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Mingling the Waters

Personalities, Politics and the Making of the Supreme Court of Judicature

Published online by Cambridge University Press:  16 January 2003

Patrick Polden
Patrick Polden*
Affiliation:
Department of Law, Brunel University
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Abstract

Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures.

This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.

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Articles
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The Cambridge Law Journal , Volume 61 , Issue 3 , 11 December 2002 , pp. 575 - 611
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Copyright © Cambridge Law Journal and Contributors 2002

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References

1 R. Stevens, “The Final Appeal: The Reform of the House of Lords and Privy Council” (1964) 80 L.Q.R. 343-369, at 351. They rapidly became the model for the major colonies: Taylor, G., “South Australia's Judicature Act Reforms of 1853” (2001) 22 Journal of Legal History 55–84, at 55Google Scholar.

2 Holdsworth, W.S., A History of English Law, vol. 15, by Goodhart, A.L. and Hanbury, H.G. (London 1965), pp. 121–138Google Scholar; SirJacob, J.I.H., “The Judicature Acts, 1873-75—Vision and Reality”, in The Reform of Civil Procedure (London 1982), pp. 301–322Google Scholar.

3 There is an excellent recent discussion in A. Burrows’ inaugural lecture, We Do This at Common Law But That In Equity.

4 Ashburner, W., Principles of Equity, 2nd edn. (London 1933), p. 18Google Scholar. It was probably derived from Lord Westbury's speech in Parl. Debs. 3rd s. vol. 201 col. 1573 (30 May 1870).

5 Equity (Cambridge 1913), quoted by Perell, P.M., The Fusion of Law and Equity (Toronto and Vancouver 1990), p. 19Google Scholar.

6 “The Spirit of the Seventies” (1977) 6 Anglo-American Law Review 119-127, 120.

7 (1875-6) 1 Law Magazine and Review (4th s.) 3.

8 Getzler, J., “Patterns of Fusion”, in Birks, P. (ed.), The Classification of Obligations (Oxford 1997), pp. 157–192Google Scholar, pp. 164-165; Atiyah, P. S., The Rise and Fall of Freedom of Contract (Oxford 1982), pp. 671–674Google Scholar.

9 Blom-Cooper, L. and Drewry, G., Final Appeal: a Study of the House of Lords in its Judicial Capacity (Oxford 1982)Google Scholar; Stevens, R., Law and Politics: the House of Lords as a Judicial Body, 1800-1976 (London 1979)Google Scholar.

10 First Report, P.P. 1868-9 [4130] XXV (hereafter First Report﹜.

11 According to Holdsworth, , History of English Law, vol. 12 (London 1938), pp. 585–605Google Scholar, and vol. 15, p. 122, this was a reversion to the policy of the early 18th century, departed from in the ill-advised incursion into substantive fusion on the part of Lord Mansfield and Sir William Blackstone.

12 First Report, pp. 6-9.

13 See e.g. (1869) 27 L.M. & R. 5. Dr. Getzler concludes a magisterial overview of the process thus: “law and equity were successfully fused at the remedial and procedural level by reforms stretching back at least a century before the Judicature Acts. Those statutes were a consolidating exercise focusing on the administration of justice; they were not really a new departure even at the level of procedure, bearing in mind the cross-breeding of equitable styles of procedure into the common law since the time of Lord Mansfield and the slow elimination of significant jury discretions”, (see note 8 above, p. 191). This perhaps overstates the practical effect of the statutory reforms of the mid-19th century.

14 The position adopted by Lord Chief Justice Cockburn, , Our Judicial System (London 1870), p. 1Google Scholar. The saga of the new royal courts of justice threatened to be interminable.

15 The line which had been taken by the Chancery judges, including Sir W. Page-Wood (as Hatherley then was), on Lord Campbell's bill of 1860 to give common law courts enlarged equitable powers: C.F. Trower, “The Growth of the ‘Prevalence’ of Equity” (1879-80) 5 L.M. & R. (4th s.) 127-147, at 140. See also Sir J.D. Coleridge (Attorney-General), “The Attorney-General's Address on Law Reform” (1872) 1 L.M. & R. (2nd s.) 795-811.

16 High Court of Justice Bill, House of Lords State Papers 1870 (32) IV; Appellate Jurisdiction Bill, H.L.S.P. 1870 (37) III.

17 Cockburn, Our Judicial System, pp. 58-59; Parl. Debs. 3rd s. vol. 200 cols. 2013-2015 (29 April 1870).

18 High Court of Justice Bill, cl. 3.

19 Ibid., cl. 2. When the county courts were given a limited equity jurisdiction by the County Courts (Equitable Jurisdiction) Act 1865 (28 & 29 Vic. c. 99), it was not thought necessary to offer any guidance on how to resolve conflicts.

20 Our Judicial System, 4 May 1870. On the 13th Parliament received a letter in which Cockburn transmitted the views of the judges, in effect declining to assist with the Appellate Jurisdiction Bill, which had also run into trouble: H.L.S.P. 1870 (309) XIII; Stevens, “Final Appeal”, 344345.

21 He made capital out of Hatherley's apparent change of front (see note 15 above): Our Judicial System, pp. 17-19; Cockburn to Selborne, 7 February 1873, Lambeth Palace Library, Selborne MSS, vol. 1865, f. 215.

22 Our Judicial System, p. 46.

23 Ibid., p. 21.

24 Parl. Debs. 3rd s. vol. 200 cols. 180-181, 188 (18 March 1870), 2039, 2046 (29 April 1870).

25 Successive versions of the Bill are in H.L.S.P. 1870, IV.

26 Parl. Debs. 3rd s. vol. 201 col. 1588 (30 May 1870). See also his claim that the bills had been approved by a large majority at a meeting of the Law Amendment Society: ibid., col. 1566.

27 Both bills passed the Lords but neither made any progress in the Commons. For the fate of the Appellate Jurisdiction Bill see Stevens, “Final Appeal”, 346-347.

28 Memorials, Personal and Political (2 vols. London 1898), vol. 2, p. 298.

29 P.P. 1873 (443, 501, 567) V; Parl. Debs. 3rd s. vol. 214 cols. 331-360 (13 February 1873); Cairns to Selborne, 3 February 1873, Selborne MSS, vol. 1865, f. 209.

30 See e.g. the speech of Dr. Ball, Parl. Debs. 3rd s. vol. 216 cols. 885-891 (12 June 1873). Sir William Erie, a former Chief Justice of the Common Pleas, Sir Raymond Blackburn and Sir M.E. Smith, judges of Queen's Bench and Common Pleas respectively, Sir John Karslake and J.R. Quain were among the original members. Baron Bramwell and Sir Robert Phillimore were added later, according to (1868-1869) 12 S.J. 489-493, because the Chancery element was felt to be too strong.

31 E.g. (1874) 1 The Law 3-15.

32 The Times, 1 May 1873; Stevens, “Final Appeal”, 352. A series of articles by G.W. Hemming in The Saturday Review on this alarmist theme was said to have been influential: (1873) 8 L.J. 193.

33 Parl. Debs. 3rd s. vol. 200 col. 187 (18 March 1870).

34 Ibid., vol. 216 cols. 664-668. Lord Cairns’ Act of 1859, which had empowered courts of equity to award damages, had been unambitiously applied: J.A. Jolowicz, “Damages in Equity—A Study of Lord Cairns’ Act” [1975] C.L.J. 224-252.

35 Among many examples see (1873) 55 L.T. 10; R.M. Pankhurst, (1877) Transactions of the National Association for the Promotion of Social Science 250; (1873) 35 Saturday Review 267; C.L. Neate, (1868) T.N.A.P.S.S. 217-225; W.E. Finlason, “Illustrations of our Judicial System” (1873) 2 L.M. & R. (2nd s.) 208-210; (1874) 3 L.M. & R. (2nd s.) 190.

36 The Common Law Procedure Acts, 4th edn. (London 1872), introduction.

37 Parl. Debs. 3rd s. vol. 216 col. 844 (12 June 1873); “Ought the Judicature Bill to Pass?” (1873) 2 L.M. &. R. (2nd s.) 534-540.

38 Parl. Debs. 3rd s. vol. 215 col. 876 (12 June 1873). For an anecdote of the equity bar's condescending attitude see (1883) 1 Pump Court 81.

39 (1872-3) 17 S.J. 191; Parl. Debs. 3rd s. vol. 215 cols. 1273-1274 (1 May 1873).

40 (1873) 35 Saturday Review 705; (1873) 8 L.J. 252; (1873) 55 L.T. 40.

41 (1883) 18 L.J. 676.

42 [1892] A.C. 1.

43 [Foulkes, W.D.I.], A Generation of Judges by their Reporter (London 1886), p. 131Google Scholar. See also the “vehement diatribe” against equity in Preston v. Doria referred to in Finlason, “Illustrations of Our Judicial System”(see note 37 above) p. 210.

44 Willis, W., Sir George Jessel (London 1893), pp. 18–19Google Scholar; Bosanquet, R., The Oxford Circuit (Oxford 1951), p. 28Google Scholar.

45 Parl. Debs. 3rd s. vol. 215 cols. 1263-1270 (1 May 1873); Nash, T., The Life of Richard, Lord Westbury (2 vols. London 1888), vol. 2, p. 252Google Scholar.

46 (1875-6) 60 L.T. 105; Selborne, Memorials, vol. 2, p. 301.

47 First Report, p. 9; High Court of Justice Bill, H.L.S.P. 1870 (32) IV; Parl. Debs. 3rd s. vol. 200 col. 170 (18 March 1870).

48 High Court of Justice Bill. cc. 3, 13.

49 Parl. Debs. 3rd s. vol. 200 cols. 186 (Sir John Romilly M.R., 18 March 1870) and 2039 (Lord Cairns, 29 April 1870).

50 E.g. (1873) 35 Saturday Review 232.

51 Supreme Court of Judicature Bill, H.L.S.P. 1873 (14) VII, and Lord Chancellor's amendments; Supreme Court of Judicature Act 1873 (36 & 37 Vic. c. 66), s. 31.

52 “The Working of the Judicature Acts” (1875-6) 1 L.M. & R. (4th s.) 5-6.

53 Supreme Court of Judicature Bill, H.L.S.P. 1873 (89, 736) VII. A Commons amendment to remove the names was lost by 20 to 55: Parl. Debs. 3rd s. vol. 217 cols. 1874-1877 (7 July 1873).

54 Cairns’ amendment had put Chancery first and this was criticised by common lawyers in the Commons: Parl. Debs. 3rd s. vol. 217 cols. 1874-1875, H.C. Raikes and G. Whalley, 7 July 1873. Presumably Selborne felt that to keep that order would lend credibility to Cockburn's allegations.

55 Supreme Court of Judicature Act 1873, s. 32; J.D. Coleridge to his father, 16 July 1873, Coleridge, E.H., The Life and Correspondence of John Duke Coleridge, Lord Chief Justice of England (2 vols. London 1904), vol. 2, pp. 218–219Google Scholar. A Commons amendment to abolish the chiefs of Common Pleas and Exchequer was lost by 96 to 152: Parl. Debs. 3rd s. vol. 216 cols. 1597–1605 (30 June 1873).

56 Parl. Debs. 3rd s. vol. 216, cols. 1600-1602, 1879 (30 June, 7 July 1873); Bovill to Selborne, 7 February 1873, Cockburn to Selborne, 15 February 1873, Selborne MSS, vol. 1865, ff. 213, 215.

57 Parl. Debs. 3rd s. vol. 216 cols. 1587-1588 (30 June 1873).

58 Supreme Court of Judicature Act 1873, ss. 3, 5.

59 Ibid., s. 33.

60 First Report, p. 10.

61 Supreme Court of Judicature Act 1873, s. 40.

62 Criticised in the House of Commons by G.B. Gregory, a London solicitor: Parl. Debs. 3rd s. vol. 216 col. 668 (9 June 1873).

63 Supreme Court of Judicature Act 1873, s. 40.

64 E.g. Parl. Debs. 3rd s. vol. 226 cols. 761-765 (9 August 1875).

65 Ibid., 3rd s. vol. 258 cols. 587-588, (10 February 1881, Sir H. James, Attorney-General).

66 Election Petitions Act 1868 (31 & 32 Viet. c. 125), s. 11(8).

67 Parl. Debs. 3rd s. vol. 201 cols. 1597-1599 (30 May 1870). Selwyn died on 11 August 1869 and James was appointed on 4 July 1870. Gladstone was insistent that judges be transferable between divisions: Mathew, H.C.G. (ed.), The Gladstone Diaries, vol. 8 (Oxford 1982), p. 277Google Scholar.

68 Supreme Court of Judicature Bill 1873, cl. 6.

69 Gladstone to Selborne, 2 November 1872, Selborne MSS, vol. 1865, f. 166.

70 The only detailed study of a 19th century ministry's judicial appointments is that of Lord Halsbury's by Heuston, R.F.V. in Lives of the Lord Chancellors, 1885-1940 (Oxford 1964), pp. 36–66Google Scholar. See also Hanham, H.J., “Political Patronage at the Treasury 1870-1912” (1960) 3 Historical Journal 75–84Google Scholar.

71 Lord Oxford [Asquith, H.H.], Memories and Reflections (2 vols. London 1928), vol. 1, p. 84Google Scholar.

72 Edwards, J. Ll., The Law Officers of the Crown (London 1964), pp. 320–321Google Scholar.

73 SirHollams, J., Jottings of an Old Solicitor (London 1906), pp. 164–165Google Scholar. On Hatherley's disinclination to consult see Coleridge to Selborne, 25 December 1872, Selborne MSS, vol. 1865, f. 196 and (1872) 1 L.M. & R. (2nd s.) 156.

74 The propriety of Collier's notional appointment to the Common Pleas in November 1871, solely to qualify him to be made a salaried member of the Judicial Committee of the Privy Council, was much debated: Howell, P.A., The Judicial Committee of the Privy Council, 1833–1876 (Cambridge 1979), pp. 151–153Google Scholar.

75 D.N.B., Supplement, vol. 2, pp. 371-372; The Times, 3 August 1896.

76 Besides several references in The Times for 1873, see (1872-3) 17 S.J. 204, 511 and Parl. Debs. 3rd s. vol. 215 cols. 1258-1292 (1 May 1873). Vice-Chancellor Malins was particularly outspoken: (1873) 8 L.J. 267.

77 See note 58 above.

78 (1873) 55 L.T. 93. See also Hemming's articles in (1873) 35 Saturday Review 267, 705.

79 Parl. Debs. 3rd s. vol. 216 cols. 640-654 at 647 (9 June 1873). He had to make it clear that he had not received any actual representation from the judges: (1872-3) 17 S.J. 663.

80 (1873) 35 Saturday Review 739; (1873) 8 L.J. 303; (1872-3) 17 S.J. 628.

81 Parl. Debs. 3rd s. vol. 216 cols. 1586-1589 (30 June 1873).

82 Ibid., col. 1624 (1 July 1873).

83 Ibid., cols. 1635 (1 July 1873), 1880-1881 (7 July 1873).

84 Ibid., cols. 1885-1889 (7 July 1873). It was said that the number of equity judges was “practically … the only question of principle now at issue”: (1873) 8 L.J. 349.

85 Generation of Judges, pp. 128-129. A Times editorial pronounced that if Selborne had been able to find anyone versatile in law and equity he might have chosen him without objection: (1874) 3 L.M. &. R. (2nd s.) 35. Gladstone felt Richard Baggallay would have been a better choice if his professional reputation had equalled Hall’s: to Selborne, 26 October 1873, Selborne MSS, vol. 1866, f. 55.

86 Generation of Judges, pp. 128-129. Amphlett had been mentioned as an outside possibility to become a law officer in 1873: (1873) 2 L.M. & R. (2nd s.) 1125.

87 (1874) 3 L.M. & R. (2nd s.) 189. Rolfe, the future Lord Chancellor Cranworth, was an Exchequer Baron from 1839 to 1850, when he became a Vice-Chancellor.

88 Generation of Judges, pp. 128-129; D.N.B., vol. 1, p. 367; (1883) 18 L.J. 676.

89 Generation of Judges, p. 22. They are listed on p. 167.

90 Parl. Debs. 3rd s. vol. 225 cols. 953-954 (5 July 1875), and see also a similar attack in the previous session, vol. 219 col. 1037 (5 June 1874); Kelly to Cairns, 8 February 1875, PRO PRO 30/51/10, Cairns MSS.

91 Keating to Cairns, 13 January 1875, Coleridge to Cairns, 22 January, 2 February 1875, Archibald to Cairns, 27, 29 January 1875, Cairns MSS.

92 Huddleston's political claims stemmed from his heavy outlay on Norwich elections (Thorne, W.G., The Still Life of the Middle Temple (London 1892), pp. 317–320Google Scholar). He had used his position as an M.P. to put pressure on the government to procure Honyman's resignation: Coleridge to Cairns, 2 February 1875, Cairns MSS.

93 Cockburn to Cairns, 29 January 1875, Cairns MSS.

94 (1875) 59 L.T. 1.

95 D.N.B., Twentieth Century, (1912-21), pp. 335-337, at 336-337.

96 (1875) 10 L.J. 303. Unfortunately there is no correspondence about this appointment in the Cairns papers.

97 E.g. Coleridge to Cairns, 14 October 1876, Cairns MSS.

98 Parl. Debs. 3rd s. vol. 225 cols. 962-963 (5 July 1875), 1591-1606 (16 July 1875).

99 Bosanquet, Oxford Circuit, p. 37. Quain died on 12 September, Archibald on 18 October.

100 The Times, 1 Dec. 1890. Seemingly Cairns and Cockburn each thought the other regarded Manisty as too old: Cockburn to Cairns, 30 September 1876, Cairns MSS.

101 (1876) 11 L.J. 10. However, Coleridge had written to Cairns on 14 October, “only let us have a man from equity”, Cairns MSS.

102 21 November 1877.

103 (1877) 12 L.J. 237, 251.

104 Appointed under the authority of the Supreme Court of Judicature Act 1877 (40 & 41 Vic. c. 9).

105 Besides his transcendent gifts, Bowen had a claim stemming from being Treasury counsel, while Stephen had been in the running for Solicitor-General in 1873: Duman, D., The English and Colonial Bars in the Nineteenth Century (London 1983), p. 103Google Scholar; Heuston, Lives of the Lord Chancellors, p. 44.

106 M.P. for Denbigh Boroughs 1868-80. He was a strong defender of the old court structure and trials in banc: (1880-1) 6 L.M. & R. (4th s.) 174-190; D.N.B., vol. 61, p. 384.

107 [Lord] Askwith, G.R., Lord James of Hereford (London 1930), p. 105Google Scholar. Gladstone had extracted waivers from both law officers upon their appointment: Duman, English and Colonial Bars, p. 103. He also suggested that if the office of Chief Baron was not to be filled up, Cairns, Cockburn, Jessel (M.R.) and the Attorney-General should be consulted: to Selborne, 24 September 1880, Selborne MSS, vol. 1867, f. 120.

108 PRO LCO 1/59; P.P. 1880-1 (C.781) LXXVI.

109 Parl. Debs. 3rd s. vol. 258 cols. 572-612 (10 February 1881).

110 D.N.B., Twentieth Century (1901-11), pp. 589-590.

111 The Times, 10 March 1881; F.R. Boase, Modern English Biography (6 vols. Truro 1892-1903), vol. 2, pp. 32-33. However, according to (1883) 1 Pump Court 99, this post had first been intended for Arthur Cohen but Gladstone refused to risk a by-election.

112 D.N.B., Supplement, vol. 1, pp. 398-399.

113 Who Was Who, 1897-1915', (1881) 16 L.J. 517.

114 (1881-2) 72 L.T. 1.

115 The Times, 14 October 1913.

116 Ibid. He has no entry in the Dictionary of National Biography and was one of the few judges not featured in the series on “The Bench” in the Strand Magazine, 1896.

117 (1884-5) 2 Pump Court 54.

118 Generation of Judges, p. 31.

119 Besides the future Lord Denning, they included several promoted County Court judges.

120 “The Bar” (1896) Strand Magazine; Underhill, A., Change and Decay (London 1938), p. 87Google Scholar.

121 Stevens, “Final Appeal”.

122 First Report, p. 20.

123 Parl. Debs. 3rd s. vol. 200 cols. 171-172 (18 March 1870). Cairns persuaded Hatherley to ten members rather than nine because of the Lord Chancellor's other duties. Cockburn called it “a very crude scheme”, to Cairns, 11 June 1870, Cairns MSS.

124 Supreme Court of Judicature Bill, cl. 6, H.L.S.P 1873 (45) VII; Parl. Debs. 3rd s. vol. 216 col. 1729 (9 July 1873). Selborne declined Cairns’ suggestion to make the Master of the Rolls a purely appellate judge: Cairns to Selborne, 18 April 1873, in Heward, E., A Victorian Law Reformer, A Life of Lord Selborne (Chichester 1998), p. 142Google Scholar.

125 38 & 39 Vic. c. 77. The Bill had proposed three Justices of Appeal, two chosen from the salaried members of the Privy Council: Parl. Debs. 3rd s. vol. 223 col. 585 (9 April 1875); for the changes see page 595 below.

126 40 & 41 Vic. c. 59.

127 44 & 45 Vic. c. 68, ss. 2-4, and see page 597 below.

128 Parl. Debs. 3rd s. vol. 217 cols. 45-50 (8 July 1873).

129 Supreme Court of Judicature Act 1873, s. 53. This may explain the four man sittings of the Court of Appeal in 1875-6 which puzzled Sir Robert Megarry: “The Vice-Chancellors” (1982) 98 L.Q.R. 370-405, at 392.

130 Parl. Debs. 3rd s. vol. 216 col. 891 (12 June 1873, Dr. Ball); vol. 217 cols. 223-225 (12 June 1873); “Ought The Judicature Bill To Pass?” (1873) 2 L.M. & R. (2nd s.) 534-540.

131 Supreme Court of Judicature Act 1875, s. 4; Appellate Jurisdiction Act 1876, s. 19, Supreme Court of Judicature Act 1881, s. 11. Selborne's attempt in 1881 to expand their role met with opposition and had to be withdrawn: Parl. Debs. 3rd s. vol. 263 cols. 628-632 (12 July 1881), and see vol. 269 cols. 447-453 (11 May 1882), vol. 271 cols. 1227-1228 (3 July 1882), vol. 272 col. 1168 (20 July 1882).

132 Megarry, “Vice-Chancellors”, 387-388.

133 D.N.B., vol. 37, pp. 1220-1221; Generation of Judges, pp. 109-111; Atlay, J.B., The Victorian Chancellors (2 vols London 1908), vol. 2, p. 122Google Scholar; Hollams, Jottings, p. 165. Hatherley was grateful to Mellish for chairing a meeting of the Law Amendment Society which approved his proposals: Parl. Debs. 3rd s. vol. 201 col. 1566 (30 May 1870).

134 D.N.B., vol. 37, pp. 1220-1221; Manson, E., Builders of Our Law in the Reign of Queen Victoria, 2nd edn. (London 1904), p. 268Google Scholar; Veeder, V.V., “A Century of Judicature”, in Select Essays in Anglo-American Legal History (rep., London 1968), vol. 1, pp. 730–826Google Scholar, at p. 803; G.R. Rickards, (1877-8) 3 L.M. & R. (4th s.) 55-65.

135 Parl. Debs. 3rd s. vol. 216 cols. 664 (9 June, Morgan), 844, 861 (12 June, Baggallay, Amphlett). Romilly had announced his wish to retire before the Bill's introduction and the offer had been made to the Attorney-General. Coleridge said he knew too little equity, though it was uncharitably rumoured that he had been pressured into declining. Jessel, the Solicitor-General, was the second choice, but to avoid an election Romilly delayed his resignation and the Lord Chancellor sat at first instance: Gladstone to Selborne, 24 March 1873, 11 August 1873, Coleridge to Selborne, 25 December 1872, Selborne MSS, vol. 1865, ff. 253, 196, vol. 1866, f. 9; Coleridge to his father, 15, 17 December 1872, 4 August 1873, Life and Correspondence, vol. 2, pp. 216-220.

136 Parl. Debs. 3rd s. vol. 216 col. 1734 (3 July 1873, Jessel, Solicitor-General).

137 Ibid., vol. 223 cols. 593-594 (9 April 1875).

138 Ibid., vol. 225 cols. 953-991 (5 July 1875).

139 Ibid., cols. 974-983 (5 July 1875); Supreme Court of Judicature Act 1875, s. 4.

140 Parl. Debs. 3rd s. vol. 223 cols. 1498-1503 (23 April 1875).

141 Baggallay to Cairns, 4 October 1875, Cairns MSS, and 2 January 1878, PRO LCO 1/11; D.N.B. Supplement, vol. 1, p. 95.

142 Coleridge to Cairns, 25 May 1876, Cairns MSS.

143 The make up of the bench in the cases in the Law Reports shows puzzling variations in size and membership.

144 Parl. Debs. 3rd s. vol. 227 cols. 909-912, 925 (25 February 1876).

145 Ibid., vol. 229 cols. 1680-1693 (12 June 1876), vol. 230 cols. 1153-1154 (7 July 1876).

146 Supreme Court of Judicature Act 1877 (40 & 41 Vic. c. 9), s. 4.

147 Selborne to Gladstone, 2 November 1881, Selborne MSS, vol. 1867, f. 190. Cairns sat on at least six occasions in 1876-7.

148 Appellate Jurisdiction Act 1876 (39 & 40 Vic. c. 59), s. 15.

149 Underhill, Change and Decay, pp. 86-87.

150 Manson, Builders of Our Law, pp. 298-299; The Times, 23 February 1892.

151 Generation of Judges, pp. 112-114. Chelmsford, who had been Lord Chancellor in the previous Conservative administration, was rather brusquely passed over in 1868.

152 Ibid., pp. 25-28. Lush was presumably the judge who was so angered by the proposal in the Supreme Court of Judicature Bill 1881 to give the Master of the Rolls precedence in the Court of Appeal that he threatened to resign: Parl. Debs. 3rd s. vol. 263 cols. 1234-1238 (19 July 1881).

153 See pp. 590-591 above.

154 For the strange fluctuations in the President's position see Megarry, “Vice-Chancellors” 393— 394.

155 Supreme Court of Judicature Act 1881 (44 & 45 Vic. c. 68), ss. 2-4.

156 A generous gesture by Selborne and Gladstone to a political opponent: Gladstone to Selborne, 2 September 1881, Selborne MSS, vol. 1867, f. 186; Oxford, Memories and Reflections, vol. 1, p. 75.

157 There was discontent at the equity bar when Fry resigned in 1892 and was replaced by a Queen's Bench judge, Sir A.L Smith (The Times, 16 February 1899), but Halsbury does seem to have worked on the basis that there ought to be a reasonable proportion of Chancery men in the Court of Appeal: Heuston, Lives of the Lord Chancellors, pp. 59-60.

158 Parl. Debs. 3rd s. vol. 263 col. 1238 (19 July 1881).

159 Gladstone to Selborne, 21 March 1883, Selbome MSS, vol. 1868, f. 180; Askwith, Lord James, p. 116; Heuston, Lives of the Lord Chancellors, p. 97. There was probably no truth in the rumour that it had been offered to Horace Davey, a Chancery silk: Parl. Debs. 3rd s. vol. 277 col. 1108 (30 March 1883).

160 Underhill, Change and Decay, p. 87.

161 Generation of Judges, p. 177.

162 D.N.B., Supplement, vol. 1, pp. 264-266; Atiyah, Rise and Fall of Freedom of Contract, pp. 671-674. Atiyah states that the Court of Appeal usually sat as a single division, but at least in the mid-1880s, Baggallay headed the court hearing Chancery appeals: The Times, 14 November 1888.

163 Cockburn, J.S., A History of English Assizes, 1558-1714 (Cambridge 1972)Google Scholar; Holdsworth, , History of English Law, 5th ed. vol. 1 (London 1931), pp. 276–285Google Scholar. There is a useful contemporary account by J. Kinghorn in (1875) 59 L.T. 347 ff.

164 Stevens, R., The Independence of the Judiciary (Oxford 1993), pp. 11–17Google Scholar.

165 Arthurs, H.W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto 1985), pp. 56–61Google Scholar; Polden, P., A History of the County Court, 1846–1971 (Cambridge 1999), pp. 74–83Google Scholar.

166 First Report, p. 15 ff.; Third Report, P.P. 1874 [C.957] XXIV.

167 Fifth Report, P.P. 1874 [C.1090] XXIV, p. 1.

168 Duman, English and Colonial Bars, p. 170.

169 Polden, History of the County Court, pp. 77-80; Judges’ Committee Report, P.P. 1878 (311) LXIII.

170 “The abolition of assizes is a mere matter of time” (1876-7) 62 L.T. 343.

171 Cocks, R., Foundations of the Modern Bar (London 1983), pp. 135–144Google Scholar. The circuit reorganisations at this time also involved the creation of a seventh circuit.

172 P.P. 1878 (311) LXIII. Background and discussion papers are in PRO LCO 1/4-10.

173 Stevens, Independence of the Judiciary, pp. 16-17.

174 There are abundant materials on this subject in PRO LCO 1/4-10 and in the professional journals for the period.

175 E.g., they “came late, lunched long, tried slowly and rose early”: C. Warton, Parl. Debs. 3rd s. vol. 265 col. 745 (23 August 1881). For their rejection of proposals to curtail the long vacation see Stevens, Independence of the Judiciary, p. 15.

176 According to Atlay, Victorian Chancellors, vol. 2, p. 418, the Judicature Acts “killed the circuits”. See also J. Kinghorn, “The Decline of Circuit Life” (1879-80) 5 L.M. & R. (4th s.) 335-377 and Cocks, Foundations of the Modern Bar, p. 152.

177 Assizes Act 1850 (13 & 14 Vic. c. 25).

178 Lemmings, D., Professors of the Law (Oxford 2000), pp. 248–293Google Scholar, and “The Independence of the Judiciary in Eighteenth Century England”, in Birks, P. (ed.), The Life of the Law (London 1993), pp. 125–150Google Scholar.

179 Foss, E., The Judges of England, vol. 8 (London 1864), pp. 373–374Google Scholar. Another example is William Alexander, Chief Baron 1824-31, ibid., vol. 9 (1864), p. 74.

180 W.S. Harcourt, (1872-3) 17 S.J. 191.

181 Atlay, , Victorian Chancellors, vol. 1, p. 59Google Scholar; (1883) 18 L.J. 676.

182 W.S. Harcourt, Parl. Debs. 3rd s. vol. 216 col. 1574 (30 June 1873).

183 Generation of Judges, p. 25; Parl. Debs. 3rd s. vol. 216 col. 876 (12 June 1873).

184 Examples of this viewpoint are Coleridge L.C.J., Parl. Debs. 3rd s. vol. 233 cols. 1063-1065; The Judges’ Report on Circuit Proposals, P.P. 1878 (311) LXIII and Sir W. Phillimore, “The Assizes” (1886) 3 L.Q.R. 100.

185 High Court of Justice Bill 1870, cl. 22, H.L.S.P. 1870 (32) IV; Supreme Court of Judicature Act 1873, ss. 29, 37.

186 It is not mentioned in articles on the circuits, e.g. (1874) 57 L.T. 168-169, 240-241, and the brief debate on circuit expenses in Parl. Debs. 3rd s. vol. 217 cols. 321-345 (14 July 1873) is unenlightening. However Chief Baron Kelly said that the chiefs should be relieved or they would be unable to sit in the Court of Appeal, and that two or three extra judges would be needed until the equity judges had become qualified to do the criminal work: Kelly to Selborne, 11 February 1873, Selborne MSS, vol. 1865, f. 219.

187 Generation of Judges, pp. 128-129.

188 (1875) 10 L.J. 303.

189 D.N.B., Twentieth Century, (1912-21), p. 337.

190 Ibid., E. Bowen Rowlands, , In the Light of the Law (London 1931), p. 94Google Scholar.

191 D.N.B., Rowlands (see note 190 above) says he also impressed the doyen of Old Bailey lawyers, Sir Harry Poland.

192 Appellate Jurisdiction Act 1876, s. 15; Parl. Debs. 3rd s. vol. 217 col. 336 (14 July 1873, Gladstone); vol. 230 col. 1154 (7 July 1876, Attorney-General).

193 Baggallay to Cairns, 2 January 1878, Cairns MSS.

194 Cotton to Cairns, 17 April 1877, ibid. Cotton was made a Lord Justice on 28 June 1877.

195 The Master of the Rolls had routinely been sending jury trials to nisi prius and when Huddleston found that his schedule at Chelmsford was thrown into disarray by one such, Cave v. McKenzie, he refused to try it. The Master of the Rolls advised the parties to petition the Court of Appeal, which disclaimed any power to decide between the judges. Jessel's ruthless use of this provision, order 19, was roundly condemned by Selborne and Cairns as well as the Lord Chief Justice, who denounced it as “contrary to the entire spirit of the legislation”: Parl. Debs. 3rd s. vol. 230 cols. 1951-1959 (27 July 1876). For comment see (1876) 11 L.J. 425, (1876) 61 L.T. 75, 92.

196 On dinners etc. see e.g. Parl. Debs. 3rd s. vol. 217 col. 340 (14 July 1873, G.W. Hunt).

197 First raised in 1873: Parl. Debs. 3rd s. vol. 216 cols. 1579-1580 (30 June 1873, J.W. Henley) and col. 1748 (3 July 1873, H. Matthews); (1873) 8 L.J. 209.

198 Gladstone to Selborne, 4 January 1873 and cabinet minute, 29 January: The Gladstone Diaries, vol. 8, p. 277 ff.

199 Gladstone to Cockburn, 23 June 1873, ibid., p. 344.

200 Administration of Justice Act 1876, s. 15; memorandum of Queen's Bench judges and Treasury reply of 27 May 1878, PRO LCO 1/11.

201 Baggallay to Cairns, 2 January 1878, PRO LCO 1/11.

202 See note 200 above.

203 (1877) 12 L.J. 251. The matter was raised in the Commons by W. Williams (Parl. Debs. 3rd s. vol. 233 col. 329 (22 March 1877), and see Coleridge L.C.J. at vol. 233 cols. 1063-1065 (13 April 1877).

204 Supreme Court of Judicature Act 1873, s. 29; Brett to ? Home Secretary, (January 1876), PRO LCO 1/4. Those chosen normally picked their circuits in order of seniority ((1873) 2 L.M. & R. (2nd s.) 176) and were very touchy about any interference from the Lord Chancellor: K. Muir McKenzie to Selborne, 31 December 1883, PRO LCO 1/11. However, Pearson and Chitty seem to have had some say in their first circuit: Manson, Builders of Our Law, pp. 384-385.

205 (1880) 70 L.T.I.

206 E.g. Parl. Debs. 3rd s. vol. 230 cols. 1145, 1149 (7 July 1876); vol. 231 col. 961 (10 August 1876); (1882) 17 L.J. 301; The Times, 5 July 1882.

207 Predicted by Mr. Justice Stephen ((1880-1) 70 L.T. 168), and acknowledged as a factor by the Attorney-General: Parl. Debs. 3rd s. vol. 282 col. 1420 (2 August 1883).

208 E.g. Parl. Debs. 3rd s. vol. 278 col. 910 (23 April 1883); vol. 281 col. 774 (9 July 1883); vol. 282 col. 1417 (27 August 1883); (1883) 18 L.J. 383, 602; (1883) 75 L.T. 160.

209 (1879) 14 L.J. 134; (1882) 17 L.J. 389; (1883) 18 L.J. 267; (1884) 19 L.J. 193.

210 R. Neville, (1876) T.N.A.P.S.S. 241-247; (1882) 17 L.J. 359; The Times, 7 November 1882. It was said that those with good causes chose the Master of the Rolls’ (Jessel’s) court, while those with bad ones opted for Malins: Oxford, Memories and Reflections, p. 70.

211 Megarry, “Vice-Chancellors”, 396.

212 (1882-3) 27 S.J. 629, and see also (1882-3) 74 L.T. 446.

213 (1880) 15 L.J. 236; (1882) 17 L.J. 347, 557; (1883) 75 L.T. 209.

214 (1883) 18 L.J. 110.

215 (1882-3) 74 L.T. 260; The Times, 5 July 1882.

216 Selborne to Coleridge (draft), 21 November 1883, PRO LCO 1/5.

217 (1879) 14 L.J. 90, 127.

218 Ibid., 377; The Times, 27 December 1880, letter of R.B.B.

219 Parl. Debs. 3rd s. vol. 263 col. 629 (12 July 1881); vol. 271 cols. 1227-1231 (3 July 1882).

220 (1883) 18 L.J. 383. Letters from several judges in PRO LCO 1/5 explicitly allude to the expenses question.

221 Selborne to Coleridge (draft), 21 November 1883; printed memo, (no date) and minutes of meeting of 6 December, PRO LCO 1/5; The Times, 9 December 1883.

222 H.C.E. Childers to Selborne, 21 December 1883, PRO LCO 1/11. In the House of Commons Henry Fowler made a strong criticism of this obstacle to a settlement: Parl. Debs. 3rd s. vol. 283 cols. 168-172 (11 August 1883).

223 The Times, 27 May 1892. Gladstone was unenthusiastic, to Selborne, 10 April 1884, Selborne MSS, vol. 1868, f. 180.

224 Supreme Court of Judicature Act 1875, s. 8.

225 Butt to Selborne, 10 April 1884, PRO LCO 1/11. He enjoyed some aspects, Engelbach, A.H., Anecdotes of Bench and Bar (London 1913), p. 255Google Scholar.

226 Butt to Selborne, 10 April 1884, Selborne to Childers, ? 2 April 1884, PRO LCO 1/11.

227 Selborne to Butt, 3, 6 April 1884, PRO LCO 1/14; (1884) 77 L.T. 212. The objection had also been made in Parliament by F.A. Inderwick of the Admiralty bar: Parl. Debs. 3rd s. vol. 281 col. 1914 (19 July 1883); vol. 283 col. 175 (11 August 1883).

228 Selborne to Butt, 6 April and reply of 10 April, PRO LCO 1/14. This episode is alluded to by Stevens, Independence of the Judiciary, p. 13, but misdated to 1882.

229 Brett to Selborne, 11 April, Muir McKenzie to Selborne, 12 April, PRO LCO 1/11. Negotiations are in PRO LCO 1/5.

230 (1883–4) 28 S.J. 2. Some judges’ responses to the final offer are in PRO LCO 1/5 and minutes of the Judges’ Council on 10 June are in PRO LCO 1/11.

231 On 12 April Brett had written to Selborne that the block in the Court of Appeal, Chancery Division and P.D. & A. was so bad that if their judges went circuit there would be a complete breakdown. Selborne forwarded this to the Treasury on 26 May and Childers (5 June) acknowledged that it was decisive in swaying the Treasury: PRO LCO 1/11.

232 11 June 1884. Compare its earlier strictures in 5 July 1882.

233 E.g. (1878) 13 L.J. 531; Parl. Debs. 3rd s. vol. 244 cols. 1451 (21 March 1879, G.O. Morgan), 1457 (J.R. Bulwer). The Lord Chancellor did point out that 1/4 of accused persons at assizes were acquitted: Parl. Debs. 3rd s. vol. 243 cols. 1394-1400 (18 February 1879).

234 Parl. Debs. 3rd s. vol. 285 col. 1402 (13 March 1884, C. Warton).

235 (1881-2) 26 S.J. 52, and see also (1883) 18 L.J. 110.

236 Ballantine, W., Some Experiences of a Barrister's Life (London 1883), pp. 336–337Google Scholar, 372-375. It seems, although the language is ambiguous, that he is referring to two different judges. One of the cases mentioned, from Staffordshire, was alluded to by North J. in his address to the grand jury at Gloucester on 6 February 1882, Gloucester Journal, 11 February 1882.

237 Manson, Builders of our Law, p. 409.

238 D.N.B., Supplement, vol. 3, p. 56; The Times, 17 March 1897.

239 Manson, Builders of our Law, p. 385; D.N.B., Second Supplement, vol. 2, p. 2, and see (1883, September) Pump Court 9.

240 M. Cookson, “Mr. Justice Pearson” (1886) 2 L.Q.R. 373-376. According to Manson, Builders of our Law, pp. 384-385, he had never addressed a jury or cross-examined a witness.

241 (1896) 1 Judicature Quarterly Review 47. Asquith called Cotton and Pearson “two of the primmest ‘high-brains’” of the time: Memories and Reflections, p. 71.

242 D.N.B., Twentieth Century (1912-21), pp. 200-203.

243 Ibid., Thorne, Still Life of the Middle Temple, p. 324.

244 (1882) 17 L.J. 58.

245 Bosanquet, Oxford Circuit, p. 71; Engelbach, A.F., More Anecdotes of Bench and Bar (London 1915), p. 102Google Scholar.

246 Engelbach, Anecdotes, p. 255 and Alexander, G., The Temple of the Nineties (London 1938), p. 193Google Scholar. No doubt there are others.

247 Pp. 71-73.

248 The British Newspaper Library copies of the contemporary Gloucester newspapers are not all in a condition to be produced.

249 (1884) 2 Pump Court 5. The other candidate seems to be Kay.

250 There were exceptions. Bigham substituted for Stirling in the Chancery Division in 1904, but was not thought to be a success (Bosanquet, Oxford Circuit, p. 73) and J.A. Foote wrote in 1911 that “we are accustomed to the spectacle of Chancery judges who have cleared their own lists, and are brought in to assist their brethren in the King's Bench Division in the despatch of ‘non-juries’”: Pie Powder (London 1911), pp. 184-185. Lord Justice Bowen went the midland circuit in 1893 (Atlay, Victorian Chancellors, vol. 2, p. 418 n.1) and there may be other instances, but it was not a regular occurrence.