Fifty Years Ago

by Walter Besant

As in Butler’s time it might still be said:—

So lawyers, lest the Bear defendant,
And plaintiff Dog, should make an end on’t,
Do stave and tail with writ of error,
Reverse of judgment, and demurrer,
To let them breathe awhile, and then
Cry Whoop! and set them on again.

In fact, like ‘Jarndyce and Jarndyce,’ hundreds of suits struggled on until they expired of inanition, the costs having swallowed up the estate. Such were the inevitable delays fifty years ago, that no one could enter into a Chancery suit with the least prospect of being alive at its termination. It was no small part of the duty of the respectable members of the legal profession to keep their clients out of Chancery. It was, perhaps, inevitable that this grievance should have been made the shuttlecock of party, that personalities should have obscured it, that, instead of the system, the men who were almost as much its victims as the suitors should have been blamed. Many successive Lord Chancellors in this way came in for much undeserved obloquy. The plain truth was, they were overworked. Besides their political functions, they had to preside in the Lords over appeals from themselves, the Master of the Rolls, and the Vice-Chancellor; they had some heavy work in bankruptcy and lunacy. The number of days that could be devoted to sitting as a Chancery judge of first instance was, therefore, necessarily small. That this was the keynote of the difficulty was shown by the marked improvement which followed upon the appointment of two additional Vice-Chancellors in 1841. In that year, too, another scandal was done away with by the abolition of the Six Clerks’ office—a characteristic part of the unwieldy machine. The depositaries of the practice of the Court, the Six Clerks and their underlings, the ‘Clerks in Court,’ were responsible for much of the delay which arose. The ‘Six Clerks’ were paid by fees, and their places were worth nearly two thousand a year, for which they did practically nothing, all their duties being discharged by deputy. No one, it was said, ever saw one of the ‘Six Clerks.’ Even in their office they were not known. The Masters in Chancery were, too, in those days almost as important functionaries as the judges themselves. Judges’ Chambers were not then in existence, and much of the work which now comes before the judges was disposed of by a master, as well as such business as the investigation of titles, the taking of accounts, and the purely administrative functions of the Court. All these duties they discharged with closed doors and free from any supervision worth talking about. They, too, were paid by fees, their receipts amounting to an immense sum, and it was to them that the expense of proceedings was largely due. The agitation for their abolition, although not crowned with success until fifteen years later, was in full blast fifty years ago.

At law, matters were little better. ‘Justice was strangled in the nets of form.’ The Courts of King’s Bench, Common Pleas, and Exchequer were not only at conflict with Equity, but in a lesser degree with each other. The old fictions by which they ousted each other’s jurisdiction lasted down to 1831, when, by statute, a uniformity of process was established. It seems nowadays to savour of the Middle Ages, that in order to bring an action in the King’s Bench it should have been necessary for the writ to describe the cause of action to be ‘trespass,’ and then to mention the real cause of action in an ac etiam clause. The reason for this absurd formality was that, ‘trespass’ still being an offence of a criminal nature, the defendant was constructively in the custody of the Marshal of the Marshalsea, and therefore within the jurisdiction of the King’s Bench. In the same way a civil matter was brought before the Court of Exchequer by the pretence that the plaintiff was a debtor to the King, and was less able to pay by reason of the defendant’s conduct. The statement, although in ninety-nine cases out of a hundred a mere fiction, was not allowed to be contradicted. But the fact that the jurisdiction of the Court of Common Pleas was thus entrenched upon was less serious than it might have been, since in that court the serjeants still had exclusive audience; and, distinguished as were the members of the Order of the Coif, it is easy to understand that the public preferred to have their pick of the Bar.

But a much more serious matter was the block in the Courts. This perennial grievance seems to have then been chiefly due to the shortness of the terms during which alone legal questions could be decided. Nisi prius trials only could be disposed of in the vacations. Points of law or practice, however, cropped up in those days in even the simplest matter, and, since these often had to stand over from term to term, the luckless litigants were fortunate indeed if they had not to wait for years before the question in dispute was finally disposed of. The Common Law Procedure, moreover, literally bristled with technicalities. It was a system of solemn juggling. The real and imaginary causes of action were so mixed up together, the ‘pleadings’ required such a mass of senseless falsehood, that it is perfectly impossible that the parties to the action could have the least apprehension of what they were doing. Then no two different causes of action could be joined, but each had to be prosecuted separately through all its stages. None of the parties interested were competent to give evidence. It was not until 1851 that the plaintiff and the defendant, often the only persons who could give any account of the matter, could go into the witness-box. Mistakes in such a state of things were, of course, of common occurrence, and in those days mistakes were fatal. Proceedings by way of appeal were equally hazardous and often impracticable. The Exchequer Chamber could only take cognisance of ‘error’ raised by a ‘bill of exceptions;’ and even at this time the less that is said about that triumph of special pleading the better. The House of Lords could only sit as a Court of Error upon points which had run the gauntlet of the Exchequer Chamber. But perhaps the crowning grievance of all—a grievance felt equally keenly by suitors at law and in equity—arose from the limited powers of the Courts. If there were a remedy at law for any given wrong, for instance, the Court of Chancery could give no relief. In the same way, if it turned out, as it often did, that a plaintiff should have sued in equity instead of proceeding at law, he was promptly nonsuited. Law could not grant an injunction; equity could not construe an Act of Parliament.

There were then, as we have said, no County Courts. The Courts of Requests, of which there were not a hundred altogether, only had jurisdiction for the recovery of debts under 40s. We have already given an illustration of the methods of Palace Court, which may serve as a type of these minor courts of record. Indeed, with the exception of the City of London, which was before the times in this respect, there was throughout the kingdom a denial of justice. Those who could not afford to pay the Westminster price had to go without. For in those days all matters intended to be heard at the Assizes were in form prepared for trial at Westminster. The ‘record’ was delivered to the officers of the King’s Bench, Common Pleas, or Exchequer, and the cause was set down for trial at Westminster, nisi prius in the meantime the judges happened to go on circuit into the county in which the cause of action arose,—in which event one of them would take down the record, try the action with a jury of the county, pronounce judgment according to the verdict, and bring back verdict and judgment, to be enrolled in due course at Westminster. In equity, things were even worse. There was, except in the counties palatine of Durham and Lancaster, no local equitable jurisdiction. And it was commonly said, and said with obvious truth, that no sum of less than 500l. was worth suing for or defending in the Court of Chancery.

Divorce was then the ‘luxury of the wealthy.’ An action for the recovery of damages against the co-respondent, and a suit in the Ecclesiastical Courts for a separation ‘from bed and board,’ themselves both tedious and costly, after having been successfully prosecuted, had to be followed by a Divorce Bill, which had to pass through all its stages in both Lords and Commons, before a divorce a vinculo matrimonii could be obtained. There is a hoary anecdote which usefully illustrates how this pressed upon the poor. ‘Prisoner at the bar,’ said a judge to a man who had just been convicted of bigamy, his wife having run away with another man, ‘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 would have been heard at the Bar of the House.’ ‘But, my lord,’ said the disconsolate bigamist, ‘I cannot afford to bring actions or obtain Acts of Parliament; I am only a very poor man.’ ‘Prisoner,’ rejoined the judge, with a twinkle in his eye, ‘it is the glory of the law of England that it knows no distinction between rich and poor.’ Yet it was not until twenty years after the Queen came to the throne that the Court for Divorce and Matrimonial Causes was created.

Probate, too, and all matters and suits relating to testacy and intestacy, were disposed of in the Ecclesiastical Courts,—tribunals were attached to the archbishops, bishops, and archdeacons. The Court of Arches, the supreme Ecclesiastical Court for the Province of Canterbury, the Prerogative Court, where all contentious testamentary causes were tried, as well as the Admiralty Courts, were held at Doctors’ Commons. It was a curious mixture of spiritual and legal functions. The judges and officers of the Court were often clergy without any knowledge of the law. They were paid by fees, and, according to the common practice of those days, often discharged their duties by deputy. The advocates who practised before them were, too, anything but ‘learned in the law.’ They wore in Court, if of Oxford, scarlet robes and hoods lined with taffety, and if of Cambridge, white miniver and round black velvet caps. The proctors wore black robes and hoods lined with fur. The procedure was similar to that in vogue in the Common Law Courts, but the nomenclature was entirely different. The substitute for punishment was ‘penance,’ and the consequence of non-submission ‘excommunication,’ which, in addition to spiritual pains, incapacitated the delinquent from bringing any action, and at the end of forty days rendered him liable to imprisonment by the Court of Chancery. The practical result was that both penance and excommunication were indirect methods of extracting money payments. But the whole system was full of abuses, and when, twenty years later, these courts were shorn of all their important functions, it was with the universal concurrence of the public. Until then there were many who shared the opinion of De Foe’s intelligent foreigner, that ‘England was a fine country, but a man called Doctors’ Commons was the devil, for there was no getting out of his clutches, let one’s cause be never so good, without paying a great deal of money.’

In bankruptcy, a severity which was simply ferocious prevailed. Traders owing more than 300l., and a little later all traders, could obtain a discharge upon full disclosure and surrender of all their property; but even then the proceedings were protracted to an almost interminable length. The machinery was both cumbrous and costly. Down to 1831 the bankruptcy law in London was administered by Commissioners appointed separately for each case by the Lord Chancellor. In that year a Court of Review was established, with a chief judge and two minor judges; and this to some extent controlled and supervised the proceedings of the Commissioners, now a permanent body. In the country, however, the old procedure prevailed; but the amount of business done was ridiculously small, creditors preferring, as they always probably will do, to write off the bad debts rather than to attempt to recover them by the aid of the bankruptcy law. The system, moreover, bristled with pains and penalties. If a bankrupt, as alleged, did not surrender to his commission within forty-two days of notice; nor make discovery of his estate and effects; nor deliver up his books and papers, he was to be deemed a felon and liable to be transported for life. An adjudication—the first stage in the proceedings—was granted upon the mere affidavit of a creditor, a fiat was issued, the Commissioners held a meeting, and, without hearing the debtor at all, declared him a bankrupt. It was thus quite possible for a trader to find himself in the Gazette, and ultimately in prison, although perfectly solvent. He had his remedies, it is true. He could bring an action of trespass or false imprisonment against the Commissioners. He could make things uncomfortable for the assignee, by impeaching the validity of the adjudication. But in any case a delay extending perhaps over many years was inevitable before the matter was decided.

‘Insolvent debtors,’ as those not in trade were distinguished, were in yet worse case. Imprisonment on ‘mesne process’ or, in plain English, on the mere affidavit of a creditor, was the leading principle of this branch of the bankruptcy law; and in prison the debtor remained until he found security or paid. The anomaly which exempted real estate from the payment of debts had been removed in 1825; and, since then, a debtor, actually in prison, could obtain a release from confinement by a surrender of all his real and personal property, although he remained liable for all the unpaid portion of his debts whenever the Court should be satisfied of his ability to pay them. Everything, moreover, depended upon the creditor. He still had an absolute option, after verdict and judgment, of taking the body of the debtor in satisfaction, and the early records of the Court for the Relief of Insolvent Debtors show how weak and impotent were the remedies provided by the Legislature. It was not until twenty years later that the full benefits of bankruptcy were extended to persons who had become indebted without fraud or culpable negligence. Enough has already been said of the state of the debtors’ prisons. It is sufficient to add here that in the second year of the Queen nearly four thousand persons were arrested for debt in London alone, and of these nearly four hundred remained permanently in prison.