Front Page Titles (by Subject) 16.: CHARLES SYNGE CHRISTOPHER, BARON BOWEN, PROGRESS IN THE ADMINISTRATION OF JUSTICE DURING THE VICTORIAN PERIOD 1 - Select Essays in Anglo-American Legal History, vol. 1
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16.: CHARLES SYNGE CHRISTOPHER, BARON BOWEN, PROGRESS IN THE ADMINISTRATION OF JUSTICE DURING THE VICTORIAN PERIOD 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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PROGRESS IN THE ADMINISTRATION OF JUSTICE DURING THE VICTORIAN PERIOD1
NO story can be more difficult to tell than that of the progress of reforms in the administration of the law during a period of fifty years. It consists for the most part of the history of countless changes of detail, many of which must remain absolutely unintelligible to the greater portion of the public. To comprehend their exact value would require a number of minute and technical explanations sufficient to fill, not merely one chapter, but several volumes. All that can be aimed at within the compass of a few pages is to endeavour to sketch in outline the broad features of a picture which it would be hopeless to attempt to render elaborate or complete. The recent fusion of the superior tribunals of the country into a single Supreme Court of Judicature is a landmark on which the attention of the lay world fastens, and which it in some measure can appreciate. Yet this change, important as it is, has only perfected and crowned a long course of simplification and reform, of which it is the logical consequence. Perhaps the best way of making the narrative understood by those who are not adepts in the language or the procedure of the law will be to explain briefly, even if it must of necessity be roughly, what the great English Courts of Justice were at the beginning of the reign, and the kind of imperfection that existed in their constitution and their practice.
The ancient barrier which separated the several Courts of the Common Law from the Court of Chancery still subsisted in the year 1837. Two systems of judicature, in many respects at variance with each other, flourished side by side under the famous roof of Westminster Hall. The principle of a division of labour by which distinct machinery can be accommodated to special subject-matter is based upon reason and convenience. A large portion of the law business of the country is made up of litigation in the result of which no one is directly interested but the rival combatants. But there are many matters of which the law takes cognisance that necessitate a special and a more complicated mechanism for their adjustment. The property of infants, for example, requires to be protected—trusts to be managed day by day during a long period of years—the estates of deceased persons to be dealt with for the benefit of creditors, the assets to be collected and distributed, accounts to be taken, directions to be given, questions to be settled once for all that affect the interests of many. It is desirable that special tribunals should be armed with the particular organisation requisite for purposes such as these. The distinction between law and equity went, however, far beyond what was needed to carry out this natural division of labour. The two jurisdictions had no common historical origin, and the principles on which they administered justice were unlike. The remedies they afforded to the suitor were different; their procedure was irreconcilable; they applied diverse rules of right and wrong to the same matters. The common law treated as untenable claims and defences which equity allowed, and one side of Westminster Hall gave judgments which the other restrained a successful party from enforcing. The law had always cherished as its central principle the idea that all questions of fact could best be decided by a jury. Except in cases relating to the possession of land, the relief it gave took, as a rule, the shape of money compensation, in the nature either of debt or of damages. The procedure of the Court of Chancery, on the other hand, was little adapted for the determination of controverted issues of fact, and it was constantly compelled to have recourse for that purpose to the assistance of a court of law. The common law had no jurisdiction to prevent a threatened injury; could issue no injunctions to hinder it; was incompetent to preserve property intact until the litigation which involved the right to it was decided; had no power of compelling litigants to disclose what documents in their possession threw a light upon the dispute, or to answer interrogatories before the trial. In all such cases the suitor was driven into equity to assist him in the prosecution even of a legal claim. The Court of Chancery, in its turn, sent parties to the Law Courts whenever a legal right was to be established, when a decision on the construction of an Act of Parliament was to be obtained, a mercantile contract construed, a point of commercial law discussed. Suits in Chancery were lost if it turned out at the hearing that the plaintiff, instead of filing his bill in equity, might have had redress in a law court; just as plaintiffs were nonsuited at law because they should have rather sued in equity, or because some partnership or trust appeared unexpectedly on the evidence when all was ripe for judgment. Thus the bewildered litigant was driven backwards and forwards from law to equity, from equity to law. The conflict between the two systems, and their respective modes of redress, was one which, if it had not been popularly supposed to derive a sanction from the wisdom of our forefathers, might well have been deemed by an impartial observer to be expressly devised for the purpose of producing delay, uncertainty, and untold expense.
The common law tribunals of Westminster Hall consisted of three great courts, each with a different history and originally different functions. In the growth of time, and by dint of repeated legislation, all, so far as the bulk of the litigation of the country was concerned, had acquired equal jurisdiction, and no practical necessity was left for the maintenance side by side of three independent channels of justice, in each of which the streams ran in a similar fashion and performed the same kind of work. First came the Queen’s Bench, composed of a chief justice and four puisne judges. Its authority was supreme over all tribunals of inferior jurisdiction. It took sovereign cognisance of civil and criminal causes alike—kept the Ecclesiastical Courts and the Admiralty within bounds, controlled magistrates and justices, supervised the proceedings of civil corporations, repressed and corrected all usurpations, all encroachments upon common right. It wielded two great weapons of justice over public bodies: mandamus, whereby, when no other remedy appeared available, it compelled them to fulfil the law; prohibition, by means of which it confined all inferior authorities strictly to their respective provinces and powers. The Court of Common Pleas, historically the most ancient of the three, which had retained, with no particular benefit to society, supervision over the few ancient forms of real actions that still survived, exercised also a general authority over personal actions. It was directed by a chief justice and four puisne justices. It laboured, however, under the disadvantage that, as far as the general bar of England was concerned, it was a ‘champ clos.’ Serjeants-at-law had exclusive audience in it during term time, and it was not till 1847 that this vexatious and injurious monopoly was finally abolished. The Court of Exchequer had been from early years the special tribunal for dealing with matters in which the king’s revenue was interested. It still retained in revenue cases and some other matters a particular jurisdiction, though clothed by this time (like the Queen’s Bench and the Common Pleas) with power over all actions that were personal. Besides these functions, it was also a Court of Equity, and took part from time to time in the Chancery business of the realm. A chief baron was at the head, assisted by four puisne barons, of whom two still remain and preserve to us a title which otherwise would be extinct, the present Baron Pollock and Baron Huddleston.
The procedure at the common law, as compared with the wants of the country, had become antiquated, technical, and obscure. In old days the courts at Westminster were easily able to despatch, during four short terms of three weeks each, together with the assizes and sittings at Guildhall, the mass of the business brought before them. But, from the beginning of the century, the population, the wealth, the commerce of the country had been advancing by great strides, and the ancient bottles were but imperfectly adapted to hold the new wine. At a moment when the pecuniary enterprises of the kingdom were covering the world, when railways at home and steam upon the seas were creating everywhere new centres of industrial and commercial life, the Common Law. Courts of the realm seemed constantly occupied in the discussion of the merest legal conundrums, which bore no relation to the merits of any controversies except those of pedants, and in the direction of a machinery that belonged already to the past. Frivolous and vexatious defences upon paper delayed the trial of a litigant’s cause. Merchants were hindered for months and years from recovering their just dues upon their bills of exchange. Causes of action had become classified, as if they were so many Aristotelian categories—a system which secured learning and precision, but at the risk of encouraging technicality; and two causes of complaint could not be prosecuted in one and the same action unless they belonged to the same metaphysical ‘form.’ An action on a bond could not be joined with a claim upon a bill of exchange. A man who had been assaulted and accused of theft in the market-place of his town was obliged, if he wished redress for the double wrong, to issue two writs and to begin two litigations, which wound their course through distinct pleadings to two separate trials. If a surprise occurred at Nisi Prius or the assizes, the court was unable to adjourn the proceedings beyond a single day. Old fictions still survived, invented in bygone ages to assist justice—with no particular harm left in them, it is true, but which were well fitted to encourage the popular delusion that English law was a mass of ancient absurdity. In order to recover possession of any piece of land, the claimant began his action by delivering to the defendant a written statement narrating the fictitious adventures of two wholly imaginary characters called John Doe and Richard Roe, personages who had in reality no more existence than Gog and Magog. The true owner of the land, it was averred, had given John Doe a lease of the property in question, but John Doe had been forcibly and wrongly ejected by Richard Roe, and had in consequence begun an action of trespass and ejectment against him. Richard Roe, meanwhile, being a “casual ejector” only, advised the real defendant to appear in court and procure himself to be made defendant in the place of the indifferent and unconcerned Richard Roe, otherwise the defendant would infallibly find himself turned out of possession. Till within the last twenty-six years, this tissue of invention of unreal persons and of non-existent leases preceded every investigation of the claim to possession of land. Nor was the trial itself of a common law cause productive of certain justice. Right was liable to be defeated by mistakes in pleading, by variances between the case as previously stated upon paper and the case as it stood ultimately upon the evidence, or by the fact that the right party to the suit had not been nominally joined, or that some wrong party had been accidentally joined with him. Perhaps the most serious blemish of all consisted in the established law of evidence, which excluded from giving testimony all witnesses who had even the minutest interest in the result, and, as a crowning paradox, even the parties to the suit themselves. ‘The evidence of interested witnesses,’ it was said, ‘can never induce any rational belief.’ The merchant whose name was forged to a bill of exchange had to sit by, silent and unheard, while his acquaintances were called to offer conjectures and beliefs as to the authenticity of the disputed signature from what they knew of his other writings. If a farmer in his gig ran over a foot-passenger in the road, the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passenger. In spite of the vigorous efforts of Lord Denman and others, to which the country owes so much, this final absurdity, which closed in court the mouths of those who knew most about the matter, was not removed till the year 1851.
In a strictly limited number of cases the decisions of the three courts could be reviewed in the Exchequer Chamber—a shifting body composed of alternate combinations of the judges, and so arranged that selected members from two of the courts always sat to consider such causes as came to them by writ of error from the third. The House of Lords, in its turn, was the appointed Court of Error from the Exchequer Chamber. The modern system of appeal, rendered necessary in our day by the weakening of the Courts in Banc and the development of what has been called the single-judge system, had not yet come into existence. Nor, in truth, on the common law side of Westminster Hall was there any great necessity for it. The Queen’s Bench, the Common Pleas, and the Exchequer—whatever the imperfection of the procedure—were great and powerful tribunals. In each of them sat a chief of mark, with three puisnes to assist him, and the weight of authority of four judges, amongst whom there could not well fail to be present one or more men of the first rank of intellect and experience, was sufficient as a rule to secure sound law and to satisfy the public. The prestige, again, of the Exchequer Chamber in such cases as were allowed to reach it upon error was of the highest order. But the principle upon which appeals were allowed by the law in some matters, and refused in others, was full of anomalies. Only matters of ‘error’ which were apparent on the record could be the subject of a hearing in the Exchequer Chamber. No appeal lay on subjects so important as a motion for a new trial or to enter a verdict or a nonsuit—motions which proceeded on the assumption of miscarriages in law by the judge or the jury who tried the cause. If the aggrieved party had not succeeded in complying at the trial with the difficult formalities of the rule as to bills of exceptions—an old-fashioned and often impracticable method of challenging the direction of a judge—no review of it was possible. Error lay from a special verdict, where the parties had arranged, or the judge directed at the trial, a special statement of the facts. No error lay upon a special case framed without a trial by consent. That is to say, no appeal was permitted unless the expensive preliminary of a useless trial had first been thrown away.
The technicalities which encumbered the procedure of the courts furnished one reason, no doubt, for the arrears which loaded the lists at the accession of her Majesty. Other accessory causes may be found in the survival till a late date of the old-fashioned term of three weeks, recurring four times a year, at the end of which the courts ceased sitting to decide purely legal questions while the three chiefs repaired to jury trials at Nisi Prius. It was not till after the beginning of the reign that an Act of Parliament was passed which enabled the Queen’s Bench, the Common Pleas, and the Exchequer to dispose in Banc sittings after term of business left unfinished on their hands. Under the old system, the last day of term was famous for the crowd of counsel and of solicitors solely intent upon having their pending rules ‘enlarged,’ or, in other words, adjourned till term should again begin. The Queen’s counsel in the front benches spent the day in obtaining the formal leave of the court to this facile process, and in marking each brief in turn with a large ‘E’ as the token of a regular ‘enlargement.’ ‘How do you manage to get through your business in the Queen’s Bench?” said a spectator to the late Sir Frederick Thesiger (afterwards Lord Chelmsford). ‘We find no difficulty,’ said the eminent counsel; ‘we do it always with great Ease.’ At the beginning of 1837, the accumulation of arrears in the Queen’s Bench, to which court the great bulk of business necessarily drifted, had been most formidable. Three hundred cases of various descriptions were waiting for argument in Banc. The Law Magazine of two years later still complained, in its notice of the current events of the quarter, that the Banc arrears had reached to such a pass that a rule nisi for a new trial could not in all probability be disposed of under two years and a half from the time of granting it, at the end of which time, if the application were even granted, the cause would still have to be reheard.
The Court of Chancery was both a judicial tribunal and an executive department of justice for the protection and administration of property, but the machinery that it employed for the two purposes was, unfortunately, not kept distinct. Its procedure in contentious business served as the basis of its administrative operations, and persons between whom there was no dispute of fact at all found themselves involved in the delays and the embarrassments of a needless lawsuit. In its judicial capacity the Court of Chancery gave effect to rights beyond the reach of the common law, corrected the evils that flowed from the imperfect jurisdiction and remedies of the Common Law Courts, and dealt with whole classes of transactions over which it had acquired a special cognisance. The code of ethics which it administered was searching and precise—academical, perhaps, rather than worldly, the growth of the brains of great masters of learning and of subtlety, whose maxims and refinements had crystallised into a system. But its practice was as dilatory and vexatious as its standard of right and wrong was noble and accurate. For deciding matters of conflicting testimony it was but little fitted. It tossed about as hopelessly in such cases as a ship in the trough of the sea, for want of oral testimony—a simple and elementary method of arriving at the truth, which no acuteness can replace. It had no effective machinery at all for the examination or the cross-examination of witnesses, and (as we have seen) fell back upon the Common Law Courts whenever questions of pure law were raised, or as soon as depositions and affidavits became hopelessly irreconcilable. Oral evidence had always been at common law the basis of the entire system, although the common law perversely excluded from the witness-box the parties to the cause who naturally knew most about the truth. The Court of Chancery, on the other hand, allowed a plaintiff to search the conscience of the defendants, and the defendants, by a cross bill, to perform a similar operation upon their antagonist, but only permitted the inquiry to be on paper. A bill in a Chancery suit was a marvellous document, which stated the plaintiff’s case at full length and three times over. There was first the part in which the story was circumstantially set forth. Then came the part which “charged” its truth against the defendant—or, in other words, which set it forth all over again in an aggrieved tone. Lastly came the interrogating part, which converted the original allegations into a chain of subtly framed inquiries addressed to the defendant, minutely dovetailed and circuitously arranged so as to surround a slippery conscience and to stop up every earth. No layman, however intelligent, could compose the ‘answer’ without professional aid. It was inevitably so elaborate and so long, that the responsibility for the accuracy of the story shifted, during its telling, from the conscience of the defendant to that of his solicitor and counsel, and truth found no difficulty in disappearing during the operation. Unless the defendant lived within twenty miles of London, a special commission was next directed to solicitors to attest the oath upon which the lengthy answer was sworn, and the answer was then forwarded by sworn messenger to London. Its form often rendered necessary a re-statement of the plaintiff’s whole position, in which case an amended bill was drawn requiring another answer, until at last the voluminous pleadings were completed and the cause was at issue. By a system which to lawyers in 1887 appears to savour of the Middle Ages, the evidence for the hearing was thereupon taken by interrogatories written down beforehand upon paper and administered to the witnesses in private before an examiner or commissioner. At this meeting none of the parties were allowed to be present, either by themselves or their agents, and the examiner himself was sworn to secrecy. If cross-examined at all (for cross-examination under such conditions was of necessity somewhat of a farce), the witnesses could only be cross-examined upon written inquiries prepared equally in advance by a counsel who had never had the opportunity of knowing what had been said during the examination-in-chief. If the examination was in the country, it took place at some inn before the comissioner and his clerk, the process seldom costing less than 60l. or 70l. It often lasted for days or weeks, at the end of which its mysterious product was sealed up and forwarded to London. On the day of the publication of the depositions copies were furnished to the parties at their own expense; but, from that moment, no further evidence was admissible, nor could any slip in the proofs be repaired, except by special permission of the court, when, if such leave was granted, a fresh commission was executed with the same formalities and in the same secret manner as before. The expense of the pleadings, of the preparation for the hearing, and of the other stages of the litigation may be imagined, when we recollect that it was a necessary maxim of the Court of Chancery that all parties interested in the result must be parties to the suit. If, for example, relief was sought against a breach of trust, all who were interested in the trust estate had to be joined, as well as all who had been privy to the breach of trust itself. During the winding journey of the cause towards its termination, whenever any death occurred, bills of review or supplemental suits became necessary to reconstitute the charmed circle of litigants which had been broken. On every such catastrophe the plaintiff had again to begin wearily to weave his web, liable on any new death to find it unravelled and undone. It was satirically observed that a suit to which fifty defendants were necessary parties (a perfectly possible contingency) could never hope to end at all, since the yearly average of deaths in England was one in fifty, and a death, as a rule, threw over the plaintiff’s bill for at least a year. The hearing in many cases could not terminate the cause. Often inquiries or accounts were necessary, and had still to be taken under the supervision of a master. Possibly some issue upon the disputed facts required to be sent for trial at the assizes, or a point of law submitted to a common law court. In such cases, the verdict of the jury, or the opinions of the court so taken, in no way concluded the conscience of the Court of Chancery. It resumed charge of the cause again, when the intermediate expedition to the common law was over, and had the power, if it saw fit, to send the same issue to a new trial, or to disregard altogether what had been the result. In a case which was heard in February 1830, there had been seven trials, three before judges and four before the Chancellor, at the close of which the suit found its way upwards to the House of Lords. When a cause had reached its final stage—when all inquiries had been made, all parties represented, all accounts taken, all issues tried—justice was done with vigour and exactitude. Few frauds ever in the end successfully ran the gauntlet of the Court of Chancery. But the honest suitor emerged from the ordeal victorious rather than triumphant, for too often he had been ruined by the way. Courts where ultimate justice is achieved, but where delay and expense reign supreme, became at last a happy hunting-ground for the fraudulent. The hour for reform has struck when the law can be made an instrument of abuse.
With all its distinction and excellence, the Court of Equity was thus practically closed to the poor. The middle classes were alarmed at its very name, for it swallowed up smaller fortunes with its delays, its fees, its interminable paper processes. The application of such a procedure to the large class of transactions, where no fact was in dispute, and only the careful administration of an estate required, was a cruel burden upon property. A large portion of the cases before the Court of Chancery had “nothing of hostility and very little of contentious litigation in them.” Trusts, it may be, had to be administered, obscure wills or deeds to be interpreted, assets of a deceased person to be got in, classes ascertained, creditors paid. Though nobody wished for war, yet all the forms of war had to be gone through—the plaintiff and the various defendants drew out the pleadings in battle array, interrogated and answered, took evidence upon commission, examined and cross-examined upon paper. “It is a matter of frequent occurrence in court,” say the Chancery Commissioners of 1851, “to see cases encumbered with statements and counter-statements, evidence and counter-evidence, with which the parties have for years been harassing each other, although there has been throughout no substantial dispute as to the facts, and although the real question lies in a very narrow compass, and would probably have been evolved in the first instance if the court had had the power summarily to ascertain and deal with the facts.
The judges of the court were the Lord High Chancellor (who then, as now, was a political officer and changed with every change of Ministry); the Master of the Rolls stood next in dignity; last came the Vice-Chancellor of England—a judge who in 1813 had been created to relieve the pressure. Some equity work was also done by the Chief Baron, or, in his stead, a puisne baron sitting on the equity side of the Exchequer; but this could only be during a limited portion of the year. The appellate system was defective in the extreme. The Chancellor sat singly on appeals from the Vice-Chancellor of England and from the Master of the Rolls (whose inferior in the science of equity he easily might be), and presided in the House of Lords over the hearing of appeals from himself—a position the less satisfactory inasmuch as, owing to the imperfect constitution of that august tribunal, the Chancellor was very often its ruling spirit. These appellate functions left him not too much time to bestow on his own duties as a Chancery judge of first instance. To a court so loaded with procedure and so undermanned in its judicial strength, the Chancery business of this kingdom, contentious or non-contentious, metropolitan or provincial, all flowed. A formidable list of arrears naturally blocked the entrance of the Temple of Equity. At the beginning of January 1839, 556 causes and other matters were waiting to be heard by the Chancellor and the Vice-Chancellor. Those at the head of the list, excluding all which had been delayed by accidental circumstances alone, had been set down and had been ripe and ready for hearing for about three years. Three hundred and three causes and other matters were in like manner waiting to come on before the Master of the Rolls. Those at the head of his list had been standing about a year and a half. The total amount of causes set down and to be heard was 859, and it was facetiously observed that a greater arrear would probably never appear in the lists of the Court of Chancery—seeing that it had become wholly useless to enter any cause which was not to be brought on out of its turn as a short or consent cause. Since in each suit there were on an average two hearings, each destined to be separated by a period of something like two years, it was obvious that, in even the most ordinary litigation—such, for example, as that which involved the payment of debts or legacies out of a deceased man’s estate—four years must be wasted in absolute inactivity, over and above any delays that might occur in taking accounts or prosecuting inquiries. If, as seemed possible to skilled observers of the day, the Chancellor should prove unable to do more than keep pace with his appellate work, it would be—so they calculated—six years before the last in the list of 1839 came on for hearing even on its first stage; if a second hearing was required, thirteen years or more would elapse before this was reached; while, if on the final hearing the master’s report was successfully objected to, the long process must begin de novo. “No man, as things now stand,” says in 1839 Mr. George Spence, the author of the well-known work on the equitable jurisdiction of the Court of Chancery, “can enter into a Chancery suit with any reasonable hope of being alive at its termination, if he has a determined adversary.”
Attached to the Court of Chancery, performing a large portion of its functions, responsible—if we are to believe the torrents of criticism directed against them during the earlier portions of the reign—for much of its delay, were the masters of the Court of Chancery, their offices, and their staff of clerks. One great blot upon this portion of the Chancery system was that it was for all practical purposes under the control and superintendence of nobody in particular. The office of master of the court was one of historical dignity and antiquity. His duty in 1837 was to act in aid of the judge, to investigate and report upon such matters as were referred to him, including the investigation of titles, to take complicated accounts, to superintend the management of property of infants and other incompetent persons within the jurisdiction, and to be responsible for taxation of costs. A considerable portion of these judicial and ministerial duties he discharged by deputy. The work was done in private with closed doors, removed from the healthy publicity which stimulates the action of a judge. There was little practical power to expedite proceedings or force on the procrastinating litigant. At the beginning of the reign, complaints were loud both as to the expense and the delays in the masters’ offices; and one of the best informed Chancery lawyers of that day recorded it as his opinion, in the year 1839, that, with proper regulations in those offices, nearly double the quantity of business might be done and with greater promptitude. The Chancery judges at this period only sat in open court, and did not despatch business at chambers, and the great pressure of arrears and the want of a chamber jurisdiction caused a good deal to be shunted upon the master’s office with which the judge himself would have been the best person to deal. Much legal literature during the beginning of the reign was devoted to attacking and defending the institution of the masters in Chancery; but when at a later period it fell, it fell with the general assent of the legal world.
A system of payment of officials by fees is often synonymous with a system of sinecures, of monopolies, of work done by deputy, as well as of work protracted and delayed. To such an epoch of administrative laxity belonged the origin of the institution of the “the six clerks,” whose places were worth about 1,600l. a year, and who were in theory at the head of a body of officers called the “clerks in court.” Mr. Edwin Field, a well-known solicitor of position, in a pamphlet published in 1840, tells us, that although he had been almost daily in the “six clerks” office during a considerable part of twenty years, he had never to his knowledge seen any one of the “six clerks,” nor could he conceive of a solicitor or a solicitor’s clerk having any occasion to see one officially. He believed that most of the “clerks in court” did not know even by sight the “six clerks” to whom they were nominally attached. The “clerks in court” were officers who were supposed to be πρόξενοι of the suitor and of the suitor’s solicitor. They were twenty-eight or thirty in number, and presided over the copying of records, the issue of writs, the signing of consents, the service of notices—for notices were served upon them by proxy, which they then sent on by post or by messenger to the solicitor in the cause. They also acted as mediators in taxing costs, for which they were paid by fees in proportion to the length of the bills to be taxed. Most of this work, however diligently performed, was useless, for it might have been done by the suitor’s own solicitor; but, useless as it was, it was lucrative to the clerks in court, and the chief clerk in each court received, it was said, an income varying from 3,000l. to 8,000l. The chief argument in favour of the institution was that the clerks in court were the repositories of the practice of the court. Whether they were the pundits their adherents represented it is difficult at this interval of time to decide; but an anecdote survives, according to which an eminent Chancery Queen’s Counsel, being consulted on a point of practice, recommended his client to ask his “clerk in court,” and to do exactly the opposite of what that official should advise.
Such, roughly speaking, were the salient defects of the Superior Courts of this kingdom, in the year 1837. To attempt on the present occasion to follow the changes as one by one they have been made, would be to lose oneself and to drown the reader in a sea of detail and of technicality. But, from the above outline, it will not be difficult for anyone to determine what kind of shape any legal reform was bound to take that was to be worthy of the name. In the first place, the distinction between the Chancery and Common Law Courts required to be swept away, except so far as it was founded on a natural division of labour. The Common Law and the Chancery Court each demanded to be clothed with complete and independent powers, and rendered competent to do in every individual instance full and perfect justice within its own four walls. The law and the equity which were to be administered needed to be made similar in each, the rights recognised by the one to be the same as those enforced by the other; the remedies given to be identical and in both final. The law of evidence at common law still laboured under the terrible absurdity which declined to permit of evidence from the parties to the action. A suit in Chancery had yet to be relieved of the mass of paper which swamped it, oral examination of parties and witnesses to be introduced, and both party and witness brought face to face with the judge who was to decide the cause. Technicalities on either side of Westminster Hall needed to be rooted out, and machinery provided to enable the opinion of the courts to be promptly and expeditiously obtained, without useless preliminaries, whether they took the shape of pleadings, or commissions, or trial. The staff of Chancery judges was moreover hopelessly inadequate, and as every Chancery judge sits singly, a satisfactory system of appeal in Chancery was essential. The offices of the masters in Chancery and of the clerks wanted to be overhauled, the progress of references and accounts brought more directly under the eye and supervision of the judge, arrears dealt with, delays minimised. Law reformers looked forward, but not with too sanguine anticipations, to some coming time, when a sovereign of the land might say, in the language of Lord Brougham, that “he found law dear and left it cheap, found it a two-edged sword in the hands of craft and of oppression, left it the staff of honesty and the shield of innocence.”
All of these evils, most of the requisite remedies—both for common law and for Chancery—were pointed out by the legal profession fifty years ago. But it was then the habit in England to advance slowly in the direction even of necessary change. By degrees, however, the horizon brightened, and improvement upon improvement became law. Six years after her Majesty’s accession, Lord Denman—Chief Justice of the Queen’s Bench and father of the present Mr. Justice Denman—carried an Act removing the archaic fetter by which persons interested in the result of an action or suit were disabled from becoming witnesses. Eight years later still, another statute rendered the parties to almost all civil proceedings competent and compellable to give evidence. Commissions sat to inquire into the procedure of the common law. Three Procedure Acts, the fruit of their labours, cleared it of its technicalities, improved its machinery, extended its remedies, and laid finally to rest most of the abuses above described. In connection with this invaluable work—which deserves from its importance to be called the Reformation of the English Common Law—a grateful country ought not to forget the names of Sir John Jervis (from 1850 to 1856 Chief Justice of the Common Pleas); of Mr. Baron Martin, with whom law was synonymous with shrewd common sense; of the late Sir Alexander Cockburn, the versatile and eloquent Chief Justice of the Queen’s Bench; of Lord Bramwell, a great lawyer who lives to survey the success of his own handiwork; of the late Mr. W. A. Walton; of Mr. Justice Willes, whose brilliant and subtle learning was lost to the nation by an untimely death.
Progress of no less moment was taking place in Chancery. Trustee Relief Acts, Acts to diminish the delay and cost, and to amend the practice and course of procedure, to abolish the circumlocution office of the masters, to enable the Chancery judges to sit in chambers so as to facilitate the management of estates, and to allow the opinion of the court to be obtained in a more summary and less expensive manner, followed in due course. Misjoinder of plaintiffs ceased to be a ground for dismissal of a suit; rules for classifying the necessary defendants, and for minimising their number, were laid down. The effete system of taking evidence disappeared; the pleadings, the taking of accounts, the progress of inquiries were simplified and subjected to control. The court was enabled to do speedy justice without the long preliminaries of a hearing. A code of orders was drawn up regulating the chamber practice. The Chancery Court was freed from the necessity of consulting the common law, and power was conferred upon it of giving damages in certain cases to avoid recourse to law. New Vice-Chancellors were appointed, and a Court of Appeal created, with two Lords Justices and the Chancellor at its head. The roll of names connected with this gigantic reformation is long. Upon it stand Lord Cottenham, her Majesty’s first Lord Chancellor, and the other Chancellors of her reign. The council of the Incorporated Law Society occupy a conspicuous and honourable position in the van of other law reformers. In addition to these may be mentioned Lord Langdale and Lord Romilly, Sir J. Knight Bruce, Sir George Turner, Vice-Chancellor Parker, Mr. Justice Crompton, the late Mr. Edwin Field, the late Mr. W. Strickland Cookson, and the late Lord Justice James, whose broad and lucid mind was till recently an element of strength in our new Court of Appeal, and whose services in the cause of reform, both at law and in equity, if equalled, have certainly not been surpassed by any lawyer of modern times. “Multi præterea, quos fama obscura recondit.”
The sketch of English justice at Westminster Hall in bygone days would hardly be complete if no mention were made of three important courts which, during the present reign, found their way thither, and have since followed the fortunes of the common law—the Court of Admiralty, the Court of Probate, and the Court of Divorce. The Admiralty in 1837 did not enjoy its present powers or importance. Borrowing from abroad the procedure of the civilians and the rules of foreign maritime law, confined for centuries within the bounds of a narrow jurisdiction by the prohibition of the Court of Queen’s Bench, the Admiralty Court had only been rescued from obscurity by the great wars of the reign of George III, by the prize cases for which it was the necessary tribunal, and by the genius of Lord Stowell. But its range still continued limited, and its rules occasionally conflicted with the rules of the common law. The spiritual or ecclesiastical courts of the country from an early period had exercised authority in matters of testacy and intestacy as regarded personal estate, had issued probates of the wills of those who died possessed of personalty, and letters of administration of the estates of those who died without a will. The bulk of the testamentary business of the Ecclesiastical Courts was chiefly non-contentious—formal representative proceedings where no dispute arose. If the validity of a will or the title to administer was challenged, a suit became necessary, and to this all parties interested were cited. A number of spiritual courts or chambers scattered through England took cognisance of this testamentary procedure—the courts of the Archbishops of Canterbury and York, the diocesan courts of the bishops, the archdeacons’ courts, and other tribunals of still more limited jurisdiction. The Court of Arches, which belonged to the Archbishop of Canterbury, served as the appellate centre for the province of Canterbury, and from it a further appeal lay to the Judicial Committee of the Privy Council, a body that had been recently substituted for the Court of Delegates of Henry VIII. Doctors’ Commons was the place where the principal ecclesiastical proceedings were held, and a body of advocates and proctors enjoyed in it a monopoly by which the general profession was excluded from audience and practice. All judges and officers of the spiritual courts were appointed by the prelates, and the other functionaries over whose tribunals they presided. They were sometimes lawyers of position, sometimes lawyers of no position at all, sometimes clergymen, and were usually paid by fees. Many offices were granted in succession and reversion, deputies discharging the duties, of which the emoluments were considerable. The inefficiency of the judges, the variations of practice and procedure, the expense, the delay, the frequently inconsistent and mistaken views of law and of fact adopted by the different authorities, the anachronism of a system which permitted civil rights to be decided by judges not appointed by, nor responsible to, the Crown, and, finally, a general sense that these tribunals were a soil in which abuses grew and flourished, rendered their fall inevitable. The flavour, the air, the humorous absurdity of many abuses in many branches of the law have been preserved to us by the pen of Charles Dickens. Writers of sentimental fiction not unfrequently exercise their powers of sarcasm on the subject of the enormities of law by inventing for the law courts an imaginary procedure which never yet was seen, and then denouncing its iniquities. But the caricatures of English law, at the beginning of the reign, which Dickens has made immortal, are full of the insight of a great artist—come direct from the brain of one who has sat in court and watched—represent real scenes and incidents as they might well appear to the uninitiated in the “gallery.” His pictures of the Chancery suit of “Jarndyce and Jarndyce;” of the common jury trial of “Bardell v. Pickwick;” of the debtors’ prison, of the beadle, of the constable, of the local justice and of the local justice’s clerk, contain genuine history, even if it is buried under some extravagance. In “David Copperfield” he has sketched with his usual felicity the fraternity of Doctors’ Commons and the ecclesiastical officials who thronged its purlieus. Like so many other of the antiquated subjects of his satire, Doctors’ Commons was soon destined to decay. A royal Court of Probate was established in its place at Westminster Hall, with district registries throughout the kingdom; and the various ecclesiastical jurisdictions which the new court superseded ceased to exist thenceforward, so far as testamentary causes were concerned.
The creation in 1858 of a Court for Divorce and Matrimonial Causes has been a measure, necessary no doubt, but not productive of unmixed benefit. Divorce a vinculo matrimonii, fifty years ago, was unrecognised by English jurisprudence, except where it was the result of an Act of Parliament. The laxer law of an exceptional period which followed upon the English Reformation had long disappeared, and from the close of the seventeenth century down to the recent statutes of our own days no one could be divorced otherwise than by the Legislature. After the year 1798, Parliament had declined to grant the relief to any husband who had not previously obtained damages at law against the adulterer, and prosecuted a further suit in the Ecclesiastical Courts for a divorce a mensâ et thoro. When a Divorce Bill reached the Commons from the Lords, the question of adultery had thus been tried three times over. The practice was adopted in 1840 of referring such cases to a Select Committee of nine members, who heard counsel and examined witnesses. This was the fourth and not the least expensive inquiry of all. A divorce in 1837 was therefore a luxury of the wealthy—a privilegium beyond the reach of a poor man’s purse. Its average cost in an ordinary case was estimated at from 1,000l. to 1,500l. An anecdote—timeworn among the bar—relates that the final stimulus to the change of public opinion which brought about reform was supplied by the caustic humour of the late Mr. Justice Maule. He was trying for bigamy a prisoner whose wife had run away with a paramour and left him with no one to look after his children and his home. “Prisoner at the bar,” said the judge to the disconsolate bigamist, who complained of the hardship of his lot, “the institutions of your country have provided you with a remedy. You should have sued the adulterer at the assizes and recovered a verdict against him, and then taken proceedings by your proctor in the Ecclesiastical Courts. After their successful termination, you might have applied to Parliament for a Divorce Act, and your counsel and your witnesses would have been heard at the Bar of the House.” “But, my lord,” pleaded the culprit, “I cannot afford to bring actions or obtain Acts of Parliament; I am only a very poor man.” “Prisoner,” said Mr. Justice Maule, “it is the glory of the law of England that it knows no distinction between the rich and the poor.” The present Divorce Court, whatever the social evil it has revealed, at least has brought within reach of the humble that which was supposed to be for the public advantage in the case of the rich. The nation has been fortunate in this, that a branch of justice so difficult has been administered in succession by presidents of singular personal dignity, wisdom, and discretion.
To the practical arbitrament of the Courts of Common Law was transferred, after no long interval, another class of cases of much importance to the State—the trials of controverted election petitions. At the time when her Majesty succeeded to the throne, the cognisance of such matters belonged exclusively to the House of Commons. Through a moral blindness which party politics occasionally encourage, the election committees of the House had become a tribunal as untrustworthy as if they had been pecuniarily corrupt. The composition of each committee proceeded upon strictly party lines. On the day appointed for the ballot the friends of the respective litigants were collected by a “whip.” Out of a House of a hundred members, thirty-three names were drawn, and these again reduced to eleven by repeated challenges—a process facetiously known as “knocking out the brains of the committee.” The Parliament court so chosen had often to decide difficult matters of law, on which the validity of votes or the qualification of voters or of candidates in former days might depend; often to determine issues of fact as to bribery or intimidation. In the result, the sitting members were seated or unseated with more regard to the colour of their politics than to any merits of the case. “The tribunal,” says Mr. Charles Buller in 1836, “is selected under a system by which those who have any professional acquirements, admitted abilities, proved industry or marked consideration in the political world are too often studiously excluded from it.” “We do not exaggerate,” observes the Law Magazine of 1837, “when we say, that during the last two or three sessions none but the uninitiated ever dreamed of supposing that the right to a disputed seat would be decided by the merits of the case.” In 1838, a writer in Fraser calculates that there had been ten Whig committees, and that they had decided in every case in favour of Whig members. In the session of 1838, twenty-four Whig committees, it was alleged, had defeated petitions against twenty Whigs and unseated six Tories, while they had only unseated two Whigs and dismissed two Whig petitions. During the like period, sixteen Tory committees appeared to have dismissed petitions against four Tories and unseated eight Whigs, while two Tories only were unseated and two Tory petitions were unsuccessful. Before the system was ultimately abolished a growing sense of public duty had substantially curtailed its gravest abuses, but the judicial vindication of electoral purity ought, like Cæsar’s wife, to be above suspicion.
The House of Commons, while reserving to itself the formal shadow of supreme jurisdiction, has at last delegated to the judges of the land the duty of dealing with these election controversies; and, in addition to the exacter justice thus secured, it is some advantage to the public that election petitions are now tried in the locality where the transactions have occurred. A similar change as regards a variety of private Bills, whose success or failure ought to depend upon evidence alone, is only as yet in the air. Private Bills continue to be referred to Select Committees of five—an institution which has, however, undergone considerable improvements during the reign. There is reason to hope, that the functions imposed upon the judges of dealing with electoral petitions are destined as time progresses to became light. After the hotly contested election of 1886 only one single election petition was set down for trial in her Majesty’s English courts, where the election turned upon a scrutiny. All these jurisdictions, all these scattered duties, as the reign progressed were gathered together by degrees and entrusted to courts sitting in Westminster Hall.
At last the final blow was given to the old system which had divided equity from law. In 1873, Lord Selborne, as Chancellor, with the assistance of Lord Cairns and aided by the Attorney-General and the Solicitor-General of the day (the present Lord Coleridge and the late Sir G. Jessel), carried successfully through Parliament a measure which, supplemented by still later legislation, has swept away the old divisions. A “Supreme Court” of Judicature—a modern variety of the ancient Aula Regia—has been substituted, each chamber or department of which administers the same principles of equity and law, and is governed by a common and simple code of procedure. Some older lawyers still cast back at times a “longing, lingering” look to the ancient courts of Westminster with their glories and their historical associations, and to the former Court of Chancery with all its genius and its faults; but by no less trenchant a revolution could the reforms of the reign have been completed and the organisation of the law adapted to the necessities of this great kingdom. The scheme in its outline was the outcome of the labour of a Commission of 1869, the names of whose members are appended below.1 All imperfections of remedy, all conflicts of jurisdiction, were at last to cease, while such a classification of business was still retained in the different branches of the Supreme Court as common sense required. It took a few years of further legislative arrangement before the plan thus adopted ripened into its present precise form; but the details of this process may on the present occasion be passed by, in order to fix our attention on the broad result. The “Supreme Court” as constituted in 1887 is made up of the High Court of Justice and the Court of Appeal. The High Court contains several divisions. The largest in size is the Queen’s Bench, consisting of fourteen judges and the Lord Chief Justice of England. It represents the old Queen’s Bench, Exchequer, and Common Pleas rolled into a single tribunal; for the Exchequer, with its Chief Baron, and the Common Pleas, with its Chief Justice, exist no more. The Queen’s Bench tries, either by jury or by a single judge, any cause which does not belong to those special classes of business which for convenience are assigned to other departments. It conducts the assizes, civil and criminal, all over England; furnishes judges who preside at the Old Bailey; is, with unimportant exceptions, the final court of criminal jurisdiction; acts as a court of review on appeal from the judgments on matters of law of the county courts; controls the action of all inferior tribunals, wields all the powers and authority of the former Common Law Courts, and administers equity as well as law. A staff of fifteen to eighteen masters are attached to it, who exercise judicial functions in interlocutory matters, report on inquiries referred to them, preside at taxation of costs, and supervise the machinery of the central office and its clerks. The next branch of the High Court is the Chancery Division, consisting of five judges, who sit singly—a chief clerk and a body of clerks working under each. On the principle of division of labour, the Chancery Division attracts to itself administrative and other business, for which it has a special organisation and aptitude; but its jurisdiction is complete and not confined to any particular subject-matter, and it administers law as well as equity. Third comes the Probate, Admiralty, and Divorce Division (under a president and another single judge), independent in itself, managing the Admiralty, divorce, and probate business of the country and controlling the district registries throughout England. From the judgments and orders of all branches of the High Court alike an appeal (except in ordinary criminal matters) lies to the Court of Appeal, composed of the Master of the Rolls and five Lords Justices; the Lord Chancellor, the Lord Chief Justice of England, and the President of the Probate, Divorce, and Admiralty Division ranking as ex-officio members. The decisions of the Court of Appeal are only reviewable by the House of Lords—a tribunal that has been strengthened by the creation of law lords, and to which the appeal business of the Privy Council (at present the court of appeal from the colonies and the ecclesiastical courts) is destined in a few years to be virtually, though not perhaps nominally, transferred.
A complete body of rules—which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear—governs the procedure of the Supreme Court and all its branches. In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes—upon oral evidence or upon affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move. Simultaneously with this culminating measure of reform, we have seen the creation of one central Palace of Justice for the trial of all civil causes. On December 4, 1882, the judges of the land, with the Chancellor at their head, bade good-bye, in long procession, to Westminster Hall, and followed in her Majesty’s train as she opened in State the present Royal Courts of Justice. The old order was over and the new had begun. Taking farewell of a profession which he long adorned, the late Vice-Chancellor Bacon—who has himself been a partaker in the great movement we have endeavoured to narrate—thus summed up in last November his own experience of the legal achievements of the reign. “I have seen,” he said, “many changes, all of which have had the effect of simplifying and perfecting the administration of the law, to the great advantage of our ever-increasing community, to the protection of civil rights, to the encouragement of arts and commerce, and the general prosperity of the realm.” The name of one happily still living, and the name of one who is deplored in more than one department of the State, will always be connected with the final consolidation of the English judicature. To the co-operation for the public weal of Lord Selborne and of the late Lord Cairns—rivals in politics, but fellow-workers in the reform of the law—is chiefly due the completeness of the contrast between the English judicial systems of 1887 and of 1837.
Justice would fail in one of her chief attributes if she concentrated all her attention upon the superior courts and made no effort to bring English law within the reach, so to speak, of every subject of the Crown. It is a striking reflection, that the system of county courts, which now forms so essential a part of our institutions under the management of a body of judges whose merits it would be presumptuous to praise, is entirely a growth of the present reign. The ancient county court of the common law (perhaps the oldest tribunal of the country) had long since fallen for all practical purposes into complete disuse. Since the time of James I, local “courts of request,” designed for the recovery of trifling debts and created by local Acts of Parliament, with a limited jurisdiction only, had gradually become common, but were wholly inadequate to the wants of the public. At her Majesty’s accession there was no tribunal in existence that discharged the duties or possessed the jurisdiction of the present county court. The year 1846 sounded the knell of the old-fashioned and comparatively useless courts of request. In their place was built up slowly, by a dozen or more successive statutes, the county court of to-day. Five hundred districts have been formed, with about fifty-nine circuits—a single judge, as a rule, being annexed to each circuit. Every judge in the matters submitted to his cognisance administers law and equity concurrently—is a judge of bankruptcy outside the jurisdiction of the London Bankruptcy Court, and in certain selected districts an Admiralty judge as well. The procedure has been rendered simple and rapid; but its details and the limits of the jurisdiction to which it belongs, though matters of considerable practical importance, are beyond the range of this paper. If the population of the country are at last furnished at their very doors with justice, cheap, excellent, and expeditious, they have to thank the county court legislation of the last forty years, and the men who have carried out its provisions in the provinces.
The progress of the general law relating to the enforcement of debts is a subject interwoven with the administration of the law both in our supreme and in our provincial courts. Ancient and modern history are alike full of the record of hard codes pressing severely upon debtors. In England, down to within living memory, our law of debtor and creditor reposed upon the persistent notion that insolvency was a crime. Paramount necessities of trade and commerce had taught us, indeed, the distinction between the case of the insolvent trader who was unable to fulfil his commercial engagements, and that of the ordinary debtor who had no such mercantile excuse. To the debtor who was not in trade, and who failed to liquidate his debt, the English law applied the sharp, stern corrective of imprisonment. It sent him to gaol—till he found security or paid—before the debt was even proved, and on a mere affidavit by an alleged creditor that it was owing. After verdict and judgment, the unsatisfied party had an absolute option of taking, in satisfaction, the body of his debtor. Traders to whom the bankrupt law applied might escape by making full disclosure and complete surrender of their effects for distribution among their general creditors; and, owing to the demands of the commercial world, the law of bankruptcy since the reign of Henry VIII had been the subject of constant amendment. But the general law of insolvency continued in its barbarous condition, owing in part perhaps to the legal difficulty of enforcing money debts against landed property. Occasional Insolvent Acts from time to time were passed for the relief upon terms of insolvents who might apply for their discharge, and ultimately a permanent Insolvent Court was established to deal with their petitions. Yet it was not till after the beginning of the reign that arrest upon mesne process was abolished, and imprisonment in execution of final judgments continued to be the law till a far more recent date. From October 1, 1838, to December 1, 1839 (a period of fourteen months), 3,905 persons were arrested for debt in London and the provinces, and of those 361 remained permanently in gaol in default of payment or satisfaction. Out of the 3,905 debtors so arrested, dividends were obtained in 199 cases only. The debtor who was left in durance vile shared a common prison with the murderer and the thief, and the spectacle of misfortune linked in this manner to the side of crime was as demoralising as it was cruel. The following1 is the account given in 1844 by a Government inspector of the condition of the debtors lodged in Kidderminster Gaol, which was read to the House of Commons by Sir James Graham:—
“At the time when I visited the gaol there were six male debtors confined under executions from the Court of Requests. They occupied a single room paved with bricks, the extent of which is twelve feet in length by twelve in breadth, which is destitute of table, bed, seat, or any other species of furniture whatever; and there is no fireplace or any means of lighting a fire. A heap of straw is scattered over the floor of half the room, on which the prisoners sleep, for they have no other bedclothes, and from time to time the worst part of the straw is removed and better substituted for it. The privy occupies a corner of the room, but, from the oppressiveness of the stench, the prisoners have been allowed to close it with straw. The yard into which the room opens measures thirteen feet in length by twelve feet in breadth, and is so badly drained that in wet weather the water lies in it to such a degree as to confine the prisoners entirely to their room. This yard is closed in by a high wall, surmounted by an iron lattice. The prisoners are very dirty, as they never take off their clothes, and are allowed only two jugfuls of water per day for drinking and washing themselves. Their diet consists of an allowance of the quarter part of a quartern loaf of bread per day, but their friends are permitted to bring them any other articles of food while the officer is there. In case of illness there is no means of getting assistance, for, though the prisoners might succeed in making themselves heard by the inhabitants of the neighbourhood, they could not afford any help without the beadle, who lives in a remote part of the town. Female prisoners, if confined there, were deprived of all separate accommodation, and cannot be visited by their own sex in cases of sickness, except while the officer is there.”
The leading idea of the law in the case of the ordinary insolvent was to seize his person. The principle of the law of bankruptcy with reference to a trader is to confiscate his property for the benefit of creditors. But during the first thirty years of the century, the English bankruptcy law had been, and at the beginning of the present reign still was, a discredit to a great country whose fleets covered the seas and whose commerce ranged the globe. Scotland and several Continental nations were far in advance of us. England alone among her commercial rivals still kept to the mischievous doctrine that mercantile insolvency was to be rooted out as if it were an offence against society. The bankruptcy law down to within fifty years ago maintained, accordingly, a procedure the severity of which from this distance of time appears monstrous. The one mitigating feature about it lay in the fact that the great commercial world, alienated and scared by the divergence of the English bankruptcy law from their own habits and notions of right and wrong, avoided the court of bankruptcy as they would the plague. The important insolvencies which had been brought about by pure mercantile misfortune were administered to a large extent under private deeds and voluntary compositions, which, since they might be disturbed by the caprice or malice of a single outstanding creditor, were always liable to be made the instruments of extortion. “To the honest insolvent the bankruptcy court was a terror.” To the evildoer it afforded means of endlessly delaying his creditors, while the enormous expenses of bankruptcy administrations rendered it the interest of few to resort to the remedy, except with the object of punishing the fraudulent or vexing the unfortunate.
The legal illusion that a debtor primâ facie must be wicked, produced in the bankruptcy law, as indeed was natural, a curious procedure which began in secrecy and ex parte processes, and every stage of which was capable of being abused. The declaration in 1831 of a Lord Chancellor, made from his place in Parliament, that “ever since he had been acquainted with the profession he had uniformly heard two evils complained of, the state of the bankrupt law and the mode of its administration,” was but the echo of general opinion. The adjudication, with which the performance opened, deprived the debtor (till it was reversed) of all his property, left him absolutely penniless, and pilloried his name as that of an insolvent in the Gazette. Yet this decree was granted ex parte in his absence, without the knowledge of anybody except the one soi-disant creditor who had chosen to put the law in motion. All that was needed was an affidavit of debt, coupled with a bond which bound the deponent to substantiate his allegation. Upon such material, a fiat issued to a group of commissioners, who assembled from their houses in town or country, as the case might be, met in private at a coffee-house or inn, and after an ex parte hearing declared the supposed debtor bankrupt. A warrant was thereupon delivered to a messenger, directing him to enter the bankrupt’s house, to lay hand upon his furniture, ready money, property, and books of account, and to serve him with a summons to appear. The sight of the officer armed with this authority was the first notice to the trader of an occurrence which put at issue his whole commercial reputation. Under this system the first merchant in London or in Manchester was liable to suffer unspeakable annoyance, and the whole Royal Exchange, as it was said, might wake up one morning and find themselves in the Gazette.
An adjudication so obtained necessarily lacked the element of finality. It could be impeached by the bankrupt himself as well as by others before any other civil court, even after the whole estate of the bankrupt had been divided. Its validity might be challenged in an action of trespass or of false imprisonment brought against the commissioners of bankruptcy, or against their messenger who had done nothing except execute his warrant, or against the assignee who had innocently dealt with the estate. The mere intimation on the part of the bankrupt that he disputed the propriety of the adjudication, and denied the alleged act of bankruptcy on which it was founded, was enough to paralyse the perplexed assignee, who thenceforward, if he distributed the assets, did so at his own risk. In the year 1825 a trader of the name of Campbell had been declared bankrupt on testimony that he had denied himself to a creditor. Campbell disputed the adjudication and the allegation upon which it was based. Thirteen years afterwards, in 1838, the question whether he had really denied himself to the creditor who called on him was still in controversy, and remained unsolved even after Campbell’s imprisonment and death. During the interval 170,000l. of his property had been received by his assignees, but not one farthing of the amount in 1838 had yet reached the hands of his general creditors, while 50,000l. had been expended in costs.
The commissioners under whose directions an adjudication took effect were gentlemen appointed to perform this function, who lived at a distance perhaps from one another, who had to be convened on each occasion and to travel (in the days of the infancy of railways) perhaps thirty or forty miles to attend the rendezvous. Shortly before 1837, the metropolis had been relieved from this incubus, and the seventy commissioners of London replaced by a London Court of Bankruptcy, consisting of a chief judge and two colleagues (forming a court of review) and six commissioners. But the country districts still groaned under a judicial army of 700 commissioners divided into 140 courts. Each tribunal, as a rule, had five members (generally a couple of local barristers and three local solicitors), who taxed among other things the local practitioners’ costs. During the years 1837-39 the number of fiats opened before the 700 country commissioners was, on an average, 780 per annum—nearly a judge to every fiat—while the fees paid for this process, and wrung out of insolvent estates, amounted to between 34,000l. and 35,000l. But the paucity of provincial fiats was no indication of provincial prosperity. London creditors found the difficulty of proceeding against debtors in the country nearly insuperable, and hesitated to throw good money after bad. Finally, the giving or withholding of the bankrupt’s certificate depended on his being able to procure the necessary number of creditors to sign his certificate of discharge. Secretion of traders’ effects, bribery of creditors, manufacture of fictitious claims, were the natural consequence of such a system.
Several distinct endeavours have been made by Parliament since those days to create an ideal plan for the administration of bankruptcy and for the distribution of a bankrupt’s property. The legislative pendulum has oscillated from one theory to another, as the imperfections of each were experienced in succession; and the pendulum will yet go on swinging. But the whole of the intolerable abuses above set forth have been swept away. Imprisonment for debt is gone, except in particular cases, where the non-payment of money is accompanied with fraud, misconduct, breach of trust or of duty, or disobedience to the order of a court, or where it is shown that the debtor can but will not pay. Courts of bankruptcy have been created, with a machinery the details of which require still to be watched with care, as they still belong to the category of legislative experiment; but traders and non-traders alike have been brought under a system which is as complete as the ingenuity of Parliament has hitherto been able to render it.
Meanwhile, the country had not stood idle in reference to the administration of the law for the repression of crime. As early as 1826, the late Sir Robert Peel initiated a course of legislation intended to consolidate and amend the criminal law, which till then had been scattered in fragments over the statute book, uncollected and unarranged. A commission had issued shortly before 1837 with the view of digesting the written and unwritten law into two monster Acts of Parliament, and the earlier portion of the reign produced a series of valuable reports of successive commissions upon the subject. But although a digest was prepared in 1848, it never became law. In 1852, Lord St. Leonards determined to attempt codification as an alternative expedient, but after two years of labour this project was also laid aside. Both digest and code appearing to be beyond the range of practical politics, the idea of consolidating and amending the existing law was revived again, and six Criminal Law Consolidation and Amendment Acts of much importance were passed in 1861, which now constitute the nucleus of our written criminal law. This is the greatest achievement of the reign in the branch of the law now under consideration. Mr. Justice Stephen has produced of late years a draft code that has not yet received the sanction of Parliament, but which in itself is an effort worthy to be remembered as one of the valuable pieces of industry of the last fifty years. Among the names that deserve to be recollected in connection with the amendment of the statute book stand pre-eminent those of Lord Campbell and Lord Cranworth, of Sir J. Jervis (the Chief Justice of the Common Pleas), and of the late Mr. Greaves. The law of libel has been corrected by enabling a plea of justification to be pleaded in matters where publication of the truth is for the public interest. In 1851 invaluable, though not unlimited, powers of amendment were conferred on criminal courts, and other practical changes in procedure enacted to prevent slips and miscarriages of justice. In 1865, the present Mr. Justice Denman introduced into Parliament an Act to rectify certain anomalies, chiefly in the law of evidence, and an Act due to the initiation of the late Mr. Russell Gurney contributed, two years afterwards, greater improvements to the procedure. The present Court of Crown Cases Reserved was created in 1848: a tribunal for which doubtful points of law may be reserved at the trial—reservations previously dealt with by the judges in a less public and general, and therefore a less satisfactory way. But the criminal procedure and practice has undergone less alteration than the civil, probably because ample protection for the prisoner was afforded even by the older law. Although miscarriages are but rare, the system of criminal pleading is still extraordinarily cumbrous and involved. Ten years ago, an indictment drawn by the present writer in an important Government prosecution, and settled in consultation with the present Lord Chancellor and the late Lord Justice Holker, reached, when engrossed on parchment and presented at the Old Bailey, ninety yards in length. Nevertheless there is no place in the world where justice is more admirably done than in our great courts of criminal law. Many difficulties yet remain to be overcome in devising, if possible, some adequate system for the interrogation and examination of the accused, in equalising sentences throughout the kingdom, in bringing those passed at quarter sessions into more complete harmony with those inflicted by the judge at the assizes, and in graduating and adjusting with greater nicety as well as in lessening the severity of the longer sentences of penal servitude. As regards the procedure before justices, and all matters that relate to their jurisdiction, the reign has been fruitful of the best and most careful legislation. Jervis’s Acts (drawn by Mr. Archbold and introduced by Sir T. Jervis when Attorney-General), the new Summary Jurisdiction Act of 1879, and a group of statutes that extend and regulate the summary powers of magistrates, have been of considerable benefit to society. At the beginning of the reign there were outside the metropolis but two or three stipendiary magistrates. The extension of their number has been a measure of unqualified good. Extradition statutes have been passed, which, together with a series of treaties, now enable justice to follow many English criminals beyond the seas, and to remit for trial to their own country many foreign culprits who have fled to seek an asylum here.
For some few years before 1837, the punishment of death had ceased to be inflicted except for the crime of murder. But the condition of the Statute-book in this respect had not kept pace with the humane practice of the Executive. Death was still the sentence for some lesser offences, though it was, as a rule, commuted. So lately as 1833, a poor little boy of nine pushed a stick through a broken window, and pulled out some painters’ colours worth twopence. He was sentenced to death for burglary. The result of this condition of the law was twofold. In the first place, it led prosecutors and witnesses to abstain from pressing home the evidence of a prisoner’s guilt, and to connive anxiously at his escape. In the second place, the deterring influence of the sentence was destroyed, since it was not likely that it ever would be enforced. In the year 1836, the number so condemned to death was four hundred and ninety-four, only thirty-four of whom were hanged. The first year of her Majesty saw a series of Acts of Parliament limiting the number of capital sentences and graduating the secondary punishments. In 1861, a still further amelioration of the law took place, and now murder and treason, piracy with violence, and setting fire to her Majesty’s dockyards, arsenals, ships, and naval stores are the only capital crimes. While the population of England and Wales has nearly doubled, the average number of executions, according to Sir Edmund Du Cane, has not increased at all, and the capital sentences have enormously decreased. The present reign, moreover, has seen the extinction of the savage custom of converting into a public spectacle the execution of the final sentence of the law. Down to 1837, the pillory was still a punishment for perjury and subornation of perjury. It ceased in that year; but public executions remained in fashion for thirty years longer. The scenes of licence and disorder which on such occasions might be witnessed outside the prison walls have been portrayed by the graphic pen of more than one great author of the age. Each unhappy criminal, as the fatal day drew near, became the object of sensational curiosity. In 1840, the Lady Mayoress of the day attended the funeral sermon preached in Courvoisier’s presence on the last Sunday before his death. On the night preceding an execution, brutal crowds took up their station in the vicinity of the gaol, and parties of pleasure were organised to witness the scene of death—parties not composed only of the uneducated. Even down to 1868 English gentlemen might be seen occasionally at the adjacent windows which commanded a commodious view of the gallows and the drop. The barbarous ceremony which served to familiarise thousands with the agonies of a death struggle is now a thing of the past, and since 1868 the law inflicts its most terrible punishment in private.
Prevention and detection of crime are subjects which, like the subject of the execution of the law’s judgments, may fairly rank under the head of its administration. Not the least valuable of the reforms of the reign has been the perfecting throughout the country of a proper system of police organisation. The metropolitan police, to which not merely London but all England owes so much, are a still earlier institution; and, before the year 1836, legislation had provided a constabulary for the boroughs. A police force for the rural parts of the county palatine of Chester was also in existence, and many country districts had themselves raised voluntary associations to maintain officers of their own—a task in which they received valuable aid from the police of the metropolis. But, with these exceptions, the lesser towns and the rural districts were guarded, in 1837, from the depredations of the criminal by the effete institution of the parish constable and the watchman. It requires an effort of the imagination to realise the extent to which lawlessness then reigned in the suburbs of our large towns and in our country places. In the smaller towns and villages the constable was chosen from the humblest order of tradesmen, farmers, or even day-labourers. He was frequently the master of the ale house or the village shop, who for a trifling remuneration had accepted the office, or had it forced upon him in rotation; and the guardians of the public peace could not always read or write. The last thing such officials wished was to incur the trouble, the danger, or the odium of pursuing or arresting a culprit. Over a considerable portion of England, property was less secure than in any great European country, excepting only Italy and Spain. Commercial travellers were loth to travel after dark. One of them, who for twenty years had made the round of the south-eastern counties from Norfolk to Devonshire, states in the year 1838 that, although perfect security prevailed within five or six miles of the metropolis, it would be imprudent beyond that distance to venture out after nightfall; and that if he could travel where there were no police with the same freedom as he could within the police district, he should be able on his rounds to save perhaps five days in forty. Property was safe neither on the river, nor on the canal, nor upon the turnpike road. Commercial houses came forward in numbers to complain that whole lines of canal were absolutely unprotected, that bales were opened, and their boxes and cases broken or abstracted. Along different lines of canal receivers of stolen goods set up regular establishments, and entire families in the neighbourhood lived on the receipt of the plunder. Silk, wine, spirits, flour, malt, groceries of every description disappeared wholesale. In the Enfield district, upwards of thirty gentlemen in the year 1838, during a period of twelve months, had their stables opened and large quantities of property carried away. Footpads lurked in the vicinity of the great manufacturing centres of the north; robbery with violence, murder itself, went often unpunished. Gangs from towns drifted into the country for the purposes of crime; the towns, in their turn, suffered from the bad characters who took up their residence in the country, with no apparent anxiety to avoid the presence of the parish constable. Vagrants perambulated the kingdom, living on their wits, and even the cottagers’ dwellings were rifled while the inmates were working in the fields. The farmer who kept no private watchman, or who did not live within the radius of an association, was liable to lose great quantities of agricultural produce. If he lived near a town like Leeds, he hesitated before returning home after dark from the market or the fair, unless he was in the company of friends. The local constable was sometimes too stupid, sometimes too busy, often too timid, to attend to information given him. It was due to the same cause that wreckers at this date haunted the dangerous and desolate places on the coast. Rural crime, in fact, went unprevented, undetected, unprosecuted. The returns of prosecutions and convictions, to which the statesman and the philanthropist in our time have recourse as affording some clue to the prevalence or absence of crime, told absolutely nothing, for they bore no relation at all to the good conduct of the locality. Men abstained from prosecuting when there was no certainty of redress, and the absence of criminal statistics resulted frequently from the undisturbed immunity of the offenders. In two instances towards the beginning of the reign, in neighbourhoods where crime was remarkably prevalent, her Majesty’s judges were presented with white kid gloves at the assizes, as emblematic of the purity of the district.
Even in country towns and places where a constabulary force was raised and paid by voluntary effort, the justice administered by it was rude. In one district, in 1838, the parish constables were under standing orders from the magistrates to tap with their staves the pockets of all labourers or other persons found abroad after nightfall, in order that the pheasants’ or partridges’ eggs therein, if any, might be broken! In conformity with the behest of the chief magistrate of one considerable town, the constables seized all vagrants found within their jurisdiction and took them to prison to have their heads shaved, after which operation they were set at liberty and went their ways. The superintendent of police was asked by what right he apprehended them and cut their hair. “The mayor,” he replied, “who is a man of few words, says he crops them for cleanliness.” In some rural districts the paid police were in the habit of dispensing altogether with the constitutional formality of a warrant. An officer interrogated on the subject frankly confessed the irregularity, but added, that “he chanced it.” In another new borough the superintendent of police prided himself “on never waiting for a warrant. It was not his plan. It was a waste of time.” “I am,” he added, “for being prompt in everything. I say, ‘If I can take him up with a warrant I can take him up without a warrant.’ ” In the year 1839, there were upwards of five hundred voluntary associations for promoting the apprehension and prosecution of felons—for performing, in fact, by individuals the first duty of a civilised government. Among the rules of some of them were rules for mutual insurance by payment of part of the loss caused by depredations. In some of the farmers’ associations members were bound by their code, in case of horse-stealing, to mount and join themselves in pursuit of the thief upon an alarm given.
By Acts of 1839 and 1840 Parliament enabled bodies of police to be established for a county. But the English farmer and the English ratepayer hesitated, from fear of loading the rates, to put in force the permission which the Legislature had given. It was not till seventeen years afterwards that the establishment of county police was made compulsory in all places where it had not been introduced, and that the organisation of what has been called our standing army against crime was placed upon its present footing. What requires to be done to perfect still further its efficiency, it would be beyond the limits of this paper to discuss. To what has already been accomplished is due the disappearance in the course of the present reign of a lawlessness and insecurity in our country districts which had become a disgrace to England.
The treatment of our criminal classes while undergoing sentence of imprisonment or penal servitude constitutes the last head of the present subject; and limits of space require that the notice of it should be brief. The darkest ages of English prisons had closed before 1837, but a prison system was as yet unorganised. Throughout our local gaols there was no uniformity of management—the hours of labour, the discipline, the diet varied in each; a separate system of confinement, a careful graduation of punishments, the classification of offenders, the construction and sanitation of the prison, all remained to be dealt with upon a natural and complete basis. The years 1840-43 began an epoch of improvement with the opening of Pentonville—a model establishment, with airy single cells and sanitary arrangements of the best kind, which has been the means of developing and perfecting in England the separate system, and been largely imitated abroad. Fifty-four new prisons were constructed on a similar method during the next six years. But prison reform still moved slowly, owing to the number of local gaols, each under a management of its own. Even in the year 1863, the food at one gaol was furnished from a neighbouring inn, while at another the inmates passed fifteen hours out of the twenty-four in bed. In some smaller prisons the prisoners slept two in a bed, in compartments which the warders were afraid to enter in the dark. Parliament in 1865 introduced the separate cell system, with rules for the discipline, health, diet, labour, and classification of the inmates; but the essential step towards complete uniformity was not adopted till 1877, when Government took over the local prisons of the country, and the Secretary of State and the Commissioners of Prisons became responsible for their management. A uniform code now regulates them all, and prisoners awaiting trial are separated from those who have been found guilty. The Government convict prisons, where sentences of penal servitude are carried out, belong to a different category, and are under a different direction and distinct rules. The “hulks” have been abandoned as a receptacle for convicts, and transportation to the Australian colonies has ceased since 1867. Its evils had long been intolerable to our colonists. The four or five thousand persons who were sent out on an average, at the beginning of the reign, as convicts to New South Wales alone, were not absorbed in the population, but, to borrow the language of Lord John Russell, “formed a large and vicious separate class.” The future of the convict depended on the character for humanity of the master to whom he was assigned, and flogging by colonial magistrates was a common and recognised punishment. Modifications of the system were tried between 1840 and 1850, but failed. At last, in 1853, penal servitude in England was substituted in the case of all crimes for which fourteen years’ transportation had been previously a possible sentence, and in 1857 was legalised in every case. Since the year 1867 no convict has been sent to Australia. Reformatories and industrial schools are institutions that belong wholly to the present reign, and will hereafter be reckoned among not the least of its humane inventions.
A lawyer may perhaps be excused for mingling with his retrospect of a period some names that appear bound up with the honour of his profession. The public service is greater than the men who serve it, and no judge, fortunately, is indispensable to the law, any more than a single wave is indispensable to the sea. Of the living, this is not the time nor place to speak. But as regards the dead, no generation can complain of judicial mediocrity that has seen upon the woolsack, Cottenham, Lyndhurst, St. Leonards, Cranworth, Chelmsford, Westbury, Cairns; at the Rolls, Langdale, Romilly, and Jessel; among its Lords Justices, Knight Bruce, Turner, Mellish, James, Giffard, Thesiger; in its Court of Chancery, Wigram, Kindersley, Stuart, Hatherley, Wickens; in its Queen’s Bench, Denman, Campbell, Cockburn, Williams, Wightman, Coleridge, Patteson, Crompton, Lush; at the Common Pleas, Jervis, Erle, Maule, Willes; at the Exchequer, Abinger, Pollock, Kelly, Parke, Alderson; at the Privy Council, Kingsdown; Cresswell in the Probate and Divorce Court, Lushington at the Admiralty. Transplanted to the House of Lords, or raised to the Privy Council, Lords Penzance, Blackburn, Bramwell, Sir John Mellor, Sir Henry Keating, Sir Montague Smith, and Sir James Bacon remain to remind us of the glories of courts now extinct. Apart from the luminaries of the Bench, the Bar of England looks back with pride on the memory of Follett, Karslake, Benjamin. The roll of the legal heroes of the past is always healthily inspiriting. It nerves those who come after—in the language of the Poet Laureate—to
For much always is left to be accomplished. There is and can be no such thing as finality about the administration of the law. It changes, it must change, it ought to change, with the broadening wants and requirements of a growing country, and with the gradual illumination of the public conscience.
[1 ]This essay was published as a chapter in “The Reign of Queen Victoria; a Survey of Fifty Years of Progress,” 1887, volume I, pp. 281-329, edited by Thomas Humphrey Ward (London: Smith, Elder, & Co.).
[2 ]1835-1894. B. A. Balliol College, Oxford, 1857, M. A. 1872, D. C. L. 1883; Barrister and Bencher of Lincoln’s Inn; judge of the High Court, Queen’s Bench Division, 1879; judge of the Court of Appeal, 1888; lord of appeal in ordinary, 1893.
[1 ]Lord Cairns, Lord Hatherley, Sir W. Erle (Chief Justice of the Common Pleas), Sir Jas. Wilde (now Lord Penzance), Sir R. Phillimore, Mr. G. Ward Hunt, Mr. Childers, Lord Justice James, Mr. Baron Bramwell (now Lord Bramwell), Mr. Justice Blackburn (now Lord Blackburn), Sir Montague Smith, Sir R. Collier (afterwards Lord Monkswell), Sir J. Coleridge (now Lord Coleridge), Sir Roundell Palmer (now Lord Selborne), Sir John Karslake, Mr. Quain (afterwards Mr. Justice Quain), Mr. H. Rothery, Mr. Ayrton, Mr. W. G. Bateson, Mr. John Hollams, Mr. Francis D. Lowndes.
[1 ]Hansard, vol. lxxvi, p. 1711.