General Introduction

Patrick Polden

If a regency lawyer had fallen asleep just after Napoleon’s exile to Elba and, in the manner of Rip van Winkle, had awoken just before the outbreak of the Great War, he would have found that after the passage of a century much had changed in the courts but much remained familiar. Indeed in comparison with the momentous changes in economic and social life the structures of the law, like those of government, would perhaps seem more notable for what had been preserved than for what had been replaced or transformed.

True the superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand (albeit one whose gothic style looked to the past rather than the future). True also that two of the three historic courts of common law, the Common Pleas and Exchequer, had passed into history while the third, the King’s Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). A similar fate had befallen the court of Chancery, while a third division comprised in incongruous cohabitation the former court of Admiralty and those of Probate and Divorce, two courts unknown in 1814 and whose independent existence, dating from 1857, had been short-lived. Both had been hived off from the ecclesiastical courts and these, though they still survived, had been shorn of almost all their jurisdiction over laymen. All three divisions were empowered to dispense law and equity alike, though they remained distinct doctrinal sources. Equally, with a few exceptions all divisions might in theory hear any sort of case, but in practice the allocation of business was very much on pre-Judicature Act lines.

Above the divisions was a further novelty, a Court of Appeal hearing appeals from all three of them. However, the whole of the SCJ remained subject to a further appeal to the House of Lords. Admittedly the House’s appellate functions were now performed chiefly by professional judges (‘lords of appeal in ordinary’) who were life peers only, and who also sat in a new ‘Judicial Committee’ of the Privy Council to hear appeals from the empire, the ecclesiastical courts and sundry other bodies. Nevertheless, the continuance of the Lords as a court of law, which had come very close to being ended in the 1870s, was one of the most striking continuities. Another institution which had endured was the Assizes, and(p.526) here the changes in circuits and venues were relatively small, with the notable exception that Wales had been incorporated into the system in place of its own great sessions.

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