a partial extent, recognised in providing for certain cases being tried by a judge with assessors, the difference being that the judicial power is still to rest solely with the judge.

That the present mode of trying mercantile disputes is deemed unsatisfactory, is almost universally admitted. In the great commercial centres of England, agitations in favour of a change have taken place from time to time, extending over many years. Parliamentary committees have inquired into the subject, and we have the recorded results of two such inquiries within the last 22 years. In 1858 and in 1871, committees of the House of Commons examined mercantile men from various parts of the United Kingdom, as well as from some of the commercial cities of the Continent, as to the causes of complaint in reference to the then existing judicature of the country, and the best form of remedy. The deductions of these committees, from the mass of evidence taken, were altogether in favour of redress of the complaints of the merchants by the establishment of a special tribunal for the trial of commercial causes, or by the adaptation of a part of the then existing machinery of the courts to the special purpose desired. The County Courts were, in fact, suggested as a convenient and economic basis on which to establish Tribunals of Commerce.

Of course, everybody has heard of "Tribunals of Commerce." Anyone whose reading, or observation, or experience has made him acquainted with the modes of administering justice in the large continental cities of Europe, knows that special Commercial Courts exist throughout France, Italy, Belgium, Hamburg, and the Hanse Towns, as well as the principal centres of commerce in the interior of Germany. The French "Code de Commerce" provides for the constitution of these courts in France, defines their jurisdiction and the modes of their procedure, and under this code the present Tribunals of Commerce have been in operation for three-quarters of a century. (The principle, however, had been in existence for more than three centuries before). There are now nearly three hundred of these tribunals in France, and they are presided over by mercantile judges only, very much in the same way that County and Borough Courts of Petty Sessions are presided over in England and her colonies by justices of the peace assisted by a legal officer. In France the minimum number of judges required to give a verdict is three, and the roll of judges is made up of the leading merchants of each town. Under these tribunals it is said that over 250,000 cases are decided in France annually, and that in Paris alone nearly

20,000 cases were disposed of last year at an average cost which is little more than nominal.

When, in 1815, the city of Hamburg was delivered from the French yoke, its rulers rejected almost all the ordinances of the code Napoleon under which they had lived for some years, and returned to their own ancient laws, but they made a special exception in favour of their Commercial Court, so well satisfied were the mercantile and shipping classes with its operation and results. The constitution of the court, however, underwent an important modification, inasmuch as the president of the court was to be a lawyer, in addition to having a legal clerk or recorder. It also provided a somewhat different machinery for the election of the mercantile judges. The Hamburg court has enjoyed the fullest confidence of the mercantile and shipping classes ever since its establishment-settling disputes between litigants in a speedy, inexpensive, and satisfactory manner, to the number of over 8000 cases annually. Similar testimony is given of the efficaciousness of this class of tribunals in Italy, Belgium, and other parts of the Continent In England, as a result of the investigations to which I have alluded, especially of those of the last committee of the House of Commons, a bill was prepared for constituting Tribunals of Commerce. Its promoters very judiciously avoided the mistake of seeking to establish a separate set of tribunals with new judges and registrars, and they therefore framed the bill upon the principle of the "County Courts Admiralty Jurisdiction Act 1868," under which nautical assessors sit on the Bench with the judge. This special jurisdiction of the County Court constitutes it in fact a close approximation to a Tribunal of Commerce, differing from the continental model only in the fact that the mercantile or nautical element consists of assessors who advise the judge only, instead of being endowed with judicial functions.

The bill in question provides that each Tribunal of Commerce shall consist of the judge of the County Court of the district, and two merchant judges, and that the County Court judge shall be president of the tribunal. The registrars of the County Courts are also constituted registrars of the tribunals, and ample provision is made for the constitution of a roll of merchant judges to sit in rotation.

The following provisions must also commend themselves to the approval of every impartial mind:

"In such tribunals there shall be a unity of jurisdiction, under which, both equity and common law may be administered without difference or distinction, and in case

of any conflict of jurisdiction, the jurisdiction which has hitherto been exercised by the Court of Chancery shall prevail from time to time.

"In construing any document written by or on behalf of any trader, tribunals shall give to the language of such document the meaning which the same would have amongst traders, and shall construe such document according to the real intention of the parties."

"Tribunals may, in cases where such judgment can be conveniently executed, give judgment that any contract, of which they have cognisance, shall be specifically performed, and may, on the same judgment, assess the damages for which execution shall issue, in case that part of the judgment which relates to specific performance is not complied with."

"Tribunals shall receive, in evidence, original entries made in the book of any trader, provided such book appears to the court, upon the face thereof, to have been regularly kept. Provided also that the original entries offered in evidence were made before the party offering the same had notice of litigation, and that no part of such entries have been erased or obliterated."

One peculiar feature of the court to be established under this bill would be, that, under certain circumstances, it would be a court of conciliation rather than a court of law.

A subsection of the bill provides that:

"If before, or in course of the hearing, it shall appear to the local court that more complete justice can be done between the parties by mutual concessions than by a judgment, the local court shall recommend such terms of compromise as to it shall seem just; and in case both parties agree to accept the same, such terms shall be reduced to writing, and signed by the parties, and forthwith filed of record, and shall have all the force and effect of a rule of court, and the substance thereof shall be entered in the minute book, and each party shall be entitled to enforce the same in manner prescribed."

About five years ago, the Melbourne Chamber of Commerce considered the time opportune for reviving the question of the establishment of Tribunals of Commerce in Australia (a question which the same body had mooted more than twenty years ago). Information on the subject was collected and collated, and the opinions of merchants and lawyers were sought upon the questions involved. The answers from mercantile men were decidedly favourable to the creation of such tribunals. Those received from members of the County Court Bench and the Bar were somewhat conflicting.

The late Sir George Stephen elaborated his reply into a pamphlet, entitled No Change, a title which was sufficiently expressive of the substance of his reply. Professor Hearn, while admitting that "the complaints of the mercantile community must be acknowledged to be reasonable," still expressed a strong opinion against going beyond the recommendations of the Judicature Commission, namely, that either party or a judge might require any case to be tried by a judge sitting with skilled assessors. Other legal gentlemen, while admitting that there was ample room for improvement

in the way of simplifying and cheapening legal processes, expressed a dread of what they appeared to regard as a rash experiment in an untried direction, overlooking the fact that these proposed tribunals had passed the experimental stage throughout Europe more than half a century ago. The objections of the legal mind to the proposed changes are well formulated by the Royal Judicature Commission in England, to whom the Government of the day referred the question, "whether it would be for the public advantage to establish Tribunals of Commerce for the cognisance of disputes relating to commercial transactions." Their answer is contained in the following paragraph:

"We think that it is of the utmost importance to the commercial community that the decisions of the courts of law should, on all questions of principle, be, as far as possible, uniform, thus affording precedents for the conduct of those engaged in the ordinary transactions of trade. With this view it is essential that the judges by whom commercial cases are determined should be guided by the recognised rules of law and by the decisions of the superior courts in analogous cases, and only judges who have been trained in the principles and practice of law can be expected to be so guided. We fear that merchants would be too apt to decide questions that might come before them (as some of the witnesses we have examined have suggested that they should do), according to their own views of what was just and proper in the particular case, a course which, from the uncertainty attending their decisions, would inevitably multiply litigation, and with the vast and intricate commercial business of this country would, sooner or later, lead to great confusion. For these reasons we are of opinion that it is not expedient to establish, in the country, tribunals of com. merce in which commercial men are to be judges."

The commissioners add, however, that there are many cases which cannot be satisfactorily disposed of by the ordinary tribunals, and they suggest "a court presided over by a legal judge, assisted by two skilled assessors who could advise the judge as to any technical practical matters arising in the course of the inquiry, and who, by their mere presence, would frequently deter skilled witnesses from giving such professional evidence as is often a scandal to the administration of justice." A court of this sort, they thought, would ensure the principal advantages anticipated by the advocates of Tribunals of Commerce, and they go on to show how the rota or panel of merchants, shipowners and others conversant with trade might be made up.

In giving this as the opinion of the commissioners, it is necessary to say that it was the opinion of a majority only, and that several members of the commission recorded their dissent. For example, the Hon. A. S. Ayrton gave lengthy reasons for approving of the proposed tribunals and combated the prejudice against investing merchants with judicial functions. He said, "I consider that the advantages

which would result from placing the legal and commercial elements on an equality outweigh the objections. The legal judge could exercise sufficient influence over his commercial colleagues to prevent them from acting contrary to settled law; but the sagacity and experience of the commercial men would in general be of more service to the suitors on the decision of their disputes than the legal knowledge of the judge;" and he pointed out how in many commercial disputes a very speedy decision, as well as special treatment is required, such as those arising out of dealings relating to the loading and despatch of vessels, the sale and resale, the warehousing, transfer and stoppage of goods, the transactions of agents, and of others involving several liabilities, and how Tribunals of Commerce were exactly suited to deal with the exigencies of such cases. Lord Penzance and Sir Sydney Waterlow also gave reasons in which they pointed out that the present system too frequently involved a denial of justice, and contended that the procedure of our mercantile courts should be of the simplest and most summary character.

One of our own most experienced County Court judges (His Honour Judge Cope) in replying to the queries of the Chamber of Commerce, also combated in rather vigorous terms the common legal prejudice about the authority of precedents. He said, "I think there is too much deference paid to former decisions. I think, as in the French Courts, they might be properly cited as examples, but not as stern guides to be followed at all hazards. You may see, running through our law reports, many cases in which the court, in commenting upon a previous decision of its own or another court will say, 'it is true so and so was decided, but if we had to decide now for the first time we would decide differently," and yet such erroneous decisions remain and are acted upon until some judge of a court has sufficient courage to act upon logic and principle and overrule the faulty decision. Any analogous case and the reason for its decision would be treated with every respect by a judge desirous of performing his duty, but should not be an inexorable guide." I do not remember the name of the lawyer who was so irreverent in his allusions to legal precedents as to say that they should only be quoted for the purpose of showing how foolish they were. I have, however, as a lay observer, been struck with instances of decisions arrived at by learned judges in a somewhat undeliberative manner and to the evident surprise of lawyers present, which the law reporters have somehow worked into the form of "rulings," and these rulings are quoted to this day as binding in all similar cases, and other