In face of such stupendous figures the intelligent foreigner may well imagine that we have a judicial system well-nigh perfect, or at least quite adequate to the requirements of a great commercial community. And yet what are the facts? Among members of the legal profession it is a matter of common observation and lament that commercial cases are year by year growing less frequent. For a long time they consoled themselves by attributing this to commercial stagnation. But of late their eyes have been opened to the real cause, and neither by their smiles nor their tears can they win back the vanished litigation that once so satisfactorily brought grist to their mill. On all hands business men declare that, so far from being satisfied with their expensive legal machinery, they absolutely dread the law. They dare not risk its dignified delay, they fear its endless expense, they are terrified at the prospect of being dragged from Court to Court on Appeal, and they have no confidence in the ability of a large proportion of our judges to decide rightly on commercial disputes, especially those involving technical matters.
"Mr. Justice Stephen."
This feeling has doubtless been intensified by the recent case of Vagliano and the Bank of England. It is needless to go into the details of this matter, which are well known to the public. Suffice it to say that a judge of the High Court in 1888 gave a decision contrary to the feeling of business men and subversive of commercial custom in regard to bills of exchange, which was upheld in the Court of Appeal by a majority of five to one. This decision was, however, reversed in the House of Lords in March of this year by a majority of six to two. Thus, after long delay and enormous expense, the case having been heard by fifteen judges, a final decision was obtained that satisfied the commercial community. But the uncertainty of the law is exemplified by the fact that the verdict of seven judges, i.e., six in the House of Lords and one in the Court of Appeal, outweighed that of the remaining eight. And there is no reason to suppose that the judges of the House of Lords who carried the day are men of higher legal ability than those in the Court of Appeal.
Instead, therefore, of waiting months for their cases to be tried, paying enormous fees to leading counsel, and possibly enduring the risk and delay of appeal, men of commerce prefer to submit their disputes to the arbitration of others in their own trade, and thereby get them decided without any delay or legal expense. Innumerable disputes are in this way settled in the City every year, and in some businesses it is a matter of etiquette for men to accept the office of arbitrator when asked to do without any fee, they knowing full well that the time is sure to come when they themselves will require to have a matter decided in the same onvenient and expeditious manner.
It is undoubtedly a great hardship for a commercial community to have to put up with rough and ready justice in this way, instead of having the advantage of highly trained legal minds. But business men cannot afford to wait for the slow machinery of the law, and though they have to maintain the Courts of Justice, they decide to do without them. Doubtless many others would gladly do the same had they equal facilities for arbitration.
The result of this widening breach between law and commerce is that a large and increasing proportion of the work of the High Court consists of libel, slander, malicious prosecution, and cases of a similar class, together with actions varying in character not at all, and in the amount sought to be recovered only infinitesimally, from those which come within the jurisdiction of the County Court.
But though a great number of the suits
