Social Transformations of the Victorian Age: A Survey of Court and Country

by T. H. S. Escott

Significance of the New Law Court buildings in London. Early efforts after law reform in Parliament. No appreciable result till 1841. Slow progress and subsequent changes, culminating in the 1869 Commission, and the 1873 Judicature Act. The popular consequences of this, and general view of our legal system as it affects to-day the Colonies as well as the mother country.

Transformation in our Colonial system shown by the latest facts and figures. Special usefulness as well as Imperial value of the Colonies to England. Social fusion of the mother country and the Colonies prefigured by the presence and influence on both sides of the Atlantic of the American element in the best society in London. Individual influences which have promoted this movement, and are doing the same thing for our Colonial cousins, as for our American.

No architectural change during the age has more affected the perspective of Fleet Street and the Strand than the disappearance of Temple Bar and its replacement by the griffin which marks its former site, and the erection of the Royal Courts of Justice that now flank the central thoroughfare. This is the outward and visible sign of a transformation not less great, as regards the administration of the law within the new palace of justice itself.

The Reform Act of 1832 was followed by various movements in Parliament in the direction of law reform. The proposals and their very slight results were solely technical; the public reaped no appreciable benefit so long as the separation of the Common Law Courts from the Court of Chancery existed, and on different sides of Westminster Hall two legal systems, often mutually antagonistic, were at work. Ten years after the Accession, the monopoly of Serjeants of Law in the old Court of Common Pleas was swept away. Still justice was delayed. During the early days of railway enterprise, commerce was obstructed, by the postponement, for inadequate or vexatious reasons, of the trial of cases arising out of bills of exchange on which large sums of money depended, and which, till they were decided, blocked commercial enterprise. This may be looked back to now as the scholastic era in nineteenth century law administration. The categories into which causes and kinds of legal action and pleas, were divided, in their pedantic complexity, recalled the tortuous refinements of the logical school men upon the comparatively simple predicaments of Aristotle.

In 1851 a flagrant and inveterate anomaly was removed by the success of those law reformers who had long in vain protested against the absurdity of disallowing the evidence of persons immediately interested in the suit. After this, the movement did not pause till the Commission of 1869 was appointed, with the result that in 1873 there passed the Judicature Act which has amalgamated conflicting usages into a homogeneous system, and produced the long desired fusion between Equity and Law. The ancient divisions are perpetuated to-day not in different Courts but in different divisions of the same Court. The result briefly stated is that notwithstanding the real difference which still exists between Equity and Law, and the practical division of the Bar into two branches, Law and Equity can to-day be administered by the same Courts and one judge can give suitors the same relief as any other judge.

There is now no possibility of a question being decided by one tribunal according to Common Law principles, and by another according to the principles of Equity. To prevent any chance of confusion it has further been enacted that wherever the rules of Equity and Law seem to conflict, those of Common Law are to prevail. The principle of a division of labour still exists. Every judge, that is, does not transact every sort of business. The judges in the Chancery division are still specially charged with the execution of trusts and other such matters, even as happened in the case of their predecessors fifty years ago. To do justice with as little regard as may be to forms and precedents is the visible object of the administrators of the law in every department. That professional prejudices should have disappeared was not to be expected, and, perhaps, not to be desired. But the exclusive etiquette of judges and lawyers is not greater than prevails in other professions, among doctors, diplomatists, or divines. The plaintiff in person is no more welcome in the reformed, than in the unreformed, Courts; nor, in the interests of public time and of common sense, is it probably to be wished that he should be. The two principal and practical defects in the administration of English law that still need attention would seem to be—one, the barbarous system which still obtains through the imperfect arrangements of the Circuit Courts of keeping untried prisoners unreasonably long in prison. Of late cases have been noticed in which persons, proved on trial to be innocent, have been detained in prison for weeks or months. The second defect is the undue licence allowed to the legal profession of protracting the hearing of cases secondary in their importance by the accumulation of unnecessary evidence and cross-examination. This has often been objected to, but has seldom been firmly controlled by the judges.

The great public benefit conferred by the reforms whose monument is the New Law Courts hard by the church of St Clement Danes, may be condensed into the remark that whereas from 1837 to 1875 it was an accident whether the right party won his case, the presumption in favour of his success in 1897 is so strong as almost to amount to a certainty.

Of another sort of fusion, that between the two divisions of the legal profession, solicitors and barristers, much has been heard. But in Canada and some other Colonies some inconvenience and disadvantage are found to result from the absence of any distinction between barristers and solicitors. Gradually, perhaps, a solution in practice is being arrived at. Without mentioning individual names it is the fact that among the men who now stand highest, whether at the Bar or on the Bench, many while students at the Inns of Court have perfected themselves in the practical details of law by voluntarily attending the offices of great firms of solicitors, whether in Westminster or elsewhere.

The palace of justice whose opening marked the close of the fourth decade of the reign, commemorates, in a fashion of its own, the unity of the Empire as well as the late achieved unity of the administration of justice.

Among the Queen’s subjects are nations not only of every creed and of every colour, but trained in obedience to every code of law which human skill has devised. Since the modern era of our Colonial Empire began in 1836, the practice has been to continue to those dependencies the laws under which they were when they came into being, or when they were first acquired by diplomatic cession or military conquest, always provided that these pre-existent systems do not contradict the fundamental principles of British jurisprudence. Thus, in British Guiana, in the Cape Colony, and in Ceylon, the letter and spirit of Roman-Dutch law have been continued under English rule. In lower Canada, French forms have become so confused as to be impracticable: the laws of this province are to-day identical with those in vogue in England at the time of its acquisition in 1763, periodically of course improved by modern lights. In the Mauritius, the French Code Civile and the French Code de Commerce still exist. It is for the sovereign embodying in her own person the unity of the Empire to decide through the Privy Council, that is, to-day, through the Judicial Committee in all disputed cases what the particular law of the locality may be.