to the decided cases in point to his argument. To this "demurrer book" and argument the opposite counsel then adds, also in writing, his counter argument and cases in point, together with such further facts (or the whole evidence if he so pleases) as he deems necessary to elucidate his argument. The Judges thus have before them on the filed record the whole of the facts relied on, and the arguments respecting the same pro and con. The matter is then set down for "oral argument," and is called on in its turn; but it is not always that counsel appear or add any "oral" argument to their written arguments. The setting down the case for "oral" argument gives them the opportunity of adding to their written arguments if they should require to do so; but wherever there is "oral" argument it is usually very short, and whatever takes place is reported, as above stated, by the "phonographer" of the Court. Finally, when the case is decided by the Supreme Court, its written judgment is added to the demurrer-book, and then the whole matter is open for the "reporter of decissions," whose labours subject to the revision of the judges as above-mentioned, complete it as an authoritative decision binding on the judges and on the whole country until the next quinquennial revision.

Let us now contrast this with our system. We have no official "reporter of decisions," and our Judges not infrequently at a subsequent period impugn the accuracy of the reports of their reasonings as published in the New South Wales reports. Thus these reports which are our nearest approach to an authoritative declaration of the law as it is from time to time laid down by the Courts, are in reality no guide, or at all events, not a safe guide to the public and the profession. The statements published in them, therefore, do not bind the Courts. Again, we have in Now South Wales no quinquennial or other revision of our declared common law or of our statutes; indeed, it would be impossible to revise a rubbish heap. The only corrective in our system is an occasional article in the press, condemnatory of some decision of the Court; but oven this limited censorship is tempered by the terrors of imprisonment for contempt of Court, not only affecting the writer of such article, but also the newspaper that ventures to publish it. Our only constitutional corrective is an appeal so difficult and so expensive as to be almost prohibitory. An appeal to a distant English Court, ignorant alike of our wants and of the movements of colonial society, with which movements our common law decisions ought to harmonise. But even this mild corrective applied in a leader or letter in the newspaper is soon forgotten, however just and effective it may have been at the time, and the obnoxious decision sinks quietly into the conglomerate bed of the New South Wales reports. It is true that sometimes a judgment will be suppressed from the reports; but even then it remains on the Court records and in the memories of counsel, ready to be sprung upon by future generations of litigants, Our English and colonial reports are absolutely crammed with such impugned and doubtful cases, and they are downright pitfalls and snares. Sometimes the Court considers itself bound by them, and upholds them; at other times it bowls them over unhesitatingly, and generally in the latter case creeps out of the difficulty by impugning the accuracy of the report. The result is—chaos. The compulsory reporting and correction page break by the Judges of the Supreme Court, as prescribed and practised under the Californian system and the subsequent quinquennial scrutiny by the Legislature, compels the Judges, for their own credits' sake, to be very cautious and careful in all their judgments, and it contributes to secure uniformity and simplicity in the principles of their decisions. The practice has banished from the Californian code that darkness of many words that encumbers, our statute book and reported cases, and it has likewise banished from the arguments of counsel and from the Courts all that hair-splitting technicality which so delights our lawyers, which they fondly think passes with the public for learning, but which is really as much out of joint with the times as the obsolete court costumes of the reasoners.

Professional objectors to law reform argue that law is necessarily a complex science, unintelligible to the laity, and they urge in proof of this contention that all attempts to make it simple and intelligible have always failed and always must tall, and in failing leave matters worse confounded than before. Now, although it must be admitted that most of the efforts at reform of procedure in the higher Courts both here and in England have hitherto been very discouraging, it must also be admitted that in these Australasian colonies we have a practical demonstration of the fallacy of the reasoning of the anti-reformers. The most difficult and doubtful branch of law used to be that of the conveyancing of real property. The well-known lawyer's toast—" May every acre of land be covered with parchments!"—did no more than express the cumbrous nature of the old conveyancing system. In England things are still in that cumbrous condition, but in these colonies he whole farrago of wordy rubbish was swept away at at blow—Torrens' Act revolutionised land transfer, and now a sale of real property is as simple and certain as the sale of a plough. Anyone who recollects the howl of objections with which Torrens' Act was met in each of the colonies when first proposed, will be able to estimate at its just value the opposition of those who would fain have the public believe that our methods of court procedure and the conglomeration of statute upon statute, where "Pelion is piled upon Ossa and Olympus on that," cannot be successfully made to undergo the same happy transformation.

I cannot conclude this letter without noticing the letter of another correspondent of your paper, signing himself "A. M'F.," who asserts that I must be "mistaken in believing that the Californians indulge in any such folly" as abolishing all costs of professional assistance to the suitors in their courts of justice. He seems to think that the hard-headed and close-fisted American traders would never have enacted such a "monstrous" piece of legislation to the manifest injury of their own pockets, and for the benefit of their opponents in litigation. I regret that I am unable to quote for "A. M'F." the very words of the code of civil procedure; but our hard-headed Sydney traders may rely upon the correctness of what I have asserted, viz., that the code abolishes absolutely all costs of professional assistance between party and party in Californian courts. There is a book in our Supreme Court library here in Sydney, Voorhuis' New York code of 1860, where "A. M'F." will find that oven 25 years ago the equally hard-headed and practical New York merchants and traders had gone a long distance towards the abolition of such costs. At page 420 (section 303) "A. M'F." will find the following "monstrous" indulgence by the New Yorkers in similar mercantile "folly."

"Section 203. All statues establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties; but there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in this page break Act (the code) termed costs." The code then goes on to provide for the addition to the final judgment of a certain lump sum as costs in certain classes of actions, and a percentage upon the damage recovered in certain other classes of action.

Thus the public and "A. M'F." will see that the Californian abolition of costs is the legitimate outcome of previous determined efforts in the State of New York—the leading mercantile State in the Union—to get rid of the system of taxed costs allowed to lawyers proportioned to the length and complexity of the proceedings carried on by them. The astute New Yorkers saw that such a system had led to increased length and complexity, and to a; practical closing of their courts as instruments for settlement of their disputes, and no doubt they became disgusted with the system just as our colonists have become disgusted with it.

"A. M'F." also seems to doubt the large incomes which I stated were earned by the "gallant colonel" and by "Mr. Hall M'Alister," the two leaders of the Californian Bar in 1880. If, sir, you will hereafter allow me space for a further communication, I will endeavour to show how business is conducted in lawyers' offices in San Francisco, and I hope then to prove to the satisfaction of the public, and even of "A. M'F.," that not only were these large incomes earned and enjoyed by these gentlemen as I have stated, but that they were acquired without causing the widespread ruin and misery that the gains of our lawyers cause to the unfortunate suitors who are compelled to seek justice in our courts.

In fine, what Torrens' Act has done for a small but very dirty corner in the Augean stable of our legal system, the Californian code above described has effected for their whole law.