The Ecclesiastical Courts and their Critics

There were more than 300 ecclesiastical courts across the land. The highest courts in the province of Canterbury were the Prerogative (or Testamentary) court (PCC), which did most of the probate work, and the court of Arches, which was a court of first instance for other types of business and an appeal court for the lower courts. Their counterparts in York were the Prerogative court and the Chancery court respectively, but with only four dioceses against Canterbury’s 22, York was much less important. Each diocese had its consistory court and archdeacon’s courts and some also had commissary courts carved out of the outlying parts of the diocese. Outside the jurisdiction of the bishop in whose diocese they lay were various kinds of peculiars, mostly doing little business and ranging from royal peculiars to vicarial, with ‘some of so anomalous a nature as scarcely to admit of accurate description’.² In the province of Canterbury a court of Peculiars heard appeals from the 13 peculiars of the diocese of London, but appeals from some of the other peculiars, and from the provincial courts, lay to the high court of Delegates.

The clergy had long lost their right to be tried in their own courts for criminal offences, and benefit of clergy itself was abolished in 1827,³ but church courts still exercised disciplinary powers over wayward clerics.⁴ Their powers over laymen (p.693) had been steadily eroded,⁵ some (such as charges of heresy) having fallen into disuse, while secular courts elbowed them out of others, establishing the rule that matters over which they gained jurisdiction ceased to be justiciable in the church courts.⁶ Even so, there were areas of everyday life where their writ still ran. First, rare and parochial in the 1820s, disputes over the fabric and ordering of church buildings later became matters of bitter controversy.⁷ Secondly, they retained sanctions against brawling in church, incest, defamation, and other immoral conduct.⁸ Thirdly, they were the forum for pursuing those who failed to pay the church’s taxes, principally tithe and church rates, in cases where the right to levy was not in dispute.⁹ Fourthly, they dealt with matrimonial causes. Though unable to grant a full divorce, church courts could decree divorce a mensa et thoro, which was a necessary prerequisite to a parliamentary divorce, and also entertained suits for nullity and the restitution of conjugal rights.¹⁰ However, what really sustained the church courts was the grant of probate or letters of administration to decedents’ estates. Chancery had wrested from them their wider jurisdiction over the distribution of estates and the conduct of executors and administrators, and they were not able to decide on the interpretation of wills, but most wills were non-contentious and the grant of probate was an essentially administrative act.¹¹

Procedure in these courts was based on Roman civil and canon law. An action commenced with a citation and the pleadings, beginning with the plaintiff’s libel and the defendant’s answer and continuing with their respective responsive allegations, were closer to Chancery than common law, though they fortunately had not acquired the layers of conventional allegation and denial that made Chancery pleadings so elaborate and misleading. Evidence was taken in writing by a court (p.694) examiner, but at an earlier stage than in Chancery and on points on which the witness was informed in advance; even so, one writer compared it to ‘a duel with hatchets in the dark’.¹² Trials were held before a single judge with no jury. Reasoned judgments were given but case reporting was less developed than at common law and precedent less compelling. A major weakness was the process of enforcement which, especially after an Act of 1813 reduced the effectiveness of excommunication, depended on invoking the aid of the sheriff by recourse to a writ out of Chancery and was ‘slow, clumsy and expensive’.¹³ As Holdsworth concluded, although the procedure shared the deficiencies of the secular courts in being expensive and leisurely, it was better in several respects, particularly the way the judge kept the parties and their lawyers under closer superintendence. This was possible because the ecclesiastical courts were not especially busy, with fewer of the delays which beset Chancery and King’s Bench.¹⁴

With the passing of the confessional state and the rising numbers and influence of dissenters the role of church institutions was inevitably a matter for controversy. Dissenters were particularly aggrieved at their liability for church rates¹⁵ and farmers of every denomination and none chafed at the imposition of tithe.¹⁶ But even the church’s keenest supporters were finding it difficult to deny that its courts had serious faults, sharing certain unacceptable characteristics of secular courts along with some peculiar to themselves. Their judges were chosen by bishops and generally possessed no legal qualifications, relying upon their untutored reading of a handful of unsatisfactory or dated treatises and practice books and the practical know-how of their registrar (or his deputy, since most registrars, and some judges, were absentee sinecurists).¹⁷ The active registrars were mostly country lawyers who doubled as proctors without serving the long formal apprenticeship demanded of London proctors, for outside Doctors’ Commons there was no scope for a specialist bar or full-time proctors.¹⁸ Under the circumstances it is not surprising that wills in the custody of these courts were often kept in insecure and unsatisfactory conditions.¹⁹

(p.695) Things were quite different in Doctors’ Commons, although it was a matter of acute concern that the will repository was essentially the private domain of an absentee registrar.²⁰ Here were learned judges, Nicholl in Arches and the Prerogative court and Lushington in the London consistory court, sharing a courtroom with the Admiralty court and the Delegates.²¹ These courts were served by a small specialist set of advocates²² and around 100 proctors. Such a small, geographically concentrated group hardly needed law reports or treatises and Doctors’ Commons had evolved into that ‘cosy family party’ made so notorious by Dickens, a network of inter-related Jenners, Phillimores, and Nichollses, exchanging roles, taxing each others bills etc.²³

Everyone in Doctors’ Commons and the other church courts, from clerks to judges, was remunerated by fees, many recently exposed as resting on no more secure foundation than custom and practice, the last full-scale revision having been in 1604.²⁴ They generally produced enough to fund sinecures performed by deputy, the most lucrative being the registrarship of the PCC, which was used as outdoor relief for the families of successive primates. The tacit understanding which governed its succession broke down embarrassingly in 1829, necessitating a private bill for the benefit of the Manners Suttons which exposed it to scathing criticism in the House of Commons.²⁵

It was not the first nineteenth-century parliamentary attack on the church courts. In 1812 the scandalous case of Mary Dix had pushed a reluctant Sir William Scott into an unwonted display of reformist activity, only for the bishops to demolish most of his bill.²⁶ Then in 1824 Joseph Hume began a series of attacks, drawing upon complaints against Sir John Nicholl’s handling of Peddle v.Evans.²⁷ Concerns about the safe storage of wills and the long-running attempt to discipline Dr Free also spotlighted the church courts and Brougham weighed in, (p.696) directing his fire particularly at the court of Delegates.²⁸ Peel’s modest measure to address the Fees Commission’s recommendations essentially went only to revise and harmonize the fees of the courts of Doctors’ Commons, display them and insist on legal qualifications and personal performance by the deputy registrars and clerks of the seats in the PCC. Nevertheless it encountered enough hostility for Peel, who had a genuine and sustained commitment to putting the church into a better shape to resist its enemies, to decide that, like the courts of Chancery and common law, these courts should be scrutinized by a royal commission.²⁹

The Civilian Lawyers

The advocates were a very small group. Just 17 were named when they were incorporated in 1768 and though the opportunities in Admiralty and Prize presented by the American and French wars may have encouraged a modest expansion, there were only 30 admitted between 1820 and 1860.³⁰ There were 46 members of Doctors’ Commons in 1830, falling to 30 by 1850, but the number in practice was between 20 and 26.³¹

It was not an easy profession to enter. It took at least eight years to acquire the DCL from Oxford or Cambridge University. This was the essential qualification for the Archbishop of Canterbury’s fiat which admitted a man to plead in the court of Arches and would enable him to be elected to Doctors’ Commons.³² During their time at university some, like William Adams, followed the ‘high road to the common law practice’ by study with a special pleader³³ and an increasing number pursued the parallel route to the bar through the inns of court. However, before being admitted an advocate must endure a ‘year of silence’ sitting in the court. The most obvious result of this lengthy preparation was that advocates were mostly approaching 30 before their career really began. Indeed, there was a slight increase in the starting age, for whereas Jenner had been 25, Lushington and Nicholl 26 (and the reporter John Haggard just 24), no one admitted after (p.697) 1820 was younger than 27 and the best known, Harding and Robert Phillimore (28), Twiss (32), and Tristram (30) were older.³⁴

Another marked effect was upon the social composition of Doctors’ Commons. In view of the repeated charges of nepotism levelled at the institution,³⁵ it is not surprising to find that almost one-third of members’ fathers were in the law³⁶ (the great majority from within the civilian courts), though there is an interesting decline in the number of proctors’ sons, perhaps reflecting a want of confidence in the prospects of the profession.³⁷ Of the remainder, more than a third were sons of (self-described) peers, gentlemen, or esquires, and together with clergy these categories made up three-quarters of the members during its final 80 years.³⁸ Trade and commerce, never strongly represented, were actually diminishing; of the 30 post-1819 entrants just one was a merchant’s son,³⁹ and the last from the lower trading occupations, sons of a draper, bookseller, and watchmaker respectively, were admitted in the 1780s. In fact the financial demands made entry hard even for the son of a poor clergyman like Christopher Robinson, whose father could afford only £20 and some law books and who needed the assistance of Sir William Scott and a good marriage.⁴⁰ As this background would suggest, a considerable proportion had been educated at the old public schools, with Westminster increasingly prominent. No longer was Doctors’ Commons ‘the offspring of Trinity Hall’,⁴¹ and Oxford became a bigger provider than Cambridge. In the last 80 years of Doctors’ Commons its members included just two Welshmen, two Scots, and no Irishmen, with G. W. Dasent from St. Vincent as the only exotic implant.⁴²

Prospects for the advocates were usually good. They were eligible for a substantial number of fee-generating offices in the ecclesiastical courts and could act as surrogates for the judges of the major courts.⁴³ The more eminent might (p.698) be called upon by the Foreign Office for opinions on international law and, occasionally, diplomatic missions.⁴⁴ It is such activities, and a whole range of scholarly and cultural ones, that explain their remarkable representation in the DNB and its successor.⁴⁵ It seems that the profession could offer a comfortable living without demanding the concentrated and exhausting workload of the leading common law barristers; Travers Twiss, for example, was ‘eminent as a university teacher, a scholar and a practitioner’.⁴⁶ In addition, an increasing number were also members of the bar, six of the 13 admitted after 1839. Since Mansfield’s day the common law courts had allowed advocates to appear in shipping and other cases where their expertise might be of assistance, but presumably these barrister/advocates wanted to be able to practise generally. ⁴⁷

There is little information about the earnings of the advocates. Lushington refused to make a guess, though he said that in peacetime the leaders did not equal their counterparts at the common law bar, which fits with the £5000 to £7000 for leaders given by the Solicitor-General in 1839.⁴⁸ The prize of the profession, Queen’s Advocate, brought Dodson £3000 aside from practice, but there was no equivalent to the rank of QC. In 1858, however, when the advocates lost their monopoly, four leading men (Deane, Harding, Twiss, and R. J. Phillimore) were given that rank.⁴⁹

There were evidently some who specialized in Admiralty law, since there were said to be barely half a dozen active in that field,⁵⁰ but none of the advocates ventured into the provincial courts. Even York’s three regular advocates were barristers, and elsewhere it was the proctors who performed the advocate’s role unless a barrister was brought in for the purpose.⁵¹

Much less is known about the proctors. They were more numerous, somewhere around 100 to 120⁵²and, like solicitors, they were a mixture of sole practitioners and small partnerships; those who received compensation in 1858 were (p.699) 43 individuals, 21 two-man partnerships, and nine firms with three partners.⁵³ They employed a ‘large body of clerks’⁵⁴ and only those clerks listed in the court’s registry book were allowed to transact business in court, though much of their duties consisted of routine copying in the office.⁵⁵

Though the route was very different, becoming a proctor was almost as lengthy a process as becoming an advocate.⁵⁶ It demanded a seven-year term of articles, for which the premiums might be very high⁵⁷ since only the most senior 34 proctors were entitled to have an articled clerk, and then only one at a time.⁵⁸ According to an embittered John Rolt, the proctors enjoyed ‘the wicked pre-eminence [in]…its assertion of class-exclusion’, since no one who had been employed as a clerk was permitted to join their ranks.⁵⁹ On completing articles he was admitted as a notary by the Archbishop of Canterbury, whose fiat to the Dean of Arches procured him admission as a supernumary.⁶⁰

A small number of proctors, 19 in 1833 but almost doubling by 1855, specialized in Admiralty work,⁶¹and perhaps others in divorce, but the great majority depended almost exclusively upon probate, in particular non-contentious probate: it was estimated that the 1857 Act would rob them of 77 per cent of their business.⁶² They had already suffered through the introduction of stamps, which ended the favourable and easy-going practice whereby they paid outstanding court fees months in arrear instead of being obliged to carry the costs during the suit.⁶³ Unlike solicitors they were allowed to address the court on points of practice⁶⁴ and claimed that because they were few enough to be ‘almost personally known to the judge’,⁶⁵ their integrity and vigilance over forgeries and fraud were (p.700) almost guaranteed. It was not entirely so, however,⁶⁶ and they were particularly vulnerable to accusations that in the absence of a regular facility for taxation of costs, they could overcharge their clients.⁶⁷

By the 1840s the London proctors had a committee, perhaps a development provoked by the threat to their livelihood, but it does not seem to have had, or sought, any formal status and there was no attempt to broaden their training by examinations or to acquire disciplinary functions.⁶⁸ Most of their clients came to them through solicitors, but it was not until after the great upheaval of 1857 that any firm operated as both.⁶⁹ The compensation figures of 1858, while needing caution in relation to earnings, offer an interesting snapshot of the proctors at that time.⁷⁰

Some 18 firms or individuals received annuities of more than £1000. The highest, Slade, Wadeson, and Appach, just passed £2000, though per capita this fell well short of W. Rothery (£1342), F. Robarts (£1309), and E. W. Crosse (£1358). The 20 firms making less than £200 (excluding those who were compensated instead partly by being given court offices) were struggling indeed, though most were young men perhaps newly in practice. However, some incomes must have been considerably augmented by office-holding and Admiralty work.

Outside London, except in the nearby diocese of Rochester and in the courts of Canterbury which were served by the London proctors, the position was quite different. There were dioceses which insisted that a man must serve five years articled to a proctor (or sometimes a deputy registrar) before being permitted to act;⁷¹ and some which fixed a maximum number.⁷² Most had no maximum, and several had no set qualification to fetter the bishop’s discretion.⁷³ In almost all cases, however, the proctor was also a solicitor (or occasionally a notary) and (p.701) his articles presumably served as a concurrent qualifying period for both professions.⁷⁴ In 1831 most dioceses had between three and eight, but Ely had none and in St. David’s ‘proctors only are allowed to act; and the professional men here conceiving that they may be liable to penalties unless they are admitted as notaries, have ceased altogether to act in the court’.⁷⁵ At the other extreme, Exeter boasted eight, as many as York.⁷⁶ In view of the fact that Coote in 1860 claimed that there had been no need for a treatise on probate practice before his, it is hardy surprising that the conduct of cases in the country was much said to be less strict than in town.⁷⁷ It was the fact of the proctors being also country solicitors (and of course in many instances such as the militant Robert Swan, court officials too) that gave them the influence to protect their interests so effectively in the reform controversies.⁷⁸

The country proctors also became entitled to compensation, which provides some idea of the shape and profitability of this branch in the late 1850s. As might be expected, the York proctors were in a class of their own. Two two-man partnerships received £1268 and £567 respectively and six individuals between £201 and £899.⁷⁹ The only other four-figure award was in Lichfield, whose three practitioners were all evidently prospering.⁸⁰ Elsewhere most sums are much smaller, with only one, in Worcester, above £300. No proctor in Wales received more than £100 and only two of the many in Exeter did.

Proctors firms survived the end of Doctors’ Commons, at least in London, but by the 1870s it was said that most of the probate business was done by solicitors⁸¹ and some, like Rolt’s old employer William Pritchard’s firm, had merged into solicitors’ practices.⁸²

(p.702) The Ecclesiastical Courts Commission

The Commission, announced in February 1830, initially comprised a mixture of prelates (Howley, the Archbishop of Canterbury, and four bishops), judges (the common law chiefs and Lord Wynford, formerly Best CJCP), and civilians (the three judges of the leading civilian courts and Sir Herbert Jenner, who was also Queen’s Advocate). When the Commission was renewed following the King’s death the bishop of Gloucester and two barrister MPs were added. There were two notable omissions. None of the more outspoken critics of the church courts, such as Hume, was included, and neither was any Chancery judge, though they handled most disputes arising from probated wills. The Chancellor, Lyndhurst, conspicuously held himself aloof.⁸³

The Commission’s terms were wide and general.⁸⁴ They were soon extended to Wales and the Commissioners were given extra powers and required to produce a report within two years. Besides using existing materials, notably the report of the fees inquiry, the Commissioners circulated a questionnaire designed mostly to elicit information rather than opinions, the latter being furnished by 34 witnesses, including judges and officers of all sorts of ecclesiastical courts, professional users, solicitors, and antiquarians. However, with comparatively few drawn from the country courts there was a marked imbalance, all the more notable because the Commissioners were more familiar with Doctors’ Commons. Late in their proceedings they also interviewed members of the Common Law and Real Property Commissions.⁸⁵

The Commissioners’ deliberations were diverted by Brougham’s request to produce a separate and early report on the court of Delegates.⁸⁶ Questioning of one of its deputy registrars, H. B. Swabey, confirmed critical comments by other witnesses and earlier complaints in Parliament and the press, and the report (January 1831) endorsed Brougham’s own proposal to transfer the appellate jurisdiction to the Privy Council.⁸⁷ Because the Delegates had no permanent judges or officers, this was a straightforward undertaking, unbedevilled by patronage and compensation and without serious implications for church-state relationships. In these respects it was quite unlike the main work of the Commissioners.

Although the Commissioners readily divided the church courts’ business, other than their criminal jurisdiction, into ‘temporal’ (probate and matrimonial), (p.703) ‘spiritual’ (clergy discipline) and ‘mixed’ (church rates etc.), that classification did not directly determine their approach.⁸⁸ Through a long series of meetings it was first decided that the peculiars and other inferior courts should be abolished; they had few disinterested defenders so that was hardly controversial.⁸⁹ A little more hesitantly they agreed that non-contentious probate business should be concentrated in diocesan courts. The next step was to determine the allocation of contentious probate business, but in the absence of the Archbishop of York, who was not a member, the Commission would not follow most of its more active members in confining it to the PCC. Instead the report left it to be inferred that this was the better solution without making a positive recommendation.⁹⁰

Another thorny question was the doctrine of bona notabilia, whereby if a testator’s personal estate included goods valued above £5 in more than one diocese the probate must issue from the provincial rather than the diocesan court. This greatly favoured the PCC and not surprisingly its abolition was one of the chief aims of country courts. It was tackled for the Commission by Nicholl (awkwardly placed as a Doctors’ Commons man), whose pragmatic solution was to allocate the business equitably among the courts through some sort of financial limits. This was difficult to justify on logical grounds, but the compromise might have been acceptable to the country registrars and proctors had not Lushington persuaded the Commission to the more confrontational course of restricting the business entirely to the provincial courts.⁹¹ Lushington also successfully pressed for major changes to procedure in the provincial courts, opening them up to oral evidence and jury trials,⁹² hoping that these reforms would strengthen the case for the church courts retaining a wide jurisdiction over the laity. They were to lose their jurisdiction over slanders and brawling in churchyards, which had become impossible to defend,⁹³ and changes were proposed to the machinery for disciplining errant clergymen, since the prolonged farce of the Free case had exposed the existing process as hopelessly defective.⁹⁴ On the other hand, the most active members of the Commission had in mind to expand the courts’ role in probate.

The Commissioners could not ignore widespread criticism of the inconvenience arising from the need for the validity of a will dealing with both personal and real property to be determined by different courts under different rules, occasionally (p.704) leading to different conclusions, the law governing testamentary formalities also being different for land and personalty.⁹⁵ Lord Tenterden CJ would not accept an ecclesiastical judge ruling on the validity of a will of realty alone, though he was surprisingly generous in conceding that a mixed will might be so determined. The report represented this position in terms either clumsy or calculated to be misleading.⁹⁶

Away from these, the most contentious areas, the report proposed a remodelling of the surviving courts which was likely to find widespread acceptance. Their judges would be confirmed by the Crown (so leaving the bishops’ patronage formally intact), and would be salaried from a general fee fund which would also compensate officers displaced in the abolition of courts, though not practitioners whose livelihoods would be affected by the changes.⁹⁷ All officers would be required to perform their duties in person and the registrars (no longer sinecurists) would cease to treat their repositories as private facilities. There would now be a central registry, though if the York Prerogative court was retained it would not be the comprehensive one the Commission really wanted.⁹⁸

Unlike the Common Law and Chancery Commissions, the Ecclesiastical Courts Commissioners had concentrated chiefly on where business was to be done rather than how. Discussions on fees, procedure, evidence, and practice took second place to re-arranging, and in some cases abolishing, jurisdiction. The proposals for the core business of the courts envisaged a higher degree of concentration than might have been expected, such as would make some diocesan courts scarcely viable. More predictably in view of its composition, the Commission did not propose the secularization of most of that business and one important class, matrimonial causes, was circumspectly left for Parliament.⁹⁹

The Struggle to Reform the Ecclesiastical Courts

Grey’s ministry was in no haste to implement the Commission’s proposals. There were many more urgent matters and Brougham, the driving force behind their legal reforms, was occupied with bankruptcy and local courts.¹⁰⁰ It also had to consider whether the Real Property Commission, whose remit included wills (p.705) and inheritance, might propose rather different solutions, as indeed their fourth report (April 1833) did.¹⁰¹ This proposed a system of registration of wills and favoured Chancery as the forum for testamentary disputes. The stark conclusion was that ‘[p]robate of Wills [should] be discontinued and the whole Testamentary Jurisdiction of the Spiritual Courts, contentious and voluntary [should] be abolished’.¹⁰²

The choice between the two sets of recommendations was made not on their intrinsic merits but as a by-product of the need to remodel the Admiralty court. Sir James Graham had already decided that the death of Sir Christopher Robinson would be the occasion for this and obtained a Commons select committee in June 1833.¹⁰³ If the Real Property Commissioners had their way, not only would the ecclesiastical courts lose their viability but the peacetime Admiralty too, since Doctors’ Commons depended upon non-contentious probate for its survival. The Select Committee was heavily weighted towards the civilians and, as Graham wished, preferred the Ecclesiastical Commissioners’ views.¹⁰⁴

That verdict set the terms of the debate for the next 20 years.¹⁰⁵ What was first proposed was a new court called the court of Arches, with exclusive jurisdiction over the descent of realty as well as personalty, and with only small probates and the preliminary stages of bigger ones handled by country commissioners.¹⁰⁶ Before the bill was presented, potentially controversial elements dealing with clergy discipline, sequestrations, and the moral offences were removed, but as Graham warned Peel, the centralizing thrust of the main sections were its most vulnerable point.¹⁰⁷ That made it likely that common lawyers would be at best lukewarm in support and guaranteed determined opposition from lawyers who made their living in the country courts, as well as the bishops who would lose their patronage. This opposition, mobilizing the techniques of extra-parliamentary pressure which had recently become familiar, blocked measures brought forward first by Peel’s and then by Melbourne’s administrations and the next bill emerged from a Lords’ select committee in 1836 with substantial concessions to localism. However, neither that bill, nor one by Jervis and Goulburn, more favourable to the diocesan courts, made much progress.¹⁰⁸ Besides the general listlessness of (p.706)Melbourne’s administration it had more important church issues to deal with and was faced with Lyndhurst’s spoiling tactics in the upper house. Sensibly in view of the acute sensitivity surrounding all interference with the church, the government resolved to deal separately with clergy discipline and not until 1840 was the Church Discipline Act passed. By offering the bishop an alternative to proceeding in the provincial courts it removed one obstacle to reforming the structure of church courts.¹⁰⁹

Unlike the Whigs, Peel made determined efforts to pass an ecclesiastical courts bill. Responsibility was given to the judge-advocate general Dr John Nicholl, son of Sir John, knowledgeable and diligent but handicapped by his junior position in the government and his professional connection with Doctors’ Commons.¹¹⁰ Nicholl tried painstakingly to conciliate vested interests. His 1843 bill offered substantial concessions to country solicitors,¹¹¹ but they were soon shown to be wholly insufficient. The country solicitors, under the intransigent leadership of Robert Swan,¹¹² mounted a formidable campaign of pamphleteering, letters to the press and, especially, petitioning; by the time the bill was abandoned after an acrimonious debate on the second reading, Parliament had received 152 petitions against, with just one in favour.¹¹³

The lesson Home Secretary Graham drew from that experience was that the forces of localism were too strong to be confronted head on as he and Peel had hitherto been determined to do. To improve the bill’s prospects a reluctant Nicholl was instructed to make more concessions.¹¹⁴ The bill was to be introduced in the Lords, where Lyndhurst openly pronounced it a bill ‘framed to pass’.¹¹⁵ And indeed it did pass the Lords, though not without strong opposition. It also passed its second reading in the Commons, but 158–89 was not a comfortable margin and the opening exchanges of the committee stage showed that it would take all (p.707) the government’s will, and a great deal of its time, to force it through its remaining stages. Beset by more urgent problems, Peel had neither the time nor the will and the bill was dropped.¹¹⁶

These sessions showed that any worthwhile measure would have few true friends and many implacable enemies. The most serious and unyielding obstacle continued to be the country solicitors, whom every concession seemed only to make more exigent.¹¹⁷ They, it seemed, would be satisfied only with full concurrent jurisdiction coupled with the abolition of the bona notabilia rule, which would expand their role. Their strength came from their ability to tap into the widespread suspicion of any extension or centralization of government functions. This attitude spanned the political spectrum and its adherents could point out, with at least superficial logic, that the plans for probate were inconsistent with the commitment of both political parties to introducing new or reformed local courts.¹¹⁸ Yet if the principle of local justice were conceded, the demands of advocates of localism were not easy to satisfy, since there were competing interests at different levels: archdeaconal, diocesan, and provincial.

Elsewhere in the judicial system, in bankruptcy and common law, forces pressing for local courts were powerfully countered by the centripetal interests of the bar and the London solicitors, but neither had any enthusiasm for a project which denied them access to lucrative business and further entrenched the civilians’ monopoly. In fact the Law Society and the professional press became insistent that the new court should be opened up to common lawyers¹¹⁹ and it is notable that few barristers, who usually dominated parliamentary debates on law reforms, took a major part in these. Even the law officers were half-hearted and law reformers were disappointed that provisions to combine the jurisdiction over wills of realty and personalty in a single forum were dropped, especially as testamentary formalities had been harmonized in 1837.¹²⁰ Some dissenters, T. S. Duncombe was one, preferred the church courts were deprived of jurisdiction altogether than see it consolidated and reformed,¹²¹ and any proposal that could unite Duncombe and the magnificently reactionary Colonel Sibthorp in opposition was a measure in difficulties.

(p.708) In fact the misguided concessions embodied in the 1844 bill had the unwanted effect of turning what Peel insisted was a non-partisan law reform into a party question, for the leading Whigs came out against it and in 1845 resurrected a bill modelled on that of 1836. It did not get far, but muddied the waters and might have been expected to form the basis for a legislative initiative by Lord John Russell’s administration. However, in five years of half-promises and evasions nothing of the sort appeared.¹²²

However, although the church courts continued to escape reforms imposed from outside, their failure to reform themselves left them increasingly vulnerable. The Reverend Edward Muscott founded his ‘Society for the Abolition of the Ecclesiastical Courts’ in 1845 and he and Sir Benjamin Hall attacked the courts in public speeches and in pamphlets.¹²³ The tentacular hold of the Jenner clan on the PCC and court of Arches drew a complaint in court from an eminent advocate and was denounced in the press and in the Commons by an unsuccessful litigant and his supporters.¹²⁴ The Law Review and The Law Magazine kept them near the top of the law reformers’ agenda,¹²⁵ and from 1850 returns to Parliament disclosed their business and the earnings and tenures of their officers.¹²⁶

The most damaging publicity was the second report of the Fees Committee. Chaired with relish by a well-known enemy, Pleydell Bouverie, the Committee was trenchantly critical of both the PCC and the country courts.¹²⁷ It revealed that the new archbishop, Sumner, had promptly, and with doubtful legality, appointed his son to the reversion of the sinecure registrarship of the PCC after Howley had allowed an opportunity to lapse.¹²⁸ It condemned the way the taxpayer had to pay double the going rate for the Inland Revenue to procure copies of wills, and how the clerks of the seat, in plain defiance of an 1830 statute, did not carry out their duties in person, a long-known and still uncorrected abuse.¹²⁹ In the other provincial court at York the judge pocketed £1400 in fees for perhaps five half-day sessions a year.¹³⁰

As for the diocesan registries, in the busiest, Chester, the table of fees appeared ‘to have fallen into entire oblivion’ and the registry had casually introduced a requirement that applicants provide and pay for a copy of a will. In Durham the deputy registrars smuggled in fees payable to themselves on top of those due to the registrar, an absentee clergyman living in the south of England.¹³¹ In Bath and(p.709) Wells the registrar, W. F. Beadon, was a London police magistrate; the judge, ‘who is stated to have sat in court once or twice’ took most of the fees while his deputy, the father of the deputy registrar, did the work; the deaconal court featured as its registrar a lady who was appointed when just five years old.¹³² With officers such as these it was no wonder that judges increased the fees on their own motion, blithely ignorant of Gifford’s Case, which had ruled this unlawful,¹³³ nor that the fees sometimes rested on no better authority than the ipse dixit of the officers.

Not all those associated with the courts were complacent. Robert Phillimore for instance put forward plans for moderate reforms which might have been acceptable 20 years before but were now too little and too late.¹³⁴ When in November 1852 a new Chancellor, Lord St. Leonards, announced that the Chancery Commission would be expanded by the inclusion of three civilians and its remit extended to the ecclesiastical courts, there could be little doubt about the outcome.¹³⁵

The Achievement of Reform

Meanwhile the future of the church courts had been complicated by the need to tackle the acutely sensitive issue of matrimonial causes. A decree of divorce a mensa et thoro from a diocesan or provincial court was a necessary preliminary to a parliamentary divorce as well as an independent remedy. In the wake of the controversial Ellenborough divorce bill of 1830, Phillimore had presented a bill to enable the ecclesiastical courts to grant full divorce but had found little enthusiasm for widening their powers¹³⁶ and the Ecclesiastical Commission went no further than to recommend that the jurisdiction be restricted to the provincial courts.¹³⁷

Only two courts handled a significant number of matrimonial causes, the court of Arches and, most popular, the London consistory court (LCC). Presided over by Lushington between 1828 and 1858, the LCC handled almost half of all matrimonial causes and they provided around 60 per cent of its workload, some 15 to 20 suits a year.¹³⁸ Divorce petitions easily predominated and women were(p.710) as likely to be initiators of those and nullity claims as men and twice as likely to seek restitution of conjugal rights. Many were unopposed—collusive in fact, especially where intended as preliminaries to a parliamentary divorce—and could be processed in a couple of months, but contested cases might last two years and more.¹³⁹

Dissatisfaction with the limited availability of divorce led to the establishment of a royal commission in 1850. It reported around the same time as the Chancery Commission pronounced on the ecclesiastical courts, and to much the same effect.¹⁴⁰ There was much less opposition to the removal of matrimonial causes from ecclesiastical courts than probate. Outside the LCC they were relatively unimportant and even after the admission of oral evidence in 1855¹⁴¹ it was difficult to argue that unreformed diocesan courts were a satisfactory forum for such delicate matters.¹⁴²

The last stage in the wearisome process of reforming the probate jurisdiction, and so determining the future of the ecclesiastical courts, therefore had to take place in conjunction with the reform of divorce and also clergy discipline, and it began before the Chancery Commission issued its report. In April 1853 the Solicitor-General announced proposals for legislation on testamentary causes.¹⁴³ Bethell and Lord Chancellor Cranworth were keen to pre-empt the report because they had failed to persuade the Commission to adopt their own preferred solution, giving the testamentary jurisdiction to Chancery with only very limited local facilities. This was a logical move, since Chancery possessed an elaborate administrative apparatus and was the forum for deciding the construction of wills, and it might also overcome objections to another aim, to bring the descent of real property into the probate system. Furthermore, as Cranworth pointed out, it was economical to use an existing court rather than creating a new one whose business might not be sufficient to occupy a full-time professional judge.¹⁴⁴ They proposed the same solution for divorce.

Chancery was not the only option, however. R. P. Collier responded to Bethell’s proposal with one which simply transferred probate to the common law courts, sending small estates to the county courts.¹⁴⁵ The Chancery Commission espoused (p.711) neither solution, preferring a wholly new court with district offices to handle common form probates up to £1500. Like Bethell’s, this was essentially a centralizing measure, the Commission concluding that the high degree of consistency of practice they felt desirable would not be obtained without a self-contained court with specialist practitioners.¹⁴⁶

Defenders of the ecclesiastical courts did not give up the struggle. The Phillimores persevered with bills designed to make them more acceptable, and Robert succeeded in passing an Act to introduce common law modes of evidence in 1855.¹⁴⁷ A new champion in the commons, the future Chancery judge Richard Malins, led a spirited resistance to the loss of the crucial testamentary business, but could prevail only while the secularist reformers remained unable to agree on the crucial issues: a London testamentary court; the degree of local delegation; and how to compensate displaced officers and, perhaps, practitioners.

To reach such agreement took four sessions of Parliament.¹⁴⁸ Besides the usual distractions of other business, a change of ministry and the overriding preoccupation with the Crimean War, the probate bill needed to be synchronized with another dealing with matrimonial causes. Personal animosities among the law officers and Lord Chancellor, coupled with the very different, but equally damaging, shortcomings of Bethell and Cranworth as parliamentarians, contributed to the tortuous passage of the legislation.¹⁴⁹

Delays and vacillations allowed opposition time to organize and lobby and resulted in yet another rival bill, Fitzroy Kelly’s of 1856, which went much further in the direction of localism than the government’s own.¹⁵⁰ In a series of reluctant concessions, Bethell and Cranworth were driven from their initial positions on several key issues and struggled to create an acceptable compromise. From being an integral part of Chancery, via a semi-independent court presided over by a vice-chancellor but sending all issues of fact to be determined at law, the testamentary court became the independent, fully competent court the Commission had suggested.¹⁵¹ After much uncertainty appeals were to go not to the court of Appeals (p.712) in Chancery but to the House of Lords.¹⁵² The country proctors were unable to preserve their diocesan courts, but local facilities were successively expanded, from glorified post offices to district registries capable of making grants themselves and retaining original wills. Their number was almost doubled from what Cranworth originally wanted, and at the last (through Palmerston’s dramatic intervention in debate and Bethell’s humiliation). Yorkshire interests secured the removal of the upper monetary limit and the requirement of a metropolitan probate for stocks and shares.¹⁵³ Since they had earlier yielded to Collier (whose own proposal they had effectively blocked by having Campbell declare the common law judges too busy to take on extra work¹⁵⁴) in giving county courts contested jurisdiction over small estates,¹⁵⁵ the balance between centralization, which had been the main plank of reformers since the Ecclesiastical Commissioners’ report in 1832, and localism was tilted towards the latter, with the crucial exception that contested probates of substantial estates would be handled only in the new court. Bona notabilia vanished, but grants out of district registries were limited to the estates of decedents who had been lately residing in the district.

These changes necessarily affected plans to alleviate the plight of victims of the near annihilation of the ecclesiastical courts. There were three main possibilities: to find places for them in the new arrangements; allow them exclusive rights to practise; or to pay them compensation. A new court could more easily accommodate the ‘efficient’ officers of the PCC, and with most diocesan registries now becoming district registries something similar could be done for the registrars and deputy registrars, though the exigent claims of the Chester deputy registrar caused friction.¹⁵⁶ Exclusive rights (whether temporary or permanent) to deal in non-contentious probate were initially favoured for the London proctors, but could hardly be given to the solicitor-proctors elsewhere and although initially Bethell and Cranworth were adamantly opposed to compensation for loss of profits, that position had to be abandoned in 1856, when the proctors ultimately preferred to yield up a monopoly now of uncertain value in exchange for generous compensation.¹⁵⁷ The advocates, who had been partly shielded by the temporary revival of the Prize court and the certainty that Admiralty at least would continue as a civilian court, held aloof, counting on exploiting their collective ownership of Doctors’ Commons.¹⁵⁸

It was thanks to Palmerston’s strong position after the 1857 election and his determination to override the desires of his own law officers and Lord Chancellor (p.713) by making whatever concessions to local and vested interests were needful that the interminable siege of Doctors’ Commons was ended. That determination was even more in evidence in the shorter battle for the creation of a divorce court.¹⁵⁹

Although the two measures were interrelated, the obstacles they encountered were different. True, in both cases the inveterate suspicion of Chancery forced the government to abandon plans to bestow jurisdiction there, and both raised similar issues about the identity and powers of a new court’s judges. However, apart from the largely unsuccessful attempt to draw succession to land into the probate system, opposition to the testamentary proposals did not go to the principle but to the practicalities, whereas judicial divorce was opposed outright by Gladstone and others and issues of women’s property rights and the ‘double standard’ came to dominate the discussions. The outcome was different too: the centralization that was successfully resisted in probate was a main feature in divorce.

So at last the ‘Sebastopol’ among courts was overthrown. More flexibility, accepting the sort of moderate reforms and prudent concessions that Peel was fond of urging on the church, and which were made elsewhere in the 1830s, might have preserved them for longer. Equally, however, if Graham had not preferred the recommendations of the Ecclesiastical Courts Commission to the Real Property Commission’s, the probate system might have been secularized much sooner.

Aftermath

The Acts of 1857 did not put an end to Doctors’ Commons. Indeed the new courts used its premises for several years until the advocates, not with one voice, decided to sell up the place in 1865.¹⁶⁰ Nor of course were the ecclesiastical courts abolished, but their place in the nation’s life was marginalized. Other functions which the Ecclesiastical Courts Commission had long before identified as secular—such as defamation and brawling in church—were removed,¹⁶¹ and the eventual outcome of the great Braintree case was that they could not enforce the setting, as opposed to the enforcement, of a church rate; with the abolition of compulsory church rates in 1868 there would be no more ‘martyrs’ to that cause.¹⁶²

(p.714) What remained was their jurisdiction over the ordering of churches and the conduct of the clergy, which became bitterly contentious.¹⁶³ The courts were still funded by fees and their procedure was not further altered.¹⁶⁴ The confusing terms of the ill-advised Public Worship Regulation Act of 1874 (c. 85) were eventually held not to create a new court but only to render the operations of the provincial courts under their new judge subject to its prescribed limitations and directions when dealing with cases brought under the Act.¹⁶⁵ The use of that Act, and the authority of Lord Penzance, were strenuously contested by the high church party and the opportunity for a general overhaul of the church courts presented by Tait’s royal commission in 1881 proved illusory. The Commissioners duly condemned their condition as ‘antiquated, cumbersome, expensive and unsuited to the requirements of the present day’,¹⁶⁶ but were unable to reconcile their own deep differences to produce a consensual blueprint for reform. The report did recommend procedural changes and a greatly enlarged role for the bishops in diocesan courts, but its authority was weakened by a trail of dissents and Tait’s successors had neither the drive nor the influence to persuade government to find space for legislation.¹⁶⁷ The practice of appointing the same man to be judge of several dioceses,¹⁶⁸ and bringing of the provincial courts under the same judge probably improved the quality of the justice they dispensed, but serious defects would remain unaddressed for many years.¹⁶⁹

Jurisdiction and Business

The Admiralty judge presided over the instance court and, in wartime, the Prize court. The volume and importance of business in the latter had swollen (p.715) to unprecedented levels during two decades of war and when peace came the instance court was exposed as an ‘idle, backwater Court’.¹⁷⁰

On paper the instance jurisdiction was impressively wide: salvage and droits of Admiralty; torts at sea; actions for seamen’s wages; enforcement of liens for payment of freight; bottomry bonds and the supply of necessaries; contracts upon the sea and appeals from colonial vice-admiralty courts.¹⁷¹ In reality, however, many of these categories had become very circumscribed after centuries of unrelenting hostility from the common lawyers, whose encroachments through the exploitation of legal fictions were consolidated by prohibitions.¹⁷² As a result, most instance causes involved petty disputes between shipowners, and not many of those; in 1822 the court sat for just 38 days and heard 64 causes, in 1832 for just 28 days and 37 causes.¹⁷³ Aware that such levels of business made the court vulnerable to criticism, its defenders argued that some of the cases were lengthy, citing the three-day hearing in Thetis, but it was a feeble defence.¹⁷⁴

For all his judicial fame, Stowell had been so very cautious in seeking to recover lost ground that not one prohibition was issued against his decisions.¹⁷⁵ Yet his reputation did provide a basis for future attempts and the instance court had real potential attractions, in particular, its unique facility for actions in rem, while the very shortage of business meant suitors need not suffer the delays plaguing the King’s Bench. There were already signs that the hostility of the common lawyers was diminishing now that the Admiralty was no longer a serious rival; indeed an encroachment in respect of seamen’s wages had caused them such difficulties that it had to be relinquished.¹⁷⁶ True, when shipowners’ liability for cargo loss was further restricted by statute in 1813, Chancery, not Admiralty, was awarded sole jurisdiction, but several other statutes between 1813 and 1825 made minor augmentations to Admiralty jurisdiction, and though none was very significant, it was encouraging that they did not meet opposition.¹⁷⁷

Against this background civilian witnesses (William Adams and, more cautiously, Stephen Lushington) felt able to urge the Select Committee of 1833 (p.716) towards a modest enlargement of its powers.¹⁷⁸Tindal CJCP, was also favourable, though rather at the expense of Chancery than common law, and the Committee was surprisingly generous, recommending concurrent jurisdiction over seamen’s special contracts, ‘demands of nautical men and of mortgagees when the vessel has been arrested, or the proceeds are in the registry’ and perhaps questions of title to vessels and their freight.¹⁷⁹

This ‘great triumph for the civilians’,¹⁸⁰ was not translated into legislation until Lushington became judge and then only in part. Ship mortgages in actions in rem; title and the division of proceeds of sale in possession actions; salvage claims for service; and necessaries and claims for towage were all conceded, but restrictions on contracts, freight, and charter-party remained.¹⁸¹ The Act helped to revive business but the recovery of the instance court owed less to institutional changes than to increases in shipping, particularly the coming of the steamship, which contributed to a plentiful crop of collision cases.¹⁸²

Procedural weaknesses still deterred potential suitors; for instance, the action by plea and proof, usual in more serious cases, was subject to interminable obstruction by a defendant.¹⁸³ However, the changes made in 1855 and especially 1859 probably enhanced the court’s attractions¹⁸⁴ and Lushington showed real concern to keep down suitors’ expenses.¹⁸⁵ Like Stowell, he was nervous of prohibitions but there were further statutory additions to jurisdiction. The Wreck and Salvage Act 1846, though narrowly interpreted, extended salvage claims to incidents where life, as well as property, was preserved,¹⁸⁶ and there were minor additions in the Merchant Shipping Act 1854, though that Act also sent seamen’s wages claims to the magistrates unless they were above £50.¹⁸⁷The biggest increase in business, however, arose from collisions, which gradually overtook salvage cases; from fewer than one-quarter in 1841 they rose to almost 40 per cent in 1861.¹⁸⁸ Overall, final decrees rose from 82 to 199 over that period, justifying the Lord Chancellor’s claim that it ‘had now become one of the most important tribunals in the country for the determination of civil causes.’¹⁸⁹

(p.717) The opening of the court (now a court of record) to the common lawyers paved the way for a further extension in its jurisdiction.¹⁹⁰ Diehards still objected to the absence of a jury, but they could not stop the passage of an important Act in 1861.¹⁹¹ Besides section 7, which by giving jurisdiction over any damage caused by any ship, opened up great possibilities,¹⁹² its chief features were improvements to interlocutory and remedial facilities, notably in discovery, counter-claims, enforcement of judgments, and appeals. As the Admiralty became more like other superior courts, however, it also became slower and more expensive which led to the removal of smaller cases to cheaper local courts.¹⁹³ In 1862 the justices’ jurisdiction over salvage claims, fixed at £200 in 1854, was raised to £1000.¹⁹⁴ Much more contentiously, some county courts in coastal towns were given Admiralty jurisdiction up to £300. This bill was fought strenuously by certain commercial interests and those opposed to devolution generally, but they managed only to reduce the money limit and the number of courts included.¹⁹⁵ Between 300 and 400 Admiralty cases a year were heard in county courts, roughly the same number as in the High Court, and the Mayor’s court and Liverpool court of Passage also took a share; Admiralty court cases, while numerically more or less stationary, were becoming heavier in substance.¹⁹⁶

Rothery’s returns argued the case for preserving and expanding an independent jurisdiction.¹⁹⁷Besides stressing the recent reforms, he marshalled statistics to demonstrate its ‘progress’ between 1841 and 1866.¹⁹⁸ With plaintiffs five times as successful as defendants¹⁹⁹ it should have appealed to potential suitors, but the Judicature Commissioners noted that, like other courts, it was often unable to offer a complete remedy and that there were undesirable conflicts of principle (notably over the basis for assessing damages in collision cases) between Admiralty and common law. Even so, they felt its in rem procedure would give it an advantage (p.718) over the common law courts.²⁰⁰ In fact, considering its lack of political muscle, the Admiralty did rather well out of the Judicature Acts. All limitation of liability cases were acquired from Chancery;²⁰¹ its rule on damages was preferred to the common law’s;²⁰² and because all branches of the High Court possessed concurrent jurisdiction, there could be no further prohibitions.²⁰³ The rules of 1883 provided that all matters which would have gone to the Admiralty court before the Acts should be sent to the Probate, Divorce, and Admiralty Division, and its judges battled tenaciously and with some success to hold onto the mixed contracts and other business that might have formerly belonged to either civilian or common law courts.²⁰⁴

Levels of business did not alter very much through the upheaval of the 1870s, remaining at around 400 a year. Thanks to Brett it eventually lost some of the Fatal Accidents Acts claims,²⁰⁵ but gained appeals under the Shipping Casualties Investigations Act 1879²⁰⁶ and the great consolidation effected by the Merchant Shipping Act 1894 not only tidied up its powers but also added to them.²⁰⁷ None of the additions, however, substantially altered either the quantum or the profile of its work.

MacDonell’s analysis of 1901 showed that while writs had remained stationary since 1880, most measures of business—trials, taxed bills, costs—had risen by about 30 per cent despite a slight reduction in the merchant marine.²⁰⁸ The caseload fell slightly in the 1900s despite Barnes’s introduction of short cause rules in 1908 to encourage suitors, and by 1914 it was felt that salvage cases in particular were being lost to arbitration.²⁰⁹ Salvage remained one of the major components in its caseload.²¹⁰ The striking feature is the growing dominance of collisions and salvage, especially the former, together making 366 out of 544 in 1913; bottomry bonds had not been seen in court for several years.²¹¹

Like the civil work of the instance court, Admiralty’s criminal business had been eroded by the common lawyers and in a similar slackening of hostility Ellenborough’s Act was held to apply to Admiralty, thereby extending its (p.719) scope to offences against the person.²¹² However, unlike the civil actions, there was no recovery, and the special Admiralty sessions at the Old Bailey, where the Admiralty judge sat with two common law judges who conducted the trial,²¹³ slipped into an almost unnoticed oblivion after the offences were made triable at common law.²¹⁴ In 1902 a leading textbook declared the criminal jurisdiction virtually obsolete and no one seems to have wanted to revive it.²¹⁵

Bench and Bar

The Admiralty judge ranked below the judge of the court of Arches and the judge of the PCC, but as judge of the Prize court in wartime he was busier and more important than either. At need he could command the assistance of a surrogate from the advocates of Doctors’ Commons,²¹⁶ but after 1815 Stowell needed no assistance with the trickle of instance business. With his fortune made and his reputation secure this altered state of affairs scarcely fretted him even though the judge’s income, largely derived from suitors’ fees, fell to a level which would make it difficult to attract the leading civilians.²¹⁷ Stowell had also profited from being judge of the consistory court of London until 1821, and it was his protege and successor in that post, Sir Christopher Robinson, who became Admiralty judge on Stowell’s retirement in 1828.²¹⁸

Unlike Stowell, Robinson (already 62) had time to build neither a fortune nor a reputation in the five years²¹⁹ before his death in April 1833. By then the civilian courts were undergoing a searching inquiry, and the position of the Admiralty judge was proving particularly problematic. The Select Committee on Admiralty felt that under its proposals for reforming the jurisdiction of the higher ecclesiastical courts, a single judge would be able to combine their business with that of Admiralty, at any rate in peacetime.²²⁰ The Admiralty side could hardly contend that the instance business now warranted a full-time judge, but had three (p.720) powerful objections; first, in wartime the judge would be unable to cope (indeed Sir John Nicholl, who had become the Admiralty judge and was holding all three of the major judgeships, was unwilling to continue combining them even in peacetime);²²¹ secondly, there would be a danger of discouraging that learning in international law which was sometimes wanted by the government and which only civilians possessed;²²² thirdly, there was the problem of appeals.

Until Brougham came on the scene Prize appeals went to a commission comprising all privy councillors and the common law judges, while instance appeals were to the court of Delegates, made up of three common law judges and three or more civilians.²²³ Brougham had denounced the latter as ‘one of the worst constituted courts that ever was appointed’,²²⁴ since the common law judges knew no maritime law and the only civilians usually available were the least experienced and least successful. In 1833 both sets of appeals were transferred to Brougham’s remodelled Judicial Committee of the Privy Council, of which the judge in Admiralty was an ex officio member.²²⁵ As witnesses to the Select Committee pointed out, there must be two civilian judges so that the Judicial Committee might have appropriate expertise when hearing an appeal from the Admiralty judge.²²⁶

The Committee held to its view that a single judge would suffice, but yielded ground by stipulating that if two were felt preferable they should have interchangeable jurisdiction. It also endorsed an earlier recommendation of Brougham’s, that the judge should be salaried instead of fee-dependent, and concluded that he should not sit in the Commons as Scott and Robinson had done and Nicholl was still doing.²²⁷

Because of the deadlock over the church courts the report was not implemented. In 1838 Nicholl retired and was replaced by Stephen Lushington, eminent as a civilian, judge of the London consistory court since 1828 and Whig MP for Tower Hamlets.²²⁸ This appointment ensured the continuance of an exclusive judge of Admiralty and Lushington seems to have been promised at least some of the enlarged jurisdiction suggested in 1833. But two aspects of Lushington’s appointment proved controversial and both were picked up by Brougham, whose (p.721) opposition held up the reforming bill in 1839.²²⁹ The government readily gave way on remuneration, offering £4000 in lieu of fees; since the leaders in Doctors’ Commons made between £5000 and £7000 per annum it was not overgenerous, but that arch-economizer Joseph Hume objected that the Select Committee had proposed only £3000.²³⁰ The Whigs also had to concede that the judge should no longer be eligible to sit in the Commons,²³¹ a disappointment to Lushington, who had gone to the trouble of getting himself re-elected after assurances from Russell.²³²

During almost 30 years Lushington contributed a very substantial mass of judgments to the court’s jurisprudence and the Crimean War even gave him an opportunity to supplement and refine Stowell’s doctrines of Prize law.²³³ Like Stowell he drew upon a mass of unwritten learning which he had absorbed while an advocate,²³⁴ but by this time regular reports were published, which met the criticism of common lawyers that the civilians drew upon a secret store of learning to preserve their own exclusiveness.²³⁵ If Stowell was readier to draw upon decided cases than was often claimed,²³⁶both he and Lushington were very much in the civilian tradition of flexible application of principle rather than rigid adherence to precedent.²³⁷ While careful to disclaim any systematic use of equitable doctrines—used only, ‘as it were, incidentally and of necessity’²³⁸—Lushington’s leaning towards equitable principles probably gave some substance to critics’ claims that he was sometimes inconsistent in his rulings.²³⁹

During the 1840s Lushington was content to operate the court essentially along traditional lines, but in the 1850s he and the new registrar H. C. Rothery, using powers conferred in the 1840 Act,²⁴⁰ placed the rules of the court on a more systematic footing. External pressures compelled this modernization. The admission of testimony of interested witnesses at common law, the great changes wrought by the Common Law Procedure Acts and their Chancery counterparts, (p.722) the imminent overthrow of the ecclesiastical courts and, above all, the dissolution of Doctors’ Commons and the opening up of the court to the common law bar in 1858, all indicated a major overhaul.²⁴¹ Lushington had not been opposed to opening up the court in the 1830s and long experience and high reputation made him well placed to preside over the transition.²⁴²

The infiltration of the common lawyers was gradual. Some proctors still operated alongside the solicitors, though the big steamship companies were mostly represented by the latter²⁴³ and in the cramped quarters of the ‘cockloft’ to which the court decamped the leaders of the last generation of advocates, Travers Twiss and J. P. Deane, contended against Brett, Butt, and Bruce.²⁴⁴ Few of the newcomers limited themselves to Admiralty but Webster was one of several juniors who found it a useful staging post; the grant of Admiralty jurisdiction to the City of London court and county courts gave him openings as junior to Butt when established men demanded excessive fees.²⁴⁵

Lushington retired in 1867. The Probate Act of 1857 had provided that on the next vacancy in either judgeship they might be combined, with a salary enhanced by £1000, and allowed each judge to sit for the other, but it was soon superseded by the Divorce Act, which united the Probate judgeship with the Divorce court.²⁴⁶ On the eve of Lushington’s retirement a bill was floated which would create a chief judge on £5000 and two puisnes on £4000 each to cover all three of the courts, the puisnes also going circuit, but projected reconstructions were overtaken by the appointment of the Judicature Commission.²⁴⁷ Lushington was succeeded both as Admiralty judge and Dean of Arches by Robert Phillimore. A transitional figure, Phillimore trained as a civilian, then went to the bar and later became a QC. His qualifications for the Admiralty were impressive: judge of Admiralty in the Cinque Ports court, Admiralty advocate, Queen’s advocate and judge-advocate general; he had also written a learned treatise on international law.²⁴⁸ It fell to Phillimore to defend the Admiralty court from serious external threats. He was unable to prevent the county courts from being given a limited jurisdiction but (p.723) a few months into the job he was added to the Judicature Commission, whose terms of reference endangered its very existence.

The Admiralty, Probate and Divorce courts proved difficult to fit into the unified structure favoured by the Commissioners. At one time it was proposed to join Admiralty with the Chancery division, leaving the Probate and Divorce judge as a non-divisional anomaly,²⁴⁹ but ultimately Hatherley’s original proposal to combine them in a distinct division was adopted.²⁵⁰ The status and relationship of the judges within the PDA remained untidy for some years. The President created by the Judicature Act 1873, section 31 was Sir James Hannen, presumably because the judge ordinary ranked above the judge of Admiralty, though Hannen was junior to Phillimore both in service on the bench and in the Privy Council.²⁵¹ Yet Phillimore appointed the registrar and assistant registrar, which the Judicature Act 1875 reserved for the President, and he continued to be, in fact if not name, the Admiralty judge.²⁵² In this capacity he ‘discharged his Office with a wisdom and diligence which by no means suffers in comparison with the erratic brilliance of his predecessor’.²⁵³ He was more often reversed in the Privy Council than Lushington, but that may reflect changes in that body rather than his own shortcomings.²⁵⁴ Inevitably, however, with no Prize cases and the solid (and by now well-reported) foundations of his predecessors to build upon, his contribution to Admiralty law is less impressive.

Phillimore was very successful in safeguarding the traditions, practices, and rules of his court during the great upheaval of the 1870s, but he and the shipping interest could not prevent the transfer of appeals from the Judicial Committee to the House of Lords.²⁵⁵ However, the new Court of Appeal rather than the Lords proved the biggest curb on Admiralty jurisdiction now that prohibitions could no longer issue from the common law courts. Curiously, this atavistic hostility came mostly from Brett, who had made his name in shipping cases. In R v. Judge of the City of London Court, he pronounced ‘I for one will not reopen the floodgates of Admiralty Jurisdiction upon the people of this country’.²⁵⁶Brett went to great lengths, resorting to some dubious law, to overturn decisions which enabled in remactions under the Fatal Accidents Acts to be brought in Admiralty.²⁵⁷

Phillimore retired in 1881 and although he was the last true Admiralty judge, the concerns of the shippers that their affairs should continue to be handled by (p.724) a judge versed in maritime concerns was met by appointing C. P. Butt from the Admiralty bar. Butt’s irrepressible love of facetiousness was quite out of keeping with the preternatural gravity of Hannen’s Divorce court²⁵⁸ and it was assumed that they would preserve a strict division of labour. The Admiralty clients made their displeasure known when the President insisted on taking some Admiralty cases himself.²⁵⁹ He soon desisted, however, and the shipping interest had reason to be grateful to him, for he successfully supported Butt’s appeals to be released from circuit duty²⁶⁰ and decreed that the new forms provided by the RSC in 1883 ‘need not be slavishly adhered to’, thereby encouraging the continuation of established practice.²⁶¹

The Judicature Acts introduced a divisional court in the PDA, which in Admiralty was used mostly for county court and justices’ salvage appeals.²⁶² It often had to be made up with a judge from the QBD, which also had sometimes to provide a judge to hear cases at first instance, especially when Barnes was incapacitated for long periods in 1894 and 1902. Unfortunately this was often Gainsford Bruce, one of Halsbury’s more questionable appointments. Bruce had plenty of experience of maritime law (hence the joke at the expense of his distinctive physiognomy that in Admiralty this was ‘putting the chart before the horse’) but his ‘friendly blunders’ were unfortunate;²⁶³ the court was better served when Bucknill was seconded.²⁶⁴

In 1891–2 the team of Hannen and Butt was succeeded by R. Gorell Barnes and F. H. Jeune, the latter as President.²⁶⁵ Jeune came to be regarded as a sound Admiralty judge but his inexperience resulted in some decisions, particularly The Dictator ²⁶⁶ making important and controversial changes; indeed he is said to have exerted ‘a greater influence upon the doctrines of the Law of Admiralty than any single common lawyer since Coke’.²⁶⁷ Though Barnes had done plenty of shipping (p.725) cases neither was from the Admiralty bar, which continued to have a distinct existence and despite its small size could be a pathway to the bench; though when its leader, Walter Phillimore, was made a judge in 1897, it was of the QBD because he had a principled opposition to divorce.²⁶⁸ Barnes did more Admiralty cases than Jeune and went out of his way to boost the work of the division by announcing his willingness to take insurance cases, with no opposition from the judges of the Queen’s Bench.²⁶⁹ He later instituted the short cause rules with a similar object, and was also instrumental in overhauling the Prize rules.²⁷⁰

Barnes became President in 1905²⁷¹ and though the choice of Bargrave Deane as the junior judge caused grumbling at the bar, critics probably overlooked the fact that before committing himself to the divorce bar he had experience in shipping cases and had written on blockade.²⁷² He proved decently capable, but was evidently not considered good enough to be promoted, for in 1910 Bigham (created Lord Mersey) was transferred from the KBD to succeed Barnes (now Lord Gorell), and when Mersey pleaded ill-health after less than one (turbulent) year, Deane was again passed over, this time for the Solicitor-General Sir Samuel Evans. It was an unpopular appointment at the bar but Evans, another with no love for divorce, worked assiduously to learn the Admiralty business and when the war brought in Prize cases he seized his chance to devote himself to that branch.²⁷³

Procedure and Organization

Procedure in the instance court bore a marked similarity to the ecclesiastical courts²⁷⁴ and in some respects also resembled Chancery, but it had features which were unlike either. The most important of these was the facility for suitors in many actions to choose between actions in personam against individuals and actions in rem, the latter giving rise to a ‘maritime lien’ which bore little resemblance to liens known to the common law and equity.²⁷⁵ In effect, the suitor could seek to have his claim satisfied against the vessel from whose activities it (p.726) arose. Since ships were usually worth much more than the amount claimed and did not go bankrupt, most plaintiffs elected that route—indeed Lushington at one point prematurely declared the in personam action obsolete.²⁷⁶

In an in rem action the entry of the plaintiff’s action in the registry was followed by a warrant to the marshal to arrest the vessel in the traditional way, nailing the writ to its mainmast. It had to remain in port unless bail were given and if the plaintiff’s claim was upheld and his judgment not satisfied, then by means of further process and the legal fiction of ‘perishable condition’ he might have it sold. He would be paid from the proceeds after satisfaction of any prior ‘latent demands’ which had been notified by incumbrancers.²⁷⁷ This meant that the court always possessed a substantial amount of money arising from the sales and awaiting distribution.

If the claim was disputed the usual process was by plea and proof. Admiralty pleadings bore some resemblance to Chancery’s in being detailed and circumstantial and not aiming at defining the precise legal point at issue, but they were less elaborate. The plaintiff’s ‘libel’ might be met by a general concession, a general denial or exceptions, and unless the parties agreed that their pleadings alone should form the material for the trial, witnesses had next to be examined.²⁷⁸ As in Chancery these examinations were carried out in private by officers of the court—in theory by the deputy registrars but in practice by examiners chosen by the registrars from the proctors;²⁷⁹ in the country commissions were issued to local solicitors or merchants. However, in Admiralty the defendant was informed of the witnesses’ identity and what they were being called to prove, so he could frame cross-examination interrogatories to be administered after the examination-in-chief. The examinations were reduced to a narrative by the examiner and were then the subject of the defendant’s ‘responsive allegations’.²⁸⁰ A similar process occurred with the defendant’s witnesses and following the disclosures either party might call further witnesses. It was theoretically possible to examine viva voce in court but in 1823 no one could recall the last occasion.²⁸¹ Rothery was scathing about the whole pre-trial procedure, which he described as ‘in many cases a mere mockery of justice, the delays were almost (p.727) interminable, and the result arrived at often far from satisfactory’.²⁸² However, although it certainly offered plenty of scope for deliberate delays, especially while the court offered only four motion days a term, Rothery was probably overstating the shortcomings in order to emphasize the improvements he and Lushington had made.

As in Chancery, many cases were concluded upon motion,²⁸³ but for those which went to trial the judge sat without a jury, often assisted by two nautical assessors drawn from the Elder Brethren of Trinity House. Their role, much criticized by common law purists, was to advise the judge,²⁸⁴ drawing on their experience of the ways of the sea and ships.²⁸⁵ Their views were not decisive but even that champion of the common law Baron Parke said: ‘[w]e certainly are not bound, any more than the learned judge of the Admiralty Court was, by the opinion of the Trinity Masters; but we of course give great weight to their nautical experience, and we do not see any ground for being dissatisfied with the opinion that they have formed’.²⁸⁶

The ways of the court were thoroughly familiar to the close corporation of Doctors’ Commons, but an outsider would have been hard put to find them out. There were no published sets of rules and although Arthur Browne had produced an admirable treatise on the law of Admiralty in 1802, there was no modern practice book; a new edition of Clerks’ Praxis which rather oddly emerged in 1829 was little help, being no more than a reprint of an edition from the previous century.²⁸⁷

The key figure in interpreting and developing practice was the deputy registrar. The principal was a sinecurist. Lord Arden enjoyed this lucrative place (for which he had spent 26 years waiting for the reversion to fall in) and three deputies did the work.²⁸⁸ Aided by a small clerical staff which, since both staff and office expenses were met by the registrar, was never likely to become extravagant,²⁸⁹they performed functions which in busier courts were parcelled out among several officials. They oversaw the preparation of warrants and other process; (p.728) sat in court to advise on practice; drew decrees and orders; taxed bills (costs in Admiralty were in the judge’s discretion²⁹⁰), and arranged the lists.²⁹¹ On occasion, though not yet a regular practice, the judge referred to the registrar the computation of damages.²⁹²

The only other significant clerical officer was the marshal, and in the 1820s he too acted mostly through a deputy.²⁹³ In 1805 the marshal’s greed in levying exorbitant brokerage had forced Stowell to intervene, but in general he had no interest in checking abuses, maintaining that even if they existed any inquiry would damage the confidence of suitors.²⁹⁴ The office of registrar had been ineffectually regulated by two Acts, 1810 and 1813, the first to prohibit it being granted in reversion and to compel personal performance, the second to limit the amount of public and suitors’ money the registrar could hold, but to avoid compensation claims; neither was to take effect until Arden’s death.²⁹⁵

A fuller inquiry in 1823 revealed almost 250 different fees in the three courts.²⁹⁶ Lushington later expressed disappointment that this Commission had recommended continuing fees which had an historical legitimacy rather than a functional justification²⁹⁷ and although the Prize fees (which tended to be higher) were somewhat reduced, no rationalization was attempted.²⁹⁸ In the 1840s one clerk was employed full time in recording the fees, which were collected in arrear (sometimes considerably so) from the proctors.²⁹⁹

Arden’s death in 1840 finally opened the way to place the court officials on salaries, the fees being paid into the consolidated fund.³⁰⁰ The report of 1824 had expressed concerns at the lax accounting system which allowed the registrar to handle large sums without any adequate check and to profit from balances in his private account—suitors’ money was invested only by express request.³⁰¹ Their concern was dramatically justified in 1853 when Arden’s long-serving senior deputy and successor H. B. Swabey decamped leaving some £75,000 of suitors’ and (p.729) public money unaccounted for. Reform of the court’s finances could no longer be deferred.³⁰²

It was not the only reform that was needed. Lushington had already made some practice changes. References to the registrar on the calculation of damages became the norm, and he greatly favoured the use of near-contemporary documentary evidence such as the ‘Protest’ in collision cases.³⁰³However, though the 1840 Act had expanded the possibility of using oral testimony, it was seldom invoked, while the facility to direct an issue to a jury was simply ignored.³⁰⁴ A court which remained essentially unchanged when others were undergoing radical reforms was in danger of seeming as old-fashioned as the ecclesiastical courts.

The prime mover in bringing about reforms was H. C. Rothery, Swabey’s successor, who had recently published a pamphlet on the subject.³⁰⁵ Some of Rothery’s propositions, notably a general move to printing documents, were not approved by all the proctors,³⁰⁶ but he was in general strongly supported by the judge and had his way on essentials. To meet the immediate problem exposed by Swabey, stamps were introduced as a security and the fees were overhauled at the same time. Suitors complained they were too heavy while the Treasury was disappointed that they did not, as calculated, cover the costs of running the court.³⁰⁷

The same Act of 1854 made changes to the procedure for taking evidence, and rules of 1855 successfully encouraged the general use of oral testimony. Lushington retained a civilian’s preference for writing, however, and one of his innovations was the ‘Preliminary Act’, by which in collision cases each party had to deposit, ahead of his pleadings, a sealed statement setting forth the basic details of the accident, from which he could not easily depart when subsequently framing his case.³⁰⁸

The intrusion of the common law bar necessitated more drastic reforms, for ‘what was cramped in the old procedure, but had become easy of application to (p.730) gentlemen who had passed their lives in acquiring this knowledge, threatened to become as noxious as it was imperfect, if it were made compulsory upon those who had not given to it the steady and enduring affection of the practitioner of the older school’.³⁰⁹ In 1859 pleading by petition and answer was introduced alongside rules which, while ‘approximating the practice of the Admiralty to the more elastic procedure of Common Law, preserved those original peculiarities of the court which were its excellencies and its boast’.³¹⁰Perhaps the most useful improvement was to substitute a new default procedure for one which was clumsy and artificial.³¹¹

The rules were very shortly followed by an Act of 1861, which empowered the court to make orders for pre-trial discovery, greatly facilitated cross-actions and counter-claims and allowed actions to be brought in personam in all matters over which the Act conferred jurisdiction.³¹² Roscoe viewed these several enactments as ‘entirely altering the whole previous practice of the Court’,³¹³ though this exaggerates their impact; it was still possible for pleadings to be tactically prolonged for example.³¹⁴Greater elaboration led to more business being done in chambers, and to heavier costs.³¹⁵ Liverpool’s shipping interest and law society brought in a bill to give its district registrar considerable devolved power in Admiralty, but it was emasculated in the Commons, leaving him with only the power to hear references.³¹⁶ The experiment, as the Legal Departments Commission described it,³¹⁷ was not extended, and of the district registries serving the High Court only Liverpool and to a lesser extent Cardiff provided significant business.

The Judicature Acts threw the court’s staffing and organization into the melting pot, but Rothery had recently been appointed Wreck Commissioner and was therefore able to be dispassionate in appraising the position of Admiralty staff in the new structure.³¹⁸ Unlike most of the officials, he did not exaggerate the mysteries of his office and, subject to safeguards, was amenable to the absorption(p.731) of the registry within the new central office.³¹⁹ The Jessel Committee proposed this, making the registrar a master of the Supreme Court,³²⁰ but presumably Hannen, no doubt urged by Rothery’s more conservative successor Bathurst (the last proctor-registrar), defeated it;³²¹ in fact the registry, which absorbed the marshal’s office in 1896, even managed to retain control of taxations in the shake-up of 1901.³²² E. S. Roscoe told the Civil Service Commission that he was less often in court than formerly (and he was no longer able to sit as a surrogate³²³), his most important duty being references, while his assistant concentrated on taxations.³²⁴ It was a cosy office, clerks mostly being promoted through seniority, and served a notably conservative bar and a body of specialist solicitors who had no desire for sweeping changes in the way it did its business.³²⁵

The same conservatism extended to practice and procedure, for the Judicature Acts had only a modest impact on everyday litigation. Phillimore had contended strongly for the preservation of a jurisdiction whose pleadings had been recast into a form closer to what the Commissioners favoured than any of the other courts,³²⁶ and despite changes of form in the new pleadings the leading textbook continued to explain the leading principles of the old, ‘more especially as the same principles continue to be followed in the Admiralty division’.³²⁷ The comprehensive revision of rules in 1883 did bring significant changes; defendants putting in a belated appearance were no longer treated so indulgently for example, and procedures governing arrest of ships were considerably altered; but more often it either reproduced old rules in substance; where it did not, reliance could be placed on a ‘preservation clause’ which retained existing practices and procedures unless expressly displaced.³²⁸ This clause was invoked to such effect that even the commencement of actions by praecipe was continued, and orders (p.732) for sale before trial were made despite a rule which seemed to confine them to the hearing.³²⁹ By tortuous reasoning even the right to appear under protest was retained.³³⁰

After 1883 the Rule Committee seldom exercised its power to alter Admiralty rules and rule-making power was effectively left to the President.³³¹ Apart from the Short Cause Rules of 1908 changes were few, though of course practice did evolve over time. The monition as a means of enforcing judgment gave way to fieri fascia,³³² oral evidence came to predominate and the general use of informal motions in chambers lost favour to applications in open court.³³³ However, the distinctive features of Admiralty actions remained largely intact. No jury was ever seen, and although there was very occasional resort to the assessors made available by the Judicature Acts, judges mostly preferred to use the Trinity House Brethren to aid their deliberations,³³⁴ while the registrar drew on his panel of merchants in the assessment of damages.³³⁵ As though to emphasize continuity with the past, Jeune even resuscitated the practice of having the silver oar borne in the judges’ annual procession.³³⁶

The Prize Court

The Prize court was active only briefly during this period, the Crimean War providing the only worthwhile opportunity for captures.³³⁷ The Naval Prizes Act 1864 (c. 25) tidied up a few debatable matters which had arisen from Lushington’s 200 and more cases and in 1898 the rules were consolidated.³³⁸ By then, however, developments in international relations and law made a more thorough revision desirable and although a bill of 1901 stalled so badly that it was finally abandoned,³³⁹ Gorell recast the rules in the light of the Hague Convention and Declaration of London. Designed to bring the Prize court as nearly as possible, into line with Admiralty practice they were completed just in time, in August 1914.³⁴⁰

The Court

The new court was a court of record which assumed the entire testamentary jurisdiction of the PCC other than suits to recover legacies or distribute the residue.³⁴¹ Its jurisdiction in contentious matters was exclusive, save that county courts outside London could handle cases where the personal estate did not exceed £200 and the realty £300.³⁴² Proctors in practice in the ecclesiastical courts became entitled to be admitted as solicitors and to practise in the court alongside them, and advocates and barristers both had rights of audience.³⁴³ Fees were set by the judge with Treasury concurrence and were in addition to the stamp duty on grants.³⁴⁴ There were grumbles in the press at the cost of the court, but the fee yield in the 1870s was over £100,000 and only the hefty burden of compensations (over £200,000 initially) made it seem expensive.³⁴⁵

Unlike the Divorce court, there was no serious contention that a single judge would not be suitable to handle probate cases.³⁴⁶ The problem was rather whether there would be enough work to occupy a full-time judge, and as noted above, the government’s solution was to provide for a combined appointment, first with Admiralty and then with Divorce.³⁴⁷ Like the Divorce judge, the Probate judge was empowered to call upon one or more common law judges to sit with him, but it is unlikely that he ever did so.³⁴⁸

Since they were to be operated by the same officers, and perhaps the same judge, and were driven through Parliament in tandem, it is not surprising that the rules, procedure, and practice of the Probate and Divorce courts were similar in many respects.³⁴⁹ Some of the differences arose necessarily from the peculiarities of their work. Thus while evidence was usually to be given orally in open court, the Probate judge faced none of the anxieties about collusion which produced such complications in divorce, whereas he found it necessary to adopt a (p.734) more expansive view of his power to order discovery of documents, particularly in cases turning on incapacity or undue influence.³⁵⁰

Practice was based on rules issued in 1862,³⁵¹ which preserved several leading features of the PCC. It was open to any interested party to enter a caveat obtained from any probate registry to prevent a grant being made in common form. On appearance being entered by someone set on obtaining a grant the matter would be entered in the court books.³⁵² If no caveat had been lodged, the person seeking to propound the will³⁵³ issued a citation (along with a caveat in the registry covering the place where the testator last resided) to interested parties to appear.³⁵⁴ Uniquely to the Probate court, all the parties were also required to submit an affidavit as to ‘scripts’, that is, to identify all known testamentary papers and to send those in their custody to the registry.³⁵⁵

Pleadings took the form of a declaration by the person propounding the will and a plea, which must not be merely a general denial, by those opposing him. The difficulties created by the retention of a different succession regime for real property were met by requiring the heir-at-law and any devisee or other person interested in realty of which the will purported to dispose to be made a party; if they were not cited they were not bound. The Act also perpetuated the right of persons interested in the realty to intervene to protect their interest before being made parties.³⁵⁶

Interlocutory business was brought before the court by petition or, from 1858, by summons in chambers.³⁵⁷ The heir-at-law alone could demand jury trial; others might ask for a jury, and the Probate judge usually granted it in cases of fraud, undue influence, and incapacity.³⁵⁸ In 1871 there were twice as many trials by judge alone as with a jury, and by 1881 (by which time special juries were generally (p.735) preferred to common juries) the proportion was higher.³⁵⁹ The judge also had discretion to send an issue to be tried at Assizes and would generally do so if it would be cheaper unless the party objecting was prepared to make up the difference.³⁶⁰

The Judicature Acts had little impact on the way the court of Probate operated. Probate business was preserved exclusively to the new division and Probate rules were left intact except where expressly altered.³⁶¹ Names changed (writs of summons replaced citations, statements of claim replaced declarations³⁶²) but the substance was generally similar. Business too remained at a surprisingly constant level. Despite an increasing number of grants, contentious matters never reached a level to justify a dedicated Probate judge, nor were they sufficient to create a specialist bar.³⁶³ Around 200 actions a year were commenced, less than one-fifth of the division’s workload, though a high proportion—some 60 per cent—went to trial. The judges shared probate work amicably, but despite a sprinkling of sensational cases it was not a field to make or mar reputations.³⁶⁴ The court was generally uncontroversial and avoided official investigation.

The Principal Probate Registry (PPR)

The registry was headed by four registrars³⁶⁵ with the senior having an ill-defined supervisory role. They performed four functions in rotation among themselves; one sat in court; another presided over the common form business; a third handled correspondence from the district registrars; and the fourth taxed costs in probate and divorce and dealt with references.³⁶⁶ Registry clerks might become registrars directly, like Musgrave, or, like Owen and Inderwick, after a turn as district registrar.³⁶⁷ The registrars held office during good behaviour, and while (p.736) Jenkins (whom Muir McKenzie considered the most able), retired at 70 on principle, one was still clinging on at 86.³⁶⁸

The registrars presided over what was by the standards of the day a considerable bureaucracy of around 150 clerks, copyists etc.³⁶⁹ Since the PCC clerks had to be found positions as similar as possible to their existing ones, some men were clearly overpaid and there was confusion over conditions of service and entitlements.³⁷⁰ On the other hand, some former PPR and proctors’ clerks complained they had to become copyists with little hope of promotion.³⁷¹ They and newcomers, who needed a civil service certificate³⁷² and were invariably appointed to the lowest grade, found promotion was discouragingly slow and some of the abler clerks never did rise above the overcrowded third class,³⁷³ which was particularly frustrating for university men or qualified barristers or solicitors.³⁷⁴ Moreover, the exercise of judicial patronage in the registry exacerbated the tensions between PCC clerks and newcomers, which were further aggravated by some unpleasant manifestations of social snobbery on the part of some of the latter.³⁷⁵ In 1905 Jeune improved matters somewhat through a purge of several of the oldest men, leaving only a few over 65,³⁷⁶ but the registry was firmly wedded to the old ways, abhorring open competition, promotion by merit, and the employment of women; even by the standards of the SCJ it was old-fashioned.³⁷⁷

The registry occupied several houses in Doctors’ Commons until it moved into Somerset House in the early 1870s.³⁷⁸ This detachment from the core of the Supreme Court offices, and from its own judge (who was never seen there) was one (p.737) factor contributing to the minor slackness which pervaded the establishment.³⁷⁹ It was originally divided into nine departments³⁸⁰ and a tenth, the personal applications department, was added in 1862 to cater for individuals who presented themselves in person rather than employing a solicitor or other agent. Intended to accommodate the poor, they were a minority of its users, who became numerous enough for it to need more space.³⁸¹

The procedure for obtaining a grant in common form was elaborate and often entailed several visits to the registry.³⁸² The central figures in the process were the four clerks of the seats, each assisted by six clerks, who prepared the grants for the registrar’s signature.³⁸³ It was claimed in the 1870s that their work was more demanding than in the old PCC because instead of dealing only with knowledgeable proctors they received papers from solicitors, whose mistakes were frequent; however, the Lisgar Commission was rather sceptical that London solicitors were still generally unfamiliar with probate forms.³⁸⁴

Unsurprisingly given the circumstances of its creation, the registry was admitted to be top-heavy and struck outsiders as overmanned.³⁸⁵ Pemberton thought it could be trimmed by 20, but Hannen was pressed by the senior registrar to keep up the establishment as applications began to rise faster in the late 1870s.³⁸⁶ The Lisgar Commission felt there was room for a substantial simplification and consolidation of duties but in fact because arrears in the copying of wills accumulated extra copyists had several times to be recruited.³⁸⁷ The staff were reorganized in 1882 and modest changes in practice introduced, but with grants rising from 19,262 in 1879 to 28,649 in 1892 delays developed in the examining of wills and calendaring of documents which were investigated by a small committee in 1893.³⁸⁸

(p.738) The outcome was the creation of a scrivenery department along with a cautious degree of modernization, which fell well short of what Muir McKenzie had hoped for:³⁸⁹ parchment gave way to paper and there was a cautious move towards typing. The ‘very embarrassing’ fact that some clerks worked a very short day³⁹⁰ was intractable because of the likelihood of compensation claims, and the abandonment of the Judicature Bill of 1893 limited what changes could be accomplished.³⁹¹ Even the lengthening of opening hours from 11 am to 3 pm to 10 am to 4 pm in vacations was quietly abandoned with the connivance of solicitors.³⁹² As a later investigation showed, changes would seldom be initiated from within, for there had been no extension of typing, no innovations in indexing or record-keeping, and no provision for postal applications.

The District Probate Registries

The 30 or so district registries Cranworth had envisaged were expanded to 41 during the bill’s passage. They included all but a few diocesan registries and some large cities—Newcastle, Birmingham, Manchester, Liverpool, and Wakefield—were added after strenuous lobbying.³⁹³ Diocesan registrars or their deputies who were executing their duties in person and not deemed incompetent by reason of age, ill-health etc., were entitled to be made district registrar; otherwise the registrar was to be a barrister, solicitor, proctor, advocate, clerk to a proctor of Doctors’ Commons, officer or clerk of the PCC, or the Prerogative court of York or of a diocesan court.³⁹⁴