VI.

1

2

Lecture from 1846 to 1888 have provided tribunals in every part of the country, to which persons may have recourse for the recovery of small debts which before 1846 were often in practice not recoverable because of the expense and difficulty of proceeding in the superior Courts. The Court of Chancery, which towards the middle of the nineteenth century was still a byword for dilatoriness and technicality, was, even before the passing of the Judicature Act, 1873, reformed to a great extent, though in a partial and fragmentary manner, by legislation subsequent to 1850. Almost hand in hand with the reform of the Court of Chancery the procedure of the Common Law Courts was simplified, and everything which could be deemed useless in the technicality of pleadings was abolished by the Common Law Procedure Acts, 1852,* 1854,5 and 1860. At last that fundamental reform of procedure both in the Court of Chancery and in the Courts of Common Law, which had been the constant aim of Bentham and of every man imbued with his spirit, was with more or less completeness attained by the so-called fusion of law and equity

3

1 9 & 10 Vict. c. 95.

2 51 & 52 Vict. c. 43, with which now read the County Courts Act, 1903, 3 Edw. VII. c. 42.

3 Ashburner, Principles of Equity, pp. 17, 18; Holdsworth, History of English Law, i. pp. 231-235; 14 & 15 Vict. c. 4 (1851); The Court of Chancery Acts, 1852 (15 & 16 Vict. cc. 80, 87); The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86); The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27); The Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42); and see for earlier legislation of a reforming character, 53 Geo. III. c. 24 (1813), 3 & 4 Will. IV. c. 94 (1833); the Court of Chancery Acts, 1841, 1842 (5 Vict. c. 5; 5 & 6 Vict. c. 103).

4 15 & 16 Vict. c. 76.
5 17 & 18 Vict. c. 125.
6 23 & 24 Vict. c. 126.

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under the Judicature Act of 1873, which, taken Lecture together with the subsequent enactments which have amended it, has at last created an omni-competent Court in every Division of which Division of which every kind of right known to the law of England is recognised, and where every kind of remedy for the enforcement of rights may be obtained. Nor ought we to omit reference to the experiment of the new Commercial Court which in its absence of forms, in the wide discretion given to the judge, and in the rapidity of its proceedings, almost realises Bentham's ideal of a perfect tribunal. Compare now the defectiveness of English procedure in 18002 with the masterly picture of the actual administration of our law drawn in 1887 by one of the ablest and most enlightened of our judges. Thus writes the late Lord Bowen: “A "complete body of rules-which possesses the great merit of elasticity, and which (subject to the veto "of Parliament) is altered from time to time by the "judges to meet defects as they appear-governs the procedure of the Supreme Court and all its branches. "In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with "or without discovery of documents and interrogatories, as the nature of the case prescribes -upon oral evidence or upon affidavits, as "is most convenient. Every amendment can be "made at all times and all stages in any record,

66

66

66

66

1 36 & 37 Vict. c. 66. To understand the full extent of the change introduced under the Judicature Acts a student should read the fifteen Acts which make up the Judicature Acts, 1873-1899, and the Rules and Orders made thereunder. See Stephen, Comm. iii. (14th ed.), p. 352. 2 See pp. 86-94, ante.

Lecture

VI.

66

66

pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction "that it is not possible in the year 1887 for an "honest litigant in her Majesty's Supreme Court to "be defeated by any mere technicality, any slip, any "mistaken step in his litigation. The expenses of "the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased "to be a scientific game that may be won or lost by playing some particular move.'

66

66

Any critic who dispassionately weighs these sentences, notes their full meaning, and remembers that they are even more true in 1905 than in 1887, will partially understand the immensity of the achievement performed by Bentham and his school in the amendment of procedure—that is, in giving reality to the legal rights of individuals.

Nor is it irrelevant to note that the more closely the renovation of English institutions under the influence of Bentham is studied, the more remarkably does it illustrate the influence of public opinion upon law. Nothing is effected by violence; every change takes place, and every change is delayed or arrested by the influence, as it may seem the irresistible influence, of an unseen power. The efforts of obstructionists or reactionists come to nothing, the toryism of Eldon, the military rigidity of the Duke of Wellington, the intelligent conservatism of Peel, at a later period the far less intelligent conservatism

1 Bowen, The Administration of the Law, The Reign of Queen Victoria, i. pp. 309, 310.

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of Lord Palmerston, all appear, though the appear- Lecture
ance is in some respects delusive, not in reality to
delay for more than periods which are mere moments
in the life of nations, the progress of change. On
the other hand, the violence of democrats or the
fervour of enthusiasts achieves little in hurrying on
innovation. In the eighteenth century a duke was
ready to recommend universal suffrage.
It was

demanded by the Chartists, who between 1830 and
1848 seemed destined to carry parliamentary reform
to its logical conclusion.
conclusion. Yet now that England is
far more democratic than in the middle of the nine-
teenth century, the electors, who could easily obtain
any change which they eagerly desired, acquiesce in
arrangements far less democratic than even un-
qualified household suffrage; and it is arguable
(though, be it remembered, many things are arguable
which turn out not to be true) that the reforms or
changes of the last sixty years have considerably
increased the popularity of the Crown, the Peerage,
and the Church. If we look then to the changes
which have been effected, and what is equally im-
portant, to the changes which have not been effected,
in the law of the land, we trace everywhere the action
of opinion, and feel as if we were in the hands of
some mysterious influence which works with the
certainty of fate. But this feeling or superstition is
checked by the recollection that public opinion is
nothing but the opinion of the public-that is, the
predominant convictions of an indefinite number of
Englishmen.

P

LECTURE VII

THE GROWTH OF COLLECTIVISM

Lecture WITH the passing of the Reform Act began the reign

VII.

of liberalism; and the utilitarianism of common sense acquired, in appearance at least, despotic power, but this appearance was to a certain extent delusive. At the moment of the Benthamite triumph there were to be found thinkers who, while insisting on the need for thoroughgoing reforms, denied the moral authority of individualism and denounced the dogma of laissez faire.

the

This vital difference between two opposed schools of thought had more than a merely speculative interest. It determined men's way of looking at by far the most pressing social problem of the day. The fifteen years from 1830 to 1845, which may well be termed the era of the Reform Act, were among most critical in the history of England. The time was out of joint. The misery and discontent of city artisans and village labourers were past dispute. No Act of Parliament could remove at a stroke the wretchedness and pauperism created by the old poor law. The true cure contained in the new poor law of 1834, with its drastic severity, its curtailment of outdoor relief, and its detested Bastilles, increased for the moment the sufferings of the poorest amongst