Abstract
Judges in the County Courts, established in 1846 and sitting in cases without juries in the higher courts, had little taste for sensational appeals, floridity, and theatricality but did have a high regard for fact, law and logically structured argument. Accordingly advocacy before them adjusted and shortened. Some barristers lamented what they saw as the decay of forensic oratory; others accepted the altered style required as a necessary adaptation to changed circumstances. Opportunity to address juries in criminal matters also reduced with the growth of summary trial before magistrates in the second half of the nineteenth century. Specialist statutory tribunals did not employ juries. The Judicature Acts 1873–75 much lessened prospects for winning civil cases by advocates taking points at the beginning of trials about inadequacies and defects in opponents’ pleadings, but gave them more flexibility to bring new evidence and advance freshly thought legal argument.
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Notes
- 1.
See A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, Butterworths, 1980, pp. 118–120.
- 2.
H. Kirk, Portrait of a Profession. A History of the Solicitor’s Profession, 1100 to the Present Day, London, Oyez Publishing 1976, Chapter 8, page 157.
- 3.
A. H. Manchester, ibid, page 95.
- 4.
For example in Advocacy in The County Courts, A Letter to Sir Alexander Cockburn, MP., Her Majesty’s Attorney-General, by A Barrister of The Inner Temple, London: S. Sweet, 1851, the anonymous author called for the exclusion of solicitors from the County Court, advocacy “being no part of an attorney’s business. With him lies the collecting of evidence and preparing all the preliminary and practical details in the action and the selection of the barrister who shall advise him on any questions of legal intricacy, and finally conduct the cause in court. The great principles of judicial practice, the deep research and knowledge of cases, the forms through which truth and argument are made to prevail, all lie beyond his province and rest peculiarly with the counsel, whose business it is to study and practically learn the most effective mode of marshalling the evidence collected, and the best course through which matters of fact may be presented to a jury, or points of law argued before a judge”. (pp. 9–10.) Further (page 14), the author severely criticized attorneys who had begun to specialize in advocacy in the county courts. They are described as “an inferior class of attorneys, who find it worth their while to attend and to act, not only on their own account, but as agents to other members of the profession, who have not time to give their attention to county court practice, but who are willing to share the fees allowed under the Act”.
- 5.
Law Magazine and Review, vol4 (NS), page 89.
- 6.
H. Kirk, Portrait of a Profession, Oyez, London, page 158.
- 7.
Figure presented by H. Kirk, Portrait of a Profession, Oyez, London, 1967, page 158.
- 8.
The Bankruptcy Act 1869, Section 4
- 9.
The Employers Liability Act 1880, Section 6.
- 10.
See Workmen’s Compensation Act 1897, Schedules 1 and 2 which confirm the jurisdiction of the County Court.
- 11.
Companies Winding Up Act, 1890, Section One.
- 12.
J. A. Foote, Pie Powder, John Murray, London, 1911, pp. 84–85 tells an amusing story of a judge who was unsure whether he should find the facts as he himself thought or as he thought a common jury would have found.
- 13.
J.H. Baker, An Introduction to English Legal History, Fourth Edition, Butterworths, 2002, page 93.
- 14.
The Sound Lawyer Who Made A Good Resolution, published in 1926 and reprinted in Forensic Fables (Complete Edition) 1999, Wildy and Sons Ltd., London, page 97.
- 15.
R. M. Jackson, Incidence of Jury Trial During the Past Century (1937–38) 1 Modern Law Review 132.
- 16.
The decline was steep. According to the Law Journal, cited by J. R. Lewis, The Victorian Bar, 1982, Robert Hale on page 128, some 94 per cent of defended cases in the 1879 Queen’s Bench were before juries; by 1892 the proportion had fallen to 54 per cent. It has not been possible to locate this edition of the Law Journal in either the libraries of the Inns of Court or the Institute of Advanced Legal Studies London. Connor Hanley, The Decline of the Civil Jury in Nineteenth Century England, Journal of Legal History, Vol. 26. Number 1, April 2005, pp. 253–278, considers the seeds of the decline of jury trials in the superior courts were sown during the two decades that preceded the Common Law Procedure Act 1854. In his view three factors combined to undermine use of the civil jury: increased recognition of the integrity of the judiciary by lawyers; efforts made by lawyers to professionalise the practice of law; and the successful introduction of juryless trials by the County Courts Act, 1846.
- 17.
Referred to by William Renwick Riddell, Common Law and Common Sense, Yale Law Journal, Vol. 27, No 8 (June 1918), page 996.
- 18.
Piepowder, John Murray, London, 1911, Chapter IV, page 83.
- 19.
Equity practitioners almost never addressed juries (Section 3 of the Chancery Amendment Act 1858 extended jury trial to Chancery, but no such trial took place until 1867 and very few followed.) and consequently their style of advocacy, with its concentration on the law, had been markedly different from those appearing in common law matters; nor did they usually cross-examine witnesses or go on circuit – see Edward Heward A Victorian Law Reformer. A life of Lord Selborne, Barry Rose Publishers Ltd., 1998, page 44. For a less than flattering description of Chancery advocacy in Victorian times see Foote’s memory of Sir Horace Davey (Pie powder, page 173). William Ballantine, the eminently successful common law Serjeant, wrote in his memoirs (Some Experiences of a Barrister’s Life, R. Bentley, 1880, page 103) “In the equity courts the notion of cross-examination is ludicrous; it has, however, the merit of being thoroughly inoffensive”. What was seen as ineffectual cross-examination in Chancery was criticized as well by Henry Hawkins, Reminiscences of Henry Hawkins (Baron Brampton) 1904, Reprinted by Kessinger Publishing, USA, 2004, page 310. Lawyers who conducted the very few cases that came before the ecclesiastical courts also did not do so before juries. Indeed much was done by affidavit and written submissions. (Interview with Dr. Charlotte Smith, of Reading University School of Law, after her paper, The Judicial Committee of the Privy Council as the Final Court of Ecclesiastical Appeal, delivered at the Institute of Advanced Legal Studies on 28th February, 2008.)
- 20.
Lawyers and Eloquence, William Andrews ed. The Lawyer in History, Literature and Humour, William Andrews and Co, 1896, page 260.
- 21.
J. A. Foote, Pie Powder, John Murray, 1911, page 86.
- 22.
Described by A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, Butterworths, 1980, page 161 as a turning point in the history of the criminal process.
- 23.
See R.M. Jackson, Incidence of Jury Trial during the Past Century. (1937–38) 1 MLR 132. In 1854 trials on indictment (jury trials) numbered 29,359 whilst in 1856 the figure was 19,437. (page 136.)
- 24.
The Criminal Consolidation Acts, 1861, which conferred yet more powers on magistrates, marked the beginning of this further movement. For other measures see, Jackson, ibid.
- 25.
A. J. Ashton, As I went on my way, Nisbet and Co, London, 1924, page 248.
- 26.
11 & 12 Vic c43, section 12.
- 27.
H. Kirk, Portrait of a Profession, Oyez, London, 1976, page 162.
- 28.
Douglas Morley Ford, Solicitors as Advocates, London: Shaw and Sons 1881: Part I deals with summary matters and Part II with actions in the county court.
- 29.
See Chantal Stebbings, Legal Foundations of Tribunals in the Nineteenth Century, Cambridge University Press, 2007, Chapter one. The study focuses on four groups, each with prominent and formal adjudicatory functions: the fiscal tribunals, the oldest; the tithe, copyhold and enclosure tribunals, the most inquisitorial; the Assessment Committees (rates), the most administrative and the Railway Commissioners, the most judicial and court like. See, also, A. H. Manchester, A Modern Legal History of England and Wales, 1750–1950, Butterworths, pp. 150–159, An alternative to courts.
- 30.
See J. A. Foote, who regretted this, Pie Powder, John Murray, 1911, page 86.
- 31.
John Baker, An Introduction to English Legal History, 4th Edition, 2002, Oxford University Press, page 90. Some years after the Judicature Acts and the new rules of court, Lord Chief Justice Coleridge, who held this office between 1890 and 1894, wrote of the previous tradition and its effect on advocacy: The old pleader attached more importance to the statement than to the substance stated……………..It had become associated in the minds of many men with narrow technicality and substantial injustice. This was not the fault of the common law, but it was the fault, if fault it were, of the system of pleading, which looked at practically, was a small part of common law, but very powerful men had contrived to make it appear that it was almost the whole of it; that the science of statement was far more important than the substance of the right, and that the rights of the litigants themselves were comparatively unimportant unless they illustrated some obscure, interesting and subtle point of the science of stating those rights. Reproduced in Richard Harris, K.C. Illustrations in Advocacy, Stevens and Haynes, 1915, The Old School of Nisi Prius Advocacy, Chapter XV, page 120.
- 32.
J. H. Baker, An Introduction to English Legal History, 4th Edition, Oxford University Press, 2002, page 92.
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Watson, A. (2019). Decline of Jury Trials in the Civil and Criminal Courts and Other Key Developments. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_6
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