The Superior Courts of Common Law

1. Practice and Procedure1

The Pre-trial Stage

Initiating proceedings

The writ system through which a plaintiff activated the superior courts had developed by offering a particular writ, issuing out of the Chancery, for every recognized cause of action, and choice of the correct writ was crucial. In the 1820s there were still actions, the real actions for the recovery of dower and advowsons for example, for which this traditional course had to be followed, and others where it might sometimes be prudent; thus it was unwise to employ a latitat in the King’s Bench against a defendant with the determination and means to resist, for he could take an adverse verdict direct to the House of Lords by a writ of error, by-passing the Exchequer Chamber. However, over the centuries the original writs had in many cases been superseded or circumvented by various devices, and the Common Law Commissioners identified 17 ways of commencing an action in the common law courts.2

This proliferation of procedural devices had three sources. Some were privileges granted to officers of the court ( including its attorneys) to sue or be sued in their own court; others sprang from the determination of the King’s Bench and Exchequer to acquire business properly belonging to the Common Pleas; still others were attempts to reduce the complexity and expense associated with the writs themselves, some of which, including popular actions of trespass and assumpsit, demanded the expertise of a special pleader. Fortunately the older writs for land recovery had, with few exceptions, been superseded by the fiction-laden action of ejectment.3

(p.570) In volume the personal actions of latitat and the bill of Middlesex dominated the King’s Bench, numbering 38,138 and 17,913 respectively of 66,549 cases commenced in 1827 (there were also 1647 ejectments). In Common Pleas the capias ad respondendum, with 16,794 out of 18,529, was even more dominant, while in the torpid Exchequer quominus accounted for 6618 of 8397 actions.4 A further complication was that while most original process took the form of an instruction to the defendant to appear in court, the majority (capias in particular) could also be sued out in bailable form, that is, as a command to the sheriff to arrest the defendant and secure his appearance by keeping him locked up or insisting on adequate bail.5

Such complexities, which bulked large in practice books such as Tidd’s6 and had only an historical rationale, had few defenders. The King’s Bench filazers, with ineffable complacency, airily declared that ‘we are not aware of any inconvenience attending the practice of commencing actions by original writs’,7 but even the Common Pleas prothonotaries felt rationalization would be desirable and practitioners were virtually unanimous in condemnation.8

Hence the Commissioners might expect little criticism if they proposed a radical simplification.9Concerning the real actions they were in agreement with the Real Property Commissioners in recommending the abolition of most of them as being usually the resort of unscrupulous practitioners with unmeritorious clients who were almost invariably foiled by hostile judges insisting on the most minute exactitude in their deployment.10 The Real Property Limitations Act 1833 preserved only writs of dower and quare impedit, which survived as relics of feudalism until 1860,11 though the Commissioners’ proposal to convert ejectment into a more straightforward plea of land was not carried out. Ejectment was later amended and the fictions dispensed with but, unlike the earlier proposal, this confined the point at issue to a pure question of who had the better title.12

(p.571) Uncertainty about the future of imprisonment on mesne process obstructed a single form of personal action.13 While the Commissioners’ recommendation for a very simple writ of summons was adopted, suitors were given the alternative of a simplified form of capias to preserve the option of bailable process.14 The value of the uniform process was slightly diminished by the judges’ decision (contrary to the promoters’ ideas) to restrict its scope to the county named in the writ, but this limitation, and the superfluous requirement to name the subject-matter of the action, were removed in 1852.15

Joinder of parties

An action had to be brought in the name of all parties with legal title to sue and only those parties. In contract-based forms of action the omission of a plaintiff or a wrong joinder each caused the action to fail and although in torts that omission only entitled the defendant to plead in abatement, a wrong joinder was fatal to the action. As for defendants, wrong joinders in contract were fatal and omissions of parties gave rise to pleas in abatement; in tort, however, neither was of much moment.16

The first Common Law Commissioners recognized the difficulties which were experienced in identifying the correct parties, but regarding the general rules as ‘not practicable to simplify’,17 and being especially alert to misjoinders being misused to keep a dangerous witness off the stand, they recommended only minor changes.18

The second Commissioners were bolder, and most of the penal rules were relaxed in 1852 by giving the court a large power before or at trial to allow amendment as to parties and to do likewise if a plea of abatement was entered.19 This did not help where it was unclear who had legal title, where a mistake continued to create ‘a very costly defeat’.20 The Commissioners tackled this in their third report and in 1860 provisions already made for ejectment were extended by allowing a plaintiff to act in the names of everyone he thought might have legal title and empowering the court to pronounce judgment in favour of those among them (p.572) who actually had, the defendant being safeguarded by an entitlement to costs incurred through unnecessary joinders.21

The Common Law Procedure Acts also improved the position when an action was interrupted by a party’s death, bankruptcy, or marriage. This formerly involved the complications and expense of a writ of revivor, but henceforth the plaintiff or his successor had merely to enter a note on the record. The same applied to the representative of a defendant; from 1854 the surviving or representative defendant was permitted to demand that the plaintiff either continue or terminate the action.22

Service and appearance

Before 1725 litigants, particularly those pursuing a debtor with no real defence, were often frustrated by the court’s insistence on the defendant entering an appearance to the action before any further proceedings could take place: ‘medieval process involved two struggles: one between the state and the defendant: the second between the plaintiff and the defendant. Only when the state had won the first could the second occur.’23 The move to a procedure which, once initiated by service of the plaintiff’s claim, proceeds remorselessly to judgment and execution unless the defendant intervenes is a critical one if the courts are to serve the needs of a credit-based, commercial society.24

Judgment in default of appearance was essentially confined to the real actions (and even then the defendant was permitted subsequently to dispute the outcome) and made a first, tentative appearance in personal actions in 1725.25 A plaintiff, on presenting an affidavit of personal service on the defendant, might enter an appearance on the latter’s behalf and so drive the action forward. The Act’s scope, however, was limited—a plaintiff claiming more than £10 could still resort to arrest—and preserved the fiction that the defendant had submitted to the court’s jurisdiction. It was enlarged in 182826 and the difficulties frequently experienced in effecting service inclined the Common Law Commissioners to extend it to cases where service had proved impossible.27 Many of those who gave(p.573) evidence to them, however, were wary of dispensing with personal service as a prerequisite to judgment, so the measure was quite modest.28

The 1832 Act 29 still preserved the fiction of a real appearance and, while making the facility generally available, with appearance entered eight days after service, it was only permitted (when service had not been achieved) with safeguards. Thus, where service had been effected at the defendant’s abode, through wife or servants, it was necessary to issue a distringas before the eight-day period could commence.30 In the growing number of instances where the defendant was believed to be out of the jurisdiction (or had no known abode, nor property to distrain upon) application had to be made to a judge to authorize publication of the writ of summons and subsequently the entry of appearance.

These limitations ensured that the older means of securing an appearance would not become obsolete overnight. Arrest was the most controversial, but distraint, attachment and outlawry also had their users. The writ distringas operated in two forms. The older, common law one involved a sequence of writs each authorizing the sheriff to seize a portion of the defendant’s goods until he submitted to appear.31 It remained the only form available against corporations, but it had been intended to be otherwise superseded by statutory forms. However, the court of Exchequer, ‘notwithstanding an apparent prohibition in the Act’ had interpreted it as preserving the option of the older form, and the courts had also severely curtailed the statute’s utility. In particular, they insisted upon an affidavit averring that at least three attempts had been made to serve it on the defendant at his abode and that he was believed to be keeping out of the way to avoid being served. In consequence, ‘the mode of proceeding devised by the statute is beset with so many difficulties, that plaintiffs often adopt by preference the old method of distress infinite’.32 Since the Commissioners wanted to use distringas in cases where service was proving difficult, it clearly needed further reforms.

They found little use for the other coercive measures. Attachment and commission of rebellion upon subpoena in the Exchequer they pronounced ‘highly objectionable in its character’.33 If the sheriff’s men found the defendant he was imprisoned until he became compliant, but he seldom was found, necessitating a commission of rebellion enabling his house to be entered forcibly. Since there was every chance that he had not learned of the proceedings against him this might cause injustice and it was too elaborate and costly for everyday litigation between subjects.

(p.574) The same objections were even stronger with outlawry. It was employed chiefly where a partner was abroad or had gone missing when an action was brought, thereby halting it in its tracks. Outlawry was dramatic and punitive, and so judges had enmeshed it in technicalities to prevent oppression.34 It had become an expensive, dilatory and inconvenient proceeding, which amassed costs of at least £17 and at its speediest took six months, more often a year, before the frustrated plaintiff could proceed with his suit.35 Being used mostly against Englishmen abroad, who might well be ignorant of the suit, it also had the potential for injustice to defendants; hence the ease with which it might be set aside. Apart from those who opposed all change, few witnesses had a good word to say for outlawry, and the Commissioners were for sweeping it away.36

That reform had to await the condemnation of a further royal commission: ‘[f]rom beginning to end the proceedings to outlawry on mesne process are founded on fiction and built up of technical forms…It seems to us that the principles on which this proceeding is founded are wholly false, and unworthy of the jurisprudence of a civilised country.’37 Less cautious than their predecessors, and concerned more with the needs of creditors than the plight of debtors, these Commissioners were also prepared to dispense with the distringas: ‘in substance…an attempt to give notice to the defendant to appear’,38and an expensive one at that. Though personal service remained the rule, a plaintiff who could demonstrate that the defendant knew of the writ or was evading service might now proceed by way of a court order ‘as if personal service had been effected’.39 If he served a specially endorsed writ to which the defendant failed to appear he might enter judgment after eight days, although the defendant could still seek to persuade the court to re-open the judgment.40

The inception of default judgment in essentially its modern form gave the superior courts an invaluable weapon against the drift of unopposed debt claims to the county courts, which were persistently denied the same power.41 It dramatically reduced the costs of debt collection and was welcomed by most lawyers and commercial interests.42 For those wishing to bring actions on bills of exchange or promissory notes, however, it did not go far enough, and they were able to profit from a political climate sympathetic to the needs of commercial creditors to obtain (p.575) a further concession. It had long been a complaint that debtors upon such instruments were able to postpone judgment by resorting to pleading fanciful or downright fictitious defences.43 In Brougham’s celebrated law reform speech in 1828 he had advocated the adoption of the expedited procedures available in Scotland as a preferable alternative to the cumbersome confession of judgment (cognovit) by warrant of attorney.44In 1853, in a more favourable climate, he returned to the charge with a bill which passed the Lords before stalling in the Commons.45 It was revived the next year, but now went forward alongside a rival bill presented by a barrister, H. S. Keating.46 The achilles heel of Brougham’s scheme was that it involved registration of protested bills, which would be effected through notaries. The former, as bringing in fees, bureaucracy, and patronage, aroused misgivings in some quarters and the latter ensured the hostility of the solicitors,47 and from a select committee of lawyers and businessmen it was Keating’s bill which emerged triumphant.48 The Act of 1855 created a specially indorsed writ available only for bills of exchange and promissory notes on which judgment might be entered after 12 days unless the defendant had persuaded a judge that he had a plausible defence.49 Taken together, these two measures represented a significant departure from the stately course of an action at law and a marked shift in favour of creditors.

Imprisonment upon mesne process

A writ might be made bailable or serviceable. The former was much more drastic for the defendant, requiring the sheriff’s officer (in practice a bailiff) to take him to prison to ensure he entered appearance and would be on hand to obey any judgment given against him. Because it was a draconian measure, ostensibly aimed at preventing defendants from taking flight, statutory safeguards had been introduced and from 1825 it could be used only in claims of at least £20 (£50 if the writ was to be carried into Wales or a palatinate) except where ordered by a judge.50

Defenders of the process argued that any harshness was more apparent than real, since a defendant could avoid prison simply by offering bail. An alternative (p.576) of paying the full amount claimed and costs into court was little used.51 Though used rather less than serviceable process (over a five-year period 256,901 writs were serviceable, 174,495 bailable52) bailable process was very common. It had, however, become a target for reformers. Joseph Hume brought in a bill to abolish it in 1827, then combined with Brougham in another, aimed at restricting its compass.53 Shortly afterwards Scarlett, as Attorney-General, initially included in his Administration of Justice Bill a clause limiting it to debts over £100, but dropped it as too controversial.54

By then the subject had come before the Common Law Commissioners, but when their initial investigations found no consensus among interested parties they prudently decided that it raised questions about the substance of the law itself and therefore fell outside their remit.55 They did, however, draft regulations to improve the operation of the bail system, which they held ‘abounds in inconveniences and abuses…it is an extremely complex and cumbrous method, overloaded with rules and distinctions, and (as a natural consequence) highly embarrassing and troublesome in its operation. It may truly be said, indeed, to give rise to more contentions upon the method of proceeding, to expose the practitioner to more petty miscarriages, and to consume more of the time of the Court, in proportion to the real importance of the points in dispute, than any other branch of the ordinary practice of a suit at law.’56

The defendant could not appear until he had provided both ‘bail below’ to the sheriff and ‘bail above’ to the action, each needing two sureties. If the plaintiff excepted to the latter bail on the ground of insufficiency, the defendant had to justify it; if he made no attempt to do so, or if the bail were held insufficient, the action ground to a halt, leaving the plaintiff to bring actions against the sheriff or the bail below and occasioning considerable delay.57

The whole process was over-elaborate. It involved at least four parties—the suitors, the sheriff, and the bail/sureties—commonly five if the bail below did not also become the bail above. As it was often inconvenient for defendants to find adequate sureties immediately they resorted to ‘sham bail’—men(p.577) to be found lounging outside Serjeants’ Inn58—and substituting men of more substance (supposed to be householders with a net worth, clear of debts, double the sum claimed or £1000 if it exceeded that), only if the action were not settled. Consequently it also became routine for plaintiffs to except to the bail, so a judge had to hear justifications which were mostly purely formal. This took a whole day each term in the King’s Bench and yet of one cluster of 381 justifications only 82 were opposed and just two of those 82 succeeded, unsurprisingly since the plaintiff had minimal information about the sureties.

This in turn left the sheriff in a vulnerable position. Illogically and unfairly, the law held him responsible to the plaintiff if the bail defaulted, though he had no real control over the acceptance of the bail above. Sheriffs secured their position by taking indemnities from the under-sheriff in return for the profits of the process and they in turn deflected responsibility onto the bailiffs.

Temptations abounded for bailiffs. Their legitimate fees from defendants had not been raised for centuries and were wholly inadequate, except perhaps in London where higher fees had some official sanction. The actual fees were exacted according to no authorized scale and defendants bought freedom from imprisonment without bail bonds, but rather on their attorney’s undertaking supported by payments to the bailiffs. Furthermore the bailiffs had an effectively unconstrained discretion to reject sureties offered for bail below and sometimes extorted bribes for accepting them.

The Commissioners pessimistically declared that ‘the causes of this complexity are in great measure of a permanent kind, and such as to defy remedy’. They acknowledged the anomaly of the sheriff’s liability but felt that its practical advantages over either empowering the plaintiff to detain the defendant while he investigated the proffered bail or allowing the defendant to remain at large outweighed logic.59

They did, however, propose simplifications. Instead of a bail bond, the defendant and his sureties were to execute an indemnity promising either to pay the plaintiff what was found due or to return the defendant into custody and to indemnify the sheriff if he did not. The sureties, and any substituted sureties for the bail below, must file affidavits of sufficiency, providing material for the plaintiff to except to, and justifications might be heard by a judge of any superior court sitting for that purpose or by an appointed officer. Sundry other improvements were proposed and the Commissioners pronounced their system ‘very superior in clearness and simplicity’.60

(p.578) In 1831 renewed and enlarged instructions expressly empowered the Commission to investigate imprisonment for debt, both on mesne process and final judgment. The investigation was thorough, taking written evidence from more than 400 lawyers and businessmen and a few incarcerated debtors, interviewing 38 witnesses and looking at other jurisdictions.61 Although the balance of these opinions was strongly in favour of retaining imprisonment on mesne process, the Commissioners sided with the minority.62 They agreed that it was necessary in the fairly infrequent cases where there was a real risk of the defendant absconding, but otherwise it was ‘a singular inversion of the usual course of justice…inconsistent with reason and natural justice’ to presume that a defendant not only owed the full sum claimed but could not be trusted to appear and await judgment, and the safeguards against abuse were inadequate.63

Besides the objection in principle, the Commissioners felt pre-judgment imprisonment had other pernicious consequences. ‘[F]rom the unrestrained power of arrest, facility of credit, crowded gaols, and a Court of Discharge are successive and necessary consequences.’64 Even in achieving its (questionable) aim of extracting the alleged debt through the threat of gaol it was inefficient and expensive; results suggested success in only one-quarter of cases without resort either to imprisonment or bail to the action, and it was more expensive than serviceable process. Moreover, when money was forthcoming it was often extorted from the defendant’s family or friends.65 The report ignored the reforms proposed in the first report and reiterated the complaints that the bail system invited corruption among the bailiffs and made inevitable the ‘hired bail’, since few reputable men would risk a public examination on their own credit.66 For the Commissioners, imprisonment on mesne process except where flight was apprehended was indefensible in principle and unnecessary in practice.

One of them, Henry Stephen, penned a lengthy and elaborate dissent. Stephen skilfully marshalled the opinions of witnesses and consultees in support of the existing system, but his argument was premised almost exclusively on the importance of sanctions to underpin the essential credit structure of the economy. Stephen was prepared to assume from the plaintiff’s affidavit that he had a good claim to the whole sum demanded and that the defendant was prima facie in wilful default, justifying coercive measures to make him meet his obligations.67

Given the sharp differences of opinion, it is unsurprising that legislation was delayed. From 1833 on, bills presented first by Campbell and latterly by Cottenham (p.579) proposed to restrict access to the debtor’s person in exchange for improved access to his property, but until 1838 each bill foundered, usually in the Lords, where the dominating figure of Lyndhurst defended imprisonment on mesne process as harsh but necessary.68 It was only by jettisoning wider proposals on post-judgment imprisonment and accepting that imprisonment on mesne process might continue on the basis of a judicial order rather than the plaintiff’s affidavit, that a bill was finally passed.69 Pre-judgment imprisonment was restricted essentially to cases where flight was feared, and then with the alternative of giving bail not exceeding the amount claimed (sections 1–3, 21).

The effect seemed to justify the reformers’ contentions, for committals dropped rapidly from more than 4070 in 1838 to between 100 and 200.70 Another commission, in 1840, felt it would be safe to abolish it completely, but that did not come about until 1869; however, as a means of securing appearance to answer a writ, bailable process was of minimal importance after 1838.71

Payment into court

If plaintiffs were to benefit from judgment in default of appearance, those who admitted liability but contested its extent also deserved help. It was already open to a defendant to tender the amount he acknowledged to be due before an action was begun, or to pay that sum (and the costs of the action to that point) into court after the plaintiff’s declaration, and in either case a plaintiff who declined the offer was at risk of all subsequent costs if he failed to establish his claim to a bigger sum. This facility, however, was only available for ‘debts strictly so called’72 and there were objections to making it general lest it enable rich men to buy off poor victims of their own culpability in offences with a strong moral flavour.73 The Commissioners concurred that that would be ‘contrary to every principle of justice’, and while favouring a broader ‘privilege’, excluded it in cases of assault and battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, and seduction.74

(p.580) Defamation was a difficult case, for it was arguable that allowing payments in would keep unmeritorious cases out of court, and it was included in the special protection offered to newspapers and journals in 1843.75 There were also doubts on whether a tender of payment in did, or should, constitute an admission and so deny the defendant the right to plead a defence. The Commissioners felt that it did, but offered a procedure which would circumvent this difficulty: a defendant might accompany his payment by a notice declaring that if his defence failed, he would propose damages at that same figure, and if the award proved to be lower, the plaintiff would become liable for the costs of assessing the damages.76

The topic was cursorily examined by the second commission, which suggested that in the excluded torts the judge might allow payment in if he chose,77 but that was omitted from the Common Law Procedure Act which gave substantial effect to the original proposals.78 In 1860 the facility was extended to detinue and conditional bonds79 but it became most significant in personal injury claims, which had scarcely featured in the earlier discussions; the Commission report of 1853 had declared that most plaintiffs had as their object ‘not merely compensation in damages, but vindication of honour or character’.80


The nature of common law pleadings

One of the most distinctive and controversial features of common law procedure was the role played by pleadings.81 Pleadings began with the plaintiff’s declaration, setting forth the essential features of his claim, and continued through a sequence of written exchanges between the parties which aimed to identify and define the disputed issues of fact and/or law which were essential to the resolution of the claim and to discard everything which was not directly relevant. This process was usually completed within three or four stages (declaration, plea, replication, rejoinder), and more summarily if the defendant demurred to the declaration on a point of law. It might, however, wend a tortuous course via surrejoinder, rebutter, and surrebutter, occasionally venturing into territory where the pleadings had no names.82 At some point, however, the strict rules which governed each pleading ensured that the parties would be driven to joinder in (p.581) issue and thence to a trial before a jury (if there were facts in dispute), or before the judges in banc if it were a pure question of law.

In a system where the judge took an essentially passive part, such a deployment of pleadings, especially ‘special pleadings’, which discriminated more carefully between law and fact and ruthlessly pared down the issues, was convenient and economical. It spared the parties the expense of unnecessary witnesses and documentary proofs and enabled counsel to argue concisely on the relevant law. It made for short trials and could therefore be managed by a small number of judges.

Some commentators argued that besides this unglamorous and utilitarian function, pleadings fulfilled a further, more elevated one. They were said to underpin the logical and scientific structure which could apparently be found beneath the luxuriant wilderness of common law doctrine and practice.83 Such a view became plausible once systematic studies of the rules and role of pleadings appeared, beginning with Gilbert’s History and Practice of Civil Actions in 1737, and the few who delved into John Reeves’sHistory of English Law would find ample evidence of the crucial part played by pleadings in the incremental development of substantive law.84 Further publications, notably Chitty’s popular Treatise on Pleadings and the Parties to Actions (1817), attested to the importance the profession attached to the subject and they culminated in Henry Stephen’s highly influential Treatise on the Principles of Pleadings in Civil Actions (1824).85

Stephen and other enthusiasts for special pleading argued that one of its most valuable characteristics was in ensuring that separation of fact and law which corresponded to the respective functions of jury and judge, thereby eliminating the impurity of unreasoned jury discretion.86 Properly deployed, it also assisted the common law’s proper focus on remedies, making for an orderly development of each distinct form of action. Special pleading might therefore be seen as a conservative element which fitted into a conception of the common law no less ‘scientific’, but quite different from that produced by Blackstone.87 Some legal theorists ‘even raised [it] on a pedestal’,88 drawing analogies with algebraical equations, Euclidian geometry, or ‘the strictest rules of pure dialectic’.89

Runnington admitted that some did not understand special pleading and affected to despise it,90 but whether they understood it or not, few laymen shared the profession’s pleasure in its logical perfection. Where enthusiasts saw a (p.582) science, they saw unwieldy and arbitrary rules, many divorced from their original rationale, which were unintelligible to the unitiated and a trap even for the knowledgeable. The Common Law Commissioners admitted that ‘considerable misapprehension popularly prevails upon the subject’91 and the first article of the new Law Magazine conceded that it was ‘universally condemned’ outside the profession.92

And not only outside the profession. Brougham’s great speech had included some strong condemnation of pleadings in action93 and some of the severest critics were Bentham and his followers. Bentham was a devotee of a ‘natural procedure’ in which the parties would appear in person before the judge and orally explain their respective positions, though he also envisaged very simple written pleadings based on standard forms.94 Bentham was not so much opposed to precision in pleadings as to the insistence on strict formality and restrictive rules which could easily defeat the ends of justice, especially in criminal cases, and to the complexities which necessitated the employment of specialists for even simple ones.95 However, since the Benthamite ideal of pleadings really presumed the existence of a law code and a whole network of local courts, it was never a serious proposition and it was quite easy for a conservative critic to demolish James Mill’s Encyclopaedia Britannica entry on pleading as visionary,96 whereas the less radical reforms urged by George Graham in The Westminster Reviewwere closer to the mainstream of critical opinion.97

Almost all critics were agreed that a vice of special pleading was the fictions which permeated it,98 but the fictions were only the scarcely defensible outworks of the citadel. Closer to its heart were limitations on what a party might plead; rules which forbad duplicity and argumentativeness and enjoined certainty, sensible in principle but apt to be applied too narrowly, with mischievous consequences. These and other traps for the unwary generated devices designed to circumvent their mischief, such as colour and special traverses, and these in turn (p.583) gave rise to a sticky web of rules governing their use.99 Most of the rules could be justified in the logic of the system and could be manipulated by the skilful pleader, but the logic was an interior one which frequently led only to disputes which were ‘the merest legal conundrums which bore no relation to the merits of any controversies except those of pedants’.100 Even if the essential structure were sound, it was strongly argued that it needed purging of obsolete, fictional and otiose matter and the justification for each rule subjected to narrow scrutiny.

The current state of pleadings was also criticized from an opposite perspective however. Some argued that despite its apparent precision and logic, it did not deliver its promises. This was because of measures taken by Parliament and judges to palliate the injustices wrought by the strictness of the rules. Most of the statutes were timid affairs; thus the statutes of jeofail, intended to allow technical errors to be remedied by amendment, were interpreted very narrowly, while another act of Queen Anne’s reign allowing defendants to plead more than one defence merely transferred the injustice to the plaintiff.101

However, two devices, both common law inventions (though one was augmented by statutes) proved really damaging to the exquisite theory of special pleading. The first was intended to counter the injustice of requiring the plaintiff to provide precise details of his case in the declaration, details which must prove to be consistent with the evidence led at trial. Any material variance between the two, because it created an intolerable inconsistency on the record, was fatal to his case even if he had succeeded at trial.102

The only statutory mitigation was an Act introduced by Tenterden in 1829 enabling variances between recitals of documents in pleadings and the originals to be corrected at trial.103 Pleaders, however, had long been exercising their ingenuity and inserted as many different counts as were necessary to cover all the likely evidential outcomes, the same transaction being described in 15 to 20 ways with only minor differences. The Commissioners found attorneys a (p.584) convenient scapegoat for this practice, maintaining that they had become too lazy to discover and acquaint the pleader with the full facts, but no doubt the pleaders’ own self-interest had some part to play. Whatever the cause, the outcome was an expanded record, made even bulkier when the defendant retorted with multiple pleas of his own in answer to each count (it being a rigid rule of pleading that a plea must deal with each count). The unwieldy set of pleadings was only too likely to confuse a judge, lengthen the trial and give scope for captious technical objections.104 Chief Justice Best was one of many witnesses/consultees who hankered for a return to ‘the practice of our ancestors’,105 though quite when his golden age of pleadings existed he wisely left unsaid. Certainly the practice of the more scientific age was found wanting, for despite the inconvenience of multiple counts variances were still one of the most common causes for the failure of an action.106

These practices were easy to condemn but hard to remedy. The Commissioners considered various ways of discouraging plaintiffs, from costs sanctions through supplementary statements of agreed facts to a simple restriction on the number of counts, pronouncing the last the least objectionable and most practicable.107 However, they sensibly preferred to focus on reducing the damage of variances, recommending that those which were not logically fatal to the plaintiff’s case should either be treated as immaterial or allowed to be corrected at the trial.108

If the multiplication of counts was a response from plaintiffs to the rigours of special pleading, the general issue was a safeguard for defendants, especially when faced with the ineluctable choice between a plea and a demurrer, but in the eyes of Stephen and his allies, this was even more damaging. By pleading the general issue the defendant maintained a blanket denial of liability without disclosing the nature of his defence. This was the antithesis of special pleading, which was supposed to inform each party of the other’s case, and the willingness of the courts to allow it an extended scope testifies to the judges’ mistrust of the pleading system.109

(p.585) In a succession of local and private Acts which expressly permitted various public officials to plead the general issue, Parliament had given the device its blessing and it had become popular with defendants of all sorts; it was apparently the uniform practice in ejectment and in cases on bills of exchange and insurance and was common in assumpsit.110 But its popularity did nothing to endear it to the Commissioners. While they acknowledged a strong minority view that it should be encouraged and extended,111 they correctly noted that most respondents shared their own opinion that the general issue was the biggest single obstacle to the effective operation of pleadings and the one most responsible for inflating costs and creating delays. It was wasteful because it led to unnecessary trials where there was no material fact in dispute; those trials were expensive because witnesses had to be at hand to prove matters which did not require to be proved; they were unsatisfactory because the nisi prius judge had to sort out the real issues on the day and present those which were for the jury to them intelligibly and accurately, while ruling on questions of law without the opportunity to consult his books or his brethren. Unsatisfactory trials led to more motions for new trials, which was an undesirable departure from the common law assumption that the trial verdict ought ordinarily to be final and had serious practical consequences for the administration of the courts: ‘we know of no existing abuse of which the influence is so wide and the pressure so intolerable’ reported the Commissioners.112 It was very difficult for the court to decide the merits of applications for a new trial on the limited materials available and these motions were clogging them up; 99 were in King’s Bench alone in Michaelmas term 1829, of which 53 were granted, the fresh trials having to be squeezed in alongside new business. And each new trial meant extra costs for the parties and vexation for the one successful at the first trial.113

The new pleading rules of hilary term 1834

In comparison with the evils produced by the general issue, the Commission found those of special pleading ‘insignificant’.114 Though they fought shy of suggesting that the statutory right to the general issue be abolished, for those outside that protective umbrella the scope of the general issue was to be severely curtailed. The plea of non debet in debt was to be abolished altogether; ‘non assumpsit’ would no longer cover all sorts of reasons but would be a direct denial of the alleged promise—and would be inapplicable henceforth to negotiable instruments; ‘not guilty’ in any case was to be simply a denial of the wrongful act or omission and similar restrictions were suggested in trespass.115

(p.586) The Commissioners also suggested ‘the abridgement, in many cases, of the forms and language of pleading’.116 They offered more succint specimen forms,117 proposed to remove many formal entries (continuances) from the record, and to dispense with many reiterations. Pleadings were to be able to be filed during the vacation, with time running from the actual date of filing rather than from the start of the next term.118 They proposed to curtail the abuse of sham demurrers and pleas, though evidently without great faith in the means proposed. They sought the abolition of the necessity for rules to declare, plead, etc. and the substitution of simple time limits;119 and they suggested improvements to individual forms of action.120 However, the Commissioners’ energies were devoted mostly to multiple counts and the general issue and their approach to other parts of the subject was cautious if not timid. In particular, most of the fictions remained intact and it was still open for a party to take an objection to a defective pleading after the trial verdict.

Now special pleading was to be given full rein with many of the features which made it unintelligible to laymen and formidably difficult to lawyers intact; as Chitty pointed out, it would be necessary to employ a pleader for any but the most straightforward case.121 In Holdsworth’s view the Commissioners had fallen under the sway of Stephen.122 However, there is no direct evidence for this, nor is it necessary to explain the outcome of their deliberations. Those they consulted were mostly of the same opinion and the questions that were circulated show that they were headed in that direction from the outset.123 They recommended what most lawyers wanted, and it evidently met the views of the judges, since they used a new statutory power to adopt the recommendations wholesale in the new pleading rules issued in Hilary term 1834.124

These rules gave special pleading the chance to demonstrate that it did indeed possess the virtues claimed for it. Unfortunately the outcome was very different. The apotheosis of special pleading lasted fewer than 20 years until another Commission pronounced a damning verdict. The system was

entitled to great admiration and praise for its simplicity and usefulness [but] on a system so simple and sound in principle defects and abuses have been engrafted which have gone (p.587)far to destroy its utility. This has arisen in great measure from an over-anxiety to ensure exact precision and certainty, and from the rigorous character of the rules introduced for the attainment of these objects…. But unhappily the rules framed to prevent…mischiefs have been abused, and they and certain arbitrary regulations and forms have caused the existence of…objections to the practice of special pleading, the justice of which we thoroughly feel.125

The Commissioners identified three major complaints about the new pleading rules. First, pleadings were still long and prolix,126 evidently the attack on multiple counts had been at best a partial success. Secondly, what generated the most complaint was ‘the requirement of unnecessary precision’.127Long-established rules as to certainty of time, place etc. (partly met by the device of the videlicet, which satisfied the formal requirements at the expense of truth and brevity), argumentativeness and duplicity, had formerly been capable of evasion by the general issue; now they were rigorously enforced the difficulty of complying with them was much more deeply felt. The third big complaint was the power of a party to withhold his objections to pleading defects until after the trial.128

Those responsible for the new pleading rules had badly misjudged their effect, for one scholar suggests that the number of cases which turned on points of pleading rather than substance rose from one in six to one in four.129 Yet the first Commission had been sanguine indeed: ‘the principles of the science of special pleading have been so successfully cultivated, and are at the present day so well understood, that the extent of such embarrassment would probably be small, and we should expect the whole law on this subject to be permanently settled within a short period, and at the expense of a few adjudged cases’.130

Stephen and company were confident in lawyers’ ability to pick their way unscathed through the thorny thickets of the pleading rules and to formulate accurate pleadings with scientific precision, but in their entrancement with the science they neglected history. The ready resort to what they characterized as abuses—multiple counts and the general issue, unlike for example sham pleadings which were purely delaying tactics—was the best evidence of how unsatisfactory the rules were. Those very expedients were presumably most freely adopted in difficult cases, thereby masking the perils of true special pleading, especially along that crucial boundary between trespass and case. The new pleading rules actually reinforced the distinctions between forms of action which Tindal CJ had(p.588) recently relaxed131 and with ever more novel factual matrices in disputes it is no wonder that anxious pleaders sought safety in saturation pleading or that the range of potential challenges on essentially technical grounds was so large.

Moreover the Commissioners did not allow for the fact that attorneys and pleaders were not scientists engaged in a disinterested common endeavour to give the court an accurate version of their dispute, but partisans eager to deploy their arcane arts on behalf of their clients.132

For this sorry state of affairs the judges must take some responsibility. Many of them had been trained as special pleaders, though that did not necessarily make them pedantic. Maule for one was always ‘ingenious to defeat technicalities’,133 but it is significant that in 1851 the Law Magazine expressed relief that less technically minded judges were being appointed.134 The epitome of the pedantic sort was James Parke, Lord Wensleydale, immortalized as Baron Surrebutter in Hayes’s Dialogue.135 Parke more than anyone was responsible for that ‘extreme refinement…[which] has resulted in tediousness, formality and chicane…’.136 When technical points were not in issue Parke was capable of bringing broad principles, and not just of law, to bear on a problem, but he was indifferent, if not gratified, when a suitor was non-suited on a purely formal defect.137 Belatedly, the judges began to realize that formality and strictness had been carried too far and sought to palliate it by allowing the extensive use of the replication de injuria, which ‘was made to perform somewhat the same service as the general issue’,138 but that only complicated matters further.

Dissatisfaction grew steadily during the 1840s. In 1841 the Law Magazine could still describe the system as being in ‘a high state of perfection’,139 but public (p.589) opinion was exasperated by high profile criminal cases where the prosecution failed on abstruse technicalities. Among the beneficiaries were Daniel O’Connell and Feargus O’Connor and other chartist ringleaders in the Plug Riots of 1842, and if some of the attacks on the pleading rules which followed were intemperate and exaggerated, forceful complaints by pamphleteers like J. G. Phillimore could not lightly be dismissed.140

Moreover, it could no longer be contended that pleadings in the English style were essential for the common law to operate effectively. The New York State Code, with pleadings stripped down to essentials, received wide and generally favourable publicity in England, especially through the proselytizing visit of its chief author D. D. Field.141 The less daring revised pleading rules of Bengal (1849) helped maintain the momentum for change142 and the Law Amendment Society produced a set of its own, an initiative commended in The Times.143

The most influential innovation was the procedure of the new county courts. Except for a few actions, the plaintiff was required to give only the barest information about his case and the defendant usually none at all about his defence. It was acknowledged that this could lead to the same problems at trial as the general issue and would be unsuitable for complicated commercial and land disputes, but the unpalatable fact was that county courts were taking large quantities of straightforward business, particularly simple contract debts, from the superior courts, and that litigants’ dissatisfaction with their quality of justice was on the whole outweighed by its speed and cheapness.144 The immediate response was an Act promoted by Lord Campbell in 1850, enlarging the judges’ powers to make procedural rules,145 and by then another commission on the common law courts was sitting.146

The remodelling of pleadings

Pleadings were ‘by far the most difficult and anxious’ part of the new Commission’s deliberations.147 As noticed above, the Commission deplored the technicalities which disfigured pleadings, but was not prepared to recommend a radical (p.590) departure from the system; nor, wisely, did it adopt the suggestion that the drawing of pleadings should become the responsibility of a court official.148However, its approach was much more robust than its predecessor, some of whose unimplemented proposals it adopted and extended. The most important change was one of the simplest. The several powers the courts possessed to allow amendment to pleadings were replaced by a sweeping general power applying to any proceeding, at a stroke relieving the parties of the fear that a minor slip would be fatal to their cause.149

Likewise, the obstructive possibilities of special demurrers were drastically reduced by a provision that whenever issue was joined on one, the court would give judgment on the substantive law at issue, disregarding defects of form and inessential omissions.150 Objections based on uncertainty and the rules which grew out of it (duplicity etc.) were to be taken before a judge upon summons, though it was hoped that this would seldom prove necessary ‘at least where the parties mean fairly’.151 A mass of obsolete and unnecessary matter was simply abolished: most of the fictional statements; profert and oyer of deeds; express colour; special traverses; formal defences and conclusions all got theirquietus.152 The unimplemented recommendation of 1830 that the requirement of a rule to plead should be removed was carried out this time: ‘[i]t is inconceivable how this vexatious practice can have subsisted so long’.153

The general issue was not reinstated, though contrary to the Commissioners’ recommendations its statutory manifestations were not removed,154 but inconvenient restrictions on the scope of pleadings were lifted. By leave of the court either party could now both plead and demur; some pleas could with leave be combined, and several matters could be pleaded together at any point in the exchanges.155

One intractable problem remained: the right of the losing party to bring the writ non obstante veredicto after trial, ‘a great scandal and demands reform’.156 The first Commissioners had suggested discouraging it by a costs sanction and their successors went further, proposing to enable the court to correct the record (p.591) from the judge’s trial notes or evidence produced at the hearing by the party whose verdict was challenged.157

As a pessimistic defender of special pleading had foreseen, the Commission’s wish to retain it, albeit with large modifications, was unpopular with laymen158 and further ground had to be conceded in the Commons, notably on special demurrers, requiring only that a pleading be ‘good in substance’.159Even so, what was accomplished through the Common Law Procedure Acts and the judges’ rules was a simplification and pruning of the system of pleading rather than a fundamental revision. Its pretensions to embody logic and science were no longer paraded and it was made more forgiving to errors which were now allowed to be inevitable. It was a long step towards the loose, Chancery-based model adopted after the Judicature Acts, and in its 20 years of operation it seems to have worked satisfactorily.160 It is therefore not surprising that common lawyers were later inclined to proclaim its superiority and lament its demise.161

The Trial


The Common Law Commission found ‘the Rules relating to venue, and the whole doctrine connected with that subject…greatly in need…of revision. A reference to the books of practice will satisfy any inquirer of the intricacy and minuteness of the distinctions which the law of venue, and of change of venue, involves; and also of the inutility of the greater part of those distinctions. But it is open to other censure also. It affords to the defendant the means of vexation and delay; for it is notorious that the motion to change the venue is generally made with a dilatory or unfair purpose.’162

The rules distinguished between ‘local’ actions (mostly those involving claims to land or injuries to it) and ‘transitory’ ones. The latter afforded the defendant the greater opportunity for mischief, since by the ‘common affidavit’ he could obtain an order of course to remove the action into the county in which he claimed the cause originated. The plaintiff might restore it to his own preferred venue, but(p.592) only on undertaking to produce ‘material evidence’ in his chosen county at trial, and at the peril of nonsuit if he did not. The Commissioners wanted to abolish transfers of course, requiring instead that the defendant show a particular reason, such as prejudice to a fair trial or the expense of many witnesses having to travel long distances. They also proposed, contrarywise, that local actions, which at that time could not be removed, should become removable as a matter of course into the county where the property was situated.163

When action was taken upon these recommendations, in the rules of 1853, it was in a very succint form: ‘[n]o venue shall be changed without a special order of the court, or a judge, without consent of the parties’.164 There followed a period of uncertainty, for Parke and Wightman, charged with settling practice under the rule, promulgated the very conservative view that in transitory actions the defendant’s common affidavit still raised a prima facie case for transfer which had to be rebutted by the plaintiff, and the Exchequer judges added a further gloss restricting it to actions which might be transferred under the existing rules.165 Willes J., however, said that this was just a suggestion to which the judges had not agreed,166 and according to Day ‘the only rule observed in practice is that, after issue joined, the judge will take into consideration all the circumstances of the case, and use his discretion…, and that the court will very rarely interfere with the discretion so exercised’.167

Special case, accounts, and arbitration

In some cases the parties had no dispute over the facts and could readily formulate the question of law dividing them. An Act of 1833 enabled them, after issue was joined, to take a special case direct to the court for a judgment, a more expeditious mode than first having the jury return a special verdict.168Until 1854 it had the drawback of allowing no scope for a writ of error (since the record disclosed none),169 but was improved by removing the need for pleadings to be drawn up and a similar provision allowed a purely factual dispute to be taken directly to a jury.170 Neither of these extended facilities was much used, perhaps because the simplification of pleadings reduced their attractions.171

(p.593) There were cases unfit for jury trial because the question involved the examination of disputed accounts too complicated for jurymen. The old common law action of account had become so mired in technicality that it was obsolete, the auxiliary jurisdiction of Chancery being the usual recourse.172 Instead, judges were often ready, usually with the connivance of counsel, to suggest a reference to arbitration by a barrister, and such suggestions were apt to become quite coercive.173When the Commissioners suggested that a judge be empowered to insist upon arbitration either before trial upon the application of either party or at trial of his own motion, they were going against a sizeable body of professional opinion which feared this power would be too freely used, especially at Assize. It was said that arbitration was inclined to be slow (because the arbitrator would not give it a high priority), expensive and, since barristers were often unfamiliar with mercantile accounts, inexpert.174 Nevertheless, the proposal was repeated by the second Commissioners, coupled with recommendations to abolish the frequent adjournments which were the bane of arbitrations.175 It was more acceptable now that there were masters to whom the reference could be made, though the parties might choose their own arbitrator instead.176 County court judges outside London were indignant at also being given this role and quickly secured the unpalatable provision’s repeal.177 The masters were initially overwhelmed by references and had to resort to the bar for assistance, and since the masters themselves were not always competent to unravel commercial accounts, businessmen remained dissatisfied with the quality of the service they received.178

Summoning the jury

This was also encumbered with obsolete practice, pithily denounced by the second Commission as entailing ‘forms useless and expensive, and a source of irregularities which sometimes defeat justice’.179 In the Common Law Procedure Act 1852, section 104 the old writs of distringas (Queen’s Bench) and habeas corpora (Common (p.594) Pleas), which were issued contemporaneously with thevenire and premised on its failure to take effect, were replaced by a simple precept to the sheriff.

The nisi prius record was also unduly cumbersome, though here the complaint was of expense alone. In theory the record was made up as the pleadings were exchanged and entered, and when the parties joined issue a copy, which had to be ‘passed’ (certified as accurate), was made for use at the trial. The reality had long been that the parties’ attorneys undertook these duties and did not even produce the original until issue was joined, when both original and copy were made together; appearances were preserved by rules requiring the original to be in place before the copy.180 The expensive ceremony of passing the record continued purely for the benefit of officers entitled to the fees; one case in the King’s Bench was instanced which cost £20–13s-6d, and even a record of only 30 sides cost £1 6s,181 in addition to the attorney’s charges for doing the real work. The second Commission felt that the copy itself was of value as a record of the pleadings, but from 1852 it had merely to be entered without the ritual of passing and sealing.


Successive Commissions were concerned with the unfairness which frequently resulted from the established order of trial proceedings. The plaintiff’s counsel182 would open his case and call his evidence; then the defendant would either follow suit or, if he declined to call any evidence, would attack the plaintiff’s case. The choice for the defendant was both important and difficult. If he called evidence, he would have no chance later to smooth out inconsistencies or put the best gloss on his witnesses; instead, the plaintiff would have the right to reply, and would highlight the weaknesses in the defence case. If the defendant called no witnesses, he could instead mount a damaging attack on the plaintiff’s evidence without affording him the chance to reply.183 A large body of professional opinion emphasizing the practical benefit of this arrangement in keeping down the length of cases, placed great weight (rather questionably) on the judge’s summing-up in holding the balance.184

However, the injustice of the restrictions became more manifest with the admission of the parties to give evidence and so expose themselves to cross-examination and unanswered animadversions,185and with the Commissioners (p.595) optimistic that counsel would confine themselves to a brief opening if their opportunities were enlarged the inconvenience of lengthening trials yielded to ‘justice’186 and by the Common Law Procedure Act 1854 a defendant who called evidence was allowed to sum up in conclusion; if he did not, the plaintiff was to be allowed the same privilege at the end of his own evidence.187 This may have led to tedious speechifying188 but there would be no going back.

The same Act rectified an indefensible omission, empowering the judge to adjourn the trial where a party was surprised by unexpected evidence. Hitherto a jury trial had proceeded unstoppably and the disconcerted party had to submit to a nonsuit or an adverse verdict and commence further proceedings.189

The common jury

The nineteenth-century civil jury was an institution in decline, but neither the extent of the decline nor its rapidity should be overstated.190 Following a centuries-long process whereby the judge gradually circumscribed the role of the jury, ‘[t]he emasculation or diminution of the civil jury was then followed in the second stage by its elimination’.191 The second stage is of course easier to chart, but landmark decisions signpost the encroachments of judges quite clearly. For instance, the ‘active model’ of the special jury of merchants described by Oldham192 had presumably ceased by the time Parke and Tindal insisted that expert knowledge was the province of witnesses not jurymen.193 Contemporary writings also help to pinpoint the position at particular moments in time.194

Judges had curtailed that rough, common sense equity that juries brought to the judicial process by enlarging the scope for applications for new trials on the grounds that the jury’s finding was against the weight of the evidence (in effect against the judge’s own view). They remorselessly turned questions of fact, (p.596) especially in contract cases, into questions of law for their own decision and narrowed the questions of fact which were put to the jury, and the new pleading rules of 1834 reinforced this trend by drastically curtailing the use of the general issue. When the resulting need to synthesize, arrange, and present the facts in a suitably clear-cut form threatened to overwhelm the available judge-power a marked trend towards objectification of intention set in which enabled much of the more instance-specific and witness-heavy fact-finding to be dispensed with.195

The attractive view that this phenomenon, found in the United States as well as England, had an ideological basis, that ‘[t]hus did the political economy of the law vanquish the moral economy of the jury’,196 has fallen out of favour. It seems more plausible to postulate that judges wished rather to improve the consistency and ‘correctness’ of decisions at law, increasing predictability and enabling disputes to be resolved by reference to a law book rather than a court while disarming critics of uncodified law’s ‘primitive’ state.197

The degree of control obtained by judges must not be exaggerated. The egregious examples of ‘perverse’ jury verdicts exposed in the newspapers were probably the tip of a considerable iceberg.198They were sometimes attributed to sheer ignorance and stupidity, but common juries were believed to be endemically prejudiced for and against certain types of litigant: favourable to shopkeepers and traders, hostile to attorneys and railway companies.199 Juries were not always helped by judges, some of whom (like Abinger CB) courted rebuffs by blatant attempts to lead them down the path they favoured while others, like Littledale, offered them too little guidance.200 Juries were seldom found in the courts of requests and few litigants chose the jury option in the county courts.201 The common jury seemed to many hard to defend on logical or practical grounds.202 Laymen no longer felt the jury a necessary or effective safeguard against waywardness, bias, or politics in judges and many lawyers were impatient with the involvement of non-professionals in the trial process.203

(p.597) Yet the critics did not have things all their own way. Even within the Law Amendment Society opinion was divided over the merits of jury trial, and the Society went no further than wanting it made optional.204 The jury was defended upon several grounds. Some commentators, such as William Forsyth, while deploring its attenuated role, nevertheless argued that allowing citizens to participate directly in the judicial process had an educational and constitutional role,205 though the level of participation outside a few places and a few groups who served as special jurors, was so low that ‘it was hardly a democratic institution’.206 The second Commissioners urged more practical considerations, some running counter to the limitations judges were busily creating. They applauded the fact that ‘the merchant, the man of business, the agriculturalist, the man of the world, the man of science, bring each his peculiar knowledge and experience to assist in determining the varied questions which arise…’, though it had by then been ruled that special knowledge should not to be shared with other jurors.207Likewise, welcoming the way ‘the tendency of the professional judge to look only to the strict letter of the law, is corrected and tempered by the opposite tendency of the jury to take a more enlarged and liberal view, according to the morality and equity of the case’, was to adopt a view of the jury’s function which was widely criticized.208

Aside from cases involving complicated accounts209 the Commissioners recommended the retention of jury trial as the standard mode, while enabling the parties to elect for trial by a judge alone.210Disappointed reformers and conservatives alike rightly predicted that it would prove a dead letter;211until 1883 more than 90 per cent of eligible cases continued to be tried by a jury and the notion that the 1854 Act was a major landmark in the history of jury trial is misleading.212

However the Commissioners felt the force of criticisms of country juries’ quality and suggested that the property qualification in country districts (which Peel’s Act of 1825 had set at premises of £10 freehold or £20 leasehold annual (p.598) value) should be raised.213 This found its way into the Common Law Procedure Bill of 1853 but was withdrawn because of fears that it would seriously diminish the pool of jurors. The same argument defeated attempts in 1869 and 1870 to raise the lower limit to £30 rateable value, £50 in the larger towns.214

The Commissioners also tried to improve the jury by enforcing the neglected rule that special jurors were eligible to serve on a common jury, yet under-sheriffs went on in their accustomed way.215Coleridge’s reform proposals in the 1870s included a provision that each common jury should contain at least one special juror but it fell to the argument that the disparity between the payments they received would cause friction on the jury.216

In other respects the second Commissioners were less reform-minded than their predecessors, surprisingly given that criticism of the jury was by then more widespread and vigorous. The first Commissioners were greatly concerned about the requirement for unanimity and the crude coercive measures—deprivation of fire and food—inflicted on jurors to bring that unanimity about. Their remedy was surprisingly radical: at the end of 12 hours, unless the jury sought more time, a majority verdict of 9–3 was to be acceptable.217 Evidently it was too radical for the time.

The second Commissioners were also embarrassed by the locking up of juries, but did not advocate majority verdicts, holding that the present system ensured a ‘full and complete discussion’ (not a view every commentator would have endorsed) and that it would encourage more applications for a new trial (‘which might, not unreasonably, be entertained’).218 Informed opinion was divided about majority verdicts.219 Cranworth preferred the Commission’s less drastic proposal that after 12 hours the jury should be discharged and though Campbell LCJ persuaded the Lords to adopt majority verdicts the clause was lost in the Commons, where fears that it would be extended to criminal trials were too strong.220 Campbell tried again in 1859, provoked by his personal experience of a hung jury in Smith v. GNR, but strong opposition led by Lyndhurst defeated him. It was therefore most unwise of Coleridge to propose a smaller jury of seven, (p.599) or even five, with provision for a majority verdict, and to apply both to all but the most serious criminal offences. He failed in 1872 and again in 1874, even though this time he had uncoupled it from the criminal side; evidently it lacked general support.221

Special juries

Although the term special jury bore several meanings and was most accurately used to describe a ‘struck jury’,222 it was particularly associated with the juries of London merchants and businessmen on whose mercantile experience Lord Mansfield drew extensively in creating a coherent body of commercial law. The special jury was not confined to commercial cases however, and if, as seems likely, Mansfield manipulated the process to secure suitable juries for his laudable purposes, jury packing was also said to occur in the much less benign context of state trials, like Wooler’s for seditious libel in 1817.223

Such complaints were voiced with characteristic vehemence by Bentham in a pamphlet of 1808 prudently left unpublished until 1821.224 Bentham was disappointed with Peel’s reforms in the County Juries Act of 1825, an attempt to improve the quality of the special jury (often well short of Mansfield’s ‘knowing and considerable merchants’225) by confining eligibility to merchants, bankers, and esquires. Peel also tried to reduce the likelihood of gerrymandering by replacing the selection of names for the panel by the sheriff and ordinary by ballotting.226

In specifying qualifications the Act was a failure. The terms were not defined, so giving local officials discretion. Busy and successful businessmen anxious to avoid jury duty could sometimes get themselves downgraded to the common jury list where the chances of being called were much smaller, while men for whom a guinea a trial was attractive insinuated themselves onto the list; exponents of this ‘guinea trade’ hung around the courts in the hope of being co-opted as talesmen when the jury was incomplete.227

(p.600) As that suggests, the special jury was in frequent demand, sometimes for discreditable reasons. Securing a different panel for each trial was costly to litigants and burdensome to jurors, making up half of the £24 a special jury usually cost.228 It bred delays, so defendants with no case were liable to demand it on that account.229 Even when sought with more legitimate motives it was less often for any commercial expertise than for social reasons: what was wanted was ‘their more cultivated minds and superior intelligence’.230 In some places the pressure on a comparatively small number of special jurors led them to complain;231 for example in 1865 there were 190 special jury trials in London and 111 in Middlesex, with only 4100 and 1000 special jurors respectively;232 one enterprising official ran a profitable sideline in arranging false excuses.233 Following adverse press comment and an influential pamphlet by T. W. Erle, the associate of the Common Pleas, matters came to a head at the Queen’s Bench nisi prius sittings of February 1867, when every special jury case had to be put off because the jury was incomplete. Mr Justice Shee’s dismayed plea for legislative action brought about an enquiry.234

The fruits of that enquiry, the Juries Act 1870, extended to London and Middlesex the procedure established for the rest of the country in 1852 on the recommendation of the second Common Law Commissioners, namely, a single panel for all trials at a sessions or Assize.235 The pool of qualified jurors was enlarged and any pretence that commercial or other special knowledge was their distinguishing feature was abandoned by creating as alternative qualifications the occupation of a dwelling house rated above £100 in towns and £50 elsewhere; or of a farm rated at £300; or of other premises rated at £100.236 The Act, however, did nothing to improve the accuracy of the lists, from which many eligible persons (several thousand in Middlesex) were omitted through the deliberate act or indolence of the overseers.

(p.601) Post-trial Proceedings


The procedures by which a judgment of one of the courts of common law might be challenged were characterized by utter incoherence.237 The most venerable (and expensive) was a writ of error, which offered fresh proceedings rather than a correction and required an error visible on the face of the record. If no error was visible—if, for example, the judge had wrongly refused to admit evidence—there could be no writ of error, whereas even an error immaterial to the outcome of the trial would secure a verdict for a new trial.

The location of this corrective mechanism depended upon the court in which the error occurred. The King’s Bench had jurisdiction over errors in Common Pleas but not over the Exchequer, which had an internal ‘appeal court’, known as the Exchequer Chamber. In 1585 a differently constituted court confusingly bearing the same name (this one comprising the Exchequer barons and the judges of the Common Pleas) had been given jurisdiction over writs of error from the King’s Bench.238

A means of challenging verdicts with no error on the record was the bill of exceptions created by the Statute of Westminster 1285. The bill covered, inter alia, ‘improper rejection or admission of evidence, or…erroneous direction in point of law’,239 but did not lie against the Crown. It issued directly to the Exchequer Chamber, by-passing the sitting of the court in banc, and was as rigid as the writ of error in not allowing any distinction between material errors and others.240

Finally, there was the possibility of a motion for a new trial, evolved by the courts themselves and urged by Mansfield in 1757 as a necessary corrective to the waywardness of juries.241 Unlike the bill of exceptions, the motion carried the case to the originating court in banc, with the trial judge sitting alongside his colleagues. The decision of that court was final, though a disappointed applicant might still be able to resort to a bill of error. To dissuade parties from resorting to bills of exceptions the courts at one time followed on these motions the practice on bills of exceptions in granting a new trial automatically if an error was shown, but by the 1860s they were adopting a more flexible approach, altering the verdict when the case was clear enough to warrant it.

Though this state of affairs was evidently unsatisfactory, improvements were slow and hesitant, perhaps because common law practitioners and judges reposed great confidence in verdicts in banc and reprobated the want of finality (p.602) in Chancery. In 1830 Brougham’s measure combined the two differently constituted versions of the court of Exchequer Chamber in a single court comprising the judges of all three common law courts, those from the court where a case originated not sitting.242The procedure for taking a case there, however, remained notable for ‘unnecessary delay, expense and complexity’243 until the Common Law Procedure Act 1852 substituted for the writ of error a simple memorandum to a master; it also removed other inconvenient features, notably by enabling the court to alter the verdict rather than simply direct a new trial.244

The other two ‘appeals’ were improved by the 1854 Act. Motions for new trials were no longer confined to the originating court sitting in banc but might be taken to the Exchequer Chamber by way of error unless the decision of the court below was unanimous and it refused consent.245 The same applied to the procedure by special case stated, which had hitherto been unable to reach a court of error because it showed no error on the record.246 The Commission hoped that these changes would almost end bills of exceptions, but decided against recommending their abolition because of one circumstance in which the procedure might still be useful: where the court below was bound by a previous ruling of its own, a bill of exceptions took the case direct to the Exchequer Chamber, where it was open for reversal.247

Despite these changes, the common law appeals process remained unsatisfactory and untidy until the Judicature Acts.248 Nor, in the short term, do they seem to have offered litigants much more encouragement to appeal. The number of appeal and error cases set down in the Queen’s Bench was the same (15) in 1856 as in 1843, though they had risen somewhat in the other two courts. Motions ‘for new trials, to enter verdicts and the like’ were considerably fewer in the Exchequer and Queen’s Bench and slightly fewer in Common Pleas.249

(p.603) Judgment and execution

One of the biggest frustrations for plaintiffs was that proceedings ground to a halt when the vacation started. It was particularly unfortunate for a man who had succeeded at trial but had been unable to enter judgment before the long vacation, for while the formal giving of judgment in open court had ceased long ago, a judgment entered in vacation would be dated in the next term and could not be enforced until then.250 The same applied to judgments awaiting execution, and in the interim the defendant might have absconded or become insolvent; in the case of an ejectment he might remain in possession and exploit the land.251

This state of affairs was defended on two specious grounds: as giving the defendant a breathing space to find the money, and encouraging the parties to find a compromise. This, however, was purely fortuitous, and actually encouraged plaintiffs to hasten on with the suit to avoid running into the vacation. It was also said that allowing business to be done in vacation encroached upon the lawyers’ necessary recuperation, though this scarcely applied to execution. The first Common Law Commissioners rejected both arguments, but the immediate fruits of their recommendations were limited to an act enabling the trial judge to direct immediate execution if he thought fit.252 In the absence of any guidelines, judges varied widely in their attitude to such requests, and the second Commissioners disapproving of these inconsistencies, it was enacted in the Common Law Procedure Act 1852 that an execution from a trial in vacation should be issued after 14 days unless an application for earlier or deferred execution was granted.253

The 1852 Act also abolished ground writs (‘which ought to have been effected long since’254) and simplified the procedure for reviving an execution which had lapsed because more than a year and a day had passed without it being carried out or because one of the parties had died. Hitherto it had been necessary to obtain a writ of scire facias, which set in motion a tedious and expensive formal process, but henceforth (following the precedent of the Joint Stock Companies (p.604) Act255) the judgment would remain enforceable for six years and in case of a death a writ of revivor or a suggestion on the roll would suffice.256

2. The Law of Evidence in Civil Causes257

Nineteenth-century Developments

In the mid-1820s two of Bentham’s works on evidence appeared: the Traité des Preuves Judiciares in 1823 and the massive Rationale of Judicial Evidence in 1827. 258 They were more ambitious than his earlier writings on the subject and attracted more attention.259 The Rationale in particular developed its attack on the English system of evidence at forbidding length, and had three main objectives: to establish the principle of non-exclusion; to suggest means for securing the availability and trustworthiness of evidence; and to provide guidance for the judge in assessing the weight of evidence. One of Bentham’s most fruitful suggestions was to procure where possible ‘pre-appointed evidence’ through registration systems,260 but the heart of his plans was a ‘natural’ system with few of the technicalities of the existing one, which he considered was calculated to further the interests of ‘Judge & Co’ by maximizing their opportunities to extract fees from litigants. In Bentham’s world no potential evidence would be excluded unless on a utilitarian calculation its admission would cause undue delay, expense, or vexation.261

The extent of Bentham’s influence on developments in evidence is much debated.262 While many agreed with him in damning most of the exclusionary rules and improving the availability of evidence by registration, very few reformers supported a wholesale transformation along the lines he proposed. Bentham’s works, and Bentham’s disciples, were an important influence on this branch of the law, but only one of several such influences.

After Bentham the only important attempt to redraw the map of evidence was by J. F. Stephen. Largely responsible for the recent Indian code of evidence, Stephen was asked by the Attorney-General, Sir John Coleridge, to produce one (p.605) for the home country in 1872. But Coleridge soon got cold feet and no other leading minister or judge was willing to promote the project, which did not even reach the publication stage.263 Stephen’s code was very much less radical than Bentham’s, for its author regarded the existing law, however ill-organized, as ‘full of the most vigorous sense…the result of great sagacity applied to vast and varied experience’.264 His attempt to claim ‘relevancy’ as its ruling principle did not impress all critics, but his endeavours had his characteristic virtue of great clarity and the Digest of the Law of Evidence (1879) which Stephen derived from them became the standard resort for generations of bar students.265

Overall, English writings on evidence compared unfavourably with their American counterparts, for Wigmore produced the most erudite and authoritative account of its evolution and Thayer provided the most acute critical analysis.266 There was no shortage of textbooks and treatises in England. S. M. Phillipps, Thomas Starkie, W. M. Best and John Pitt Taylor all produced substantial volumes,267 which expanded through successive editions, displacing the smaller work of Sir Jeffrey Gilbert which had provided the foundation for evidence as a distinct legal subject.268 None quite succeeded in achieving canonical status (Taylor probably came nearest269) and from 1892 they were rivalled by Phipson’s work.270 Their success, alongside a host of smaller works or ones restricted to criminal evidence, suggests a substantial market among practitioners, which owed much to two related trends.271 One was that reported decisions hardened into rules carrying the authority of precedent. The relative freedom a judge had possessed in deciding what evidence to admit and what weight the jury ought to give to it was steadily narrowed between c.1780 and 1830 as rules of evidence assumed a clearer and more rigid form. Wigmore and others believed (p.606) that originated in civil trials, where counsel were present to argue from precedent and there was scope for appeals, and spread to criminal trials as counsel began to appear in them more regularly, but this has been questioned and the reverse chronology suggested, with the more assertive Old Bailey counsel carrying the challenges into the civil courts.272

Nisi prius reporting also contributed.273 Some judges resented reports of decisions made in haste and often without hearing full argument,274 and that the body of case law built upon such insecure foundations was notable more for increasing bulk than coherence. Ellenborough had declared that ‘the rules of evidence must expand according to the exigencies of society’275 but would probably have deplored the unselective accretion of cases which filled the textbooks. Writers zealously collected decisions, but most failed to meet the prescription that their works ‘should be expositions of principles, not strings of cases’.276 Through the regular citation of cases and treatises, however, differences in practice between circuits and between the common law courts gradually ceased and the law of evidence became a distinct, if not highly regarded, legal category.277

It was almost entirely a product of the common law courts. Equity judges claimed that, with certain exceptions, they followed the same rules, and equity counsel certainly argued that material included in depositions and affidavits should be excluded for contravening those rules;278 indeed, one of Brougham’s blunders as Lord Chancellor was to proclaim that he had read the evidence in advance without taking account of this.279 However, the most important exclusionary rules essentially covered witness testimony and made little sense in a court without a jury and considering testimony at one remove from the witness’s examination.280 Through orders for inspection of documents and bills of (p.607) discovery equity provided facilities to bring evidence before common law courts which their own procedures did not allow, though reforms of the 1850s, giving these powers to common law and conversely allowing oral examination in equity narrowed the distinctions.281 In general, equity judges seem to have been more relaxed about the admission of witness evidence and, in will cases particularly, more ready to accept parol evidence in the construction of documents.282

The textbooks swelled not only because of the proliferation of law reports but because they included matter which a rigorous analyst like Thayer regarded as extraneous.283 Because the law of evidence lacked a clear theoretical basis, its boundaries were hazy, and books often included such topics as judicial notice, estoppel, rules of document construction, presumptions, and the burden of proof.284Attempts to set their topics within an overall body of principles seldom transcended the banal or the obvious. Even Best, the most ‘Benthamite’ among them, clung to the ‘best evidence’ rule which Gilbert had grounded explicitly in his Lockean philosophy, though he was driven to admit that it was ‘more easily conceived than described’.285

The best evidence principle was not free from ambiguity. It might be presented as an exclusionary principle, demanding that all evidence meet a high standard of probative value, but it might also be interpreted in a much more generous way, enabling the party to rely on the best he could produce in the circumstances of the case. It had three particular applications: a potential witness should be called rather than having his evidence reported at second hand (the rule against hearsay); where a document was attested, the attesting witness should be called; where a document was relied upon, the original should be produced. These were sound rules, but they could exist independently of any unifying principle and the great shortcoming of the best evidence rule as an overarching principle was that the best evidence a party could produce in the circumstances would not always be accepted. 286

The law of evidence as developed in the nineteenth century comprised several exclusionary rules along with others which were arguably not truly part of the subject at all and helped to obscure its central premises. Thayer excoriated the ‘bastard sort of technicality’ this engendered and felt that ‘[t]he few principles (p.608) which underlie this elaborate mass of matter are clear, simple and sound. But they have been run out into a great refinement of discrimination and exception, difficult to discover and apply; and have been overlaid by a vast body of rulings at nisi prius and decisions in banc, impossible to harmonize or to fit into any consistent and worthy scheme.’287 Nothing ambitious was attempted in the rules of court produced for the new SCJ,288 and the express authorization in the Judicature Act 1894 for the Rule Committee to ‘regulat[e] the means by which particular facts may be proven and the mode in which such evidence may be given’ was practically a dead letter, since the only such rule made was given the narrowest of constructions by a judge of the Chancery division.289

Witness Evidence

Exclusion for interest and infamy

The most heavily criticized manifestation of the exclusionary principle was that which prevented certain witnesses from testifying, their incapacity resting upon either natural or artificial disqualifications. The former excluded persons whose testimony was reckoned unreliable either because of youth or mental incapacity or illness. This remained in the discretion of the judge, and although Sir Edward Clarke expressed misgivings at the judges’ tendency to accept the testimony of very young children, especially in criminal cases, it received little scholarly or public attention.290

It was otherwise with artificial incapacity, which had two branches. One was disqualification through infamy, where conviction of certain offences branded a person too untrustworthy to give evidence;291the other was where a prospective witness had some material interest in the outcome of the proceedings. Though it may have originated in a desire to avoid a verdict imputing that a man of good social standing had given false evidence, it was usually predicated on the inherent unreliability of an interested witness.292

(p.609) Although it was widely acknowledged that these rules often led to injustice they had become too deeply entrenched to be altered by the judges even had they wished to do so.293 Instead, they were removed in stages by legislation, beginning in a very modest way with an Act of 1833 which lifted the bar on a witness for whom the outcome of the proceedings would be admissible as evidence in other proceedings, retaining as a safeguard that the verdict for or against the party on whose behalf he testified would be inadmissible in evidence for or against the witness.294

A bigger step was taken in 1842 when Denman, assured of the support of fellow judges, brought in a bill to abolish both types of incompetency.295 The anomalies in the case of infamy were so gross that it found few defenders, and though delayed by parliamentary manoeuvering the bill became law in 1843 with both elements intact.296 The admission of interested witnesses undercut arguments against allowing the parties themselves to give evidence, though Denman still shied away from that. The law on interest had grown so elaborate that it occupied 80 pages of Phillipps’ treatise,297 and though defenders argued that repeal would increase perjury the provision passed unopposed.298

When it came to admitting the parties’ evidence, however, opposition was stronger. This was an article of faith with true Benthamites, and with Brougham, though his bill in 1845 rapidly emptied the House of Lords.299 By then Denman had been converted and the Law Amendment Society produced a bill drafted by Pitt Taylor.300 However, most judges were opposed, fearing perjury and longer trials; so was Lord Chancellor Truro and, surprisingly perhaps, the Law Society.301

What probably tipped the scales was the hard fact that the parties’ testimony was admitted in other courts with encouraging results. Chancery might be discounted as essentially different but in the new county courts the parties were (p.610) usually witnesses and often the only ones.302 The Law Amendment Society cleverly polled the county court judges and almost without exception they declared that, while perjury did abound, the greater facility for getting at the truth far outweighed it.303 Superior court judges may not have been convinced by argument, but the flight of litigants into the county courts was telling, and the big London solicitors who ran the Law Society probably did not represent the views of the profession.304

Brougham’s Act passed with relatively little opposition, helped by an amendment which excluded actions for breach of promise and those stemming from adultery.305 When spouses were made competent and compellable in 1853 it was subject to the latter exception306 and both exceptions otherwise remained until 1869.307 Thereafter the only limitation in civil cases was that communications made during a marriage were privileged. Initially some judges were said to signal their dislike of Brougham’s Act by obstructive interpretation,308 but the Common Law Commissioners soon pronounced it to work admirably, complacently summing up the changes: ‘[s]uch is the gradual progress of opinion and intelligence. A quarter of a century ago such a measure, if proposed, would doubtless have been treated as a wild and dangerous innovation, altogether unfit to be entertained by the legislature.’309


Removing the disqualification of witnesses for ‘defect of religious principle’310 was a lengthier and more contentious process, for whereas the other forms of disqualification were of little interest to the general public, the judicial oath touched religious sensibilities and became part of a wider debate on the place of the oath in public life which culminated in the controversy over Charles Bradlaugh’s refusal to take the oath required of a Member of Parliament.311

(p.611) In the face of commercial realities the courts had already retreated from Coke’s position that only Christians could be competent witnesses.312 Omichund v. Barker in 1744313 had allowed in the testimony of any heathen prepared to swear an oath in terms appropriate to his religion, provided that religion acknowledged a god with the capacity and willingness to punish falsehood on earth or in the hereafter.314 However, difficulties arose with Christian sects whose tenets forbade the swearing of oaths. Quakers and Moravians already enjoyed a measure of relief (extended to criminal proceedings in 1828315) which was extended to Separatists in 1833,316 a solemn affirmation being substituted for the oath. Still excluded were Christians outside the exempted sects who were unwilling to swear an oath and, lurking in the background, an uncertain number of acknowledged atheists.317

Bentham had stopped just short of calling for the outright abolition of the witness oath, but several of his followers went beyond him.318 Some claimed that it promoted a double standard of truth-telling, and that the additional force of the divine sanction on top of the ethical and practical sanctions against falsehood added nothing to a witness’s credibility.319 Others said its weight was diminished by the undignified and slovenly manner in which the oath was often administered320 and by the artifices whereby some witnesses evaded (as they thought) its effect.321 It seriously hindered both criminal and civil justice by excluding the potential witnesses least likely to perjure themselves.322Nevertheless, although there were advocates of substituting affirmation for all civic oaths, citing the Indian Code of Evidence and the report of a royal commission on non-judicial (p.612) oaths in 1867,323 that never became a serious proposition. In the 1830s Denman and other reformers were taught by experience to be modest and incremental, and even so the only fruit of their labours was a single clause bill enabling witnesses to swear in the form they regarded as binding on their consciences.324 Wider proposals were opposed (by the judges among others325) as opening the way for unscrupulous persons to claim the right to affirm and so give false testimony without (as they might think) incurring divine wrath; no doubt it was also feared that it would lead the irreligious to claim the right to affirm.326

The Common Law Commissioners offered strong arguments in favour of a limited extension to those with a religious objection to swearing (the imprisonment for contempt of some of those was a particular embarrassment)327 and this went into the Common Law Procedure Act 1854 despite opposition led by St. Leonards.328 The Commission was divided on further enlarging eligibility to affirm. While acknowledging the force of the complaint that the exclusion of witnesses injured both victims of crime and sufferers of civil wrongs, it shared the view of many practising lawyers (including Brougham329) that many witnesses did fear the supernatural sanction and that its removal would increase perjury in the courts.330 The Commission passed over another common argument, that atheists could not be trusted to tell the truth, often being republicans and revolutionaries besides. Many felt the social stability of the country was bound up with the maintenance of christianity in its institutions and rejected explicit recognition of unbelief as a permissible basis for full citizenship. Unsurprisingly, Sir John Trelawney’s bills of the early 1860s to extend affirmation to professed unbelievers failed:331 it is more difficult to explain (and it bemused Trelawny) why George Denman’s similar measure of 1869 passed with little opposition.332 Henceforth affirmation might be substituted for an oath (p.613) whenever a witness could satisfy the judge that an oath would have no binding effect on his conscience.333

There were few complaints about the working of the Act. A gradual shift in public opinion brought about a recognition that society was too resilient to crumble if no longer buttressed by religious tests, but it is clear from the debates on Bradlaugh’s Oaths Act in 1888 (and from the extra-parliamentary opposition to Bradlaugh) that many still regretted the concession;334 Halsbury was among those opposed to allowing atheists to serve on juries,335 and not all were satisfied with the verbal concession obtained by Sir Edward Clarke which made the affirmation ‘solemn’.336 Even then practical problems over the manner in which the oath was administered required further legislation in 1909, when the oath itself assumed the form of words (suggested by Alverstone LCJ) which became familiar to succeeding generations.337

Witness examination

The gradual relaxation of exclusionary rules as to persons naturally placed more emphasis on the role of examination and, particularly, cross-examination in elucidating the truth from witnesses. This was generally welcomed by the common law bar, for it enlarged their role in the trial and underlined its adversarial nature. Advocates became celebrated for their skill as examiners or cross-examiners, though they still tended to leave examination-in-chief to a junior.338 Scarlett was one of the first and others with a great reputation, in a variety of styles, included Follett, Hawkins, and Russell.339 Cross-examination was exalted as the most perfect engine for the discovery of truth yet invented340 and reached its apogee in Coleridge’s prolonged cross-examination of the Tichborne claimant—though some felt that Hawkins would have accomplished the task less suavely but much (p.614) more rapidly.341 But cross-examination, particularly in criminal trials, could easily degenerate into brutal browbeating and by the 1890s public disapproval of such exhibitions contributed to bringing a less abrasive style into favour.342

The rules governing examination of witnesses grew more elaborate as the trial judge’s discretion became fettered by counsel’s insistence on relegating him to referee in their contest. A judge still retained considerable latitude, in ruling on leading questions for example, but he was increasingly circumscribed over the admission of hearsay, corroboration and character evidence. Stephen characterized the particular rules as ‘too much matters of common practice to need authority for the main principles laid down’,343 but reported cases on their application continued to swell the practice books.344

A few questions were resolved by statute, notably the Common Law Procedure Act 1854, sections 22–5, provisions having their origin in the second report of the Common Law Commissioners.345 They had to decide between well-matched arguments on whether a party might seek to discredit his own witness whose testimony proved unfavourable. Denman and Bolland had been deadlocked in Wright v.Beckett 346 and the Commissioners sided with Denman; not indeed to the extent of allowing general evidence of untrustworthiness, but, where the judge ruled that this was an adverse witness, permitting evidence to contradict his statements or to show that he had previously told a different tale.347 They adopted Parke’s view that where a witness, without positively denying making an earlier statement at odds with his evidence, did not admit to it, evidence of the statement might be adduced, something Tindal CJ and Abinger CB had refused.348 The rule in The Queen’s Case,349 much complained of by Brougham, that where such an earlier statement was in writing, it must be given to the witness before he was questioned upon it, was now modified, allowing him only notice of the writing’s existence but allowing the judge to see and use the whole document if he wished.350

(p.615) The most intractable of the problems considered by the Commissioners was whether a witness might be questioned about previous convictions or other past events tending to degrade his character in the eyes of the jury and so devalue his evidence, a problem aggravated by ending the exclusionary rule based on infamy.351 The Commissioners came down on the side of the witness, recommending that only convictions for perjury and cognate offences should be provable in rebuttal of his denial,352but the Act went further, extending to any felony or misdemeanour. It was, however, in criminal trials that the wider question of character evidence assumed major importance.353

Expert witnesses

By the 1820s, if not earlier,354 there was general acceptance of Lord Mansfield’s dicta in Carter v.Boehm and, especially, in Folkes v. Chadd,355 suggesting that evidence of opinion was admissible only in exceptional categories of case, chiefly where a witness was called to provide the jury with specially authoritative knowledge on some art, science, or trade needing particular training or expertise. What qualified that witness was not necessarily a professional education or qualification, but expertise however acquired, so that, for instance, a bill broker might pronounce on the law of a foreign country or a solicitor on handwriting.356

While medical knowledge continued to provide the commonest scope for expert witnesses (most sensationally in murder trials, especially for poisoning357), the range expanded incrementally: accountants and actuaries, engineers and shipbuilders, underwriters and shopkeepers all made their appearance358 and there was no attempt at a judicial definition of a specialist subject for this purpose.359 Nor in England was there much discussion about what Learned Hand viewed as the contradiction at the heart of expert evidence—the admission of opinions (often contradictory opinions at that) which a jury must evaluate without, ex hypothesi, possessing the knowledge to do so.360 In general, English judges (p.616) seem to have taken a relaxed attitude to admitting expert evidence, according it more or less weight as it appeared more or less persuasive.

Handwriting posed particular difficulties. It was arguable that at least where there were specimens of the genuine writing of the author or signatory of a disputed document available, the jury was competent to judge for itself, but it had long been the custom to allow testimony from those who were familiar with his writing.361 Unfortunately the want of a clear notion of the function and limits of opinion evidence had created a muddle, with the Exchequer and the Queen’s Bench at odds on whether a document not related to the cause might be used to test a witness’s accuracy in identifying handwriting.362 Judges had also differed on whether to admit the evidence of an expert who had formed his opinion from signed documents rather than seeing the signatures made or having them in correspondence.363 The Common Law Commissioners favoured allowing any document the judge accepted as genuine to be used as the basis for witness evidence on handwriting.364

The problem of perjury

One of Bentham’s responses to criticisms that his inclusive policy on evidence would greatly increase falsehood was to propose a strengthening of the criminal law sanction against perjury (‘mendacity’, he called it).365 Perjury trials were then uncommon, but increased significantly after the County Courts Act 1846. County court judges admitted that it was a serious problem, but reformers intent on admitting the testimony of parties in the superior courts downplayed the likelihood of an explosion of false testimony. Presumably because the tacit admission would have damaged their case, they did not propose any strengthening of the criminal sanction, but Lord Campbell CJ, backed by fellow judges, pressed through Parliament almost in tandem with the Evidence Bill an Act to facilitate prosecutions for perjury committed in the lower courts.366

In the superior courts some judges showed such a strong inclination to commit the losing party for perjury that it was suspected that they were out to sabotage Brougham’s Act, but they soon concluded that they were simply making a rod for their own backs and, as reformers had predicted, afterwards showed (p.617) little inclination to find perjury in their own courts.367 A startling initial rise in perjury prosecutions was followed by a steady decline overall. Most were cases from lower courts, with a marked concentration within a narrow range of actions (game laws, affiliation, licensing); moreover a surprising number of cases ended in a directed acquittal. And when one obstacle to prosecution was removed by the appointment in 1879 of a Director of Public Prosecutions, he was strongly criticized for his highly selective policy on prosecutions, a pragmatic recognition of the difficulty in securing convictions from juries.368

It is unlikely that there was any decline in perjury in civil courts.369 It was most notorious in the divorce court and the Queen’s proctor was a not very effectual safeguard.370 Chalmers was eloquent on its pervasiveness in county courts and other judges echoed his views, albeit sometimes with a tendency to single out the Welsh and the Jews.371 Perjurers seldom faced prosecution unless they were detected in a conspiracy to pervert justice.372

Documentary evidence

Documents had long been admitted as evidence, first deeds and later informal writings too; indeed the Statute of Frauds was passed precisely because reliance upon witness testimony was sometimes unsatisfactory.373 In keeping with the policy of that statute, the circumstances in which parol evidence was admitted to construe the meaning of a document were severely restricted, though courts of equity were markedly more generous in this regard.374 Common law rules still bore traces of the older practice whereby a deed might operate to estop a claim rather than merely as evidence bearing on its validity, and until 1852 a rule of pleading, profert, required a party who relied upon a deed in his possession to set it forth in full in his pleadings.375

Proof was always required of the genuineness of a document, and if attested by witnesses, they had to be called or their absence justified.376 Since if the witnesses (p.618) denied their signatures or affected not to recall the transaction other evidence was sometimes admissible to prove the document, this requirement was perhaps otiose,377 but it was peremptorily affirmed by Lord Ellenborough378and thereafter could be modified only by legislation, the Common Law Procedure Act 1854. Thenceforth attesting witnesses were called only where the law or the parties had made attestation a condition.379

That reform was the only one suggested by the Common Law Commissioners, who declared that ‘[t]he great improvements which have been made by recent legislation in the matter of documentary evidence leave us but little to suggest in this respect.’380 The rules were certainly elaborate, sometimes necessarily, as where it was sought to substitute secondary evidence of a document for production of the original, but an invaluable simplification had been made in the Documentary Evidence Act 1845, an early achievement of the Law Amendment Society.381 A large number of public or quasi-public documents had already been made admissible as evidence by individual statutes, public, local, or personal. They included certificates of conviction and of discharge from bankruptcy or insolvency; licences to practise, e.g. as an apothecary; registers, e.g. of copyrights, and bye-laws.382In fact, ‘there is scarcely a single railway act, canal act, dock, harbour or town improvement act, or, in fact, any act giving powers to joint-stock companies, which does not contain [such] clauses’.383

With no statutory template the result was untidy and inconvenient. Some Acts exempted documents from the strict common law requirements of proof altogether, others in part, some not at all. Courts were not always sympathetic to the draftsman’s efforts; an amending Act to make a certificate under the Apothecaries Acts admissible provided that it bore the company’s seal was rendered useless by a decision that the genuineness of the seal had still to be proved.384 Given the improbability of successful forgeries of most of these instruments, the additional security came at a wholly disproportionate cost to litigants and it was a great improvement to make documents admissible provided only that they complied upon their face with the formalities prescribed by the Act which established them.385 It was a timely reform, for documentary evidence was becoming progressively more important in civil cases.

(p.619) 3. Organization and Business

Jurisdiction and Business

The three courts of common law preserved elements of their original functional separation. The King’s Bench alone had a general criminal jurisdiction, and was also the forum in which decisions of lesser courts and public officers and bodies could be challenged through the prerogative writs (though the Common Pleas could also hear habeas corpus applications). The Exchequer still heard disputes arising out the Crown’s revenue claims, while it was in the Common Pleas that attempts to use the old real and mixed actions had to be made.386

However, where subject fought against subject, most litigants could choose their forum. This was the result of encroachments by the King’s Bench (via latitat and bills of Middlesex) and the Exchequer (viaquominus) on the jurisdiction of the Common Pleas, whose attempts to emulate the attractive features of their rivals had only limited success.387 By the 1820s suitors’ preferences had created an embarrassing imbalance in their workloads: in five years to the end of 1827 the King’s Bench saw 281,109 actions commenced; the Common Pleas 80,158, and the Exchequer 37,197.388 Thus King’s Bench judges were ‘immoderately over-burthened’389 and in arrears while the other courts, with the same number of judges and essentially the same facilities, were comparatively—and in the case of the Exchequer absolutely—underused. It was to the dispatch of business that the Common Law Commissioners first directed their attention.

At either extreme were two solutions favoured only by the most, and least, radical thinkers respectively. One was to allow the market forces which had created this situation to resolve it: beyond a certain point, delays in the King’s Bench would drive suitors to seek relief elsewhere. On the other hand, the separate existence of the courts could be ended and a single curia regis be re-established, but no one who came before the Commission was willing to embrace that. The outer limit of practical politics was to direct certain types of business, or business from a particular locality, into one court or to allot suits to each court in rotation. The Commissioners rejected all these, though their grounds for rejecting a rota—that (p.620) it would be easily evaded by suitors using sham writs—were flimsy.390However, without endorsing Sir Robert Graham’s remarkable assertion that any restriction on choice of court was ‘an invasion of the privileges of the subject’, they did deem it ‘a fair and valuable privilege’ and one which should be infringed only as a last resort.391

The congestion in the King’s Bench could not be relieved by isolated expedients, for several had already been tried with (at best) limited success. Vacation sittings to complete term business, introduced by Ellenborough in 1813 and later given statutory authority,392 and extending the time for the Middlesex court sittings in vacation only encouraged more business at nisi prius without providing facilities for handling the additional motions in banc that would be generated, while an Act of 1821 which permitted parallel nisi prius sittings by the Chief Justice and one of the puisnes was quickly abandoned because of the difficulty of securing counsel’s attendance when they might be wanted in two places at once.393 Besides such practical considerations, the feeling of the profession was that judgments given in banc while the Chief Justice was sitting at nisi prius lacked authority; no one was yet prepared to argue that the banc system became inherently problematic when litigation grew beyond a certain point.394

An obvious shift, to borrow underemployed judges from the Exchequer, was exposed to the same objection, and would still be insufficient to cope with the influx of business.395 The causes of the disparity had to be tackled at source, and this required changes at three levels. One was the calibre of the judges, for it was generally acknowledged that there was a distinct hierarchy and that some of the appointments to the Exchequer and Common Pleas were hardly calculated to commend them to litigants’ attorneys.396

The second change was to remove constraints which discouraged attorneys from using the Common Pleas and Exchequer. Two measures were proposed to (p.621) enhance the Exchequer’s attractions. One—not immediately carried out—was to separate the equity jurisdiction from the plea side and have all its judges sitting in banc.397 The other was to end the monopoly of the four sworn attorneys and their 16 clerks, who had to be paid by the suitors’ own attorneys, and allow all attorneys to be enrolled.398

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