1. Fusion by Convergence
In Eldon’s time there were signs of doctrinal convergence between law and equity. His approbation of remarks by Lord de Grey CJ and Lord Mansfield that they never liked equity so much as when it resembled the law and vice-versa1 were consonant with his own notions of equity2 and although equity occasionally displayed its continuing capacity for parthenogenesis—the restrictive covenant and the curious equitable tort of breach of confidence both emerged under the procedurally conservative Lord Cottenham3—it was not, in general, expansive. The common law was gradually coming to exhibit a more broadly equitable approach, at least inasmuch as through reforms to the law of evidence and pleadings and a greater control over jury verdicts judges fine-tuned their decision-making in the light of a fuller knowledge of the factual matrix.4
In institutions and personnel, however, the separation became more complete.5 Chancery barristers ceased to go circuit and the court sat more often in Lincoln’s Inn. The Exchequer, which had dispensed both law and equity (albeit impermeable to their interpenetration6), lost its equity side in 1841. The great sessions of Wales, on which judges dispensed both law and equity, had already been abolished and the courts of requests, licensed to deal out rough and ready equity, were replaced by county courts which did not acquire an equitable jurisdiction until 1865.7
The ‘fusion’ of law and equity, whether in its most ambitious form of a code combining their doctrines, or in the narrower sense of enabling each be to dispensed (p.758) within the same court, did not feature on the reformist agendas of practical men until around 1850. It then emerged onto centre stage through a combination of negative publicity for the divided system and the favourable reception given to the code of New York expounded by David Dudley Field on his two visits to Britain.8
These events coincided with (and helped to produce) renewed investigations into the superior courts. The law officers rejected the opportunity to stage a wider inquiry9 and the parallel operations of separate commissions on common law and Chancery greatly influenced the approach to fusion. Once each commission had completed its review of the major remaining defects of procedure and organization, it turned to those caused by the want of remedies, procedures, and facilities which belonged to the other side—with a view to remedying the complaint that recourse to two courts was often needed to obtain justice.10 The Chancery Commission cautioned that to achieve doctrinal fusion would require an entire revision of the law and that ‘to blend the courts into one Court of universal jurisdiction’11 was a change of such magnitude that it required fuller consideration, but concluded that most of the practical complaints could be met by endowing each court with the full armoury of legal and equitable remedies. It did postulate a major functional difference between the types of case for which each court was best suited, but while admitting that the common ground, where litigants might choose either a court of law or one of equity, would be enlarged by these facilities, denied that this would cause any difficulty, instancing fraud, account, and debts of deceased persons as existing areas where this created few problems.12
In furtherance of this approach, Chancery was given the power to decide common law questions without reference to common law judges; to hold oral examinations of witnesses; to assemble a jury to determine disputed questions of fact; and to award damages in lieu of injunction or specific performance.13 Few of these additions were either sought or welcomed by the judges, most of whom continued in the old ways and shunned the new.
Parallel developments took place across the divide. The first Common Law Commissioners had argued for expanded facilities to compel the production of documents and for the pre-trial discovery of facts, and these were conceded ‘very partially’ in 1852.14 The courts also obtained new or extended powers to (p.759) grant injunctions, relieve against forfeiture, admit interpleaders, and hear and decide upon equitable defences.15 Some of the older common law judges had little enthusiasm for these innovations,16 but a new generation had a more adventurous outlook and its representatives on the Commission were impatient with the limitations on their new powers.17 They agreed with the Chancery Commissioners on the desirability of co-ordinated jurisdiction, but expressed themselves more boldly: ‘the courts of common law, to be able satisfactorily to administer justice, ought to possess in all matters within their jurisdiction the power to give all the redress necessary to protect and vindicate common law rights and to prevent wrongs, whether existing or likely to happen unless prevented’.18
The premise seemed unimpeachable, yet the Commission’s demands, in particular for injunctions against threatened wrongs and for specific performance, met with opposition. The equity judges denounced them as unacceptable19 and they had to be stripped from Campbell’s bill before it could pass.20 The Commissioners had, with a mixture of arrogance and naïveté, overreached themselves. They might disclaim any ambition ‘to extend, for the mere sake of extending, the field in which the courts have common jurisdiction, by giving to the Common Law Courts powers which may be exercised with equal benefit in the Court of Chancery’,21 but their real intention was just as unacceptable to equity lawyers and judges, being to create ‘[a] contrary and more effectual mode of putting an end to the contest between Courts of Common Law and Chancery by so distributing their jurisdiction as to render their interference with one another impossible’.22 The aim was all too clear: to confine Chancery to those areas ‘entirely outside the pale of the common law jurisdiction’23 and to recapture exclusive jurisdiction over all areas within its own purview. From the tone of their brief comment on ejectment it is evident that they regretted the separate existence of equitable estates in land, and they envisaged taking back even so central a part of equity as mortgage actions.24
(p.760) Though this was obviously a turf war, there were more presentable reasons for Chancery men to object. Chancery judges often exaggerated the importance of the common law courts’ want of their own elaborate machinery for handling complex accounts and ongoing administrations, but there were legitimate doubts about the ability of a common law judge at nisi prius, unassisted by the Chancery bar, to handle sophisticated and unfamiliar equitable doctrines. Some judges were not only ignorant of these equitable doctrines but disparaged them; Commissioners Bramwell and Martin were notorious for this, while Cockburn would later argue that once the common law adopted those equitable glosses which its rigidities had made necessary, distinct equity courts would be almost redundant.25
Even the idea that courts of law and equity might simply compete for litigants within their concurrent jurisdiction ignored the fact that inconsistent pronouncements on law by Chancery judges and on equity by their common law counterparts would only confuse both branches, leaving the unsatisfactory forum of the House of Lords to decide between them.26 The defeat of Campbell’s proposals marked the end of this route to fusion, and there followed a lull during Westbury’s Chancellorship—oddly, for he had been a very vocal advocate of fusion.27 Fusion was resurrected by Gladstone’s Attorney-General Sir Roundell Palmer, whose royal commission was novel in comprehending the organization and jurisdiction of all the superior courts, common law, equity, and civilian.28 The membership was as wide as the remit (though like its predecessors it was a judge and lawyer-dominated body) and Palmer’s choice of Sir Hugh Cairns, eminent both as a Chancery lawyer and a Conservative politician, as chairman was shrewd. Equally significant was the omission of all three chiefs, Cockburn, Kelly, and Bovill.
2. The Judicature Commission and the Judicature Acts
The Commission’s deliberations stretched over almost seven years and resulted in five reports. Its remit was expanded first to embrace inferior and local courts and then to consider the desirability of tribunals (p.761) of commerce, and its membership also grew, notably on the common law side, the chiefs being added when tribunals of commerce came into question. The final strength of 27 was far too large for effective deliberations and no doubt a few members took the major part.29
All the Commission’s really important work was contained in its first two reports, but while the first was largely carried into effect, key parts of the second were not.30 As the trail of dissents and caveats to the second report shows, the Commission struggled for an agreement on the crucial matters of the delivery of justice in the provinces and the relationship between the superior and inferior courts, whereas its composition almost guaranteed that it would dismiss the demand for tribunals of commerce.31Investigations into chamber practice—where it did little more than print evidence32—and public prosecutors (delegated to a committee and doubtfully within the terms of the Commission) followed. However, instead of fulfilling its promise to grapple further with the vexed question of Assizes, the Commission wound up anticlimatically with the tame conclusion that it would be ‘inexpedient to prolong our inquiry into these matters’.33
The achievements of the Commission have been valued very differently.34 The Judicature Acts are described by Stevens as ‘the most sweeping reform in the history of the English courts’,35 while for Manchester they were ‘little more than a useful…summation of a piecemeal, evolutionary process which had taken far too many years to achieve; above all, an opportunity to make a radical overhaul of the whole system was missed’.36 Sir Jack Jacob, acknowledging that they were ‘a turning point in English legal history’, found them ‘in many respects…short-sighted and even myopic about the needs of the administration of justice’.37 Those disposed to belittle the reforms of the 1870s can cite the failure to effect a doctrinal fusion of law and equity; the over-elaborate structure of appeals, and the survival of the Assizes. The last two at least demonstrated the obstacles to any radical reform posed by vested interests and entrenched prejudices. The collapse of other legal reforms of the time—the attempt to codify the criminal law and to modernize lawyers’ education and the inns of court—underlines just how formidable those obstacles were, especially when coupled with the distractions of more (p.762)pressing or ‘popular’ business in Parliament (the Public Worship Regulation Bill in 1874 and the Eastern Question in 1878 for example) and make what was achieved as impressive as it was undoubtedly limited. Moreover, what was then put into place provided a platform for further reforms, though politics and personalities ensured they did not follow.
The Commission was emphatic in its conviction that a continuation of piecemeal reforms would be insufficient to remedy the ‘evils’ stemming from a divided judicature. It insisted that the remedy lay in creating a single court with judges dealing out common law or equity as appropriate. True, this full court would seldom sit, save where its judges made up the court for Crown Cases Reserved, but each judge would be competent to hear cases in any of the chambers or divisions into which the court would be divided for administrative convenience. This radicalism was sensibly tempered by the recognition that it would be prudent to ‘facilitate the transition from the old to the new system’ by initially retaining the identities of the existing courts as distinct divisions and distributing business among them more or less on the existing footing.38
Even with these concessions there was enough that was threatening to traditionalists on both sides of the law/equity divide to provoke strident opposition. On the common law side the most influential critic was Chief Justice Cockburn. He suggested that the common lawyers on the Commission had only accepted its proposals for fear of more drastic ones,39 and certainly the threat to fundamental features of common law practice—to pleadings, juries, and sittings in banc—warranted concern. But Cockburn’s chief fear was a loss of independence and the subjection of his and other common law courts to the Lord Chancellor, anxieties the structure of the proposed court hardly supported.40 Many on the equity side were equally alarmed and with at least as much reason. They would be a small minority in the new court, their distinctive jurisprudence (whose rarefied sophistication they were liable to exaggerate41) threatened by common lawyers who neither understood it nor respected it.42 Since the proposed reforms also fell short of what more radical reformers, such as the Master of the Rolls, wanted,43 it should have been clear that a bill to implement those proposals would need the most delicate and diplomatic management.
From Lord Hatherley (a member of the Commission) it received neither. He took too little trouble to conciliate the judges, and seems not to have consulted Cairns, a pivotal figure, with the result that Cockburn presented a petition from the judges (p.763) against one key aspect of the reforms44 and not only Cairns but two former Lord Chancellors in Westbury and Chelmsford were severely critical.45Worse, the bill itself was a mere skeleton, and by leaving most of the sensitive questions to be dealt with in rules it only confirmed the worst fears of partisans of law and equity alike. Despite substantial concessions it had to be abandoned and reform stalled until Palmer returned from his self-imposed exile to become Lord Chancellor Selborne.46 Selborne learned from his predecessor’s experience. His bill was accompanied by the rules, Cairns’ general approval was gained47 and further necessary concessions were made. The divisions kept their old names, with the Queen’s Bench tactfully listed first, ahead of Chancery.48 The Chief Justice of the Common Pleas and Chief Baron were named among the ‘presidents’ of divisions alongside the Lord Chancellor and Chief Justice of the Queen’s Bench. That, along with the requirement for approval by the new ‘judges’ council’, virtually guaranteed that the power to remodel the divisions would not be exercised while those chiefs lived.49 The allocation of business was set out in the bill and the Queen’s Bench was assured of its exclusive criminal jurisdiction.50 The equity bar’s concerns about being swamped were hardly allayed, but Selborne could at least point to the ‘prevalence of equity’ clause which gave equitable rules priority in the event of conflicts.51
This was the structure which finally emerged in 1875.52 Though the newest of the chiefs, Coleridge, came to wish he had fought to keep the old courts as separate entities,53 he could not resist the logic of consolidation when the departures of Cockburn and Kelly finally opened the way in 1880.54 Only the most conservative (p.764) judges joined in him voting against,55 and though they found some unlikely allies in the House of Commons,56 in January 1881 the Exchequer and Common Pleas ended their long existence, giving the High Court a shape that would endure for 90 years.
The retention of the three common law divisions was one reason why the reduction in judges, which some felt was the principal aim of the Commission, was not achieved.57 Selborne and Gladstone, like Hatherley, were keen that there should be a ‘free circulation of judges’, enabling resources to be targeted on busy areas58 and Selborne’s Act envisaged that common law puisnes would be reduced from 15 to 12 through unfilled vacancies arising from immediate appointments to the new Court of Appeal.59 This was justified on the ground that the election petitions which had prompted an expansion in 1868 had proved to be fewer than expected,60 but the reduction was unpopular with the legal profession and was abandoned by Cairns in 1875.61 Under persistent pressure the government conceded the appointment of a new judge to the Chancery Division in 187762 and in 1881 replaced the two chiefs with two puisnes. With overall levels of business more or less static, the High Court should have been able to cope.
3. Making the Rules
Hatherley’s original notion was that the court should make its own rules, through which ‘the procedure in each divisional or other court shall so far as is possible be assimilated’.63 In the event a small group consisting of Bramwell, Quain, Sir William James, and Hollams was given the task and their handiwork became the foundation for the rules embedded in the 1873 Act.64 Always intended as (p.765)temporary, these rules were superseded in the 1875 Act,65 and a rule committee was established to continue the work.66
The workings of the Judicature Acts and rules came under sustained criticism, especially for making litigation more, rather than less, expensive, and in 1881 Selborne charged a committee headed by the LCJ with considering how they might be improved. Their report met with a mixed response.67 By recommending a lower scale of costs where the sum claimed did not exceed £200 it upset solicitors;68suggestions that pleadings were usually unnecessary and that the use of juries might be limited antagonized many lawyers and their proposal that a single master handle all interlocutory applications in a cause was not welcomed by the masters.69 Some felt their suggestions, especially for appeals, favoured the divisional courts over the Court of Appeal. On the other hand, at least some lay opinion was favourable.70
It was to be expected that the new rules of 1883 would also be attacked, though in fact they were less radical than the report,71 the ‘barbarous proposal to abolish pleadings’ being a notable casualty.72Giffard complained in Parliament that there had been insufficient time for consultation and that their ‘tone and tendency…was to make HM’s judges absolute despots in the Courts of Law’,73 an absurd exaggeration, though judges were given some new powers, e.g. to intervene in cross-examination.74Conservatives might lament the demise of the (p.766) demurrer, but Order 25 was an effective replacement;75 some worried about the repeal of Keating’s Act, but Order 14 with its much wider application offered ‘the most effective weapon the law has ever had in its armoury’;76 there was some outcry over the supposed violation of the right to jury trial, but the practical effect of the change was very slight.77 There were to be restrictions on applications for discovery and on interrogatories, and hopes were pinned on the new ‘notice to admit’, though there was scepticism about these measures.78Despite the masters’ grumblings, the proposal to allot each cause to one of their number was implemented and they were charged with operating the new ‘summons for directions’, an innovation admirable in theory but which was to have a long and disappointing history.79 The rules had plentiful defects and were not comprehensive,80 but there was general approval that there now existed a single code which, if it fell short of the ambition of unifying procedure in courts administering law and equity, at least brought those procedures into one set of rules.81
4. Teething Troubles
In February 1881 Henry Fowler, a persistent and well-informed critic of the legal system,82 deplored the ‘breakdown of the Judicature Acts’. Two years later he claimed that costs and delays had soared.83Many agreed, and even the Acts’ most enthusiastic supporters conceded that results had fallen well short of expectations.84
Various explanations were given. Serious delays in Chancery in 1876 and again in the early 1880s arose partly from the move to viva voce evidence, with which judges and practitioners were unfamiliar, and (according to some) to an influx (p.767) of common law business, perhaps attracted by a more liberal costs regime.85 At common law the reasons were more complicated, but there too procedural changes undoubtedly contributed.
One factor was the growth of interlocutory motions in chambers. In 1867 the common law courts had been authorized to delegate some chambers work to the masters, which ‘relieved the judges from doing a great deal of rubbishy business’.86 Three masters sat in rotation in the chambers of one of the judges, who came (often late) to handle the more sensitive and complicated matters.87 Though the masters claimed that the arrangement was a great success, the organization of chambers business was chaotic (they were known as the beargarden)88 until reformed (and the masters’ jurisdiction extended) along the lines suggested by a judges’ committee in 1878.89 But even though some judges sought to restrict the resort to discovery and interrogatories, the latter came to be sought routinely and discovery, though useful, was undoubtedly expensive.90 Both were abused and their increasing volume gave rise to unfortunate delays, particularly affecting the masters’ role in handling references.91 It remained to be seen whether the important changes of 1883 would improve the position.92
To compound these delays at the interlocutory stage, there was a double appeal from the master, first to a single judge and thence to the judges in banc. The Judges’ Committee was dissuaded from recommending that appeal should lie straight to the latter by evidence that most litigants did not pursue appeals beyond the initial level;93 indeed it was argued that except in term time the appeal to the divisional court was hardly feasible.94
(p.768) However, some difficulties on the common law side were of the judges’ own making. In particular, as Selborne and Cairns repeatedly pointed out, they ignored the Judicature Commission’s measured conclusion that the single judge system should become the norm.95 Even Blackburn, a member of the Commission, affected to assume that banc sittings would remain the general rule, and Cockburn was wedded to them.96 Selborne had conceded to Cockburn that there should be banc hearings for ‘such matters as are not proper to be heard by a single judge’, though he offset this by a further proviso allowing a two-man divisional court where ‘through pressure of business or other cause [three] may not conveniently be found practicable’.97 An attempt to strengthen the presumption in favour of a single judge in 187698 was unsuccessful and the Queen’s Bench divisional court continued to serve both as an appeal court and as a substitute for banc.99
It was much more difficult to accommodate banc sittings within a legal year which now required continuous sittings (save in vacation), and had a fourth Assize. Such adaptations needed both goodwill and organizational skills, and the veteran chiefs possessed neither, while Coleridge soon began to hanker after the old ways.100 The legal press was scathing in denouncing the confusion that existed at times101 and Fowler opposed the abolition of the chiefs for fear an enlarged QBD would be even less well administered.102 In fairness to the chiefs, however, until the opening of the new courts in 1882 rational organization was greatly hampered by the way the courts, offices, and chambers were scattered around Westminster.103
Nevertheless, it was hardly unfair if ‘outdoors it was asserted too frequently that the Judges had not really shown that anxious desire to accommodate themselves and the business of their Courts to the new system which might fairly have been expected’.104 One judge was quoted as saying, ‘the beauty of the bill (p.769) [of 1873] is, that it seems to do so much, and does so little; it looks as if we were all to be transmogrified, but it is only the difference between “as you was” and “as you were”’.105 Chief Justice Bovill was reconciled to it only because it did not seem to require much change,106 and this negative outlook was not confined to the older generation either; for among the most outspoken dissidents were Henry Manisty and Fitzjames Stephen, appointed in 1876 and 1879 respectively, and when attempts were made to diminish the two most distinctive common law features, jury trial and banc, Coleridge CJCP railed at the ‘absolute destruction of the old system of common law’ and quoted a letter in which Brett J. wildly exaggerated the impact of proposed reforms.107
Such attitudes inevitably coloured the judges’ approach to their job. Even the reactionary barrister/MP Warton pithily remarked that they ‘came late, lunched long, tried slowly, and rose early’.108 The attachment of bar and bench to the long vacation was invincible and the judges’ council managed to confine a proposed reduction to a few days.109 Their opposition extended to longer court hours and vacation office hours,110 and to many laymen the protracted closures of the courts remained a scandal.111
As with banc, the common lawyers fought a rearguard action for the civil jury. The Judicature Commission had envisaged that jury trials would become just one of several modes and that it would often be displaced by a preference for the official referees or judge only;112 but Cockburn led a successful resistance and it was only in 1883 that the Coleridge Committee proposal, watering down the right to jury trial in any common law action (which cases such as Sugg v. Silber 113 had shown capable of absurd results), was implemented and judge-only trial became the standard form.114
Similar attitudes affected other innovations. It was said that Quain, one of the draftsmen of the original rules, would hardly give the new pleading rules a fair chance and other judges did their best to restore or preserve old forms.115 The provisions about discovery were narrowly construed and interrogatories (p.770) were routinely refused as premature until the opposing party’s case had been disclosed, contrary to the purpose for which they were envisaged.116
The common law side was not uniquely conservative. Chancery judges were equally prone to pervert the pleading rules, with two vice-chancellors attempting to make affidavit evidence the normal mode in their courts.117 Most glaring of all, Jessel MR, that daring advocate of substantive fusion, breezed through his list by invariably remitting issues of fact to be tried at Assize. When Baron Huddleston refused to try one such case, Coleridge denounced Jessel’s practice as ‘contrary to the whole spirit of the legislation’ and Selborne and Cairns agreed with him, for it disrupted the scheduling of cases on circuit and its implications were profoundly divisive.118
The main purpose of the Judicature Acts was to effect a fusion of courts, not a fusion of law: on that Selborne and Cairns were in full accord. It had been assumed in some quarters that if the organization and procedure of the two systems were brought together, ‘equity and the common law will intertwine and become one growth’.119 However, once the implementation of the Commission’s proposals got under way doubts became more widespread and the common law judges argued for at least the basic principles to be set out in the Act. The ‘prevalence of equity’ clause which Lord Penzance had first introduced into Hatherley’s bill was finally transmuted into distinct provisions to resolve clashes between legal and equitable rules, concluded by a general clause (section 25). These provisions generated surprisingly little debate.120
The effect of this ‘safety-net’ at the end (section 25(11)), which stated that where the two were in conflict or at variance ‘with reference to the same matter’ equity was to prevail, remained to be worked out.121 It most evidently applied where (p.771) contradictory rules of each jurisdiction were shown already to exist. Beyond this, courts would sometimes be tempted by counsel to favour a new extension, restriction, or qualification of the former law, whether that earlier rule was from common law or equity, as a result of ‘fusion into one law’. On the whole, however, they resisted such invitations, adhering to the standard answer, given often enough, that the new judicature was only a matter of court administration.122
Let us take one example where ‘fusion’ made no difference (damages for negligent misrepresentation); and another where it did, but only in very particular circumstances (the effect of a contract to grant a lease). During the 1880s a much debated question was whether innocent misrepresentations could be compensated in common law damages, or whether the only remedy lay in an equitable order forrestitutio in integrum, in so far as that remained practicable.123 In 1889, as will be discussed elsewhere, the House of Lords would uphold the refusal of common law courts to expand the tort of deceit to encompass negligent misstatements.124 The reasons given were mainly based on the weight of the precedents; but the inexpediency of increasing the scope of an action for damages also crept in.125 However controversial the result, it did not turn on some loose argument that ‘fusion’ demanded the opposite conclusion.
The instance which gave rise to most speculation about fusion was Walsh v. Lonsdale,126 where the owner of a spinning factory had contracted to lease it to a tenant under specified terms. The tenant had been permitted to occupy the (p.772) factory for some months even though a lease in proper form had not been executed. At common law, the tenant’s entry gave rise to a tenancy from year to year, payable in arrears; if that was the extent of his liability, he had paid the rent due and so was not liable to suffer a distraint of his goods on the premises. Had the lease been executed, it would have required payment of rent in advance and the non-payment would have justified the distress that the landlord levied. The reported interlocutory proceedings concerned whether money should be paid into court in order to ensure satisfaction if at trial he should succeed in establishing that the contractual terms of the lease were already in effect. The nub of his argument, which Jessel accepted, concerned whether the maxim by which equity regards as done what ought to be done gave a right to enforce the contractual terms intended for the lease, despite the fact that the lease itself had not been executed. Jessel went so far as to pronounce that:
F. W. Maitland insisted that, whatever else might be the consequence of Jessel’s variety of ‘fusion’, it could not be a reason for holding the intended lessee entitled at law against a third party, such as a later innocent purchaser of the freehold or grantee of a lease in proper form.128 That would overturn the distinction in nature between equitable and legal interests in land. The requirement to grant leases in set form led to conveyancing practices which limited the searches that the purchaser or lessee had to carry out—an arrangement that gave order to the distribution of the transaction costs between the two parties. What could be the practical advantage of changing such basic classificatory rules? After the 1880s arguments that substantive rights were affected by the general nature of the Judicature Act, coalescence become rarer. That is probably because they are inherently weak, seeking to cast a gloss over a development of the law that a judge wishes to make for more specific reasons.
There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it.127
As for procedure, if not ‘a mere paper fusion’ as one disillusioned MP called it,129 the effect of the Acts was modest. The temporary divisional structure (p.773) rapidly hardened into permanence and after several early appointments from the Chancery bar to the common law divisions and transfers between divisions, Hatherley’s ‘free circulation of judges’ did not materialize.130 However, the judges now sat under the same roof, operated under a common code of rules and were subject to a common appeal structure. Those changes should have gone a long way to curing the twin vices of the law, expense and delay, but they did not. Combining those features of each system which the reformers felt best—the common law’s use of oral evidence, equity’s preference for a single judge and facility of non-jury trial—and developing a single code of pleading and interlocutory facilities probably improved the quality of dispute resolution, but save for undefended liquidated demands it did not streamline it, nor make it cheaper. The challenge to the Supreme Court of Judicature in its new home in the Strand would be to make its services available at an affordable price to litigants and at an acceptable cost to the public.
6. Tribunals of Commerce
After their second report, Selborne had the Commissioners turn their attention to proposals for tribunals of commerce embodied in a bill presented on behalf of the Association of Chambers of Commerce.131 It was a convenient way of disposing of an unwelcome bill, and one which presented some danger, since the idea had earlier obtained the backing of a partisan Commons select committee.132
That committee had acknowledged ‘general dissatisfaction existing among the mercantile community’ with the superior and county courts.133 Most businessmen had long resented the cost, slowness, and technicality of common law adjudication, but there was now a substantial body of opinion that objected also to the rigorous application of legal doctrines and hankered after a court which would apply their own customs and usages in a pragmatic, commonsense way. They thought they saw tribunals in France, Belgium, Germany and elsewhere which did precisely that, and now sought to import foreign models, whose very foreignness set off the latent Podsnappery in many lawyers, just as Brougham’s ill-fated ‘courts of reconciliation’ always had.134
(p.774) Of course businessmen could avoid the courts altogether if they agreed, either in their initial bargain or during their dispute, to resort to arbitration. Locke’s Act of 1698135 had given encouragement to this and although in the great case of Scott v. Avery 136 Lord Campbell was misled by poor reporting of two of Hardwicke’s decisions into suggesting that Georgian judges had been antipathetic to arbitration, in fact the resort to the courts to enforce arbitration agreements or awards grew in popularity not only in Mansfield’s busy King’s Bench but in the less frequented Common Pleas, and lawyers were increasingly chosen as arbitrators.137
On the basis of recommendations from the Common Law Commissioners, gaps in the powers of arbitrators were filled in 1833138 and 1854.139 True, the judges exacted a price for lending their services to facilitate arbitration, extending their supervision to cover not only fraud and procedural irregularity but, to a rather uncertain extent, departures from the common law rules themselves,140but still it became a credible alternative to litigation.141
How popular it was is necessarily uncertain. Even institutional arbitrations by trade organizations are not very fully studied, but they were probably most successful when used within a particular, close-knit trade rather than within a defined locality.142 The first Common Law Commission had suggested giving judges the power to direct an arbitration where a case was unsuited to jury trial, but that was not enacted until 1854, and then it was confined to matters of account.143 However, judges freely invited parties to go to arbitration, and the Judicature Commissioners had already cast a disapproving eye over such arbitrations. If conducted by a layman they were liable to be flawed in reception (p.775) of inadmissible evidence, while lawyers were too apt to adjourn the hearing to attend their other commitments. Arbitrators’ fees were pretty much at large and sometimes outrageous144 and the Commission felt that control over the proceedings and challenges to the outcome were alike inadequate.145
But if lawyers were unenthusiastic about court-directed arbitrations, many businessmen were much more so. The Liverpool chamber of commerce originated the campaign for mercantile tribunals146and it was rapidly taken up by the Association of Chambers of Commerce, which passed regular resolutions.147 A select committee in 1858, a bill to set up a merchant shipping tribunal in Newcastle (1865), and a deputation to the President of the Board of Trade all proved abortive,148 but Manchester eventually went ahead with its own tribunal, the common council of the City of London had one under discussion, and there was even a private enterprise speculation.149
Yet there was never really any chance that the Judicature Commission, even with Sir Sidney Waterlow added to represent the world of business, would be sympathetic to a cause even the Law Amendment Society opposed.150 The legal profession in general was hostile to the creation of specialist tribunals, whether for patents, railways, or personal injuries, and saw nothing about commerce which made it a special case.151 Opposition was made all the easier because the foreign tribunals differed widely in fundamental features and proponents of tribunals could not agree on a scheme.152 There were difficult practical questions to be resolved: the geographical reach of tribunals; the types of disputes they could hear; their powers to enforce decisions; the rules of evidence; the right to representation; and the facility for appeals. But the majority of the Commission, and all the lawyers except Lord Penzance, also urged the importance of consistent and principled (or at any rate rule-based) decisions, attributing far greater value than most business men did to legal certainty: ‘[I]t is of the utmost importance to the commercial community that the decisions of the Courts of Law should on all (p.776) questions of principle be, as far as possible, uniform, thus affording precedents for the conduct of those engaged in the ordinary transactions of trade.’153 If commercial expertise was wanting in the court (now that special juries could no longer be held out as providing it) the judge could be enabled to appoint expert assessors to sit with him as in Admiralty,154 though given judges’ neglect of the power to refer a technical matter for an expert opinion, there was justified scepticism about that.155 Bramwell alone was prepared to countenance a limited experiment, and was criticized for it.156 The report was predictably dismissive and though the idea resurfaced from time to time, it was never a practical proposition.157
7. Provincial Justice
The creation of a coherent and efficient structure for civil justice outside the metropolis was an altogether more complicated task than reorganizing the courts in London, involving as it did both criminal and civil matters, and the relationship between the superior court judges on Assize, the county court, sundry surviving local courts, and the quarter sessions. It is not surprising that such a thoroughgoing reform was not accomplished.
The original instructions of the Judicature Commission were not so ambitious, though they did require the Commissioners to examine the Assizes.158 However, even the relatively modest proposals in the first report would have had a momentous impact on the professions, and in particular on the bar. The suggested change in the rules for venue, shifting the place where the dispute arose as the normal place for its trial to one chosen by the plaintiff, would accentuate the drift of business to London.159Continuous sittings at nisi prius