Defying the advice of the King of Hearts to the White Rabbit, the Oxford History of the Laws of England began in the middle, with the publication in 2003 of its magisterial sixth volume, written by the general editor, John Baker, and covering the years 1483-1558. It then went back to the beginning, with R.H. Helmholz’s opening volume on early canon law. The rest was silence, until in 2010 the series sailed suddenly and magnificently into port without any of the remaining eight early volumes in tow.
The grandeur of the culminating section, a survey of the near-century from 1820 to 1914, is such that it has needed three stout volumes to contain it. But why bring such a comprehensive history to a close in 1914? The answer, I suppose, is that all history has to end somewhere, and the closer you come to the present the more room there is for idiosyncrasy and the less for perspective. Moreover, it’s not that difficult, at least in the law, to bridge those last hundred-odd years. The senior clerk in the chambers where I was a pupil in the 1960s had started work towards 1890 as a boy in the Temple, where he had been trained to write copperplate with the steel-nibbed pen that he would still use to copy out pleadings and opinions for signature when the typist was away. My head of chambers could recall Lord Darling, memorably insulted by the Birmingham Daily Argus in 1900, when he lectured the local press on how to report his decisions, as an impudent little man in horsehair who might have made a successful bus conductor, sitting in the 1930s on the judicial committee of the Privy Council and waiting, to the unconcealed annoyance of his colleagues, for an opportunity to make a smart remark.
And here Darling is, now a part of history, contrived wisecracks and all; though the long-held view that Halsbury, the Conservative lord chancellor who put him on the bench, made his choices entirely on the basis of party affiliation has shifted. The Oxford History’s judgment is that, despite the expressed belief of the prime minister, Lord Salisbury, that appointment to the bench should be a reward for party loyalty, ‘the worst choices’ – Darling among them – ‘seem to have been Halsbury’s own.’
Even Holdsworth’s massive 16-volume opus was introduced by the indefinite article – A History of English Law. Although the present enterprise boasts the definite article, the epithet ‘Oxford’ no doubt acknowledges that others might have done it differently. So they might; but if the rest of the series matches this final trilogy in breadth, depth, readability and learning, it is unlikely that anyone could have done it much better. Whatever the Oxford brand signifies, it is neither academic nor geographical. The chairs occupied by the authors of the final phase are situated in Cambridge, Otago, Keele, London, Middlesex and Cardiff. The doyen of them, William Cornish, has a distinguished record both as a legal historian – his and Geoffrey Clark’s Law and Society in England 1750-1950 remains an important work – and as an authority on intellectual property, on which he contributes an excellent section linking controversy and change in the law to economic interest and scientific progress.
The ‘Manifest’ with which the trilogy is introduced (though, despite the spry nautical metaphor, it opens with an unsettling solecism: ‘Any legal history worth salting’ – surely not) renounces all ambition to write a social history of the law rather than a history of the law itself. But the siren song that there is no legal history, just law, is faint. The work is rich in social, philosophical, political and economic context; even the structural categories of the enterprise – institutions, public law and private law – ineluctably leach into one another.
The precision with which, at least in this phase, a history of the laws of England is able to skirt the laws and legal systems of Scotland and Ireland, which throughout its period were constitutionally united with England, is both striking and revealing. Wales had been formally annexed in 1535, and the Oxford History records such systemic differences as still existed between the two countries by the 19th century. But although Scotland since 1707 and Ireland since 1801 had also formed part of a single political union, their legal systems and to a considerable extent their laws (Ireland’s, however, less than Scotland’s) remained their own.
Scotland’s principal intrusion into the present trilogy comes in the dismal history of final appeals, which could be brought more or less at will from north of the border, as often in order to delay enforcement as to obtain justice, exacerbating a logjam of English and Irish appeals which was not broken until the jurisdiction of the House of Lords was dismantled and recast in the 1870s. The story of how that happened is well told in Patrick Polden’s section on the law courts. Although it was the supreme appellate forum in civil matters (there was no real criminal appeal system), the House of Lords had a chaotic procedure in which the quorum of three could be made up of any peers, legally qualified or not, who happened to be around (Blackstone had thought this quite acceptable in view of the ‘delicacy of sentiment so peculiar to noble birth’). Attempts were made in the first part of the century to shift to a voluntary system in which a sitting or former lord chancellor would always preside. But Eldon had held the Great Seal for so much of the period between 1801 and 1827 that ex-lord chancellors were hard to find; and even chief justices were not routinely ennobled, thanks to concerns that they and their male progeny might not be able to live up to the obligations of nobility.
When Lyndhurst, who knew nothing whatever about Scots law, took over the Great Seal in 1827, he persuaded the House to accept two senior judges, one of them a Scot, as deputy speakers who could preside on appeals without being peers. The farsighted and energetic Brougham, who took over in 1830 and had no fear of Scots law, swept up the arrears, organised a peerage for Chief Justice Denman and then, by making sure that the shaky claim of a minor judge, William Courtenay, to the earldom of Devon succeeded, created a just about legally qualified appellate panel. By the time Melbourne’s administration fell in 1834, Brougham had set up the Central Criminal Court (a new institution but a chaotic hellhole until the building we all know, in what Polden describes as neo-English baroque, was opened in 1907) and created the judicial committee of the Privy Council. But time was lacking to carry out his plan of diverting all final appeals to the latter. So the old system pottered on, subject to an intermittent and contested convention that lay peers would not sit on appeals. By the mid-1850s the fallings-out of the three ex-lord chancellors who sat as a panel (at least when Brougham, now elderly and querulous, was not doing appeals on his own with a couple of lay peers to make up the numbers) had become so notorious that the solicitor-general said publicly that their conduct ‘would disgrace the lowest court of justice in the kingdom’.
It was to meet this reproach that the idea of the life peerage was devised – an injection of red blood which, by being finite, would not dilute the blue. Conservatives, rightly as it turned out, saw judicial life peerages as the thin end of a meritocratic wedge: Prince Albert was believed to see them as a path for scientists and other professionals. But the idea, which had almost died at birth in the 1830s, went lame when it was resurrected in the 1850s, not least because it was uncertain whether the monarch could create a life peerage in the exercise of the royal prerogative or whether it required legislation.
It was only in the wake of the Second Reform Act that Bagehot’s demand for a supreme court divorced from the legislature began to be taken seriously. Hatherley’s initial proposal of a single final court for Great Britain and the empire, including four judicial life peers, was modified by his successor as lord chancellor, Selborne, to provide for a new and fully professional court of appeal which would be the last stop for all litigation in England and Wales. But before his bill could become law, Gladstone’s administration lost office, and Selborne had to watch while his successor, Cairns, was manoeuvred by the right wing of his own party into the unplanned double-appeal structure we still have today. Instead of there being a single imperial court of appeal, Selborne’s new professional court of appeal was to be topped out by a renovated House of Lords, with a committee of lords of appeal ‘in ordinary’ (i.e. in regular attendance – a proper job) ennobled for life only: two appellate tiers for not much more than the price of one. It took until 2009 to complete Bagehot’s project of divorcing the top appellate tier from the legislature, and even that has been in the face of some stiff opposition among the law lords; but not even the most conservative among them can have been overjoyed to see the Supreme Court on a list of dispensable quangos leaked recently to the Daily Telegraph.
The Victorian changeover was marked by the construction of a vast new palace of justice, the law courts in the Strand, behind its handsome façade a chillingly gothic product of wrangling, cheeseparing and bureaucracy, controversially paid for by raiding the Chancery suitors’ funds. The architect George Street, whose last major job it was, had to deal with a building firm which, inevitably, had been selected by the Treasury solely because it was the lowest bidder and which, just as inevitably, went bust after the first phase, leaving subcontractors unpaid and government with a massive bill for rescuing the project. By the time the building opened in 1882, Street was dead and gothic was out of fashion. If you want a glimpse of what might have been, go into the bank on the opposite side of the Strand, designed contemporaneously by Cuthbert and Wimble as a restaurant for the new law courts and still richly ornamented with Doulton tiles and ceramics, the foyer a remarkable harbinger of art nouveau, the interior columns decorated with chrysanthemums, the walnut and sequoia wall panels with scenes from Ben Jonson (who drank in the Palsgrave Tavern which once stood here).
Alongside the noisy travail of the born-again legal system and its new emporium, novel administrative structures had been quietly growing. These were to transform the state more fundamentally than the reconstitution of the courts. They ranged from railway and canal commissions, headed by a judge and behaving very much like a court, to administrative boards regulating civic amenities and land uses. The courts were not going to be sidelined: they used the old prerogative writs to strike down unfair or unlawful decisions by these bodies and to compel them to act according to law. When Parliament passed hands-off clauses saying that the courts could not interfere with their decisions, the courts held that a decision taken without legal power or due process was no decision at all. By the later 19th century there had come into being the lineaments of the judge-made body of public law by which today the legality and fairness of executive action is monitored by the courts.
How this came about is tracked law by law, institution by institution and judgment by judgment in Stuart Anderson’s impressive segment of the Oxford History. Why it came about is more elusive, but here, too, broad lines emerge. An increasingly complex industrial and mercantile state depended on unfettered enterprise for progress but on regulation for stability. Following the repeal in 1772 of the early statutes that criminalised profiteering in markets by middlemen, Chief Justice Mansfield adopted Burke’s view that the corresponding common law offences were ‘senseless, barbarous, and, in fact, wicked regulations made against the free-trade in matter of provision’. By the end of the Napoleonic wars and the start of the period covered by this trilogy, the mechanisms of law and custom by which food riots had for centuries been kept under a measure of control by local justices had gone, and social disorder, moving now into machine-breaking, was a major and recurrent threat. Faced with a Parliament that was (in the phrase of the legal historian Douglas Hay) stupendously over-representative of the wealthiest, the disenfranchised turned to political reform. It is relevant, therefore, that the period covered by these books opens in the aftermath of Peterloo: political discontent was now being met not with negotiation or compromise but with armed force in the streets and prosecution in the courts.
The institution and spread of civic police forces after 1829 was, however, a good deal more than a new means of repression. The corruption of criminal justice by the venal system of private prosecution, with rewards for informers that set a premium on perjury, called out for reform; and though it was not until later in the century that acceptance of state responsibility for the enforcement of criminal justice brought into being a public prosecutor, local police forces, untrustworthy and inefficient as many were, began to push the private prosecutor out of business.
The 19th century thus sees the irregular, unplanned but inexorable and eventually massive growth of new forms of state regulation, which Anderson describes in his section on public law – relevantly so, since the growth during that century of the judge-made public law which is a major feature of today’s landscape is intelligible largely as a series of responses to the structures of governance that legislation was erecting. Unlike today, however, legislation was not subject to a governmental near monopoly. Parliament now contained Radical members such as the former Chartist Anthony Mundella, who had a major hand in the 1870 Education Act, the 1871 Factories Act and a series of other progressive measures, culminating in the 1889 Act that gave the NSPCC the enforcement powers it still possesses; Conservative members like Russell Gurney, responsible for the Married Women’s Property Act of 1870 and for the law, six years later, that opened the medical profession to women; peers like Lord Shaftesbury, with his remarkable record of legislation for the protection of the insane, for workplace safety and for public sanitation, aided by administrators of the calibre of Edwin Chadwick; and, arguably the most heroic of all, Samuel Plimsoll.
Plimsoll’s story, given its own space in Raymond Cocks’s section on social reform, is well told. The carnage of the Victorian merchant shipping trade, prospered in or connived at by MPs, peers and ministers as one overloaded rust-bucket after another put to sea and was lost, enabling the owners to collect insurance moneys from a Lloyds’ flush with the prosperity of those vessels that did reach port, still beggars belief. While there was no law against overloading, there was a draconian one to punish seamen who refused to board an unseaworthy vessel. In the early 1870s, Cocks records, more than 1600 sailors were jailed for this crime. When the Peru sank, 15 of her crew survived because they were serving prison sentences for having refused to ship aboard her.
Plimsoll, protected principally by the fact that his constituency of Derby was about as far from the sea as it is possible to be in England, faced vilification (‘Plimsollism is another word for terrorism’) and obstruction on an almost unimaginable scale. A huge philanthropic movement developed in support of him, but a royal commission, swamped by spurious evidence about the difficulty of locating a suitable load line, reported in 1874 that no universal rule was possible; it must be left to the discretion of the shipowner or, occasionally, to Board of Trade inspectors. The government of India – in this as in other respects a test bed for domestic reforms – had meanwhile introduced a straightforward law that there must be three inches of freeboard for every foot of immersion.
Outside the House, Plimsoll was repeatedly harassed with libel writs. His speeches in Parliament give some idea why. The supine Board of Trade, he asserted, was beset by
shipowners of murderous tendencies outside the House, and who are immediately and amply represented inside the House, and who have frustrated and talked to death every effort to procure a remedy for this state of things … Every winter, hundreds and hundreds of brave men are sent to death, their wives are made widows and their children are made orphans, in order that a few speculative scoundrels … may make unhallowed gains.
Naming three vessels recently lost with all hands and two more abandoned by their crews, he asked ‘whether the registered owner of these ships, Edward Bates, is the member for Plymouth, or if it is some other person of the same name’.
Plimsoll’s campaign, as Cocks points out, is a vivid illustration of the importance of the immunity of parliamentary speech from the law of defamation. By 1875, Plimsoll had assembled what threatened to become a parliamentary majority. The viability of the mandatory load line temporarily introduced under this pressure allowed Parliament in 1876 to make permanent, albeit still incomplete, provision for what became the Plimsoll line. Few statues are more deserved than the one erected by seamen to Samuel Plimsoll on the Victoria Embankment.
The state machinery that was needed for such regulation as could be secured in the teeth of vested interests was massive. The Home Office grew in this period from an establishment of 22, supporting a home secretary who signed every letter himself, to a department of state controlling inspectorates, some of them highly skilled and employing a surprisingly high number of women, of mines, factories, explosives, prisons, police, reformatory and industrial schools, aliens, anatomy, animal welfare and inebriate retreats. Its personnel, like the personnel of other departments of state, became a professional elite as the reforms advocated by the Northcote-Trevelyan Report took effect, so that by 1914 Britain had a civil service, its luminaries educated at the same schools and universities as the judges, at least as capable of running the country as its transient political masters. Both the development of public law in the 19th century to control the hydra-headed state and the long sleep of public law that followed the Great War can best be understood against this backdrop, and it is a pity that it does not form part of the Oxford History.
But one has to stop somewhere, and the three volumes, as they stand, are full of matter, elegantly ordered and mostly well written (though someone should have blue-pencilled such clunking coinages as Keith Smith’s ‘retributivistic’). While each is separately indexed, the index of the third volume is comprehensive – valuably, since each of the main sections could very well stand on its own as a book. Every section prompts more thought. Reading Smith’s sometimes comical account of the legislative drive against prostitution, gambling and obscenity, I wonder whether the main restraint on the prurient outrage of the good and godly was probably not so much principled libertarianism as the need of respectable male society to have private access to prostitutes, to be able to place bets with its own bookies and to keep its own private libraries. So it was street prostitution, street betting and the public sale of offensive literature that were criminalised by Parliament and energetically prosecuted by the Society for the Suppression of Vice and its avatars.
Then again one wonders why, in an era when property rights were all but sacred, trespass – except in search of game – was never criminalised by either the legislature or the judiciary. The answer, I strongly suspect, is hunting. It was – for that matter it still is – one thing for the hunt to hand out compensation to a smallholder who has just had his kitchen garden trashed by a horde of domesticated quadrupeds in pursuit of a feral one. It is another to let the smallholder or the police put the master of foxhounds in the dock and have him fined, eventually giving him more form than the local flasher. Even when Parliament in the 20th century finally lost patience with squatters and made trespass a crime, it did so only where the trespasser had defied a request to leave. So long as it thundered on, the hunt was still safe.
One story which pops up in the Oxford History’s footnotes but perhaps deserves to be cohesively told is that of the ‘persons’ cases, the shaming series of decisions in which the judges, licensed by deliberately feeble parliamentary drafting, repeatedly held that women were not ‘persons’ for the purpose of exercising the newly enlarged franchise or of accessing professional training. The Reform Act of 1867 used the word ‘man’ to extend the franchise to all householders, but Brougham’s Interpretation Act had by then laid down that the male was to include the female unless an opposite intention was plain. When local officials nevertheless struck out the names of hundreds of female householders, proceedings brought by one group of women were shut out by the courts on the grounds that only ‘a person aggrieved’ could sue, and women were not persons. Another group lost on the grounds that Brougham’s act could not operate in the face of the fact that women had never been allowed to vote. In 1873, Sophia Jex-Blake and six other women who had persuaded Edinburgh University to change its regulations so as to admit women to its medical lectures lost their case in the Court of Session when the university reneged on its own recent regulations, claiming that they had been made unlawfully because the historic purpose of the university was to educate young men. And so it went on. When Parliament gave women the right to stand for election, Lady Sandhurst was unseated from the London County Council by an opponent who claimed that, not being a person, she could not be ‘a fit person of full age’. But when a Miss Cobden was elected and waited till the time for challenge was past before taking her seat, she was promptly prosecuted for being a person sitting as councillor when unqualified. She put up the seemingly impregnable defence that if she was not a person for the purpose of being elected she could not be a person for the purpose of being prosecuted. Naturally, she was convicted.
On both sides of the border, and in the colonies, the judges continued to exclude women from the legal profession. As the period of these volumes ended, the Liberal Lord Chancellor Loreburn, who had not long before instituted a criminal appeal system, delivered himself of the judicial opinion that the legal incapacity of women was so self-evident that it was ‘incomprehensible … that anyone acquainted with our laws … can think, if indeed anyone does think, there is room for argument’. It was not until 1929 that the Privy Council, in an appeal from Canada about the eligibility of women for appointment as senators, managed to turn the tanker round.
There are other great tranches of history here: the bitterly contested transition from the outlawing of trade unions as criminal conspiracies to their protection by statute from the hostility of the judges and the eventual protection of their political funds, with consequences for the political system which endure to this day; the policy-driven doctrines by which the judges made employers responsible for their employees’ negligence and then excluded fellow employees from this protection (they were deemed, in taking a job, to have accepted the risk that another employee would maim or kill them); the ending of transportation and the segueing of an eclectic and capricious system of capital punishment into the sadistic ‘separate and silent’ prison regime with hard labour and flogging as optional extras, but from there, as the century ended, into the pioneering policies of the 1895 Gladstone report, articulated in the 1899 prison rules, of encouraging prisoners ‘to lead an honest life’ and giving them training and employment in their chosen trades.
Among many excellent sections, all of them giving credit to writers who have previously surveyed the terrain, one can perhaps single out Cornish’s three-dimensional survey of what is now called family law – three-dimensional because, rather than flatten the history into a 21st-century paradigm, he tracks it from its diffusion among the common law of property and contract which gave control to the domestic patriarch, the equitable law of trusts by which alone wives could be provided for, and the ecclesiastical courts which, until Parliament finally passed a divorce act in 1857, possessed such powers as there were (if you put aside the ability of the wealthy to get divorced by private legislation) to dissolve a marriage. What then came in was the heavily moralised concept of matrimonial fault as the ground for divorce, though what ranked as fault differed critically – hypocritically – between husband and wife, while those who tried to arrange a civilised end to a failed marriage could find themselves condemned by reason of collusion to a marriage without an end. It was not only the slow pressure for reform but the sudden shocks, such as the attempt of a determined Georgina Weldon to enforce a court order for restitution of her conjugal rights (one of the few remedies dispensed by the ecclesiastical courts) by having her recalcitrant husband committed to prison, that prompted Parliament to intervene. From England, Cornish glances north to Calvinist Scotland, where the courts had for a long time been granting divorces in clear cases on the basis of simple breach of contract, and ahead to the reforms of the 20th century which were to fuse all this, together with the law of child welfare, into a hardly less intractable but at least more equitable body of family law. It is a model of how legal history should be written.
What will the next generation of legal historians, in what one hopes will be Volumes XIV onwards of the Oxford History, make of the short century from 1914 to 2011? Anyone with a Panglossian temptation to look back at the legal anomalies and wranglings of Regency and Victorian England and to suppose that we’ve now got things pretty much right might reflect on what will be written about English law in our lifetime: the law of libel, for example, or of privacy; anti-terrorist legislation; the proliferation of indefinite sentences; or the state of our prisons. And they may continue to be bemused by the rediscovery and expansion of the Victorian body of public law in a system which still does not, and probably never will, operate north of Hadrian’s Wall. Whatever else it turns out to be, the Oxford History is still likely to be a history of the laws of England.
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