Five thousand three hundred and forty-four enactments have been added to the Statute Book since the Queen came to the throne, and the figures throw a flood of light upon the ‘progress’ of the Victorian era. In order to realise where we were in 1837 we have only to obliterate this enormous mass of legislation. In the realm of law there seems then to be little left. All our procedure—equitable, legal, and criminal—much of the substance of equity, law, and justice, as we understand the words, is gone. ‘Law’ had a different meaning fifty years ago; ‘equity’ hardly had any meaning at all; ‘justice’ had an ugly sound.

The ‘local habitation’ of the Courts, it is true, was then much the same as it remained for the next forty-five years. The network of gloomy little rooms, connected with narrow winding passages, which Sir John Soane built in 1820–1825, on the west side of Westminster Hall, on the site of the old Exchequer Chamber, with an exterior in imitation of Palladio’s basilica at Vicenza, but outrageously out of keeping with the glorious vestibule of William Rufus, was then the home of law. The Court of Chancery met in a gloomy little apartment near the southern end of the hall. Here the Lord Chancellor sat in term time—there were then four terms of three weeks each—with the mace and crimson silk bag, embroidered with gold, in which was deposited the silver pair of dies of the Great Seal, and a large nosegay of flowers before him. It was, in those days, only in the vacations that the Chancellor sat at Lincoln’s Inn. The Master of the Rolls and the Vice-Chancellor of England also sat at Westminster during the sittings, while in the intervals the former presided over the Rolls Court in Rolls Yard and the latter over the Court which had been built for him on the west side of Lincoln’s Inn Hall. The three Common Law Courts, moreover, during term time, sat twelve days at Westminster and twelve days at the Guildhall, while the Assizes were chiefly held during the vacations.

The High Court of Admiralty held its sittings at Doctors’ Commons, in both the Instance Court and the Prize Court, practically throughout the legal year, and so did the Ecclesiastical Courts. The Bankruptcy Court was in Basinghall Street; the Insolvent Debtors’ Court in Lincoln’s Inn Fields, with an entrance from Portugal Street. There were then no County Courts. The ancient Hundred and County Courts, with their primitive procedure, had long been disused. Certain ‘Courts of Conscience’ or ‘Courts of Request’ had, it is true, been established for particular localities at the express request of the inhabitants, and these were still being constituted in some of the large towns. Then in London there were local Courts with a peculiar jurisdiction, such as the City Courts, which would fill a chapter by themselves, and of which it is enough to name the Lord Mayor’s Court, the Sheriff’s Courts of Poultry Compter and Giltspur Street Compter, both afterwards merged into the City of London Court. In Great Scotland Yard there was the Palace Court, with the Knight Marshal for judge, which anciently had exclusive jurisdiction in matters connected with the Royal Household, but now was a minor court of record for actions for debt within Westminster and twelve miles round. The Court had its own prison in High Street, Southwark—the Marshalsea of ‘Little Dorrit,’ not the old historic Marshalsea, which was demolished at the beginning of the century—that stood farther north, occupying the site of No. 119 High Street—but a new Marshalsea, built in 1811 on the site of the old White Lyon, once a hostelry, but since the end of the sixteenth century itself a prison. The Palace Court came to a sudden end in 1849, owing to ‘Jacob Omnium’ being sued in it. Thackeray tells the story in ‘Jacob Homnium’s Hoss:’—

The sittings of the Central Criminal Court, which was founded in 1834, were held, as they are still held, in the Sessions House in the Old Bailey. Rebuilt in 1809 on the site of the old Sessions House which was destroyed in the No-Popery riots of 1780, and of the old Surgeons’ Hall—where the bodies of the malefactors executed in Newgate were dissected—the building, although sufficiently commodious for holding the sessions of London and Middlesex, for which it was originally intended, as the centre of the criminal jurisdiction of the kingdom, was never anything but a makeshift. Since, however, its dingy Courts have remained the same down to our own times, we can the better realise the surroundings of the criminal trials of those days. It was here that Greenacre was tried in 1837. Bow Street was then in the zenith of its fame, and was practically the centre of the police arrangements of London.

Those were the palmy days of the Court of Chancery. Reform was, as it had been for centuries, in the air, and there, notwithstanding the efforts of Lord Lyndhurst, it seemed likely to remain. Practically nothing had been done to carry into effect the recommendations of the Commission of 1826. At the time of her Majesty’s accession there were nearly a thousand causes waiting to be heard by the Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor of England. It was verily a ‘dead sea of stagnant litigation.’ ‘The load of business now before the Court,’ remarked Sir Lancelot Shadwell, ‘is so great that three angels could not get through it.’ Think what this meant! Many of these suits had endured for a quarter of a century, some for half a century; ‘the lawyers,’ to use the current, if incorrect, phrase of the time, ‘tossing the balls to each other.’ One septuagenarian suitor, goaded to madness by the ‘law’s delay,’ had, a few years before, thrust his way into the presence of Lord Eldon, and begged for a decision in a cause waiting for judgment which had been before the Court ever since the Lord Chancellor, then nearly eighty, was a schoolboy. Everyone remembers ‘Miss Flite,’ who expected a judgment—‘on the Day of Judgment,’ and Gridley ‘the man from Shropshire:’ both are true types of the Chancery suitors of fifty, thirty, twenty years ago. It would be wearisome indeed to detail the stages through which a Chancery suit dragged its slow length along. The ‘eternal’ bills, with which it began—and ended—cross bills, answers, interrogatories, replies, rejoinders, injunctions, decrees, references to masters, masters’ reports, exceptions to masters’ reports, were veritably ‘a mountain of costly nonsense.’ And when we remember that the intervals between the various stages were often measured by years—that every death made a bill of review, or, worse still, a supplemental suit, necessary—we can realise the magnitude of the evil. The mere comparison of the ‘bills’ in Chancery with the ‘bills of mortality’ shows that with proper management a suit need never have come to an end. There is a story for which the late Mr. Chitty is responsible, that an attorney on the marriage of his son handed him over a Chancery suit with some common law actions. A couple of years afterwards the son asked his father for some more business. ‘Why, I gave you that capital Chancery suit,’ replied his father; ‘what more can you want?’ ‘Yes, sir,’ said the son; ‘but I have wound up the Chancery suit and given my client great satisfaction, and he is in possession of the estate.’ ‘What, you improvident fool!’ rejoined the father indignantly. ‘That suit was in my family for twenty-five years, and would have continued so for so much longer if I had kept it. I shall not encourage such a fellow.’

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

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.

It was, however, in the administration of the criminal law that the harsh temper of the times reached its zenith. Both as regards procedure and penalties, justice then dealt hardly indeed with persons accused of crimes. In cases of felony, for instance, the prisoner could not, down to 1836, be defended by counsel, and had, therefore, to speak for himself. Now think what this meant! The whole proceedings, from arrest to judgment, were—for the matter of that they still are—highly artificial and technical. The prisoner, often poor and uneducated, was generally unaccustomed to sustained thought. The indictment, which was only read over to him, was often almost interminable in length, with a separate count for each offence, and all the counts mixed and varied in every way that a subtle ingenuity could suggest. Defences depended as largely for their success upon the prisoner taking advantage of some technical flaw (which, in many cases, had to be done before pleading to the indictment), as upon his establishing his innocence upon the facts. But what chance had an illiterate prisoner of detecting even a fundamental error when he was not allowed a copy of the document? In fact, in the words of Mr. Justice Stephen, the most eminent living authority upon the history of our criminal law,’ it is scarcely a parody to say that from the earliest times down to our own days the law relating to indictments was much the same as if some small proportion of the prisoners convicted had been allowed to toss-up for their liberty.’

There might, further, be the grossest errors of law, as laid down by the judge to the jury, or of fact upon the evidence, without the prisoner having any remedy. Neither the evidence nor the judge’s directions appeared upon the face of the ‘record,’ and it was only for some irregularity upon the record that a writ of error would lie. A curious practice, however, gradually sprang up, whereby substantial miscarriage of justice was often averted. If a legal point of any difficulty arose in any criminal case heard at the Assizes, or elsewhere, the judge respited the prisoner, or postponed judgment, and reported the matter to the judges. The point reserved was then argued before the judges by counsel, not in court, but at Serjeants’ Inn, of which all the judges were members. If it was decided that the prisoner had been improperly convicted, he received a free pardon. It was this tribunal which was in 1848 erected into the Court for Crown Cases Reserved.

The outcry against capital punishment for minor felonies was still in full blast. The history of this legislation is extremely curious. The value of human life was slowly raised. It had, thanks to the noble efforts of Sir Samuel Romilly, ceased to be a capital offence to steal from a shop to the amount of 5s.; but public opinion was still more enlightened than the laws. A humane judge compelled to pass sentence of death upon a woman convicted of stealing from a dwelling-house to the value of 40s., shocked when the wretched victim fainted away, cried out, ‘Good woman, good woman, I don’t mean to hang you. I don’t mean to hang you. Will nobody tell her I don’t mean to hang her?’ Jurors perjured themselves rather than subject anybody to this awful penalty. In 1833 Lord Suffield, in the House of Lords, declared, ‘I hold in my hand a list of 555 perjured verdicts delivered at the Old Bailey in fifteen years, for the single offence of stealing from dwelling-houses; the value stolen being in these cases sworn above the value of 40s. but the verdicts returned being to the value of 39s. only.’ Human life was, then, appraised at 5l. But juries were equal to the occasion. Disregarding the actual amount stolen, they substituted for the old verdict ‘Guilty of stealing to the value of 39s.’—‘Guilty of stealing to the value of 4l. 19s.’ Here is an illustration. A man was convicted at the Old Bailey of robbing his employers to the amount of 1,000l. The evidence was overwhelming. Property worth 200l. was found in his own room; 300l. more was traced to the man to whom he had sold it. The jury found him guilty of stealing to the amount of 4l. 19s. He was again indicted for stealing 25l., and again convicted of stealing less than 5l. In the remaining indictments the prosecutors allowed him to plead guilty to the same extent. In the same way, for years prior to 1832, when the death penalty for forgery was abolished—except in the cases of wills and powers of attorney relating to the public funds—juries refused to convict. ‘Prisoner at the bar,’ said Chief Baron Richards to a man acquitted at Carnarvon Assizes for forging Bank of England notes, ‘although you have been acquitted by a jury of your countrymen of the crime of forgery, I am as convinced of your guilt as that two and two make four.’ And the jury privately admitted that they were of the same opinion. In short, the severity of the penal code was a positive danger to the community. Professed thieves made a rich harvest by getting themselves indicted capitally, because they then felt sure of escape. The sentence, moreover, could not be carried out. It became usual in all cases except murder to merely order it to be recorded, which had the effect of a reprieve. Here are some figures. In the three years ended December 31, 1833, there were 896 commitments in London and Middlesex on capital offences and only twelve executions. In 1834, 1835, and 1836 there were 823 commitments and no executions. With the first year of the Queen a more merciful rÉgime was begun. Six offences—forgery in all cases; rioting; rescuing murderers; inciting to mutiny; smuggling with arms; and kidnapping slaves—were declared not capital. But it was not until 1861 that all these blots were finally erased from the Statute Book.

Among other mediÆval barbarities, the dissection of a murderer’s body was not abolished until 1861, but it was made optional in 1832. Hanging in chains was done away with in 1834. The pillory, a punishment limited to perjury since 1816, was altogether abolished in 1837. The stocks had been generally superseded by the treadmill ten years earlier. Common assaults and many misdemeanours were, on the other hand, much more leniently dealt with in those days than they are in our own. As late as 1847 a case occurred in which a ruffian pounded his wife with his fists so that she remained insensible for three days. Yet, since he used no weapon, he could only be convicted of a common assault and imprisoned without hard labour.

But it was not perhaps an unmixed evil that the powers of the magistrates were then very limited. The ‘Great Unpaid,’ as they were then universally known, were a bye-word. Their proceedings, both at Petty and Quarter Sessions, were disgraced by ignorance, rashness, and class prejudice. Summary jurisdiction was then, fortunately, only in its infancy.