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CHAPTER 11: THE COURTS IN THE NINETEENTH CENTURY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE COURTS IN THE NINETEENTH CENTURY
The nineteenth century is occupied almost continuously with changes in the judicial system, many of them individually of slight extent, and in the earlier half uncertain of their ultimate aim. In the middle of the century the experience obtained was sufficiently definite to make it clear that a policy of detailed readjustment was inadequate, and so the more thorough policy of the judicature acts eventually triumphed.
LOCAL COURTS OF REQUESTS
Reference has already been made to the high degree of centralisation which was reached by the common law at an early date. On the criminal side, the jurisdiction of the justices of the peace in quarter sessions and of the justices of assize provided an adequate remedy. Civil proceedings were not so well served, however, and with the decline of the local communal and seignorial courts (to some extent, at least, due to the interference of the central courts) the situation became serious. The eighteenth century attacked this problem in its own characteristic fashion. Communities which felt a special need for newer judicial organs secured special acts of Parliament, and in this way there came into existence a number of “courts of requests”. They are interesting in many ways, notably because they embodied several legal heresies which did not become orthodox until a century or more later, such as a summary procedure without juries, and the examination of the parties themselves; nor did they form a part of the judicial system, for no appeal lay from them to the central courts.1
THE REFORMED COUNTY COURTS
The ancient county courts had seriously declined, although a few were more active than others. In any case, they had inherited many centuries of obscure technicalities which made them quite inadequate for the need of the new communities growing up as a result of the industrial revolution. A significant attempt to reform one of them was made in 1750 by an act1 which allowed the county clerk of the sheriff of Middlesex and the suitors of the county court to sit for small claims in the various hundreds in turn. It is clear that the effect of the act is not to create a new court, but to allow the clerk and suitors of the county to adopt a summary procedure for small claims and to sit in various parts of the county for that purpose. Decisions were reached by the clerk (a barrister) and the suitors together.
THE MODERN COUNTY COURTS
A somewhat similar procedure was finally adopted and applied to all the counties of England. An “act for the recovery of small debts and demands” (now generally referred to as the County Courts Act, 1846) made such radical changes that it is regarded by most writers as instituting a completely new set of courts.2 In point of fact the act takes careful precautions to make it clear that its innovations are all grafted on the ancient stock of the old county court. The fruitful idea of the Middlesex experiment in sending an officer of the old county court to tour the county for small-claim business under a summary procedure was now developed. The eighteenth-century courts of requests and courts of conscience (as they were sometimes called) were by the statute now deemed to be “branches” of the county court. Paid judges, who must be barristers of standing, were to hold, in the name of the county, courts for small claims, each judge having a group of counties within his circuit.
The novelty therefore consisted in the appearance of many new “branches” of the ancient county court for small claims. The old court was left untouched with its unlimited jurisdiction (if a writ of justicies had been brought), and is still the only place where outlawry could be pronounced. The act of 1846 confined the branches to distinctly small business, but they flourished so exceedingly that their jurisdiction has been steadily increased; in 1888 a consolidating act3 was passed, but the flood of new powers continued to flow, and at the present moment they are the most important courts in the country for the ordinary run of business. The luxuriant branches have completely overlaid the venerable stock on which they were grafted.
THE STATE OF THE SUPERIOR COURTS
The reform of the central courts was a much more difficult enterprise, for one of the greatest causes of trouble consisted in their clerical staffs. Any reform in their procedure would inevitably involve the abolition of some lucrative sinecure or at least the reduction of its emoluments. These offices constituted valuable patronage for the government or the judges (who were still paid by fees and casual profits), and their incumbents were not removable. The expense of this fantastic system fell upon litigants, who received services from these officers by no means commensurate with the fees they paid. The biting sarcasms of Dickens are amply justified by the evidence given before the several commissions which investigated the machinery of the courts of law and equity.1
THE REFORM OF CHANCERY
The Chancery had long suffered from the fact that it was in practice as well as in theory a one-judge court. As its work increased the first expedient adopted was to delegate formal and detailed business to subordinate officers, whose work was to be supervised by the Chancellor.
In the middle ages the Chancellor had at his disposition a college or community of clerks the most important of whom acquired the title of Masters in Chancery. Their duties were very miscellaneous, but with the growth of the equitable jurisdiction of the Chancellor they became more and more specialised in assisting him in its exercise. The chief of the masters, known as the Master of the Rolls, in particular was sometimes called upon to take the place of a Chancellor who could not be spared from political and state duties. By the opening of the seventeenth century the Master of the Rolls was the constant assistant of the Chancellor in his judicial work, and a good deal of controversy as to his exact position took place.2 A century later a statute3 did something, but not much, to settle a question which historical research was unable to elucidate. The old feud prevented the office of Master of the Rolls being as useful as it might have been.
In 1813 the enormous arrears in Chancery accumulated under Lord Eldon provoked the appointment of a Vice-Chancellor, but as his acts were reviewable by the Chancellor the net result was still more delay and increased arrears. Persisting in this policy, however, the Master of the Rolls was authorised to sit as a regular court in 1833 under the same restrictions—and with the same results, in spite of the fact that in 1831 a new system of courts was erected to take over Chancery’s bankruptcy business. This reduction of work was soon nullified by the transfer to Chancery of the equity jurisdiction of the Exchequer in 1841, and so two more Vice-Chancellors had to be appointed.1
Then another policy was tried. It was now evident that even the appeals from subordinate equity judges were more than one Chancellor could dispatch, and so in 1851 two Lords Justices (a new title) were constituted, with the Master of the Rolls, as Court of Appeal in Chancery, intermediate between the courts of the Vice-Chancellors and Master of the Rolls, who all sat singly as judges of first instance, and the Lord Chancellor himself.
THE COURTS OF COMMON LAW
Here the situation was somewhat different. The competition between the King’s Bench, Common Pleas and Exchequer which we have already mentioned resulted in these three courts having co-ordinate jurisdiction in many common classes of cases, although the differences of procedure between them were numerous and troublesome. The main problem was the complicated system of jurisdiction in error, for King’s Bench heard errors of the Common Pleas, and the Exchequer Chamber those of the Exchequer; a differently constituted Exchequer Chamber might hear errors from the King’s Bench, or they might go to Parliament, and still a third Exchequer Chamber was a court of discussion. The common characteristic of all the Exchequer Chambers was their delay and expense. In 1830, therefore, this tangle of jurisdictions was simplified by abolishing the jurisdiction in error of the King’s Bench, leaving it a court of first instance. The statutory Exchequer Chambers were amalgamated into one court with the same name consisting of all the judges of all three courts, it being provided that an appeal from any one court should be heard by the judges of the other two courts.2 The ultimate jurisdiction in error of Parliament was left untouched.
Thus while the Chancery was given an appeal court of Lords Justices in 1851, the common law courts were left since 1830 with a court of error consisting entirely of trial judges.
THE RELATIONS OF LAW AND EQUITY
The more harmonious relations between law and equity during the eighteenth century resulted in each system becoming closely involved in the working of the other. Chancery would send issues to be tried by a jury in a common law court, and would get the opinion of the judges on points of common law; litigants in the common law courts on the other hand would have recourse to Chancery in order to obtain discovery and other like advantages.
A symptom of this new atmosphere is the gradual introduction into common law courts of procedures and doctrines which were originally the peculiar province of Chancery. Sometimes this was the result of statute, but at times a bold decision was sufficient. The process appears early in the eighteenth century and is continuous down to the Judicature Acts, and its significance lies in the fact that the revolution effected by those acts was the culmination of a tendency which had long been at work. Thus a statute of 1706 allowed certain equitable defences to be pleaded in common law actions upon bonds under seal;1 and a decision of 1789 allowed a party in a common law court to plead a deed which had been lost or destroyed without producing it.2
This tendency was carried very much further by the Common Law Procedure Act, 1854, which required Chancery to find its own law without sending to a common law court for a judicial opinion, and to hear oral evidence and to use a jury; common law courts on the other hand were empowered to grant injunctions, to compel discovery and to admit a variety of equitable defences.
Year after year new acts made further changes in the system of procedure along these lines, and it soon became evident that the reforms, although useful, were creating an enormous body of detailed statute law with the inevitable multiplication of anomalies as defects in the acts became apparent. The mere fact that cases outside the acts began to look like anomalies helped forward the movement for a simpler and more radical remedy.3
THE JUDICATURE ACTS
Lord Selborne drafted and piloted through Parliament the Judicature Act of 1873. By it all the old central courts were abolished and replaced by a Supreme Court of Judicature, which consisted of a High Court of Justice and a Court of Appeal. To the High Court was transferred the jurisdiction of all the courts of common law and of equity, and of the courts of divorce, probate, bankruptcy and Admiralty. To the Court of Appeal was transferred the jurisdiction of the Court of Appeal in Chancery and of the Court of Exchequer Chamber. There was thus one court of appeal and one court of first instance. Moreover, there was only one appeal, for the 1873 act abolished the appellate jurisdiction of Parliament, but in spite of Lord Selborne’s efforts an amending act in 1875 restored it, and thus retained the double appeal. As we have seen, the Court of Appeal in Chancery consisted of special Lords Justices of Appeal, but the Exchequer Chamber consisted of the judges of first instance of the common courts; both principles were retained under the Judicature Acts. The Court of Appeal was to consist of Lords Justices of Appeal, but the Chancellor could call upon any judge of the High Court to sit in the Court of Appeal, and this possibility is still open, although it is not often used.
The High Court at first sat in five divisions (Chancery, Queen’s Bench, Common Pleas, Exchequer, Probate, Divorce and Admiralty—the last three topics being kept together because they were until now the concern of a special branch of the profession organised as Doctors’ Commons). In 1881 all the common law divisions were amalgamated into one King’s Bench Division. These divisions are not separate jurisdictions but merely administrative devices to bring particular types of business before judges who are particularly familiar with them. The creation of the “commercial list” is an example of the flexibility of this system.
Finally, there is the important provision which effected the fusion of law and equity.1 It is often stated that this fusion was the work of the judicature acts—which of course is perfectly true. But there would also be a good deal of truth in the converse proposition that the fusion of law and equity which had already taken place to some extent (as we have seen) was itself the cause of the judicature acts, for the synthesis of the two into one body of law could only operate effectively through a unified court.
THE APPELLATE JURISDICTION ACT
Owing to the retention of the double appeal, it became necessary to reform the constitution of the ultimate court. This was done in 1876 by the Appellate Jurisdiction Act which authorised the appointment of Lords of Appeal in Ordinary who were to be lords of Parliament for life and whose presence was required when the House of Lords was engaged on judicial business.
The appellate jurisdiction exercised by the Privy Council in the eighteenth century from colonial tribunals has already been mentioned; to this an act of 1832 added appellate jurisdiction over ecclesiastical courts in England, and the Appellate Jurisdiction Act of 1876 provided for the new Lords of Appeal in Ordinary sitting both in the Lords and in the judicial committee of the Privy Council, thus affording a valuable link between the two bodies.
Criminal law was the slowest to change. For centuries it was an unwritten axiom that a criminal trial could not be reviewed. The solemnity of jury trial was so great that it was hardly thinkable that a verdict could be set aside for any reason; and if a jury’s view of the facts was final, the court’s view of the law was almost equally decisive. A writ of error might be brought, but as the Crown prosecuted and had also the duty of issuing this writ, it followed that error could only be brought where the Crown itself was disposed to admit that the trial was unsatisfactory. A bold decision of 1705 held that the writ of error must be issued1 —at least in cases of misdemeanour. Such a procedure was very capricious, at the best, for the record in which error had to be found was a highly artificial document, bearing little relation to the material points of the trial. Rather more promising was the growth of a practice of granting new trials—but again only in cases of misdemeanour.
Hence trial judges, realising how little chance there was of revising their decisions, resorted to the practice of reserving difficult cases for informal discussion among their colleagues at Serjeants’ Inn. At last, official sanction was given to this procedure by the creation in 1848 of the Court for Crown Cases Reserved. The result was not to add any new means of reviewing criminal cases, which remained exactly as before the act. Nothing was done, for example, to extend to felonies the facilities for review, meagre as they were, which existed in respect of misdemeanours.
COURT OF CRIMINAL APPEAL
Only in 1907 did a sensational case arouse public interest in a matter which Sir James Stephen and a Royal Commission had long ago considered as crying for reform.
The writ of error and the Court for Crown Cases Reserved were abolished and appeals involving law or fact were allowed to a newly erected Court of Criminal Appeal. In exceptional cases a further appeal was permitted to the House of Lords.
THE PROFESSION AND REFORM
The above outline contains the barest essentials of the great movement of institutional reform in the nineteenth century. Large and important subjects have not been treated here, and reference should be made to Sir William Holdsworth’s History for such matters as ecclesiastical, bankruptcy and Admiralty jurisdictions which were the subjects of numerous changes during this period.
A word may be said about the attitude of lawyers as a profession to the bewildering mass of legislation which swept over them. A recent article1 has suggested (on the strength of general and professional newspapers published during the period) that the legal profession was wholly obstructionist in the nineteenth century. This is surely an exaggeration. No judgment of a profession can be fair which omits to mention its accredited leaders, whose energy and vision have always to contend with conservatism and obstructionism among sections of their followers. To correct the impression it will be enough to refer to a few among many great lawyers who devoted their abilities to the cause of reform—to Cairns, Selborne, Blackburn, Bramwell and many others.2
See Winder, The Courts of Requests, Law Quarterly Review, lii. 369.
23 Geo. II, c. 33. For a rather different view of this act see Holdsworth, i. 191. An early attempt to set up a “court of conscience” in Middlesex appears in Commons’ Journals, 17 December 1680. The erection of the “manor of Dunkerton” in 1721 was an eccentric way of solving the same problem in a rural area of Ireland: J. L. Sanford and M. Townsend, Great Governing Families of England, ii. 144.
9 & 10 Vict., c. 95.
51 & 52 Vict., c. 43.
See the interesting and illuminating lectures of Sir William Holdsworth, Dickens as a Legal Historian (New Haven, 1928).
From 1596 to 1603, however, Sir Thomas Egerton was both Master of the Rolls and Lord Keeper.
3 George II, c. 30 (1730).
5 Vict., c. 5 (1841).
11 Geo. IV & 1 Will. IV, c. 70.
4 & 5 Anne, c. 3.
Read v. Brookman, 3 Term Rep. 151; for numerous other examples, see Ames, Lectures on Legal History, 104-115.
For the corresponding movement abroad, see J. H. Beale, Equity in America, Cambridge Law Journal, i. 21.
A similar course had already been adopted in the constitution of the State of New York in 1846. Cf. J. H. Beale, Equity in America, Cambridge Law Journal, i. 21.
Paty’s Case, 1 Salk. 504. Cf. above, p. 201 n. 2.
E. R. Sunderland, The English Struggle for Procedural Reform (1926), Harvard Law Review, xxxix. 725.
See, for example, Select Essays in Anglo-American Legal History, i. 533, where Lord Bowen names others, many of whom are now provided with memoirs or biographies.