There was no shortage of courts which were, in theory at least, open to the person wishing to collect a debt or seek damages for loss or injury. There was in fact ‘a curious array of Courts above Courts, and jurisdictions within jurisdictions’.1 Alongside the historic units of county and hundred (or wapentake), manor and borough, stood assorted franchises, liberties, and so forth, and even attorneys claimed familiarity with only a few of those in their own county.2 No one knew how many courts there were and little is known of how they dealt with such business as came before them.3
2. THE OLD ENGLISH LOCAL COURTS
The county court was an ancient and imposing institution in terminal decline. Though practice books were still being written4 and its officers staunchly defended it,5 in many counties suitors had long ago deserted it, leaving Blackstone and other conservatives to lament its moribund condition.6 The Common Law Commissioners were severe:
To take these points in turn: unless the suitor put himself to the expense of procuring the writ justicies, the money limit was a mere 40s. The under-sheriff who presided was usually a local attorney, chosen only for a year, though in practice he often served for long periods.8 Frequently doubling as the county clerk, he often exercised a powerful influence over the jury,9 which itself sometimes consisted of men ‘who made almost a trade of it’.10 Pleadings ‘in point of length and expense [fell] little short of those used in the superior Courts’11 and the full range of formal objections could be taken. Costs were heavy because there was no discouragement to the employment of lawyers. The Commissioners were particularly concerned at the practice of compelling the defendant to appear, without prior notice, by seizing his goods, sometimes ‘not by regular bailiffs, but by casual agents of the lowest description…frequently…in a violent and oppressive manner’.12 Moreover, as a forum for local justice the county court was inherently defective so long as it persisted in sitting only in the county town.13 It was perhaps in the interests of justice, but hardly of expedition or economy, that by the writ pone a case could be removed to the superior courts.14
The limitation in point of amount; the annual change of the officers who preside in these Courts; the want of competent juries; the lengthened pleadings, heavy costs, (p.849) unnecessary delay, and a vicious system of practice, attended with enormous abuse and oppression committed by bailiffs in the execution of process by improper agents, render these Courts inefficient for the administration of justice, and the subject of general complaint.7
In the two counties where demand was greatest, statutory modifications had made the county court more user-friendly. From 1750 the county clerk of Middlesex (a barrister) held a small debts court in every hundred with simplified process and a jury, but the judge himself did not feel it was a suitable model for cases above 40s.15 Under an Act of 1794 the Lancaster court sat not only at Preston but in Manchester, simplified its procedure, and appointed a barrister as assessor. Justicies was more cheaply available in the Duchy and the Act made it difficult for defendants to remove a suit under £10 into the superior courts.16 These provisions were effective enough for the court to have 9000 suits by 1830, double that of Yorkshire and far more than Warwickshire (162), Northumberland (2755) and(p.850) Nottinghamshire (260). Nevertheless it shared some of the drawbacks of the others and costs were still heavy.17
Hundred Courts and Courts Baron
The hundred court, held by a deputy of the sheriff, had much the same jurisdiction as the county court and similar drawbacks.18 It was also damned by the Common Law Commissioners: ‘[i]ncompetent juries, an ill-regulated course of pleading, and the practice of allowing costs wholly disproportioned to the cause of action…render these courts inoperative for any useful purpose’.19 With a few exceptions, such as Salford and the Wirral, which embraced Birkenhead and was lucrative enough for a Liverpool attorney to purchase for £500 in 1820, they were entirely inactive.20 A few other courts of varying origin and also covering several manors were still active, notably the Peveril court and the court baron of the Honour of Pontefract, which covered Leeds, Bradford, and Huddersfield.21
A good many manorial courts (courts baron) were still trying small debt actions.22 One, the court of the manor of Wakefield, had combined with the Pontefract Honour court to extend its area and raise its money limit to £5,23 but as in most other local courts the parties’ expenses were proportionately very large—£9 to £18 for plaintiffs, £6 to £12 for defendants—and this, along with the infrequent sittings, led the Commissioners to conclude that their extension had produced ‘very little advantage to the public’, notwithstanding that 5171 suits were brought in the Pontefract court in 1830/1.24
Borough courts were extremely numerous, and very various not merely in their colourful profusion of names but more importantly in jurisdiction, judges, and procedure.25 A handful, such as the Liverpool court of Passage and the Bristol Tolzey court, were much used, but the great majority were pretty inactive. In Kent, for example, Canterbury’s was ‘not held very often’; Queenborough’s ‘discontinued’(p.851) and Maidstone’s court of pleas, inaugurated under a charter of George II, ‘[n]ot used, being as expensive as the courts of Westminster Hall’.26 That last comment points to one of their big weaknesses; in Newark the plaintiff’s taxed costs to recover a debt of £2 11s were £13 16s 6d; ‘[t]he allowance of costs being seldom regulated by Act of Parliament or the Charter…is usually arbitrary’.27Procedure was often archaic—in New Romney’s it was ‘equally perplexed and vexatious as in the Superior Courts’.28 Geographical limits were inconveniently narrow and the superior courts reduced their utility by freely granting certiorari and prohibition. Local pride and self-interest supplied even the least used with defenders,29 and in some towns efforts were under way to revive them.30 However, many boroughs had preferred to seek new machinery for the enforcement of obligations, particularly small debts, and these took the form of courts of requests.
3. COURTS OF REQUESTS
Origins and Development
Since the promoters of courts of requests (initially styled courts of conscience) prudently avoided seeking to abolish an existing local court, their creation added to the complexity of the juridical landscape, but they became numerous and popular (with creditors at any rate) and some practically eclipsed an older court altogether.31
From about 1750 expansion took place in fits and starts, especially between 1805 and 1810, and by 1830 more than 100 Acts had been passed and courts were held in over 250 places.32 Their distribution was highly uneven; in Kent there were courts for the hundred of Blackheath, for several hundreds around Tonbridge and for eight towns, yet the big counties of Buckinghamshire and Devon had none at all.33 Not all succeeded in attracting business; in Kent in 1830/1 Folkestone had only 65 actions and Deal 121, while Gravesend and Sandwich mustered more than 500 (p.852) each and Blackheath over 5000. Elsewhere some were much busier; 28,000 actions were commenced in Tower Hamlets while Halifax and Liverpool each exceeded 20,000.34 In all, the courts of requests entertained over 200,000 suits, some 2.5 times the figure for the superior courts, and it is little exaggeration to say that ‘for most Englishmen civil justice was the justice of the courts of requests (and other local courts), not the justice of the superior courts and the common law’. 35
Most courts of requests were sought by towns and their jurisdiction was limited accordingly, so that populous suburbs of rapidly expanding cities such as Birmingham and Newcastle fell outside the court’s reach, leading some, such as Bristol, to seek supplementary Acts to enlarge their area.36 Some courts had one or more hundreds for their area, like that established in 1808 for ‘the hundreds of Codsheath, Somerden, Westerham and Edenbridge, Westham, Brenchley and Horsmonden, Washingstone, the Lowey of Tonbridge and the Ville and Liberty of Brasted’.37 Some Acts expressly provided for sessions to be held in different places, while others gave the commissioners freedom to arrange the locations for themselves. In some rural counties like Lincolnshire almost the whole county was within the jurisdiction of one or another court of requests.38
The early Acts mostly required that all parties to a suit should reside or be engaged in business within the limits of the court, but this was found unduly restrictive and later Acts made only the defendant’s residence necessary to found jurisdiction.39 There was no single formula and challenges to jurisdiction were not infrequent. The superior courts, always jealous of rivals, tended to construe the limits narrowly even if, as in Meredith v. Drew,40 that might make a trader or professional man practically immune from suit in any court of requests. Most courts were open to plaintiffs from outside its area, and in Bath changes in their occupational file suggest outsiders were increasing.41
The early courts of requests had the same limit of 40s as existing local courts, but in 1805 Bath obtained an Act with a £10 limit and a few months later Grimsby had one for £5; £5 immediately became the standard42 and from the same time the suits (p.853) which could typically be brought were extended from debts to ‘all cases of assumpsit, and insimul computasset, and in all causes or actions of trover and conversion, and in all causes or actions of trespass or detinue for goods and chattels taken or detained’.43 Only money claims which involved the title to land were excluded.
Judges and Procedure
The only general statute ever enacted for courts of requests laid down minimum property requirements for the commissioners (judges): realty in the district worth £20 per annum or personalty worth at least £500, though this may not have been scrupulously observed,44 and some Acts imposed higher requirements.
There was, however, no uniformity in numbers or service. Canterbury’s were supposed to be chosen every three months, while Birmingham in 1787 had 72 commissioners from whom ten were struck off by ballot and replaced every other year; some early Acts confined them to aldermen and councillors, yet Southwark’s enabled it to have 152 at one time.45 No doubt their arrangements for sittings were equally varied, but Birmingham was probably typical in having a small number who sat regularly, with the (sometimes doubtful) assistance of others who participated occasionally. Only a few had appointed a barrister as an assessor to inform their deliberations, others relying to differing extents on their clerk, a local attorney.46
Lawyers were sometimes formally excluded but more often, though permitted, were discouraged by being allowed only minimal costs.47 Local ‘low attorneys’ were not infrequently to be found, however, engaged in vigorous competition with ‘agents’ and ‘accountants’. However, in most courts judges generally dealt with the parties themselves or the defendants’ wives or family members.48 There were no juries, the commissioners being sole judges of law and fact, and the rules of evidence were probably ignored—indeed any attempt to adhere strictly to them would have raised the cost of proceedings beyond what suitors were prepared to pay. Hutton in Birmingham seems to have come quite close to the Benthamite ideal of oral pleading by the parties in person and examination of the parties was normal practice.49 These courts were the site of negotiation and broad, discretionary justice rather than agencies rigidly enforcing the common (p.854) law. Indeed, courts of requests were enjoined by their statutes to decide cases according to ‘equity and good conscience’. There is little evidence to evaluate the use they made of this freedom, but it might be used to support local customs and to give effect to defences not recognized at law.50
While the main attraction of courts of requests for urban elites was to facilitate the cheap and speedy recovery of small debts, they were not used exclusively by creditors pursuing labourers and artisans. In Bath farmers and yeoman frequently appeared either as plaintiff or defendant (over 9 per cent of each in 1829), while in Bristol in 1830 merchants and manufacturers made up 57 per cent of plaintiffs and 34 per cent of defendants.51 The use of these courts to resolve disputes between the town’s better-off citizens suggest confidence in their judges and process. Nor were the disputes a monotonous procession of ‘goods sold and delivered’, although those made up 70 per cent of Sheffield cases, more than in Bristol. Bristol figures also demonstrate the importance of the increased monetary limit: only 55 per cent were for £5 or less.52
Business was not static. The rural element in Bath was declining and they were increasingly used by regular suitors pursuing the poor.53 Some traders were operating regionally if not nationally and the tallyman and ‘Scotch draper’ who became so familiar to county court judges were already in evidence.
Courts of Requests and their Critics
Those professionally concerned with provincial justice usually acknowledged the useful role played by these courts, but few felt them a suitable model for a national system. The Select Committee of 1823 declared that ‘the process for recovery [of small debts] is very cheap, and their decisions give general satisfaction’, but claimed they had two serious flaws. First, except for small claims the absence of the jury was unacceptable, and while in the bigger towns ‘it is very easy to find intelligent and respectable men, well qualified to perform the duties of commissioners, it would be impossible to do so in more thinly peopled and less opulent districts’.54 This was the reverse of the problem experienced with magistrates, where it was industrial towns which were short of suitable gentlemen.
(p.855) Brougham, who also admitted their value, had far more ambitious plans, and the more detailed investigation by the Common Law Commissioners in 1833 (unlike the Select Committee they were all barristers) lumped them with other local courts, whose ‘defects [are] so numerous and complicated, that it is easier to devise new institutions than to introduce effectual improvements in those which exist’.55
The Commissioners’ main objection to courts of requests was their judges. They quoted Blackstone’s censure that ‘with methods of proceeding entirely in derogation of the Common Law, and whose large discretionary powers make a petty tyranny in a set of standing Commissioners’, adding that his doubts ‘have not been removed by experience’.56 It was thought that the shopkeepers and tradesmen with little business who alone would have the time and inclination to sit as commissioners would exhibit a pro-creditor bias, but they received little evidence to justify the suspicion ‘that their decisions are often wanting in impartiality’, which they admitted was ‘difficult to determine’.57 The most circumstantial accusation, the so-called ‘Hackney map case’ was at best unproven58 and criticisms were generally muted compared with those levelled at some of the older courts.59 Nevertheless the constitution of these courts meant that even a good one could easily fall from grace; Hutton’s old court at Birmingham was in such a state by 1828 that Joseph Parkes and others constituted themselves a self-appointed group of reformers.60
A particular source of disquiet for the Commissioners was that these lay judges had extensive powers to commit debtors to prison. Such concerns were not new. They had been instrumental in bringing about legislation in the 1780s which limited the length of the imprisonment and established that it operated to clear the debt. By the 1830s cross-currents in the debates over committals and local justice confused and hindered initiatives to reform each of them. The Commissioners were fresh from reporting on the use of imprisonment for debt and the majority tended towards the school of thought which held that too effective punitive sanctions against debtors encouraged both irresponsible lending and incautious borrowing rather than that which insisted that such sanctions were indispensable to the operation of the credit system which was necessary for the country’s prosperity. In the parallel debate over the shape and working of the courts, the latter view (p.856) translated into support for courts with professional judges rigidly enforcing legal rules sanctifying bargains rather than exercising older forms of discretionary justice.
Though the courts of requests lacked the superior courts’ powers of execution against the body in mesne process, some used it rather freely to enforce judgments, especially after the types of personal property against which execution could be levied had been greatly reduced.61 In Bath in 1830–1 9.6 per cent of the 3711 suits produced orders for execution against debtors’ bodies and 3 per cent of debtors in that year actually underwent imprisonment for failure to meet judgments.62 These figures were on an upward curve and Bath was certainly not alone in its frequent resort to the prison, for the Liverpool court imprisoned 1064 and the City of London court 470.63
Courts of requests were not in general harsh towards poor debtors. They pioneered the practice of ordering payment by instalments and used the power chiefly to assist poor defendants—labourers, spinsters, and widows.64 Unfortunately the use of instalments could actually increase the resort to imprisonment, a single lapse in repayments being treated as contumelious where the court had already established that the debtor had the means to pay.65 Moreover the Commissioners felt that the ease of obtaining execution, whether against goods or persons, had the effect of encouraging irresponsibility in seeking and granting credit.66
The Commissioners’ recommendation for a network of small debt courts temporarily halted the spread of courts of requests, but once it became clear that it would not soon be implemented petitions resumed, no fewer than 49 Acts being passed between 1835 and 1846.67 Some still conferred those ‘large discretionary powers’ to dispense the loose and informal equity that Blackstone had deplored, but others now prescribed adherence to the common law.68 New courts were designed to disarm other objections. They usually had a barrister as assessor;69 were wider in their geographical coverage, and tended to offer either party the (p.857) option of a jury in cases above £5. They therefore became more like conventional law courts, perhaps as a condition of their passage.70
In the early 1840s the courts of requests were thriving. The number of suits is estimated to have risen to over 400,000, which in some cases may have made it difficult to deal with them speedily and effectively.71 Their achilles heel continued to be the reliance upon imprisonment to enforce judgments which, by a strange chain of circumstances, brought about their abrupt and unexpected demise.
4. THE MOVEMENT FOR REFORM
Althorp and Peel
In the early 1820s two men with opposite political views presented bills aimed at remedying the deficiencies of the old county court: the arch-Tory Lord Redesdale in 1820 and the rising Whig Lord Althorp in 1821. Althorp’s bill became the basis for a protracted and ultimately fruitless campaign.72
Althorp proposed to raise county court jurisdiction from 40s to £15 and to give the sheriff a legally trained assessor who would make a quarterly circuit of towns nominated by the justices at quarter sessions. Lawyers would only be allowed to address the court on points of law and trials would be by jury.73 Discouraged by a cool reception, Althorp tried again in 1823 by the longer route of a select committee which he had fully primed with evidence on the courts’ failure to support the growing volume of credit trading.74 Discarding the possibility of enlarging the money limits of the courts of requests, the Committee endorsed Althorp’s proposal, though only to £10, substituting a salaried commissioner as judge, appointed by the custos rotulorum to avoid giving patronage to the government. Procedure would be simplified and the court enabled to direct payment by instalments; appeals would be restricted and, to placate those who predicted that better facilities for recovering debts would make traders irresponsible in granting credit, there was to be a two-year limitation period.75 A bill based on this report (p.858) was presented in 1824 and though opposed by some lawyers (who argued that the bar would be corrupted by the lure of judgeships) and by members concerned for the county rate, it made good progress until halted by an unforeseen objection.76
Sinecure office-holders in the superior courts, who had paid for their offices (or had them purchased for them) demanded compensation on a novel ground—not that the existence of their offices was threatened, but that their profits would be diminished by the loss of business to the revitalized county courts, which they estimated at one quarter.77 No government could accept that without creating a damaging precedent across the public service, but it was seized on by the bill’s opponents and wrecked its chances. Althorp then persuaded Peel, who had acquired a reputation for modest, consensual law reforms, to adopt it.78 Peel made amendments appropriate to his programme of judicious modernization of ancient institutions. His Small Debts Recovery Bill of 1827 avoided creating permanent judges and side-stepped the patronage question by merely empowering the sheriff (in reality the under-sheriff) to appoint an assessor at need. The jury was reduced to five and there was to be no power to seize the debtor’s person, only his goods; safeguards were added to meet recurrent complaints about the misconduct of county court bailiffs.79
It was a typical measure of Liberal Toryism, economical and conservative, and with Althorp generously greeting it as an improvement on his own, its chances looked good. Unfortunately by the time Peel had removed the obstacle of the patent officers by a general reform of court offices,80 the Whigs had finally secured their turn in government, but it was not their Home Secretary who tackled the problem of local justice but the new Lord Chancellor, Henry Brougham, whose ideas were very different.
Brougham and the Common Law Commissioners
Brougham abandoned the reform of moribund courts in favour of ‘forming a Court, new in its kind, but modelled upon ancient principles’.81 These ‘Courts of Local or Ordinary Jurisdiction’ would ultimately, but not immediately, have exclusive jurisdiction over matters within their competence and older local courts would eventually be abolished. The new courts would be served by well paid full-time judges (£1500 per annum plus £500 from fees) assisted by a registrar (£400 per annum plus up to £300 from fees).
(p.859) The versatile judge would earn his money. Within the county he would hold courts at least monthly in such towns as he chose, trying matters up to £50 in tort and up to £100 in debt, contract, trespass to goods, trover, and small legacies; if both consented the money limit could be waived. As a small claims judge he could try cases without a jury, and he would also be a magistrate, would take arbitrations and—a particular favourite of Brougham’s which he vainly endeavoured to foist upon the invincibly insular English until almost the end of his long life—would hold ‘courts of reconcilement’ on continental models.82 Each different function needed different rules of practice, costs, and fees and with characteristic impatience Brougham had not given his helpmates time to incorporate these in the bill, allowing his critics to argue that without knowing the financial arrangements it was impossible to appraise the scheme.83
Brougham’s scheme was far bolder than Peel’s, something he acknowledged by proposing to use Kent and Northumberland as test beds to iron out any flaws. True, Bentham and his acolytes claimed that it was a mere tinkering with ‘matchless constitution’, but their visionary ideals were far removed from practical politics.84 For everyone else Brougham had dramatically raised the stakes and it quickly became apparent that his bill did not command a consensus. The ‘respectable’ and influential elements of the legal professions were uncompromisingly hostile, especially the bar and the London agency solicitors. The first issues of the new Legal Observer contained almost all the objections that would be persistently made over the next 15 years; the scheme would encourage litigation fomented by rascally local attorneys; it would be costly to run and would give a dangerous quantity of patronage to the government; it would enable creditors to oppress poor debtors; by taking business from Westminster Hall, it would weaken the integrity and consistency of the common law and imperil that invaluable safeguard against tyranny, the great central bar of England.
Brougham, struggling to fulfil his boast to clear the Chancery arrears and deeply involved in the battle for the reform bill, gratefully accepted Lyndhurst’s suggestion that the whole question of local courts be referred to the Common Law Commissioners under terms of reference that left open both a reconstruction of old courts and the creation of new ones. Although Brougham added three Commissioners of his choosing,85 conservatives felt reasonably secure that they would espouse moderate, piecemeal reform.
(p.860) The Commissioners had been impressed with evidence about the use in local courts of arrest following judgment, which may have contributed to their severe verdict.86 They made no explicit reference to existing reform proposals, but to the surprise and dismay of conservatives, pronounced that none of the changes made or contemplated for the superior courts would equip them to try small actions and that the only solution was a national network of local courts.87
There were important differences between the Commissioners’ proposals and Brougham’s. In some respects the Commissioners were more radical. They envisaged the immediate closure of local courts and abandoned the county as a unit, preferring a distribution which would ensure that no litigant should need to travel more than 20 or 25 miles and that each market town of 20,000 people should have its court. In other ways they were less ambitious: no courts of reconcilement and jurisdiction limited to £20, with a separate procedure for claims up to £5. For all the Commissioners’ disapproval of courts of requests, they borrowed some of their most distinctive features; thus the venue would be the residence of the defendant; parties might be examined; payment in instalments might be ordered; and the procedure was to be greatly simplified, especially for small claims. There would be a jury, of six, but no special pleading. However, the Commissioners were anxious not to discourage ‘intelligent and respectable’ attorneys lest the new courts become the haunt of ‘incompetent or dishonest persons’; hence though no legal costs were allowed in the smallest suits, those above £5 should afford ‘a fair remuneration’, considered possible if process were made very simple.88
The proposals were sufficiently close to Brougham’s to meet opposition from the same quarters, but sufficiently different to gain support from those who recognized change as inevitable but could not stomach it coming from Brougham. Some affected to credit the reform wholly to the Commissioners, marginalizing Brougham’s contribution just as his supporters exaggerated it. The Whig ministry maintained an equivocal line on whether the revised bill Brougham introduced in the Lords in 1833 was a government measure but Lyndhurst made it a party question with a vengeance, seizing an opportunity to demonstrate that the peers were not cowed by the passing of the Reform Act. The London agency firms provided him with ammunition and the revised bill still had plentiful drafting deficiencies for captious objections. In the third reading debate Lyndhurst’s masterful display of wholly destructive oratory won the day in an impressively full house, and in Hansard’s inelegant phrase, the bill was ‘thrown out’.89 Soon Brougham was thrown out too—of the cabinet, having finally exasperated Grey (p.861) by his intolerably wilful conduct, and though Althorp tested the water in the next session he mournfully gave up the bill.90
For the rest of the 1830s the reform of local justice marked time. Bills from various quarters were either promised or made only fleeting appearances, justifying the claim that ‘all is rumour and conjecture’.91 Numerous bills for new courts of requests came forward and an added complication was Sir William Follett’s clause in the Municipal Corporations Bill encouraging the revival of borough courts by raising their jurisdiction to £20 and enabling them to make new procedural rules.92 Some diehard opponents argued that these provisions obviated the need for a nationwide scheme of local courts, but others reluctantly concluded that a network of courts which at least approximated to the lawyers’ conception of a judicial body might be preferable to municipal courts and courts of requests far removed from that ideal.93
Lord Cottenham had little liking for local courts and hoped that enlarging the existing power of the superior courts to remit claims up to £50 to the county court would suffice,94 but Lord John Russell, the Home Secretary, brought forward a more ambitious proposal in 1837. Russell ill-advisedly combined his plans for civil justice with a controversial reform of quarter and petty sessions. His bill gave the justices at quarter sessions jurisdiction over debts up to £10, with a legally qualified judge if they wanted one, and a small jury.95 The supposed encroachments made by other parts of the bill upon the sessions, which country gentlemen regarded as peculiarly their own preserve, met fierce resistance and a residue of hostility awaited the revised bill Russell produced in 1838. Although uncoupled from the reform of the sessions it still threatened to throw the burden of a judge’s salary onto the county rate if fees fell short.96 A Commons select committee exposed further sharp differences: over the power to imprison for non-payment of judgment debts; over the future of existing local courts; and, as usual, over patronage.97 Despairing of progress, Russell readily agreed to Cottenham’s urging that the bill be put off until he had tackled the even more intractable problem of insolvent debtors.98
(p.862) The Making of the New County Courts
When the Melbourne ministry’s Small Debts Courts Bill finally appeared in February 1841, it was linked with a bankruptcy bill because the judges were also intended to have jurisdiction in bankruptcy and insolvency.99 The bill was presented as being essentially based on the select committee’s deliberations. Twenty-five judges appointed by the Lord Chancellor would be paid between £800 and £1500 per anum, would be barred from practice, and must be resident in their district. They would handle torts, contracts, and debts up to £20, and ejectments from tenements valued at not more than £20 per anum. Pleas would be determined ‘in a summary way’ through very spare pleadings, with a jury available on request only in the larger cases. The judge would make ‘such orders and decrees as shall appear to him to be just and agreeable to equity and good conscience’, explicitly including payment by instalments; appeals were restricted to cases for £5 or more. The courts of requests would be abolished and costs in a superior court action for a claim within the Small Debt court limit would be disallowed unless the plaintiff recovered at least £20 or the judge certified that he had good cause to think he would do so.100 The bill was a hybrid, borrowing elements from courts of requests, from Brougham, from the Commissioners, and from the Irish Small Debts courts. That its introduction was entrusted to an under-secretary hardly suggested confidence, and powerful opposition had been signalled before the ministry’s fall brought it down.101
The Whig bill, reintroduced by Cottenham in the autumn of 1841, did not appeal to the Conservative administration. Several party-leaders, notably the Lord Chancellor (Lyndhurst) and the Duke of Wellington, opposed the whole idea.102 Peel, having sponsored local courts bills in the 1820s, differed, insisting on ‘the necessity of a universal arrangement with regard to the facilities for the recovery of small debts’103 and one was duly produced.104 Lyndhurst claimed that it avoided the biggest evil, judges who resided in the court’s locality, by having them undertake circuits round their district, and it fell short of previous proposals in providing for the creation of new courts only upon the request of the local quarter sessions. But professional opinion noted that it also provided for existing courts of requests to be made into ‘county courts’ and included many of their (p.863) objectionable features.105 It was the most limited plan that stood a chance of being accepted, but though Cottenham and Brougham gave it grudging support, the government’s own timetable could not accommodate it.106
To ease its passage in 1843 both the number of courts and the limit of their jurisdiction were reduced, but Graham was suspiciously ready to withdraw it when John Jervis and others brought out a rival scheme.107 Jervis’s scheme, embodied in two bills, was a last-ditch effort by lawyers to defeat the project for local courts. One bill expanded the facilities for remitting actions to sheriffs’ assessors, while the other gave justices of the peace at petty sessions power to deal with cases of debt up to £5.108 Next session Graham offered to incorporate the remitted actions provisions in the government bill but declared that ‘a worse tribunal for the purpose than the justices he could not imagine’.109 While some opponents were prepared to accept the government bill as the least harmful on offer, others maintained a hostility increasingly tinged with desperation. The newly-founded Law Times shrilly denounced it as a ‘Bill for the promotion of quarrelling, the establishment and protection of pettifoggers, the dissemination of cheap injustice, the encouragement of perjury, and the unlimited increase of debtors’ prisons’.110 The bill had been introduced too late in the session to pass and the last of the Law Times accusations started the chain of events which finally overcame the obstacles to its passage.
Both Whig and Conservative bills had contained powers of varying width for the courts to enforce their judgments by imprisonment, but the extensive use of imprisonment by existing local courts, and the frightful state of the gaols in which debtors were incarcerated, were under increasing fire.111 The session of 1844 had seen yet another round in the everlasting tinkering with insolvency, bedevilled by personal antipathy between Cottenham and Brougham and Lyndhurst’s cynical detachment. The outcome was an Execution Bill intended to clarify uncertainties in the power to imprison debtors,112and in its hasty progress at the end of the session the Duke of Richmond seized the opportunity afforded by an almost deserted Parliament and incompetent government management to insert a clause abolishing imprisonment for debts not exceeding £20 except in cases of fraud.113
(p.864) The trading community and their attorneys reacted with outrage and disbelief. An orchestrated campaign ensured that petitions covered the Lords’ table when they reassembled in the autumn and a hastily arranged select committee was easily persuaded that the change would lead to a massive increase in uncollectable debts.114 Amid squabbles over whose fault it had been, Brougham cobbled together a short amending bill to restore the power of imprisonment in certain situations, but in the course of its headlong passage through the Commons it was transformed by the wholesale addition of clauses expanding the powers of courts of requests. Brougham’s bill restricted the power to imprison to courts with a legally qualified judge, and towns argued that they could only afford to pay a judge if the monetary limit of their court was high enough to generate an adequate fee yield. Their lobbying succeeded: by the Small Debts Recovery Act, section 72 the Privy Council was authorized to raise to £20 the jurisdiction of any court of requests which was prepared to appoint a suitably qualified assessor. Unable to justify the course taken by the bill, Lyndhurst disingenuously attempted to deny that it was a government bill at all, but the session was running out and it was unthinkable to leave the creditors’ demands for the restoration of imprisonment unmet, so the peers reluctantly swallowed the bill whole.115
Now lawyers were outraged. This expansion of ‘courts of requests law’ was worse than the threatened creation of new courts and they protested loud, long, and to good effect. To the frustration of towns eager to obtain their expanded jurisdiction their petitions gathered dust in the Privy Council office and it was eventually intimated that none would be granted; instead another attempt to pass a local courts bill would be made.116 The history of that bill suggests that a consensus had gradually evolved, for it had not progressed far in the Lords when Peel resigned, yet the Whigs, Cottenham in particular, rescued it and, with relatively minor modifications, saw it onto the statute book. One attempt to appease conservatives was the pretence that the small debt courts were a part of the ancient county court: what was in reality a new institution was dressed up as an old one in modern garb. The hallowed name dignified what were intended to be basically debt collection agencies and suggested a spurious continuity.117 With Parliament absorbed by the recent political turmoil and profoundly weary of the endless sequence of small debt bills lawyers practically monopolized the debates and as usual the most vigorously contested issue was patronage. Unlike some previous proposals, the judges of the courts of requests would not be entitled to be judges (p.865) of the new courts but were specifically made eligible for appointment. Its judges would not be made by the lord-lieutenants as the Conservative bill had proposed, but by the Lord Chancellor. It was understood that they would be used for party purposes, but no one could come up with anything more satisfactory.118
For the rest, the new county courts embodied features of earlier bills. A small jury would be available for bigger claims upon request; pleadings would be succint, with no special pleading allowed; the parties themselves might be examined; payment in instalments could be ordered. Lawyers, and lawyers alone, would have the right to appear for clients but their costs were set at a level calculated to discourage them. One concession which the bar had become increasingly anxious to obtain was that the new courts’ jurisdiction would be concurrent with the superior courts, but bringing small cases in the latter would be discouraged by the risk of disallowed costs. Courts of requests would be swept away but the other, older local courts were to remain. The bar was further propitiated by sacrificing the attorneys; barristers alone would be eligible to be judges. But the bar did not persuade the Whigs to lower the ceiling on claims from £20, the figure adopted in successive proposals. The biggest uncertainty remaining after the Act for the More Easy Recovery of Small Debts received the royal assent on 28 August 1846 was how many courts and judges there would be, for despite their name the Act did not envisage the county as the unit, but rather provided for each to be divided into districts by order in council.119
5. LOCAL COURTS AFTER 1846
The County Courts Act killed off the courts of requests but left other local courts intact. However, two of them attracted sufficient opprobrium to be abolished soon afterwards. The Palace court of Westminster had been praised by the Common Law Commissioners as ‘a very useful and effectual court for the trial of causes below the amount of £20’,120 but its less appealing side was exposed first by an unedifying squabble between officials and then by an outraged litigant, M. J Higgins (‘Jacob Omnium’), publicized in Thackeray’s verses.121 Further (p.866) damning stories about this ‘wicked little tribunal’122 followed, and the fact that six attorneys and four barristers held monopolies of its business acquired by purchase was by now unacceptable.123 Down with the Palace court went the Peveril Honour court, which also had an unsavoury reputation.124
Apart from two surviving hundred courts,125 there were no further closures for some years. However, from 1852 any town council, or a majority of ratepayers, might petition the Privy Council to exclude from the jurisdiction of a local court all cases within the cognisance of the county court. Birmingham and Worcester were among the first, and several towns removed themselves from the Salford Hundred court.126 Most other borough courts which were still active in the 1840s fell into complete disuse, but a few remained popular; according to the Romilly Commission because of ‘the ancient mode of proceeding [which] is preserved in these courts, not for the benefit of the public, but for the profit of those who practise there’;127 being more expensive to the suitor they should, it recommended, be subjected to the same costs sanction as the superior courts.
Aside from the palatinate courts,128