by Daniel Pool
The law of equity was dispensed in the Chancery Court by the lord chancellor, his mace and bag containing the great seal on the table before him, along with a bouquet of flowers, assisted by various vice-chancellors and the master of the rolls. Chancery was where you got relief from decisions at common law that were too strict or inflexible, and originated when the king’s chancellor—who was originally his secretary—got petitions from people who felt the results they had obtained in one of the common-law courts were unfair. They sought “equity,” or fairness, from the representative of the ultimate authority—the monarch—by way of redress.
In practical terms, the difference between common law and equity meant that the common-law courts would typically uphold a contract to repay a moneylender £5 at 5,000 percent interest that you had taken out to buy a last meal for your dying mother as long as it was properly signed and drafted. Chancery, however, at least in theory, would look to see whether your circumstances when you signed had put you at such a colossal disadvantage that the contract should be voided. As this suggests, Chancery looked after those who could not look after themselves, like the wards in Chancery we find in Bleak House, children whose interests Chancery was supposed to safeguard when they had no other guardians. It also looked after lunatics and oversaw the estates of those who died intestate, and it oversaw the administration of trusts, the devices typically used by fathers concerned about protecting their daughters’ money from bullying or wastrel husbands. The Chancery Court generally met in Westminster Hall during “term-time” and otherwise—as the first page of Bleak House tells us—in Lincoln’s Inn.
There were four church courts, referred to collectively (along with the admiralty courts) as Doctors’ Commons. The Court of Arches was the court of the archbishop of Canterbury, and he also had a Court of Faculties, which was in charge of giving special permission to do things, like hold plural livings. The Consistory Court was the court of the local bishop of London, and it handled divorces and wills. The Prerogative Court handled the wills of bishops and of people who died in one bishop’s diocese but left property worth more than £5 in another bishop’s diocese.
This court system did not survive the century unchanged. Chancery, for example, had become a bad joke by the mid-century. Indeed, a boxing hold in England had arisen called “to get in Chancery,” and it consisted of your opponent getting your head locked under one of his arms while he pounded it with his other fist. It also says something about the Chancery Court that the suit which helped inspire Bleak House, the Jennings case, began with an old man who left £1.5 million when he died in 1798 and had still not been settled in 1915, by which time the costs in the case had risen to £250,000. No evidence could actually be introduced in a Chancery suit—it was all done by questioning people. Nor could the parties or their lawyers participate in the questioning. If additional facts were needed to clarify a point, you were required to file a phony suit in one of the common-law courts; for example, if you were trying to determine, say, whether a house mentioned in the case belonged to John Jones, you had to start a lawsuit in another court with one party alleging that John Jones owned the house and the other alleging that he didn’t. You could not, God forbid, just produce a deed. At least one of the lord chancellors took what can be charitably described as an inordinately long time to render some of his opinions. “Having had doubts upon this will for twenty years,” he began one decision, “there can be no use in taking more time to consider it.” Antiquated, time consuming, absurd, Chancery had become just as bad as Dickens said in Bleak House. Common-law courts were not much better. In a not atypical instance, one plaintiff spent fourten years patiently working his way through the system, getting all the way to the Lords in his appeal, only to be told he was seeking the wrong remedy. And in an increasingly secular—and denominationally diverse—society it became absurd for the Church of England to decide matters relating to wills and divorces.
In 1857 Parliament therefore took divorce and probate matters away from the church courts and gave them, respectively, to new civil courts of divorce and probate. Then the Supreme Court Judicature Act of 1873 combined the three common-law courts and Chancery under one roof into what was called the Supreme Court.
Lawyers
Lawyers enjoyed a somewhat ambiguous status in nineteenth-century England. On the one hand—“I wouldn’t make a downright lawyer of the lad,” says Mr. Tulliver in The Mill on the Floss, “I should be sorry for him to be a raskill.” On the other hand—Phineas Finn, a perfectly respectable young man, could become a barrister, and with such a status almost any desirable goal not requiring noble birth could be open to him.
The Court of Chancery.
English lawyers were of two kinds—those who argued in court, and those who prepared the cases for these courtroom lawyers and hired them after themselves being retained by clients. The barristers pled in the equity court (Chancery), the serjeants in the common-law courts (King’s Bench, Common Pleas, and the Exchequer), and the advocates pled in the admiralty and church courts (Consistory Court, Court of Arches, Prerogative Court, Faculty Court, and Admiralty Court). The lawyers, respectively, who hired them and back-stopped them, were the solicitors, the attorneys, and the proctors.
The courtroom lawyers had the prestige and, among them, the barrister—in social standing (and often in fees)—headed the list. The barrister was often well born, and if not, becoming a barrister could make one an important figure, possibly putting one in line for a government post. As Trollope says of John Vavasor in Can You Forgive Her?, who signs accounts for nine hours each week for eight hundred a year, “a practising barrister is always supposed to be capable of filling any situation which may come his way.” The wife of a barrister was eligible for presentation at court, while that of a solicitor was not, and barristers had their own special law school/offices/apartments in the four Inns of Court located near St. Paul’s Cathedral.
The inns—the Inner Temple, the Middle Temple, Lincoln’s Inn, and Gray’s Inn—were ancient lodging houses, which by the 1800s housed attorneys, the offices of senior lawyers, and, in the case of Lincoln’s Inn, at times the Court of Chancery as well, in a collegial fashion not unlike that which prevailed at Oxford and Cambridge. Each inn was run by senior barristers called benchers, who were generally King’s Counsel (K.C.) or Queen’s Counsel (Q.C.). Together with the law students and younger practicing barristers, they regularly ate “in Hall.” Until the latter part of the century, no exams were required of those who wished to become barristers. The sole requirement was to “eat your terms,” that is, to show up for dinner a certain number of times for at least three years so the older lawyers could meet you informally and see if they approved of you. If, after the requisite period of time, they found your work and character satisfactory, you were “called to the bar,” i.e., a small barrier, presumably in the Hall, that separated the area where the senior lawyers, or benchers, sat from where those who had not yet been called were. You were thereafter entitled to appear before the courts as a barrister.
Some did so at once. Others might work for a while with a “special pleader,” an inn member not admitted to the bar who drafted court papers, or “pleadings,” as they were called. Others would try to obtain “chambers”—office space that could also serve as an apartment—in or near their inn. Here they would sit alone—barristers could not have partners—and wait for a solicitor to bring them a “brief,” or case. Or they might follow a circuit of the assizes judges if they were just starting out. The young Eugene Wrayburn fantasizes in Our Mutual Friend about taking over a lighthouse with a solicitor friend: “And there would be no Circuit to go. But that’s a selfish consideration.” The twenty-nine-year-old Frank Greystock, beloved of Lucy Morris in The Eustace Diamonds, Trollope tells us, “had been called to the Bar, and had gone—and was still going—the circuit in which lies the cathedral town of Bobsborough. Bobsborough is not much of a town, and was honoured with the judges’ visits only every other circuit. Frank began
pretty well, getting some little work in London, and perhaps nearly enough to pay the cost of the circuit out of the county in which the cathedral was located.”
If you distinguished yourself in practice over a number of years, you might be entitled to trade the ordinary “stuff” gown you wore for one of silk, that is, you could become a King’s or Queen’s Counsel. That was an honor that entitled you to write the appropriate initials after your name, and in his chapter on “Mr. Abel Wharton, Q.C.” in The Prime Minister, Trollope tells us Mr. Wharton thought “he would take the silk as an honour for his declining years, so that he might become a bencher at his inn.”
Prior to the 1800s the serjeants, or serjeants-at-law, of which, perhaps, Serjeant Buz-Fuz in Pickwick is the most memorable example, enjoyed more prestige than the barristers. Indeed, so prestigious had the serjeants been that for a long time one could not become a common-law judge without first being a serjeant. They had their own Serjeants’ Inn, and it was not until the mid-century that the order of serjeants was abolished.
One could not engage the services of a barrister or serjeant directly; one had to hire a solicitor or attorney to do this. We note in Pickwick that Pickwick’s counsel Serjeant Snubbin is not hired by Mr. Pickwick directly but by Mr. Perker, Pickwick’s solicitor. And when one had to pay for the courtroom services rendered by the barrister, the payment was always made to the solicitor. Thus, “Messrs. Dodson and Fogg, two of his Majesty’s Attorneys of the Court of King’s Bench and Common Pleas at Westminster, and solicitors of the High Court of Chancery” would have paid Serjeant Buz-Fuz for his work on behalf of Mrs. Bardell. Indeed, legally the fee paid to the barrister was considered a gift rather than wages, so that he could not even sue for his money if he were not paid.
This peculiar setup enabled the barristers and serjeants to pretend they were not “in trade,” since it removed from them the necessity of taking money directly in payment for their services. On the other hand, it made the barristers dependent on the goodwill of solicitors for their livelihood. Consequently, the barristers often hung around courtrooms looking busy and in demand in an effort to impress solicitors from whom they hoped to get business. The eponymous barrister hero of Phineas Finn, rejoicing at the prospect of a lucrative government post, thinks by contrast of “how long he might have sat in chambers, and have wandered about Lincoln’s Inn, and have loitered in the courts striving to look as though he had business, before he would have earned a thousand a year!” As the barristers gather in the courtroom before the Pickwick trial, Dickens notes that “such of the gentlemen as had a brief to carry, carried it in as conspicuous a manner as possible, and occasionally scratched their noses therewith, to impress the fact more strongly on the observation of the spectators. Other gentlemen, who had no briefs to show, carried under their arms goodly octavos, with a red label behind, and that underdone-pie-crust-coloured cover, which is technically known as ‘law calf.’ Others, who had neither briefs nor books, thrust their hands into their pockets, and looked as wise as they conveniently could.” Solicitors were not, however, of the same status as barristers. They had no collegial institutions equivalent to the Inns of Court, and they were not self-regulating, as the barristers were. Instead, they were subject to the control of Parliament and the courts, who decreed that no one should become a solicitor without “articling” or apprenticing himself for five years to a practicing lawyer, which is how the “articled clerk” came into being.
We have spoken thus far of the equity and common-law lawyers, who, of course, handled the bulk of legal matters, but, in fact, fiction’s most famous articled clerk—David Copperfield—served his apprenticeship in law amid the advocates and proctors who practiced in the church and admiralty courts at Doctors’ Commons. David, it will be remembered, is articled as a clerk to Mr. Spenlow so that he may learn to become a proctor himself. Advocates in Doctors’ Commons, the courtroom lawyers, were sometimes spoken of as “civilians,” because one needed a doctorate in civil laws from Oxford or Cambridge to appear in court there. Unhappily for them, when Parliament transferred jurisdiction over probate and marriage from the ecclesiastical courts to common law courts in 1857, the civilians began to lose out, and they were abolished altogether in 1873, when the entire upper court system was reorganized. Simultaneously, the “attorneys” who had fulfilled the role in the common-law courts played by solicitors in Chancery were also abolished, and their status merged into that of the solicitors, leaving thereafter only the two classes of barristers and solicitors.
Crime and Punishment
In England in 1800 one could be hanged for sheep stealing, sodomy, murder, impersonating an army veteran, stealing something worth more than five shillings from a shop, treason, doing damage to Westminster Bridge, and about two hundred other offenses. (Killing a man in a duel, although murder, was considered socially okay for people of quality, so juries generally didn’t convict until the 1840s. Thereafter it became advisable to duel on the Continent, as Phineas Finn does.)
The treadmill at Brixton.
Following execution the criminal’s body would either be given to a surgeon for use in an anatomy class or else, until 1832, it would be hung in chains—preferably at a crossroads (Jude Fawley’s ancestor “was gibbetted just on the brow of the hill”)—from a gibbet, a crosspiece set about twenty feet off the ground, of which Pip sees a specimen at the beginning of Great Expectations “with some chains hanging to it which had once held a pirate.”
It has been argued that this harshness was necessary because there was no real police force to deter crime. In the country parishes there existed only an unpaid constabulary made up of locals with no real police training. In London there was only “the watch.” Sometimes known as “charleys” because they originated in Charles II’s reign, the watch tramped through the streets at night armed with cutlass, lantern, clacker (to summon aid), and truncheon, shouting out the time and weather—“One o’clock on a rainy night and all’s well”—before returning to sit in their little sentry boxes and keep an eye on the immediate street area.
These individuals were not powerful deterrents to the criminal element. In 1750 John Fielding and his brother Henry, the novelist, accordingly founded the Bow Street Runners in London. A step in the direction of a real police force, they were in part really detectives. Few in number, they worked on a fee and reward basis, which ultimately laid them open to charges of corruption. We meet them in Oliver Twist interrogating the hero after he is caught in a London burglary. They were also empowered to go outside London, and we find them turning up in the marsh areas of Pip’s boyhood to try to solve Mrs. Joe Gargery’s murder in Great Expectations. In 1792 more “police offices” like the one at Bow Street were set up, staffed by justices of the peace or police magistrates who both directed the constables who worked out of the office and heard criminal cases there.
But they were not enough either. The citizens of the capital were accordingly quite pleased when Sir Robert Peel managed to create a Metropolitan Police Force in London in 1829. Its men were promptly dubbed “peelers” or “bobbies” in his honor. Essentially, they were the old parish constables, only now on a full-time, salaried basis, and they still bore the title of constable. Each constable reported to a sergeant, who reported to an inspector, who in turn reported to a superintendent, whose boss was the home secretary. There were about 3,000 bobbies to begin with, and they originally wore tall hats made stiff enough to stand on so they could peer over walls; they were headquartered at Scotland Yard. They were viewed as such a success that in 1856 Parliament decided that rural areas should have them, too, and the genial, bumbling village constable who bicycles past the vicarage and into the pages of so many contemporary British murder mysteries put in his first appearance.
The number of capital crimes was cut back over the years so that by mid-century one was hanged only for murder, piracy, treason, or setting fire to a dockyard or arsenal. How was a finding of criminality made? If a death had occurred under suspiciou
s circumstances, a coroner was required to empanel a jury and look into the circumstances of the death—as we find the coroner doing when Mr. Krook autocombusts under mysterious circumstances in Bleak House. If the coroner then concluded that a murder had occurred and could point the finger at the person who did it, his finger pointing in and of itself had the legal force of an indictment. Other cases of treason and felony required formal indictment, however, which would have to be brought by a jury based on a prosecution by the police or an informer. “And you might be in for it now,” says Caleb Garth to the farm laborers in Middlemarch when they try to attack the railroad surveyors, “if anybody informed against you.” “Informing” in this context was the same process that went in other circumstances by the name of “laying an information.” The chilling memory of the Star Chamber abuses never altogether ceased to haunt the corridors of the English legal mind, with the consequence that England never established a post of public prosecutor, such as a district attorney, fearing the effect of such prosecutorial power in state hands. Instead, the Crown relied on private individuals—including, but not limited to, victims—to bring a prosecution or lay an information against someone before a magistrate. Thus, when Oliver Twist is brought before the magistrate on charges of stealing a handkerchief from Mr. Brownlow as he stood before a bookstall, Brownlow brings the charges; “the prosecutor was reading, was he?” asks the magistrate when told of Mr. Brownlow’s stance at the time of the theft.