Law and Society in England 1750–1950 9781849462730, 9781509995226, 9781509931262

Law and Society in England 1750–1950 is an indispensable text for those wishing to study English legal history and to un

233 65 12MB

English Pages [781] Year 2019

Table of contents :
Preface to the First Edition
Preface to the Second Edition
Contents
List of Journal Abbreviations
Table of Cases
Table of Statutes
CHAPTER ONE. INSTITUTIONS AND IDEAS
Part 1: Industrialisation 1750–1875
Part 2: Passing Greatness 1875–1950
CHAPTER TWO. LAND
Part 1: Agricultural Exploitation 1750–1850
Part 2: Urban Conditions and Land Values 1750–1850
Part 3: Land as an Industrial Resource 1750–1900
Part 4: A Gradual Transformation 1870–1950
CHAPTER THREE. COMMERCE AND INDUSTRY
Part 1: Contract
Part 2: Debt, Bankruptcy, Insolvency
Part 3: The Limited Liability Company
Part 4: Legal Control of Anti-Competitive Activity
Part 5: Technological Advance and the Patent System
CHAPTER FOUR. LABOUR RELATIONS
Part 1: Service and Its Regulation 1760–1875
Part 2: Employment 1875–1950
CHAPTER FIVE. THE FAMILY
Part 1: Private Family Law 1750–1850
Part 2: New Pressures on Family Law: 1850–1950
CHAPTER SIX. POVERTY AND EDUCATION
Part 1: Destitution in Country and Town 1750–1890
Part 2: Schools: Learning and Mass Literacy to 1890
Part 3: Poor Relief and Its Alternatives
Part 4: Education – The Modern Structure
CHAPTER SEVEN. ACCIDENTS
Part 1: Compensation by Civil Suits
Part 2: Planning Against Accidents
Part 3: Resetting the Victorian Frame
CHAPTER EIGHT. CRIME
Part 1: The Era of the Bloody Code
Part 2: Criminal Justice Transformed
Part 3: Into the Twentieth Century
Bibliography and Suggestions for Further Reading
Index

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Law and Society in England 1750–1950
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Stephen Banks
Charles Mitchell
Paul Mitchell
Rebecca Probert

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LAW AND SOCIETY IN ENGLAND 1750–1950 Law and Society in England 1750–1950 is an indispensable text for those wishing to study English legal history and to understand the foundations of the modern British state. In this new updated edition the authors explore the complex relationship between legal and social change. They consider the ways in which those in power themselves imagined and initiated reform and the ways in which they were obliged to respond to demands for change from outside the legal and political classes. What emerges is a lively and critical account of the evolution of modern rights and expectations, and an engaging study of the formation of contemporary social, administrative and legal institutions and ideas, and the road that was travelled to create them. The book is divided into eight chapters: Institutions and Ideas; Land; Commerce and Industry; Labour Relations; The Family; Poverty and Education; Accidents; and Crime. This extensively referenced analysis of modern social and legal history will be invaluable to students and teachers of English law, political science, and social history.

ii

Law and Society in England 1750–1950 Second Edition

William Cornish Stephen Banks Charles Mitchell Paul Mitchell and Rebecca Probert

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First edition by WR Cornish and G de N Clark published by Sweet and Maxwell, 1989. This edition first published in Great Britain by Hart Publishing 2019. Copyright © The authors severally 2019 The authors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Cornish, W. R. (William Rodolph), 1937- author. | Banks, Stephen, author. | Mitchell, Charles (Charles Christopher James), author. | Mitchell, Paul, 1972-, author. | Probert, Rebecca, author. Title: Law and society in England : 1750-1950 / William Cornish, Stephen Banks, Charles Mitchell, Paul Mitchell and Rebecca Probert. Description: Second edition. | Oxford ; Chicago, Illinois : Hart, an imprint of Bloomsbury, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019021094 (print) | LCCN 2019022294 (ebook) | ISBN 9781849462730 (paperback) | ISBN 9781509931262 (ePDF) | ISBN 9781509931255 (EPub) Subjects: LCSH: Law—Social aspects—England—History. | BISAC: LAW / Legal History. | HISTORY / Europe / Great Britain. Classification: LCC KD626 .C67 2019 (print) | LCC KD626 (ebook) | DDC 340/.1150942—dc23 LC record available at https://lccn.loc.gov/2019021094 LC ebook record available at https://lccn.loc.gov/2019022294 ISBN: PB: ePDF: ePub:

978-1-84946-273-0 978-1-50993-126-2 978-1-50993-125-5

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PREFACE TO THE FIRST EDITION This book seeks to break new ground. It sets the history of substantive law and legal practice in the two centuries since industrialisation beside the surrounding politics and, even more, beside the economic and social conditions which gave the law its essential significance. How far the book attains this ambitious objective is not something on which critics are likely to agree. If it succeeds even in pointing the way for the next generation of scholars it will have done much of its work. It is written primarily with the law student in mind, though its discussion of legal materials may hold something for students of other disciplines. It will be evident that it has derived much from the work of economic, administrative, social and political historians, for whom legal events, activities and attitudes are one strand in a richer fabric. The book was conceived over twenty years ago, at a time when study of the recent history of English law was still neglected. Geoffrey Clark and I felt keenly that the omission of this history from the stuff of legal education weakened its very texture and needed fundamental repair. The result of trying to remedy old neglects is a long book. Even so, it is only a work of survey and ordering. It provides rather more than most law students want or need to digest in any short term. It has always been our hope, nevertheless, that it will prove a useful tool for special courses devoted to the study of its period; and that more generally, students with an instinct for historical appreciation will want to have it by them as their studies progress in various directions. It should be stressed in this connection that, while the text seeks to point up the links between legal and related elements, it makes no attempt to supply a systematic account of political events or of economic and social change. It assumes that the reader has a working knowledge of such material. In 1972, Geoffrey Clark died after painful illness, aged only 49. Both his faculty at University College London and the larger world were deprived tragically of a considerable scholar. Without his knowledge and enthusiasm, it was hard to keep work going on the book. Although he had finished drafts of chapters two, four, five and seven, there remained much more to be done. At the time of his death, the fruits of post-war historical work were only beginning to be harvested. The knowledge and shape of many subjects dealt with in the book were being transformed. Accordingly, it has proved a much larger task to arrive at a completed text than either of us appreciated in those early years. The detailed writing no longer contains much of Geoffrey’s drafts and it would certainly be wrong to assign posthumous responsibility to him for what is finally appearing. But it has seemed broadly satisfactory to adhere to the breakdown of subject-matter and to more detailed sub-divisions within chapters which we settled upon long ago. In a book that has been slow a-coming, it would be foolhardy to name those who have helped as it has gestated. The list would be long and would probably neglect some who fully deserve inclusion. All those who have given assistance, great and small, must rest content with this general expression of heartfelt thanks. I do, however, wish to acknowledge the

vi Preface to the First Edition patient encouragement afforded to me since Geoffrey Clark’s death by his literary executors, Anne Gilman, Patricia Milner, and Professor Paul O’Higgins. For their fortitude, the reward is a book at last in hand. The publishers, Sweet & Maxwell, also deserve special thanks for their patience and helpfulness in processing a difficult manuscript. There is one other acknowledgement that is not to be suppressed. The book was generated in the Law Department of the London School of Economics, where Geoffrey Clark was a law student and where I have spent most of my teaching life. The Department’s motive force has long been that the study of law be grounded in a broader study of society. This book is one expression of that belief. It owes much to the fact that the intellectual life of the School is devoted to the social sciences in a widely conceived and integrated sense. Particularly since I am about to remove myself to Cambridge University, I must record that it was in the special environment of the LSE that the whole project began and remained possible. William Cornish May 1989

PREFACE TO THE SECOND EDITION Exactly thirty years after Bill Cornish wrote the foregoing preface to the first edition of his classic work of socio-legal history, conceived and written with Geoffrey Clark, we join in writing a preface to this second edition. In the three decades which have passed since the book first appeared, there has been a massive outpouring of scholarly work in legal, social, economic and political history. Inevitably, researchers in all of these fields have found new areas of interest to explore and have engaged in new debates as the scholarship has moved on. Nevertheless, we believe that the topics covered in this book remain interesting and important to those who wish to understand the social, economic and political pressures which affected the evolution of English law from the mid-eighteenth to the mid-twentieth centuries, and the effect which legal developments had on society, the economy and politics. We have therefore sought to write a refreshed account of these complex but fascinating topics which remains faithful to the goals and outlook of the original book, but which draws on the subsequent insights of the many scholars whose research and writing has helped us form a greater knowledge and deeper understanding of our subject-matter. Ours has been a joint endeavour, but we have taken primary responsibility for different chapters in the following way: chapters one, two and three – Charles Mitchell; chapters four, six and eight – Stephen Banks; chapter five – Rebecca Probert; and chapter seven – Paul Mitchell. No single work could possibly hope to engage with all the ins and outs of the scholarly investigations and debates which are treated in this volume. Furthermore, we have endeavoured to remain true to the first authors’ intention that the book should be accessible to reasonably well-informed students of English social history as well as students of English law. So our goal has been to write a synthetic survey, which provides readers with a general sense of the ways in which legal and social developments have occurred during our period, of the influence which they have had on one another, and of the principal debates which have arisen in the scholarly literature touching on these subjects. Readers seeking greater detail about particular topics and controversies are directed to the bibliography and list of suggestions for further reading which appears at the end of the book. It will be evident that we have drawn heavily on the work of scholars from many fields, but we must acknowledge our debt to one group of legal scholars in particular: the authors of the Oxford History of the Laws of England, volumes 11, 12 and 13, which were published in 2010. They are Bill Cornish himself, and also Stuart Anderson, Raymond Cocks, Michael Lobban, Patrick Polden, and Keith Smith. We salute their impressive achievement. Our thanks are also due to many colleagues who have discussed our work with us, including Josh Getzler, Julius Grower, Mike Macnair, Andreas Televantos and Ian Williams; to a band of outstandingly able young research assistants: Elias Allahyari, Jamie Holmes, Lorenzo Maniscalco, Matt Mills, Alma Mozetic, Rachel Pimm-Smith and Helena Ratcliff; and at Hart Publishing to Richard Hart, who commissioned this edition of the book and supported us through the early stages of its composition, to Bill Asquith who oversaw the

viii Preface to the Second Edition middle stages of the work, and to Sinead Moloney, Linda Staniford and Vicki Hillyard who finally helped us to bring the book out into the world. Finally, and most importantly, we thank Bill Cornish, who trusted us to take his book forward into a new incarnation, and who encouraged and supported us during the time which it took to do the work. We are honoured and grateful to Bill for his patience and kindness. Stephen Banks, Charles Mitchell, Paul Mitchell and Rebecca Probert May 2019

CONTENTS Preface to the First Edition�� v Preface to the Second Edition�� vii List of Journal Abbreviations��xiii Table of Cases�� xv Table of Statutes�� xxxix CHAPTER ONE. INSTITUTIONS AND IDEAS��1 Part 1: Industrialisation 1750–1875��1 A. Society and Law��1 B. Economic Growth and Law��6 C. Politics and Law��10 D. Executive Government and Law��18 E. The Court System��31 F. The Legal Professions��58 G. The Influence of Ideas��64 Part 2: Passing Greatness 1875–1950��74 A. Society and Law��74 B. Economic Decline and Law��76 C. Politics and Law��79 D. Executive Government and Law��88 E. The Court System��91 F. The Legal Professions��96 G. Ideologies and Democracy��107 CHAPTER TWO. LAND��115 Part 1: Agricultural Exploitation 1750–1850��117 A. Strict Settlement of Landed Estates��119 B. Mortgages��128 C. Copyhold and Leasehold��133 D. Enclosure��137 E. Tithe��144 Part 2: Urban Conditions and Land Values 1750–1850��147 A. Urban Leases��147 B. Trusts for Sale��150 C. Building Societies��151 D. Restrictive Covenants��152 Part 3: Land as an Industrial Resource 1750–1900��155 A. Compulsory Purchase��155 B. Public Health and Amenity: The Common Law��157 C. Control of Land Use: Statutory Authorities��161

x Contents Part 4: A Gradual Transformation 1870–1950��168 A. The Attack on Strict Settlements��168 B. The Art of Conveyancing��173 C. Housing��179 CHAPTER THREE. COMMERCE AND INDUSTRY��194 Part 1: Contract��194 A. Common Law Before 1876��198 B. Equity Before 1876��207 C. After the Judicature Acts��211 D. Contract Law and Business Needs��216 Part 2: Debt, Bankruptcy, Insolvency��220 A. Enforcing Debts��220 B. Bankruptcy and Insolvency��225 C. Secured Credit��231 Part 3: The Limited Liability Company��239 A. Origins and Development, 1700–1830��240 B. Reforming Company Law, 1830–1862��246 C. The Corporate World, 1862–1950��252 Part 4: Legal Control of Anti-Competitive Activity��257 A. Mercantilist Regulation and Its Ending��258 B. The Courts and ‘Unfair’ Competition��260 C. Shifting Perceptions��261 Part 5: Technological Advance and the Patent System��265 A. Early Industrialisation��266 B. Reform or Abolition of the Patent System?��269 CHAPTER FOUR. LABOUR RELATIONS��273 Part 1: Service and Its Regulation 1760–1875��274 A. Labour in Country and Town��274 B. The Old Controls��278 C. Factory Regulation��290 D. Trade Unions and Legality��298 Part 2: Employment 1875–1950��312 A. The Emergence of the New Unionism��312 B. State Underpinning: Trade Boards��324 C. Internal Union Affairs��325 D. Labour in the World War Era��330 CHAPTER FIVE. THE FAMILY��341 Part 1: Private Family Law 1750–1850��344 A. Forming a Family: Marriage��344 B. Sustaining the Family: Property��347 C. Sustaining the Family: Children��351 D. Ending the Family: Marriage Breakdown��355

Contents xi Part 2: New Pressures on Family Law: 1850–1950��361 A. The Movement for Judicial Divorce��362 B. Divorce by Judicial Decree��365 C. Protection Against Violence��369 D. Marriage and Divorce for All?��371 E. Married Women’s Property��376 F. Children: Private Rights��381 G. Children: The Underprivileged��382 CHAPTER SIX. POVERTY AND EDUCATION��388 Part 1: Destitution in Country and Town 1750–1890��389 A. The Inherited Structure��389 B. The Crises of Pauperism��397 Part 2: Schools: Learning and Mass Literacy to 1890��411 A. Elementary Teaching��412 B. Grammar Schools��415 C. The Newcastle Commission��419 D. Compulsion��421 Part 3: Poor Relief and Its Alternatives��424 A. Edwardian Initiatives��424 B. Tribulations of the Inter-War Period��432 C. The ‘Welfare State’ Programme��439 Part 4: Education – The Modern Structure��447 A. The Education Act 1902��447 B. Inter-War Plans��452 C. The Education Act 1944��454 CHAPTER SEVEN. ACCIDENTS��457 Part 1: Compensation by Civil Suits��460 A. An Emergent Tort��460 B. Vicarious Liability��463 C. Measure of Damages��466 D. Contributory Negligence��468 E. Common Employment��469 F. Voluntary Assumption of Risk��472 G. Identification��473 H. Death��474 I. Duties of Care��477 J. Later Changes in the Common Law��481 Part 2: Planning Against Accidents��484 A. Insurance and Limitation of Liability��484 B. Safety Legislation��486 Part 3: Resetting the Victorian Frame��491 A. Employers’ Liability��491 B. Workmen’s Compensation��498 C. Postlude��507

xii Contents CHAPTER EIGHT. CRIME��510 Part 1: The Era of the Bloody Code��510 A. Reform and Conservation��510 B. The Range of Criminal Law��513 C. The Amount of Crime and Its Nature��518 D. Policing��524 E. The Punishment of Criminals��532 F. The Process of Trial��538 G. Defining the Law��542 H. Characterising the System��543 Part 2: Criminal Justice Transformed��545 A. The Beccarian Strategy��545 B. Punishments��546 C. Police Reform��565 D. Criminal Law and Procedure: The Fate of a Utilitarian Ideal��579 E. The Causes of Crime��589 Part 3: Into the Twentieth Century��593 A. The Police��593 B. Criminal Law and Procedure��599 C. Punishment: New Ventures��605 Bibliography and Suggestions for Further Reading�� 615 Index�� 703

LIST OF JOURNAL ABBREVIATIONS Ag HR

Agricultural History Review

AJLH

American Journal of Legal History

BH

Business History

BIHR

Bulletin of the Institute of Historical Research

BTR

British Tax Review

C&C

Continuity and Change

CBH

Contemporary British History

CFLQ

Child and Family Law Quarterly

CLJ

Cambridge Law Journal

CLP

Current Legal Problems

Crim LR

Criminal Law Review

EBOR

European Business Organizations Law Review

Econ HR

Economic History Review (1st series: 1927–1948; 2nd series: 1948–present)

EEH

Explorations in Economic History

EHR

English Historical Review

FHR

Financial History Review

HJ

Historical Journal

HR

Historical Research

HSIR

Historical Studies in Industrial Relations

HWJ

History Workshop Journal

IPQ

Intellectual Property Quarterly

JBL

Journal of Business Law

JBS

Journal of British Studies

JCH

Journal of Contemporary History

JEH

Journal of Economic History

JFH

Journal of Family History

xiv List of Journal Abbreviations JIH

Journal of Interdisciplinary History

JLH

Journal of Legal History

JLS

Journal of Legal Studies

JMH

Journal of Modern History

JR

Juridical Review

JSH

Journal of Social History

JSWFL

Journal of Social Welfare and Family Law

L&HR

Law and History Review

LQR

Law Quarterly Review

LS

Legal Studies

MLR

Modern Law Review

NILQ

Northern Ireland Legal Quarterly

OJLS

Oxford Journal of Legal Studies

P&P

Past and Present

Parl Hist

Parliamentary History

PL

Public Law

SH

Social History

TCBH

Twentieth Century British History

TIBG

Transactions of the Institute of British Geographers

TRHS

Transactions of the Royal Historical Society (1st series: 1877–1882; 2nd series: 1884–1906; 3rd series: 1907–1917; 4th series: 1918–1950; 5th series: 1951–1990; 6th series: 1991–present)

VS

Victorian Studies

TABLE OF CASES A and B (Infants), Re [1897] 1 Ch 786�� 369, 381 Abraham v Reynolds (1860) 5 H & N 143��472 Adams v Lindsell (1818) 1 B & Ald 681��198 Admiralty Commissioners v Owners of the SS Amerika [1917] AC 38��475 Agar-Ellis (No 2), Re (1883) 24 Ch D 317��381 Agra and Masterman’s Bank, Re (1867) LR 2 Ch App 391��218 Allcard v Skinner (1887) 36 Ch D 145��210 Allen v Flood [1898] AC 1�� 318, 319 Amalgamated Society of Carpenters and Joiners v Russell [1912] AC 421��329 Amalgamated Society of Railway Servants v Osborne; see Osborne v Amalgamated Society of Railway Servants Appleby v Myers (1867) LR 2 CP 651��205 Appledore Tithe Commutation, Re (1845) 8 QB 139��146 Arlett v Ellis (1827) 7 B & C 346��521 Armstrong v Lancashire and Yorkshire Railway Co (1875) LR 10 Ex 47��474 Armsworth v South East Railway Co (1847) 11 Jur 758�� 467, 471 Arnold (1724) 16 St Tr 695��584 Ashbury Railway Carriage & Iron Co Ltd v Riche (1874) LR 7 HL 653��248 Ashby v White (1703) 2 Ld Raym 938��15 Ashcroft v Ashcroft and Roberts [1902] P 270��368 Ashford v Thornton (1818) 1 B & Ald 405��514 Assop v Yates (1858) 2 H & N 768��481 Astley v Reynolds (1731) 2 Strange 915��204 Astley v Weldon (1801) 2 B & P 346�� 206, 209 Aston v Heaven (1797) 2 Esp 533��461 Atkinson v Newcastle & Gateshead Waterworks Co (1877) 2 Ex D 441��490 Atlee v Backhouse (1838) 3 M & W 633��204 Attorney-General v Ackland (1830) 1 Russ & My 243��391 Attorney-General v Aspinall (1837) 2 My & Cr 613��14 Attorney-General v Birmingham Corp (1858) 4 K & J 528��159 Attorney-General v Bishop of Worcester (1851) 9 Hare 328��417 Attorney-General v Boultbee (1794) 2 Ves Jun 380��398 Attorney-General v Bovill (1840) 1 Ph 762��399 Attorney-General v Brown (1818) 1 Swans 265��14 Attorney-General v Cleaver (1811) 18 Ves Jun 211��158 Attorney-General v Coopers’ Co (1812) 19 Ves Jun 187��417 Attorney-General v Cullum (1842) Y & CCC 411��417 Attorney-General v Dixie (1825) 3 Russ 534n��416

xvi Table of Cases Attorney-General v Earl of Clarendon (1810) 17 Ves Jun 491��417 Attorney-General v Earl of Devon (1846) 15 Sim 193��417 Attorney-General v Earl of Mansfield (1827) 2 Russ 501��416 Attorney-General v Earl of Stamford (1842) 1 Ph 737��417 Attorney-General v Exeter Corp (1827) 2 Russ 45, (1828) 3 Russ 395��399 Attorney-General v Goulding (1786) 2 Bro CC 428��392 Attorney-General v Haberdashers’ Co (1828) 3 Russ 530��416 Attorney-General v Heelis (1824) 2 Sim & St 67��14, 398 Attorney-General v Ironmongers’ Co (1844) 10 Cl & F 908��398 Attorney-General v Mayor of Bristol (1820) 2 J & W 295��398 Attorney-General v Mayor of Dublin (1827) 1 Bligh NS 312, (1834) 3 Cl & F 289��14 Attorney-General v Mayor of Leeds (1870) 39 LJ Ch 254��159 Attorney-General v Pretyman (1845) 8 Beav 316��400 Attorney-General v Viscount Gort (1816) 6 Dow 136��14 Attorney-General v West Riding of Yorkshire CC [1907] AC 29��451 Attorney-General v Whiteley (1805) 11 Ves Jun 241�� 398, 416 Attorney-General v Wilkinson (1839) 1 Beav 370��399 Attorney-General v Wilson (1838) 2 Keen 680��391 Attorney-General v Wilson (1840) 1 Cr & Ph 1��14 Austin v Manchester, Sheffield, and Lincolnshire Railway Co (1850) 10 CB 454��200 Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame [1906] 2 Ch 34��248 Ayliffe v Murray (1740) 2 Atk 58��122 B v B [1924] P 176��369 B v B and T (1921) 37 TLR 868��369 Baddeley v Earl Granville (1887) 19 QBD 423��491 Bain v Fothergill (1874) LR 7 HL 158�� 174, 206 Baird’s Trustees v Lord Advocate (1888) 15 R 682��446 Baker v Bolton (1808) 1 Camp 493�� 474, 475 Baker v Paine (1750) 1 Ves Sen 456��218 Baldwin v Lawrence (1824) 2 Sim & St 18��242 Balfour v Balfour [1919] 2 KB 571��379 Ball v Ball (1827) 2 Sim 35��353 Ball v Montgomery (1793) 2 Ves Jun 191��359 Bamford v Turnley (1862) 3 B & S 66��159 Bank of Hindustan, China and Japan Ltd v Alison (1860) LR 6 CP 222��248 Barclay v Cuculla y Gana (1784) 3 Doug KB 389��199 Barker v Stickney [1919] 1 KB 121��154 Barnardo v McHugh [1891] AC 388��385 Barnes v Nunnery Colliery Co Ltd [1912] AC 44��504 Barrow v Arnaud (1846) 8 QB 604��206 Bartonshill Coal Co v Reid (1858) 3 Macq 265�� 471, 472 Barwell v Brooks (1784) 3 Doug KB 373��359 Batson v Donovan (1820) 4 B & Ald 21��200 Baxter v Brown (1845) 7 M & G 198��248 Bayliffe v Butterworth (1847) 1 Ex 425��218 Beamish v Beamish (1861) 9 HLC 274��57

Table of Cases xvii Beard v Webb (1800) 2 Bos & Pul 93��359 Beckley v Scott & Co [1902] 2 KB (Ir) 504��499 Bedder v DPP [1954] 1 WLR 1119��604 Beer v Santer (1861) 10 CB (NS) 435��136 Beeston v Collyer (1827) 4 Bing 309��275 Behn v Burness (1863) 3 B & S 751��205 Bell v Lever Bros Ltd [1932] AC 161��214 Benham v Gambling [1941] AC 157��482 Bennet v Davis (1725) 2 P Wms 316��350 Bennett v Herring (1857) 3 CB (NS) 370��149 Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79��91 Bernard v Garnons (1797) 7 Brown 105��145 Bernina, The (1888) 13 App Cas 1��482 Besant, Re (1879) 11 Ch D 508��381 Bettini v Gye (1876) 1 QBD 183��205 Bigge v Parkinson (1862) 7 H & N 955��200 Bird v Holbrook (1828) 4 Bing 628��478 Birmingham and District Land Co v London & North Western Railway Co (No 2) (1888) 40 Ch D 268��209 Bishop of Hereford v Adams (1802) 7 Ves Jun 324��392 Blackett v Royal Exchange Assurance Co (1832) 2 Cr & J 244��219 Blake v Lanyon (1795) 6 TR 221��276 Blake v Midland Railway Co (1852) 18 QB 93�� 466, 477 Bligh v Brent (1836) 2 Y & C 268��248 Bliss v Hall (1838) 4 Bing NC 183��160 Blisset’s Case (1767) Lofft 748��352 Bluett v Osbourne (1816) 1 Stark 384��200 Blundell v Winsor (1837) 8 Sim 601��245 Blunt v Cumyns (1751) 2 Ves Sen 331��218 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781��477 Board of Education v Rice [1911] AC 179�� 94, 95, 451 Bolch v Smith (1862) 7 H & B 736��479 Boone v Eyre (1779) 1 H B1 273n��205 Boorman v Nash (1829) 9 B & C 145��206 Boson v Sandford (1691) 2 Salk 440, 3 Mod 231��463 Boulton & Watt v Bull (1795) 2 H B1 463��267 Bovill v Moore (1816) 1 Hayward’s PC 618��268 Bowes v Shand (1877) 2 App Cas 455��205 Bowman, Re [1932] 2 KB 621��190 Boyson v Coles (1817) 6 M & S 14��232 Bradburn v Great Western Railway Co (1874) LR 10 Ex 1��477 Bradley v Carritt [1903] AC 253��215 Brady v Giles (1835) 1 M & Rob 494��464 Brecknock and Abergavenny Canal Navigation Co v Pritchard (1796) 6 TR 750��205 Bree v Holbech (1781) 2 Doug KB 654��174 Bridge v Grand Junction Railway Co (1838) 3 M & W 244��474

xviii Table of Cases Bridgeman v Green (1757) Wilm 58��210 Brintons Ltd v Turvey [1905] AC 230��500 Bristol Free Grammar School, Re (1860) 28 Beav 161��417 Britain v Rossiter (1879) 11 QBD 123��212 British Cast Plate Manufacturers Co v Meredith (1792) 4 TR 794��466 British Columbia Electric Railway Co Ltd v Loach [1916] 1 AC 719��468 British Columbia Saw Mill Co Ltd v Nettleship (1868) LR 3 CP 499��206 British United Shoe Machinery Co v Somervell (1906) 95 LT 711��261 Brittain v Kinnaird (1819) 1 Brod & B 432��47 Broderick v Broderick (1713) 1 P Wms 239��210 Bromley v Smith (1859) 26 Beav 644��211 Broom v Davis (1794) 7 East 480n��205 Brown v Byrne (1854) 3 El & Bl 703��219 Brown v Edgington (1841) 2 M & G 279��200 Brown v Holt (1812) 4 Taunt 587��244 Brunton v Hawkes (1821) 4 B & Ald 541��268 Brydon v Stewart (1854) 25 LT 58��481 Buck v Buck (1808) 1 Camp 547��244 Bunker v Midland Railway Co (1882) 47 LT 476��496 Burden v Burden (1813) 1 V & B 170��241 Burgh v Francis (1673) Rep t Finch 28��130 Burnes v Pennell (1849) 2 HLC 497��248 Bush v Steinman (1799) 1 B & P 404�� 464, 465, 478 Bushell’s Case (1670) 1 Freeman 1, (1670) 6 St Tr 999, (1670) Vaughan 135��35, 540 Butler v Freeman (1756) Amb 301��353 Butterfield and Forrester (1809) 11 East 60��468 Cadell v Palmer (1833) 1 Cl & Fin 372��121 Callisher v Bischoffsheim (1870) LR 5 QB 449��204 Cameron v Charing Cross Railway Co (1864) 16 CB (NS) 430��160 Campden Charities, Re (1881) 18 Ch D 310��409 Cann v Willson (1888) 39 Ch D 39��483 Capital and Counties Bank Ltd v Rhodes [1903] 1 Ch 631��177 Card v Hope (1824) 2 B & C 661��207 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256��199 Carr v Lancashire and Yorkshire Railway Co (1852) 7 Ex 707��200 Carroll (No 2), Re [1931] 1 KB 317��382 Carter v Boehm (1766) 3 Burr 1905��217 Casborne v Scarfe (1737) 1 Atk 603��130 Catt v Tourle (1869) LR 4 Ch App 654��154 Cavalier v Pope [1906] AC 428��483 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130��209 Chapman v Rothwell (1858) El Bl & El 168��478 Charitable Corp v Sutton (1742) 2 Atk 400��233 Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341��446 Child v Hearn (1874) 9 Ex 176��474 Christie v Griggs (1809) 2 Camp 79��461

Table of Cases xix Churchward v Churchward [1895] P 7��367 Clark v Malpas (1862) 4 De G F & J 401��210 Clarke v Holmes (1862) 7 H & N 937�� 471, 472 Clarke v Wright (1861) 6 H & N 849��208 Clay v Sharpe (1802) 18 Ves Jun 346n��132 Clay v Wood (1803) 5 Esp 44��472 Clephane v Lord Provost of Edinburgh (1869) LR 1 Sc 417��409 Clerke v Martin (1702) 2 Ld Raym 757��217 Cochrane v Moore (1890) 25 QBD 57��379 Coe v Platt (1851) 6 Ex 752, (1852) 7 Ex 460��490 Coggs v Bernard (1703) 2 Ld Raym 909�� 199, 231, 461 Cole v Gibbons (1734) 3 P Wms 290��211 Collins v Barrow (1831) 1 M & Rob 112��137 Collins v Locke (1879) 4 App Cas 674��259 Collins v Henry Whiteway & Co Ltd [1927] 2 KB 378��432 Colls v Home and Colonial Stores Ltd [1904] AC 179��153 Commonwealth of Australia v Adelaide Steamship Co Ltd [1913] AC 781��261 Compton, Re [1945] Ch 123��446 Constable v Davenport (1666) 1 Ch Rep 259��139 Cooden Engineering Co Ltd v Stanford [1953] 1 QB 86��239 Cook v North Metropolitan Tramways Co (1887) 18 QBD 683��496 Cook v Wright (1861) 1 B & S 559��204 Cooke v Chilcott (1876) 3 Ch D 694��154 Cooke v Oxley (1790) 3 TR 653��198 Cooper v Phibbs (1867) LR 2 HL 149�� 204, 211 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180��166 Corbett v Poelnitz (1785) 1 TR 5��359 Corbyn v French (1799) 4 Ves Jun 418��392 Corder v Morgan (1811) 18 Ves Jun 344��132 Cort v Ambergate, Nottingham and Boston and Eastern Junction Railway Co (1851) 17 QB 127��205 Couch v Steel (1854) 3 E & B 402��490 Courtois v Vincent (1820) Jac 268��353 Cousins v Smith (1807) 13 Ves Jun 542��259 Couturier v Hastie (1856) 5 HLC 673��204 Cox v Hickman (1860) 8 HLC 268��248 Cox’s Case (1700) 1 P Wms 29��416 Cramer v Giles (1883) 1 Cab & El 151��238 Crane v Price (1842) 4 M & G 580��267 Creuze v Hunter (1790) 2 Cox Eq Cas 242��353 Crewe v Crewe (1800) 3 Hag Ecc 123��367 Croft v Alison (1821) 4 B & Ald 590��465 Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435��340 Croome v Guise (1837) 4 Bing NC 148��135 Crowder v Tinkler (1816) 19 Ves Jun 617��158 Cruden v Fentham (1798) 2 Esp 685��472

xx Table of Cases Culley, Re (1833) 5 B & Ad 230��569 Cundy v Le Cocq (1884) 13 QBD 207��586 Cundy v Lindsay (1878) 3 App Cas 459��214 Curran v Treleavan [1891] 2 QB 545��317 Cutter v Powell (1790) 6 TR 320�� 205, 297 Czarnikow Ltd v Roth Schmidt & Co [1922] 2 KB 478��51 Dahl (trading as Dahl & Co) v Nelson, Donkin & Co (1881) 6 App Cas 38��219 Dalby v Hirst (1819) 1 Brod & Bing 224��137 Dalby v India & London Life Assurance Co (1854) 15 CB 365��218 Davies v Mann (1842) 10 M & W 546��468 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601��482 Davies v Rees (1886) 17 QBD 408��235 Davies v Weld (1683) 1 Vern 181��123 Davis v Duke of Marlborough (1819) 2 Swan 108��211 Davis v Willan (1817) 2 Stark 279��199 Day v Edwards (1794) 5 TR 648��462 DC Thomson & Co Ltd v Deakin [1952] 2 All ER 361��340 De Francesco v Barnum (1890) 45 Ch D 430��216 De Hahn v Hartley (1786) 1 TR 343��217 De Manneville v De Manneville (1804) 10 Ves Jun 52��353 De Mattos v Gibson (1849) 4 De G & J 276��154 Deane v Clayton (1817) 7 Taunt 489��478 Degg v Midland Railway Co (1857) 1 H & N 773��472 Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners’ Association [1906] AC 384�� 321, 327 Dent Tithe Commutation, Re (1845) 8 QB 43��146 Denton v Great Northern Railway Co (1856) 5 E & B 860��199 Derry v Peek (1887) 37 Ch D 541, (1889) 14 App Cas 337�� 212, 213, 483 Dillwyn v Llewelyn (1862) 4 De G F & J 517��208 Dixon v Rankin (1852) 14 D 420��471 Dodd v Dodd [1906] P 189��372 Doel v Sheppard (1856) 5 E & B 856�� 489, 490 Donoghue v Stevenson [1932] AC 562�� 461, 480, 483 Dover Navigation Co Ltd v Craig [1940] AC 190��505 Dr Bonham’s Case (1610) 8 Co Rep 107��12 Duffy v Great Northern Railway Co (1879) 41 LT 197��486 Duke v Littleboy (1880) 43 LT 216��326 Duke of Buccleugh v Metropolitan Board of Works (1872) LR 5 HL 418��161 Duke of Norfolk’s Case (1683) 3 Ch Cas 1��121 Duke of St Albans v Ellis (1812) 16 East 352��137 Duncan v Findlater (1839) 6 Cl & F 894�� 463, 466 Duncan v Jones [1936] 1 KB 218��596 Duncomb v Duncomb (1701) 3 Lev 437��123 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79��215 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847�� 213, 215, 262 Duvergier v Fellows (1828) 5 Bing 248��245

Table of Cases xxi Dyer v London School Board [1902] 2 Ch 768��449 Dynen v Leach (1857) 26 LJ Ex 221�� 472, 481 Earl of Aldeborough v Trye (1840) 7 Cl & F 436��211 Earl of Aylesford v Morris (1873) LR 8 Ch App 484��211 Earl of Chatham v Tothill (1771) 7 Bro PC 453��151 Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125��210 Earl of Inchiquin v Fitzmaurice (1785) 5 Bro PC 166��120 Early v Garrett (1829) 9 B & C 928��200 Eastwood v Kenyon (1840) 11 Ad & El 438��201 Edgerley v Price (1673) Rep temp Finch 18��139 Edmunds v Brown (1667) 1 Lev 237��240 Edwards v Etherington (1825) Ry & M 268��137 Edwards v Godfrey [1899] 2 QB 333��499 Edwards v Porter [1925] AC 1��379 Egerton v Earl Brownlow (1853) 4 HLC 1��207 Eichholz v Bannister (1864) 17 CB (NS) 708��200 Elias v Pasmore [1934] 2 KB 164��596 Elliotson v Feetham (1835) 2 Bing NC 134��160 Ellis v IRC (1949) 93 SJ 678��446 Ellison v Bignold (1821) 2 J & W 503�� 242, 244 Elve v Boyton [1891] 1 Ch 501��240 Elwes v Maw (1802) 3 East 38��137 Emmanuel College v Evans (1626) Rep Ch 18��130 English Hop Growers Ltd v Dering [1928] 2 KB 174��262 Entick v Carrington (1765) 2 Wils KB 275��15, 19 Entwhistle v Davis (1867) LR 4 Eq 272��248 Etherington v Parrot (1703) 2 Ld Raym 1006��349 Eurymedon, The [1938] P 41��468 Evans v Evans (1790) 1 Hag Con 35��355 Evans v National Union of Printing Workers [1938] 4 All ER 51��340 Exall v Partridge (1799) 8 TR 308��222 Excelsior Wire Rope Co Ltd v Callan [1930] AC 404��483 Farrant v Olmius (1820) 3 B & Ald 692��209 Farrer v Close (1869) LR 4 QB 602�� 304, 306, 326 Farwell v Boston & Worcester Railroad Corp 45 Mass (4 Met) 49 (1842)��471 Featherstone v Fenwick (1784) 1 Bro CC 270n��132 Fenton v J Thorley & Co [1903] AC 443��500 Fisher v Fisher (1861) 2 Sw & Tr 410��368 Fisher v Oldham Corp [1930] 2 KB 364��570 Fitzgerald v Northcote (1865) 4 F & F 656��416 Fitzpatrick v Kelly (1873) LR 8 QB 337��586 Flavell, Re (1883) 25 Ch D 89��213 Fleming v Snook (1842) 5 Beav 250��136 Fletcher v Dyche (1787) 2 TR 32��209 Fletcher v Peto (1862) 3 F & F 368��472 Flint v Brandon (1803) 8 Ves Jun 159��136

xxii Table of Cases Florence, Re (1879) 10 Ch D 591��226 Flureau v Thornhill (1776) 2 W Bl 1078�� 174, 206, 215 Foakes v Beer (1884) 9 App Cas 605��204 Ford, Re [1929] 1 Ch 134��226 Forman v Homfray (1813) 2 V & B 329��242 Forster v National Amalgamated Union of Shop Assistants, Warehousemen and Clerks [1927] 1 Ch 539��330 Fowler v Paget (1798) 7 TR 509��228 Fox v Shrewsbury (1638) Tot 111��139 Franklin v Minister of Town and Country Planning [1948] AC 87��193 Freake v Loveden (1615) Tot 110��139 Freeman v Taylor (1831) 8 Bing 124��205 Freestone v Butcher (1840) 9 Car & P 643��225 French v Gething [1922] 1 KB 236��379 Fritz v Hobson (1880) 14 Ch D 542��158 Fry v Lane (1888) 40 Ch D 312��211 Full v Hutchings (1782) 7 Bro PC 78��145 Fulthrope v Foster (1687) 1 Vern 476��129 Gainsford v Carroll (1824) 2 B & C 624��206 Gallagher v Piper (1864) 33 LJPC 329��472 Gardiner v Gray (1815) 4 Camp 144��200 Garrard v Hardey (1843) 5 M & G 471��245 Garth v Cotton (1750) 1 Ves Sen 546��123 Gautret v Egerton (1867) LR 2 CP 371��479 George v Skivington (1869) LR 5 Ex 1��480 German v Chapman (1877) 7 Ch D 271��154 Gether v Capper (1854) 15 CB 39��219 Gibbon v Paynton (1769) 4 Burr 2298��199 Giblan v National Amalgamated Labourers’ Union of Great Britain and Ireland [1903] 2 KB 600��321 Giblett v Hobson (1834) 3 My & K 517��391 Gibson v Hunter (1794) 6 Bro PC 235��42 Gibson v Lawson [1891] 2 QB 545��337 Gibson v Small (1853) 4 HLC 353��218 Gilmour v Coats [1949] AC 426��446 Gilpin v Gilpin (1804) 3 Hag Ecc 150��356 Gipps v Gipps (1864) 11 HLC 1��367 Glasgow Corp v Bruce [1948] AC 79�� 472, 506 Godin v London Assurance Co (1758) 1 Burr 489��217 Goldschmid v Tunbridge Wells Improvement Commissioners (1866) 35 LJ Ch 382��159 Gordon v Street [1899] 2 QB 641��214 Gorris v Scott (1874) LR 9 Ex 125��490 Goss v Withers (1758) 2 Burr 683��217 Gottliffe v Edelston [1930] 2 KB 378��380 Govier v Hancock (1796) 6 TR 603��349 Gozney v Bristol Trade & Provident Society [1909] 1 KB 901�� 326, 329

Table of Cases xxiii Grace v Smith (1775) 2 W Bl 998�� 241, 248 Graham v Glasgow CC [1947] AC 368��506 Grant v Astle (1781) 2 Doug KB 722��134 Graves v Dolphin (1826) 1 Sim 66��151 Gray v Cox (1825) 4 B & C 108��200 Green v Beesley (1835) 2 Bing NC 108��241 Greenslade v Tapscott (1834) 1 Cr M & R 55��137 Greenwood’s Case (1854) 3 De GM & G 459��244 Gregory v Williams (1817) 3 Mer 582��213 Grey v Chiswell (1803) 9 Ves Jun 118��242 Griffiths v Earl of Dudley (1882) 9 QBD 357�� 476, 497 Griffiths v Gidlow (1858) 3 H & N 648��481 Grosvenor v Sherratt (1860) 28 Beav 659��210 Groves v Lord Wimborne [1898] 2 QB 402��491 Guth v Guth (1792) 3 Bro CC 614��359 H Dakin & Co v Lee [1916] 1 KB 566��205 Hadley v Baxendale (1854) 9 Ex 341�� 174, 206 Hall v Harding (1769) 4 Burr 2426��521 Hall v Smith (1824) 2 Bing 156��466 Hallett v Dowdall (1852) 18 QB 2��244 Hamilton v Mendes (1761) 2 Burr 1198��217 Hamilton’s Windsor Ironworks, Re (1879) 12 Ch D 707��253 Hammersley v De Biel (1845) 12 Cl & F 45��208 Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171�� 161, 165 Handley v Handley [1891] P 124��369 Harrod v Harrod (1854) 1 K & J 4��210 Hardie & Lane Ltd v Chilton [1928] 2 KB 306��263 Harding, ex parte (1873) LR 15 Eq 223��234 Hardy v Martin (1783) 1 Cox Eq Cas 26��209 Hare v Groves (1795) 3 Anst 687��149 Hare v London and North-Western Railway Co (1861) 2 J & H 80��259 Harriman v Harriman [1909] P 123��372 Harris v Associated Portland Cement Manufacturers Ltd [1939] AC 71��504 Harris v Baker (1815) 4 M & S 27��466 Harris v Nickerson (1873) LR 8 QB 286��199 Harrison v Godman (1756) 1 Burr 12��14 Harrison v Harrison (1829) 1 Russ & My 71��391 Harrison v Heathorn (1843) 6 M & G 81��245 Hart v Windsor (1843) 12 M & W 68��137 Hartley v Ponsonby (1857) 7 E & B 872��204 Harvey v Mount (1845) 8 Beav 439��210 Hatschek’s Patents, Re [1909] 2 Ch 68��272 Hawkes v Saunders (1782) 1 Cowp 289��201 Hawkins v Cooper (1838) 8 C & P 473��468 Hayton v Irwin (1879) 5 CPD 130��219 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 Ch D 403��154

xxiv Table of Cases Hearn v Griffin (1815) 2 Chitty 407��259 Heath’s Garage Ltd v Hodges [1916] 2 KB 370��483 Heathcote v Paignon (1787) 2 Bro CC 167��210 Heaven v Pender (1883) 11 QBD 503��483 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465��212 Heilbut, Symons & Co v Buckleton [1913] AC 30��212 Helby v Matthews [1895] AC 471��237 Henderson v Stevenson (1875) LR 2 HL Sc App 470��200 Herbert v Samuel Fox & Co Ltd [1916] 1 AC 405��504 Herbert Morris Ltd v Saxelby [1916] 1 AC 688��261 Herne v Bembow (1813) 4 Taunt 764��137 Hibblewhite v M’Morine (1839) 5 M & W 462��207 Hicks v Newport, Abergavenny and Hereford Railway Co (1857) 4 B & S 403n��477 Higgins v Samuels (1862) 2 J & H 460��209 Hill v Barclay (1811) 18 Ves Jun 56��209 Hill v Thompson (1818) 8 Taunt 375��267 Hilton v Eckersley (1855) 6 El & Bl 47�� 259, 303 Hitchcock v Giddings (1817) 4 Price 135��211 Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169��339 Hobart v Hammond (1600) 4 Co Rep 27��134 Hochster v De la Tour (1853) 2 El & B 678��205 Hodges v Hodges (1795) 3 Hag Ecc 118��356 Hodgson v Hancock (1827) 1 Y & J 317��242 Hole v Barlow (1858) 4 CB (NS) 334��159 Holman v Vaux (1616) Tot 133��129 Holmes v DPP [1946] AC 588��604 Holtzapffel v Baker (1811) 18 Ves Jun 115��149 Hooper v Smith (1763) 1 W Bl 441��228 Horatio Crowthier & Co Ltd, ex parte [1948] 1 KB 424��339 Hore v Whitmore (1778) 2 Cowp 784��217 Hornby v Close (1867) LR 2 QB 153�� 304, 306 Horne v Midland Railway Co (1873) LR 8 CP 131��206 How v Vigures (1629) 1 Ch Rep 32��130 Howard v Harris (1683) 1 Vern 190��130 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439��209 Huguenin v Baseley (1807) 14 Ves Jun 273��210 Hurford v Carpenter (1785) 1 Bro CC 270n��132 Hurst v Great Western Railway Co (1865) 19 CB (NS) 310��199 Hutchinson v Bell (1809) 1 Taunt 558��202 Hutchinson v York Newcastle and Berwick Railway Co (1850) 19 LJ Ex 296��476 Hutton v Warren (1836) 1 M & W 466�� 137, 219 Ilminster Free School, Re (1858) 2 De G & J 535��418 Indermaur v Dames (1866) LR 1 CP 274��479 Ingram v Wells (1627) Tot 111��139 Institute of Patent Agents v Lockwood [1894] AC 347��95 IRC v Baddeley [1955] AC 572��446

Table of Cases xxv IRC v Duke of Westminster [1936] AC 1��88 IRC v McGuckian [1997] 1 WLR 991��88 IRC v Smyth [1914] 3 KB 406��85 Jackman v Hoddesdon (1593) Cro Eliz 351��134 Jackson v Union Marine Insurance Co (1873) LR 8 CP 572, (1874) LR 10 CP 125��205 Jee v Audley (1787) 1 Cox Eq Cas 324��121 Jee v Thurlow (1824) 2 B & C 547��359 Jennings v Broughton (1854) 5 De M & G 126��209 Joel v Morrison (1834) 6 C & P 501��465 Johnson v Johnson (1802) 3 Bos & P 162��174 Johnson v WH Lindsay & Co [1891] AC 371��482 Jones v Bright (1829) 5 Bing 533��200 Jones v Hill (1817) 7 Taunt 392��137 Jones v Just (1868) LR 3 QB 197��200 Jones v Mersey Docks and Harbour Board Trustees (1865) 11 HLC 443��466 Jones v North (1875) LR 19 Eq 426��259 Jones v Williams (1767) Amb 651��392 Jorden v Money (1854) 5 HLC 185�� 203, 212 Joseph Evans & Co v Heathcote [1918] 1 KB 418��262 Josephs v Pebrer (1825) 3 B & C 639��245 Josling v Kingsford (1863) 13 CB (NS) 447��200 Joy v Campbell (1804) 1 Sch & Lef 328��226 Keats v Keats (1859) 1 Sw & Tr 334��367 Kelly v Kelly (1869) LR 2 P & D 31��366 Kemble v Farren (1829) 6 Bing 141��206 Kennedy v Panama, New Zealand and Australia Royal Mail Co (1867) LR 2 QB 580��214 Kenyon v Berthon (1778) 1 Doug KB 12n��217 Keppell v Bailey (1834) 2 My & K 517��153 Kerr v Willan (1817) 2 Stark 53��199 Kill v Hollister (1746) 1 Wils KB 129��52 Kinder v Taylor (1825) 3 LJ Ch 68��245 King v Arkwright (1785) 1 Web PC 64��268 Kirkman v Shawcross (1794) 6 TR 14��199 Knight v Simmonds [1896] 2 Ch 294��154 Kreglinger v New Patagonia Meat and Cold Storage Co [1914] AC 25��215 Krell v Henry [1903] 2 KB 740��205 Kruse v Johnson [1898] 2 QB 91��25 L’Estrange v F Graucob Ltd [1934] 2 KB 394��200 Ladd v London Road Car Co [1900] 110 LT 80��101 Laing v Reed (1869) LJ Ch 1��152 Lamb v Vice (1840) 6 M & W 467��213 Lancashire & Yorkshire Railway Co v Highley [1917] AC 352��504 Lane v Cotton (1701) 1 Ld Raym 646��465 Langridge v Levy (1838) 4 M & W 337; affirming (1837) 2 M & W 519��480 Latham v Rutley (1823) 2 B & C 20��199 Laugher v Pointer (1826) 5 B & C 547�� 463, 464

xxvi Table of Cases Le Lievre v Gould [1893] 1 QB 491�� 212, 483 Le Mesurier v Le Mesurier [1895] AC 517��372 Le Neve v Le Neve (1747) Amb 436��173 Leach v Money (1765) 19 St Tr 1001��15 Lee v Butler [1895] 2 QB 318��237 Lee v Muggeridge (1813) 5 Taunt 36��201 Leeds v Cheetham (1827) 1 Sim 146��149 Leeson v Holt (1816) 1 Stark 186��199 Legard v Johnson (1797) 3 Ves Jun 352��359 Legh v Hewitt (1803) 4 East 154��137 Leidemann v Schultz (1853) 14 CB 38��218 Lewis v Lee (1824) 3 B & C 291��356 Lewis v Rucker (1761) 2 Burr 1167��217 Leyson v Parsons (1811) 18 Ves Jun 173��145 Liardet v Johnson, Morning Post, 23 February 1778��268 Lickbarrow v Mason (1787) 2 TR 63, (1793) 4 Bro PC 57��42 Lilley v Elwin (1848) 11 QB 742��298 Lilywhite v Trimmer (1867) 36 LJ Ch 525��159 Limpus v London General Omnibus Co (1862) 1 H & C 526��465 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555��339 Liversidge v Anderson [1942] AC 206��95 Lloyd v Grace Smith & Co [1912] AC 716��465 Lloyd’s v Harper (1880) 16 Ch D 290��213 Local Government Board v Arlidge [1915] AC 120��94, 95 Loffus v Maw (1862) 3 Giff 592��208 London & South Western Railway Co v Gomm (1882) 20 Ch D 562��154 London, Brighton and South Coast Railway Co v Truman (1885) 11 App Cas 45��160 London CC v Allen [1914] 3 KB 642��154 London Street Tramways Co v London CC [1894] AC 489��57 Long v Blackall (1797) 7 TR 100��121 Lonsdale v Heaton (1830) Younge 58��145 Lord Henry Bruce (An Infant) v Marquess of Ailesbury [1892] AC 356��171 Lord Morley’s Case [1666] St Tr 770��582 Lovering v Lovering (1792) 3 Hag Ecc 85��356 Low v Bouverie [1891] 3 Ch 82�� 203, 212 Lowe v Peers (1768) 4 Burr 2225�� 208, 209 Lowry v Bourdieu (1789) 2 Doug KB 468��217 Luby v Wiltshire (1795) 1 Esp 271��276 Luker v Dennis (1877) 7 Ch D 227��154 Lumley v Gye (1853) 2 El & Bl 216�� 154, 317 Lumley v Sands (1639) Tot 111��139 Lumley v Wagner (1852) 1 De GM & G 604��154 Lumsden v IRC [1914] AC 877��85 J Lyons & Sons v Wilkins (No 1) [1896] 1 Ch 811��318, 320, 321, 323 MacDonald v Scott [1893] AC 642��208 Maddison v Alderson (1883) 8 App Cas 467��212

Table of Cases xxvii Makin v Watkinson (1870) LR 6 Ex 25��149 Manchester, Sheffield and Lincolnshire Railway Co v Brown (1883) 8 App Cas 703��200 Mancini v DPP [1942] AC 1��604 Mann v Stephens (1846) 15 Sim 377��153 Mansell v Mansell (1732) 2 P Wms 678��123 Marriot v Hampton (1797) 7 TR 269��204 Marquis of Bute v Thompson (1844) 13 M & W 487��205 Marshall v Colman (1820) 2 J & W 266��242 Marshall v Rutton (1800) 8 TR 545��359 Martini v Coles (1813) 1 M & S 140��232 Mason v Provident Clothing & Supply Co Ltd [1913] AC 724��261 Mason v Sainsbury (1782) 3 Doug KB 61��217 Maving v Todd (1815) 1 Stark 72��199 Maxwell v DPP [1935] AC 309��604 Maynard v Moseley (1676) 3 Swans 653��208 Mayor of Bradford v Pickles [1895] AC 587��318 Mayor of Colchester v Lowten (1813) 1 V & B 226��14 McAulay v Brownlie (1860) 22 D 975��481 McEllistrim v Ballymacelligott Cooperative Agricultural & Dairy Society Ltd [1919] AC 548��262 McEntire v Crossley Brothers Ltd [1895] AC 457��236 McGrath (Infants), Re [1893] 1 Ch 143��381 McKernan v United Operative Masons’ Association (1874) 1 R 453��326 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93��466 Mersey Steel & Iron Co Ltd v Naylor, Benzon & Co (1884) 9 App Cas 434��205 Metcalf v Bruin (1810) 12 East 400��244 Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193��165 Middleton v Fowler (1699) 1 Salk 282��463 Midland Railway Co v London & North Western Railway Co (1866) LR 2 Eq 524��259 Miller v Glasgow Corp [1947] AC 368��472 Miller v Race (1758) 1 Burr 452��217 Milroy v Lord (1862) 4 De G F & J 264��208 Mitchel v Reynolds (1711) 1 P Wms 181��207 Mitchel (or Michael) v Alestree (1676) 1 Vent 295, 3 Keb 60, 2 Lev 172��461 M’Manus v Crickett (1800) 1 East 106�� 462, 465 Mogul Steamship Co Ltd v McGregor Gow & Co (1889) 23 QBD 598, [1892] AC 25��259, 260, 318, 319 Molton v Camroux (1848) 2 Ex 487��203 Montefiori v Montefiori (1762) 1 W B1 363��203 Montgomery v Reilly (1827) 1 Dow & Cl 62��120 Moorcock, The (1889) 14 PD 64��219 Moore v Clark (1813) 5 Taunt 90��149 Morgan v London General Omnibus Co (1884) 13 QBD 832��496 Morgan v Morgan (1869) LR 1 P & D 644��367 Morgan v Scudamore (1677) 2 Ch Rep 134��134 Morgan v Seward (1836) 1 Web PC 170��268

xxviii Table of Cases Morgan v Vale of Neath Railway Co (1864) 5 B & S 570��472 Morice v Bishop of Durham (1804) 9 Ves Jun 399, (1805) 10 Ves Jun 522�� 392, 398 Morland v Cook (1868) LR 6 Eq 252��154 Mortimore v Wright (1840) 6 M & W 482��351 Mountfort, ex parte (1808) 14 Ves Jun 606��132 Mozley Stark v Mozley Stark [1910] P 190��369 Mullins v Collins (1874) LR 9 QB 292��586 Municipal Permanent Investment Building Society v Kent (1884) 9 App Cas 260��52 Murray v Parker (1854) 19 Beav 305��211 Myers v Perigal (1852) 2 De GM & G 599��248 National Anti-Vivisection Society v IRC [1948] AC 31��446 National Permanent Benefit Building Soc, Re (1869) LR 5 Ch App 309��152 National Sailors’ and Firemen’s Union of Great Britain and Ireland v Reed [1926] Ch 536��336 Naylor v Brown (1673) Rep t Finch 83��240 Neilson v Harford (1841) Web PC 295��267 Newcomb v Bonham (1681) 1 Vern 7��130 Nicholson v Willan (1804) 5 East 507��199 Noakes & Co Ltd v Rice [1902] AC 24��215 Nobel’s Explosives Co Ltd v Anderson (1895) 12 RPC 164��272 Noble v Southern Railway Co [1940] AC 583��505 Nocton v Lord Ashburton [1914] AC 932��212 Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014��339 Nokes v Gibbon (1856) 3 Drew 681��149 Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] AC 535�� 260, 261, 339 North-Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1914] AC 461��261 Norton v Fazan (1798) 1 Bos & Pul 226��349 O’Byrne v Burn (1854) 16 D 1025��471 O’Neill v Longman (1863) 4 B & S 376��302 O’Rorke v Bolingbroke (1877) 2 App Cas 814��211 Old v Robson (1890) 64 LT 282��326 Oliver v Saddler & Co [1929] AC 584��483 Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297��446 Orby v Trigg (1722) 9 Mod 2��130 Ormond v Holland (1858) EB & E 102��481 Osborn v Gillett (1873) LR 8 Ex 88��475 Osborne v Amalgamated Society of Railway Servants [1909] 1 Ch 163, [1910] AC 87 ��80, 327, 328, 329, 330 Osborne v Amalgamated Society of Railway Servants (No 2) [1911] 1 Ch 540��329 Oxford Group v IRC [1949] 2 All ER 537��446 Page v Way (1840) 3 Beav 20��151 Paradine v Jane (1647) Aleyn 26��205 Parker v Alder [1899] 1 QB 20��587 Parker v South Eastern Railway Co (1877) 2 CPD 416��199 Parker v Thorold (1852) 2 Sim NS 1��209

Table of Cases xxix Parkhurst v Smith (1740) 6 Bro PC 351��123 Parkinson v Lee (1802) 2 East 314��200 Parnaby v Lancaster Canal Co (1839) 11 Ad & E 230, 9 LJ Ex 338��478 Parr v Lancashire and Cheshire Miners’ Federation, The Times, 29 and 30 January 1913��330 Pasley v Freeman (1789) 3 TR 51��202, 203, 209, 211 Paterson v Wallace (1854) 1 Macq 748�� 476, 481 Patterson v Tash (1742) 9 Mod 397��232 Pawlett v Attorney-General (1667) Hardres 465��130 Payne v Cave (1789) 3 TR 148��198 Payne v Rogers (1794) 2 H Bl 350��478 Pearce v Gardner (1852) 10 Hare 287��150 Pearce v Piper (1809) 17 Ves Jun 1��243 Peek v Derry; see Derry v Peek Peek v North Staffordshire Railway Co (1863) 10 HLC 473��200 Pell v Blewet (1630) Tot 133��129 Phillips v Brooks Ltd [1919] 2 KB 243��214 Phillips v London & South Western Railway Co (1879) 5 QBD 78; affirming (1879) 4 QBD 406��467 Philpott v St George’s Hospital (1859) 27 Beav 107��398 Phipps v Williams (1831) 5 Sim 44��150 Pickard v Sears (1837) 6 Ad & E 469��203 Pickering v Busk (1812) 15 East 38��232 Piggott v Kniverton (1607) Tot 109��139 Pillans v Van Mierop (1765) 3 Burr 1663��201 Pink v Federation of Shipping Unions (1892) 67 LT 258��320 Pinkett v Wright (1842) 2 Hare 120��248 Plimmer v Mayor of Wellington (1884) 9 App Cas 699��208 Popham v Lancaster (1637) Rep Ch 96��134 Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146��154 Powel v Cleaver (1789) 2 Bro CC 500��353 Powell v Hemsley [1909] 2 Ch 252��149 Powley v Walker (1793) 5 TR 373��137 Pownall v Moores (1822) 5 B & Ald 416��136 Prevost v Benett (1815) 1 Price 236��145 Priestley v Fowler (1837) 3 M & W 1�� 469, 470, 471, 476, 478, 480 Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462�� 208, 259 Pryce v Monmouthshire Canal and Railway Cos (1879) 4 App Cas 197��88 Puller v Glover (1810) 12 East 124��218 Pulsford v Richards (1853) 17 Beav 87��209 Pybus v Smith (1791) 3 Bro CC 340��349 Quarman v Burnett (1840) 6 M & W 499��464 Queiroz v Trueman (1824) 3 B & C 342��232 Quinn v Leathem [1901] AC 495�� 319, 323, 340 R v Almon (1770) 5 Burr 2686��585

xxx Table of Cases R v Archbishop of York (1795) 6 TR 490��416 R v Arnold (1838) 8 C & P 621��588 R v Atwood (1788) 1 Leach 464��540 R v Bailey (1867) 16 LT (NS) 859��319 R v Barnardo (1890) 24 QBD 283��385 R v Baskerville [1916] 2 KB 658��603 R v Bauld (1876) 13 Cox CC 282��317 R v Benchers of Gray’s Inn (1780) 1 Doug KB 353��59 R v Benchers of Lincoln’s Inn (1825) 4 B & C 855��59 R v Bishop (1880) 5 QBD 259��587 R v Blackburn (1868) 11 Cox CC 157��304 R v Bloxham (1943) 29 Cr App R 37��604 R v Brownlow (1839) 11 Ad & E 119��475 R v Bunn (1872) 12 Cox CC 331��307 R v Bykerdike (1832) 1 M & Rob 179��289 R v City of London (1681–3) 8 Howell’s State Trials 1039��245 R v Cockerton [1901] 1 QB 322��449 R v Codere (1916) 12 Cr App R 21��604 R v Codrington (1825) 1 C & P 661��543 R v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313��27 R v Conway and Lynch (1845) 7 IRLR 149��541 R v Daman (1819) 2 B & Ald 378��50 R v De Manneville (1804) 5 East 221��352 R v Delaval (1763) 3 Burr 1434��360 R v Dent (1943) 29 Cr App R 120��603 R v Denyer [1926] 2 KB��258 R v Dodd (1808) 9 East 516��244 R v Douse (1701) 1 Ld Raym 672��416 R v Druitt (1867) 10 Cox CC 592�� 302, 303 R v Dudley and Stephens (1884) 14 QBD 273��583 R v Duffield (1851) 5 Cox CC 404��302 R v Eccles (1783) 1 Leach 274��286 R v Electricity Commissioners [1924] 1 KB 171��94 R v Frances (1849) 4 Cox CC 57��584 R v Fursey (1833) 3 St Tr (NS) 543��569 R v Gibbons (1872) 12 Cox CC 45��587 R v Goodhall (1821) R & R 461��543 R v Great North of England Railway Co (1846) 9 QB 315��585 R v Greenhill (1836) 4 Ad & El 627��353 R v Hadfield (1800) 27 St Tr (NS) 1281�� 583, 584 R v Halliday, ex parte Zadig [1917] AC 260��95 R v Handley (1864) 9 LT (NS) 827��586 R v Harrald (1872) LR 7 QB 361��19, 29 R v Harvey (1787) 1 Leach 467��543 R v Hewitt (1851) 5 Cox CC 162��302 R v Hibbert (1869) LR 1 CCR 184��587

Table of Cases xxxi R v Hibbert (1875) 13 Cox CC 82��308 R v Hudson [1943] KB 458��604 R v Hunt (1838) 8 C & P 642��304 R v Inhabitants of Brampton (1777) Cald 11��276 R v Inhabitants of Hitcham (1760) 2 Burr 910��47 R v Inhabitants of Kingswinford (1791) 4 TR 219��396 R v Inhabitants of North Shields (1780) 1 Doug KB 331��396 R v Inhabitants of Oulton (1735) Cas Temp Hard 169��47 R v Inhabitants of Wistow (1836) 5 Ad & El 250��145 R v Jackson [1891] 1 QB 671��370 R v Jordan (1681?), cited in R v Pierce (1683) 2 Show KB 327��160 R v Justices of Kent (1811) 14 East 395��282 R v Kopsch (1925) 19 Cr App R 50��605 R v Lloyd (1802) 4 Esp 200��158 R v Manley [1933] 1 KB 529��604 R v Mawbey (1796) 6 TR 619��286 R v Mawgridge (1707) Kel 119�� 582, 583 R v McCarthy [1954] 2 QB 105��604 R v Medley (1834) 6 C & P 292�� 160, 585 R v Minister of Health, ex parte Davis [1929] 1 KB 619��190 R v Minister of Health, ex parte Yaffe [1930] 2 KB 98, reversed [1931] AC 494��95, 190 R v New (1904) 20 TLR 583��381 R v Nield (1805) 6 East 417�� 285, 287 R v Parkes (1794) 2 Leach 614��543 R v Pear (1779) 1 Leach 212��543 R v Polwart (1841) 1 QB 818��476 R v Poor Law Commissioners for England and Wales, Re St Pancras Parish (1837) 6 Ad & E 1��30 R v Prince (1875) LR 2 CCR 154��587 R v Pywell (1816) 1 Stark 402��543 R v Registrar of Friendly Societies (1872) LR 7 QB 741��326 R v Roebuck (1856) Dears & B 24��543 R v Rowlands (1851) 5 Cox CC 466�� 300, 301, 302 R v Rudd (1775) 1 Leach 115��540 R v Rusby (1800) Peake Add Cas 189��258 R v Russell (1827) 6 B & C 566��159 R v Schama and Abramovitch (1914) 11 Cr App R 45��605 R v Selsby (1847) 5 Cox CC 495��301 R v Seward (1834) Ad & E 706��396 R v St John, Devizes (1827) 9 B & C 896��281 R v Stainer (1870) 11 Cox CC 483�� 303, 305 R v Stratton (1809) 1 Camp 549n��244 R v Tolson (1889) 23 QBD 168��587 R v Voisin [1918] 1 KB 531��603 R v Waddington (1800) 1 East 143��258 R v Wakefield (1757) 2 Kenyon 164��47

xxxii Table of Cases R v Walter (1799) 3 Esp 21��585 R v Ward (1727) 2 Ld Raym 1461��542 R v Ward (1836) 4 Ad & El 384��159 R v Warickshall (1783) 1 Leach 263��540 R v Webb (1811) 14 East 406��244 R v West (1841) 1 QB 826��475 R v Wheatly (1761) 2 Burr 1125��543 R v Wheeler (1819) 2 B & Ald 345��267 R v Windle [1952] 2 QB 826��604 R v Woodrow (1846) 15 M & W 404��586 R v Woodrow (1909) 2 Cr App R 67��613 R v Young (1788) 1 Leach 505��543 Radcliffe v Ribble Motor Services Ltd [1939] AC 215�� 472, 506 Radley v London & North Western Railway Co (1876) 1 App Cas 754��468 Raine v R Jobson & Co [1901] AC 404��503 Raisin v Mitchell (1839) 9 C & P 613�� 468, 469 Ramsay v Margrett [1894] 2 QB 18��379 Ramsden v Dyson (1866) LR 1 HL 129��208 Randall v Newson (1877) 2 QBD 102��200 Randell, Re (1888) 38 Ch D 213��398 Randleson v Murray (1838) 8 Ad & E 109��464 Rann v Hughes (1778) 4 Bro PC 27��201 Raynard v Chase (1756) 1 Burr 2��282 Rayner v Stone (1762) 2 Eden 128��136 Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 732��321 Reynell v Lewis (1846) 15 M & W 17��247 Reynolds v Clarke (1729) 1 Str 634��462 Reynolds v Shipping Federation Ltd [1924] 1 Ch 28��340 Rhodes v Bate (1866) LR 1 Ch App 252��210 Richardson v Mellish (1824) 2 Bing 229��207 Richardson, Spence & Co v Rowntree [1894] AC 217��200 Ricket v Metropolitan Railway Co (1864) 5 B & S 149, (1867) LR 2 HL 175��160 Ridley v Plymouth, Stonehouse and Devonport Grinding and Baking Co (1848) 2 Ex 711��248 Rigby v Connol (1880) 14 Ch D 482�� 326, 327, 329 Ringsted v Lady Lanesborough (1783) 3 Doug KB 197��359 Roadways Transport Development v Browne and Gray (unreported, 1927)��239 Roberts v Hopwood [1925] AC 578��94 Roberts v Smith (1857) 2 H & N 213��481 Roberts v Teasdale (1790) Peake NP 38��228 Robertson v Robertson and Favagrossa (1883) 8 PD 94��368 Robinson v National Bank of Scotland Ltd 1916 SC (HL) 154��212 Roddick v Indemnity Mutual Marine Insurance Co Ltd [1895] 2 QB 380��218 Rogers v Imbleton (1806) 2 Bos & Pul NR 117��462 Rose v Bank of Australasia [1894] AC 687��92, 220

Table of Cases xxxiii Rose v Miles (1815) 4 M & S 101��158 Rowley v Horne (1825) 3 Bing 2��199 Rowley v London & North Western Railway Co (1873) LR 8 Ex 221��467 Rudd v Elder Dempster & Co [1933] 1 KB 566��493 Russel v Russel (1783) 1 Bro CC 269��132 Russell v Amalgamated Society of Carpenters and Joiners [1912] AC 421��329 Russell v Rudd [1923] AC 309��501 Ryall v Rolle (1749) 1 Atk 165��226 Ryan v Hartley [1912] 2 KB 150��501 Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116��216 Ryder v Mills (1849) 3 Ex 853��295 Ryder v Wombwell (1868) LR 4 Ex 32��203 Rye v Foljambe (1602) Moo KB 942��345 Rylands v Fletcher (1866) LR 1 Ex 265, (1868) LR 3 HL 330��159 Sainter v Ferguson (1849) 7 CB 716��206 Salmon v Hamborough Co (1671) 1 Ch Cas 204��240 Salomon v A Salomon & Co Ltd [1897] AC 22�� 248, 253 Salt v Marquess of Northampton [1892] AC 1��215 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203��339 Sanders Bros v MacLean & Co (1883) 11 QBD 327��219 Sanders v Pope (1806) 12 Ves Jun 282��209 Santley v Wilde [1899] 2 Ch 474��215 Savage v Taylor (1736) Cas Temp Talbot 234��123 Savignac v Roome (1794) 6 TR 125��462 Saxton v Hawksworth (1872) 26 LT 85��473 Scarman v Castell (1795) 1 Esp 270��276 Scott v Avery (1856) 5 HLC 811��52, 220 Scott v London & St Katherine Docks Co (1865) 3 H & C 596��458 Scott v Morley (1887) 20 QBD 120��379 Scott v Scott [1913] AC 417��375 Scott v Shepherd (1773) 2 W Bl 892��462 Seagrave v Seagrave (1807) 13 Ves Jun 439��359 Searle v Wallbank [1947] AC 341��483 Seddon v Seddon and Doyle (1862) 2 Sw & Tr 640��369 Seton v Slade (1802) 7 Ves Jun 265��209 Seymour v Maddox (1851) 16 LTOS 387��472 Sharp v Grey (1833) 9 Bing 457��461 Sharp Brothers & Knight v Chant [1917] 1 KB 771��186 Sharrod v London and North Western Railway Co (1849) 4 Ex 580��465 Shelbourne v Liver (1866) 13 LT (NS) 630��302 Shelley v Westbrooke (1817) Jac 266��353 Shelley’s Case (1581) 1 Co Rep 93b��178 Sherras v De Rutzen [1895] 1 QB 918��587 Shore v Wilson (1842) 9 Cl & F 355��218 Shrewsbury & Birmingham Railway Co v London & North-Western Railway Co (1851) 21 LJQB 89, (1853) 16 Beav 441��259

xxxiv Table of Cases Sibree v Tripp (1846) 15 M & W 23��204 Sidney v Sidney (1865) 4 Sw & Tr 178��368 Sikes v Wild (1861) 1 B & S 587��174 Sills v Brown (1840) 9 C & P 601��468 Simmons v Wilmot (1799) 3 Esp NP 91��276 Simpson v London Midland & Scottish Railway Co [1931] AC 351��503 Skeate v Beale (1841) 11 Ad & E 983��204 Skinner v Kitch (1867) LR 2 QB 393��302 Skipp v Eastern Counties Railway Co (1853) 9 Ex 223��481 Slim v Croucher (1860) 1 De G F & J 518��209 Sloman v Walter (1783) 1 Bro CC 418��209 Sly v Edgley (1806) 6 Esp 6��464 Smallwood v Smallwood (1861) 2 Sw & Tr 397��366 Smith v Associated Omnibus Co [1907] 1 KB 916��496 Smith v Charles Baker & Sons [1891] AC 325�� 481, 491 Smith v Howard (1870) 22 LTNS 130��471 Smith v Hughes (1871) LR 6 QB 597��204 Smith v Jeffryes (1846) 15 M & W 561��198 Smith v Marrable (1843) 11 M & W 5��137 Smith v Reynolds (1856) 1 H & N 221��218 Snowdon v Dales (1834) 6 Sim 524��151 Somersett’s case (1772) 20 St Tr 1��3 Soper v Arnold (1889) 14 App Cas 429��174 Sorrell v Smith [1925] AC 700��340 South Wales Miners Federation v Glamorgan Coal Co Ltd [1905] AC 239��321 Southcote v Stanley (1856) 1 H & N 247��478 Spain v Arnott (1817) 2 Stark 256��276 Special Commissioners of Income Tax v Pemsel [1891] AC 531��446 Spokes v Banbury Local Board of Health (1865) 35 LJ Ch 105��159 Springett v Ball (1865) 4 F & F 472��469 Springhead Spinning Co v Riley (1868) LR 6 Eq 551��303 Spurgeon v Collier (1758) 1 Eden 55��130 St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, (1865) LR 1 Ch 66�� 160, 167 St John v St John (1805) 11 Ves Jun 526�� 359, 360 Stanley v Jones (1831) 7 Bing 369��207 Startup v Macdonald (1841) 2 Man & G 395��219 Steel v Houghton (1788) 1 H Bl 51�� 143, 521 Steele v South Wales Miners’ Federation [1907] 1 KB 361��327 Stephen v Cooper [1929] AC 570��504 Stevenson v Snow (1761) 3 Burr 1237��217 Stewart v Richman (1794) 1 Esp 108��228 Stilk v Myrick (1809) 2 Camp 317��204 Stilwell v Wilkins (1821) Jac 280��210 Stock v Inglis (1884) 12 QBD 564��218 Strickland v Turner (1852) 7 Ex 208��204 Sturges v Bridgman (1879) 11 Ch D 852��160

Table of Cases xxxv Summers v Griffiths (1866) 35 Beav 27��210 Sutton v Temple (1843) 12 M & W 52��137 Sutton’s Hospital Case (1612) 10 Co Rep 23a��240 Swaine v Wilson (1889) 24 QBD 252��326 Swiss Bank Corp v Lloyds Bank Ltd [1979] 1 Ch 548��154 Symington v Symington (1875) LR 2 HL (Sc) 415��369 Taddy & Co v Sterious & Co [1904] 1 Ch 354��262 Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426��320, 322, 323, 327 Talbot v Staniforth (1861) 1 J & H 484��211 Taylor v Caldwell (1863) 3 B & S 826��205 Taylor v Knight (1725) 4 Vin Abr 406, pl 312, Eq Cas Abr 161��134 Temperton v Russell [1893] 1 QB 715��317, 318, 319, 320 Temple v Prescott (1773) Cald 14n��276 Thain, Re [1926] Ch 676��382 Thomas v Quartermaine (1887) 18 QBD 685 �� 473, 481, 496 Thomas v Sawkins [1935] 2 KB 249�� 596, 597 Thomasset v Thomasset [1894] P 295��381 Thompson v Charnock (1799) 8 TR 139��52 Thompson v London Midland & Scottish Railway Co [1930] 1 KB 41��200 Thompson v R [1918] AC 221��603 Thorne v Motor Trade Association [1937] AC 797��263 Thornton v Howe (1862) 31 Beav 14��391 Thornton v Proctor (1794) 1 Anst 94��241 Thorogood v Bryan (1849) 8 CB 115��474 Thurlowary v Amalgamated Union of Shop Assistants Warehousemen and Clerks, The Times, 9 December 1910��330 Timmings v Timmings (1792) 3 Hag Ecc 76��356 Tod-Heatly v Benham (1888) 40 Ch D 80��149 Tomlinson v Gill (1756) Amb 330��213 Toomes v Conset (1745) 3 Atk 261��130 Townley v Colegate (1828) 2 Sim 297��145 Trevor v Whitworth (1887) 12 App Cas 409��248 Trollope v London Building Trades Federation (1895) 72 LT 342��320 Trustees of the British Museum v White (1826) 2 Sim & St 594��398 Tucker v Chaplin (1848) 2 Car & K 730��476 Tucker v Linger (1883) 8 App Cas 508��137 Tulk v Moxhay (1848) 2 Ph 774�� 153, 154 Turberwill v Stamp (1698) Skinner 681, Comb 459, 1 Ld Raym 264��463 Turner v Mason (1845) 14 M & W 112��276 Turner v Robinson (1833) 5 B & Ad 789��297 Tweddle v Atkinson (1861) 1 B & S 393�� 202, 213 Twisleton v Griffith (1716) 1 P Wms 310��211 Twopeny v Peyton (1840) 10 Sim 487��151 Underhill v Horwood (1804) 10 Ves Jun 209��210 United Shoe Machinery Co of Canada v Brunet [1909] AC 330��261

xxxvi Table of Cases Van Sandau v Moore (1826) 1 Russ 441�� 244, 245 Vancouver Malt & Sake Brewing Co Ltd v Vancouver Breweries Ltd [1934] AC 181��261 Vansittart v Vansittart (1858) 4 K & J 62��360 Victoria Building Soc, Re (1870) 39 LJ Ch 628��152 Viscountess Rhondda’s Claim [1922] 2 AC 339��79 Vose v London & Yorkshire Railway Co (1858) LJ Ex 249�� 471, 481 Vynior’s Case (1610) 8 Co Rep 81b��51 Wade v Simeon (1846) 2 CB 548��204 Wade’s Case (1600) 5 Co Rep 114a��129 Wadman v Calcraft (1809) 2 Ves Jun Supp 204��136 Walburn v Ingilby (1833) 1 My & K 61��245 Waldo v Waldo (1841) 12 Sim 107��121 Waller v Loch (1881) 7 QBD 619��409 Walsby v Anley (1861) 3 E & E 516��302 Walsh v Whiteley (1888) 21 QBD 371��496 Ward v James [1966] 1 QB 273��509 Ward Lock & Co v Operative Printers’ Assistants’ Society (1906) 22 TLR 327��321 Warlow v Harrison (1859) 1 E & E 309��199 Warwick Grammar School, Re (1845) 1 Ph 564��417 Watkins v Rymill (1883) 10 QBD 178��199 Watson v Peache (1834) 1 Bing NC 327��226 Watson v Spratley (1854) 10 Ex 222��248 Waugh v Carver (1793) 2 H Bl 235��248 Weaver v Tredegar Iron & Coal Co Ltd [1940] AC 955��505 Webb v England (1860) 29 Beav 44��216 Weir Hospital, Re [1910] 2 Ch 124��409 Weller v Smeaton (1784) 1 Cox Eq Cas 103��158 Wellesley v Duke of Beaufort (1827) 2 Russ 1��353 Wellington v Mackintosh (1743) 2 Atk 569��52 Wells v Horton (1826) 2 C & P 383��201 Wennall v Adney (1802) 3 Bos & P 247��276 Wernher’s Trustees v IRC [1937] 2 All ER 488��446 West v Erisey (1727) 1 Bro PC 225��120 Whatman v Gibson (1838) 9 Sim 196��153 White v Beeton (1861) 7 H & N 42��205 White v Boulton (1791) Peake 113��461 Whitfield v Lord Le Despencer (1778) 2 Cowp 754��465 Whittington v Seal-Hayne (1900) 82 LT 49��212 Wickens v Evans (1829) 3 Y & J 318��259 Wieler v Schilizzi (1856) 17 CB 619��200 Wiggett v Fox (1856) 11 Ex 832��472 Wiggins v Lavy (1928) 44 TLR 721��101 Wilkes v Lord Halifax (1769) 2 Wils KB 1406��15 Wilkes v Wood (1763) 2 Wils KB 203��15 Wilkinson v Fairrie (1862) 4 B & S 396��479 Williams v Clough (1858) 3 H & N 258��481

Table of Cases xxxvii Williams v Holland (1833) 10 Bing 112��462 Williams v Price (1817) 4 Price 156��145 Williamson v Lord Lonsdale (1818) Dan 49��145 Wilson v Lord Kensington (1831) 1 Cl & F 1��145 Wilson v Merry & Cunningham (1868) LR 1 HL Sc 326�� 471, 472 Wilson v Wilson (1848) 1 HLC 538��360 Wilsons and Clyde Coal Co Ltd v English [1938] AC 57�� 471, 482 Wingfield, ex parte (1879) 10 Ch D 591��226 Winterbottom v Wright (1842) 10 M & W 109�� 480, 483 Winterburn v Brooks (1846) 2 Car & K 16��352 Wolfe v Matthews (1882) 21 Ch D 194��326 Wood v Bowron (1866) LR 2 QB 21��303 Wood v Scarth (1855) 2 K & J 33��211 Woolmington v DPP [1935] AC 462��605 Worrall v Jacob (1817) 3 Mer 256��359 WT Ramsay Ltd v IRC [1982] AC 300��88 Yorkshire Electricity Board v Naylor [1968] AC 529��482 Yorkshire Miners Association v Howden [1905] AC 256�� 321, 327 Younghusband v Gisborne (1846) 15 LJ Ch 355��151 Ystradgunlais Tithe Commutation, Re (1844) 8 QB 32��146

xxxviii

TABLE OF STATUTES Statutes were formerly deemed by common law to operate from the first day of the Parliamentary session in which they were enacted, which may or may not have fallen in the same calendar year as the day on which the legislation was passed. This rule was altered by the Acts of Parliament (Commencement) Act 1793 (33 Geo III, c 13), which provided that statutes should operate from the day when they received the Royal Assent. Historians have not always applied these rules consistently when dating statutes, and so different variants of some statutes appear in the historical literature (e.g. the Bubble Act 1719 / 1720). In such cases, we have given the later of the two dates, which we take to be the variant which historians most often use (e.g. the Bubble Act 1720). Statutes enacted before 1963 are formally identified by the regnal year(s) of the Parliamentary session in which they were passed, followed by chapter number; statutes enacted from 1963 onwards are formally identified by the calendar year of their enactment, followed by chapter number: Acts of Parliament Numbering and Citation Act 1962 (10 & 11 Eliz, c 34). In this table, legislation predating 1963 is arranged in chronological order by regnal year(s) of enactment and then in numerical order by chapter number. Short titles for legislation are also given, corresponding to the titles we have used in the footnotes for the sake of brevity. 13 Edw I, st 1, Statute of Westminster 1285��526 23 Edw III, st 1, Statute of Labourers 1349��276 12 Rich II, c 7, Confinement of Impotent Beggars Act 1388��389 11 Hen VII, c 2, Return of Impotent Beggars Act 1494��389 19 Hen VII, c 12, Return of Impotent Beggars Act 1504��389 25 Hen VIII, c 22, Succession to the Crown Act 1533��347 27 Hen VIII c 10, Statute of Uses 1536�� 178, 390 c 11, Clerks Act 1536��267 28 Hen VIII, c 7, Succession to the Crown Act 1536��347 32 Hen VIII, c 1, Wills Act 1540�� 115, 490 37 Hen VIII, c 9, Usury Act 1545��129 5 Eliz I, c 4, Statute of Artificers 1563��276, 277, 278, 279, 281, 282, 283, 394, 469 13 Eliz 1 c 5, Fraudulent Conveyances Act 1571��202 c 7, Bankrupts Act 1571��226 c 8, Usury Act 1571��129 14 Eliz I, c 5, Vagabonds Act 1572��394 18 Eliz I c 3, Poor Relief Act 1575��394

xl Table of Statutes c 7, Benefit of Clergy Act 1575��534 27 Eliz I, c 10, Common Informers Act 1584��515 39 Eliz I c 3, Poor Relief Act 1597��394 c 6, Statute of Charitable Uses 1597��390 43 Eliz I c 2, Poor Relief Act 1601�� 138, 394 c 4, Statute of Charitable Uses 1601��390, 392, 398, 446 1 Jas I c 6, Weavers and Spinners’ Wages Act 1603��279 c 11, Bigamy Act 1603��345 c 15, Bankrupts Act 1603��226 21 Jas I c 3, Statute of Monopolies 1624 ��266 c 6, Female Convicts Act 1624��534 c 17, Usury Act 1624��129 c 19, Bankrupts Act 1624��226 13 & 14 Cha II, c 12, Poor Relief Act 1662 �� 394, 395, 531 29 Cha II, c 3, Statute of Frauds 1677��99, 132, 174, 198, 202, 209, 212, 219 3 Will & Mar c 9, Benefit of Clergy Act 1691��534 c 10, Deer Stealers Act 1691��522 c 11, Poor Relief Act 1691��395 7 & 8 Will III, c 6, Recovery of Small Tithes Act 1695��146 8 & 9 Will III c 11, Administration of Justice Act 1696��206 c 30, Poor Relief Act 1696��395 9 & 10 Will III c 15, Arbitration Act 1698��51 c 44, East India Company Renewal Act 1698��240 12 and 13 Will III, c 2, Act of Settlement 1701��12 2 & 3 Ann, c 4, Yorkshire (West Riding) Land Registry Act 1703��173 3 & 4 Ann, c 9, Promissory Notes Act 1704��217 4 Ann c 3, Administration of Justice Act 1705��206 c 17, Bankrupts Act 1705�� 225, 226 5 Ann c 6, Punishment of Felons Act 1706�� 534, 537 c 14, Game Preservation Act 1706��522 c 22, Bankrupts Act 1706��226 6 Ann, c 22, Banking Partnerships Act 1707��245 7 Ann, c 20, Middlesex Land Registry Act 1708��173 10 Ann c 25, Bankrupts Act 1711��226 c 37, South Sea Company Act 1711��240 13 Ann

Table of Statutes xli c 15, Usury Act 1714��129 1 Geo I, st 2 c 5, Riot Act 1715��516 c 38, Septennial Act 1715��13 4 Geo I, c 11, Transportation Act 1717��535 5 Geo I, c 11, Hovering Act 1718��523 6 Geo I c 18, Royal Exchange and London Assurance Corporation Act 1720 (the ‘Bubble Act’) �� 243, 244, 245 7 Geo I, st 1 c 12, Silk Manufacturers Act 1720��286 c 13, London Journeyman Tailors Act 1720��280 9 Geo I c 7, Poor Relief Act 1723 (‘Knatchbull’s Act’)��397 c 22, Criminal Law Act 1723 (the ‘Black Act’ or ‘Waltham Black Act’)�� 516, 521, 522, 535, 553 12 Geo I, c 29, Frivolous Arrests Act 1725��222 5 Geo II c 18, Justices Qualification Act 1731��36 c 19, Quarter Sessions Appeal Act 1731��47 c 30, Bankrupts Act 1731�� 226, 227 7 Geo II c 8, Stock-Jobbing Act 1733 (‘Sir John Barnard’s Act’)��219 c 15, Responsibility of Shipowners Act 1733��471 8 Geo II, c 6, Yorkshire (North Riding) Land Registry Act 1735��173 9 Geo II c 23, Spirit Duties Act 1736 (the ‘Gin Act’)��529 c 36, Mortmain and Charitable Uses Act 1736�� 391, 392 17 Geo II, c 5, Vagrancy Act 1744��395 19 Geo II, c 37, Marine Insurance Act 1745��218 22 Geo II c 27, Frauds by Workmen Act 1749 (the ‘Bugging Act’)��520 c 46, Continuance of Laws Act 1749��62 23 Geo II, c 33, Small Debts, Middlesex Act 1749��48 26 Geo II, c 32, Clandestine Marriages Act 1753 (‘Lord Hardwicke’s Act’)�� 346, 356 30 Geo II, c 24, Pawnbrokers Act 1757��543 31 Geo II, c 26, Militia Act 1757��531 1 Geo III, c 23, Commissions and Salary of Judges Act 1760��12 2 Geo III c 22, Poor Law Act 1762��397 c 28, Thefts upon the Thames Act 1762 (the ‘Bumboat Act’)�� 521, 565 7 Geo III, c 39, Poor Law Act 1767��397 8 Geo III, c 17, London Journeyman Tailors Act 1768�� 280, 286 12 Geo III, c 20, Felony and Piracy Act 1772��539 c 71, Repeal of Certain Acts 1772��258 13 Geo III, c 38, Silk Weavers Act 1773 (one of the ‘Spitalfields Acts’)�� 280, 282 14 Geo III

xlii Table of Statutes c 48, Gambling Act 1774��484 c 59, Health of Prisoners Act 1774 (‘Popham’s Act’)��537 c 90, Westminster Night Watch Act 1774��527 17 Geo III c 55, Hat Manufacturers Act 1776��286 c 56, Worsted Act 1777�� 520, 535 19 Geo III c 70, Inferior Courts Act 1779��222 c 74, Penitentiary Act 1779�� 547, 561 22 Geo III, c 83, Poor Relief Act 1782 (‘Gilbert’s Act’)�� 396, 397 24 Geo III c 42, Pawnbrokers Act 1784��233 c 47, Hovering Act 1784��523 c 56, Transportation Act 1784��549 25 Geo III, c 48, Pawnbrokers Act 1785��233 30 Geo III, c 36, Stage Coaches Act 1790��487 32 Geo III c 44, Silk Manufacturers Act 1792��286 c 53, Middlesex Justices Act 1792�� 527, 565 33 Geo III, c 54, Friendly Societies Act 1793�� 284, 287 35 Geo III, c 101, Poor Removal Act 1795��397 36 Geo III c 23, Poor Relief Act 1795��401 c 87, Pawnbrokers Act 1796��233 37 Geo III, c 70, Incitement to Mutiny Act 1797�� 335, 596 39 Geo III, c 81, Unlawful Combination of Workmen Act 1799 (the ‘Combination Act 1799’)�� 286, 287, 288 39 & 40 Geo III c 87, Depredations on the Thames Act 1800��566 c 99, Pawnbrokers Act 1800��233 c 106, Unlawful Combination of Workmen Act 1800 (the ‘Combination Act 1800’)��286, 287, 288 41 Geo III, c 109, Inclosure Consolidation Act 1801��141 42 Geo III, c 73, Health and Morals of Apprentices Act 1802�� 290, 413 43 Geo III c 58, Malicious Shooting or Stabbing Act 1803 (‘Lord Ellenborough’s Act’)��582 c 122, Income Tax Act 1803 (‘Addington’s Act’)��81 46 Geo III, c 136, Stage Coaches Act 1806��487 48 Geo III c 121, Bankrupts (England and Ireland) Act 1809��228 c 129, Larceny Act 1808��552 51 Geo III, c 41, Stealing of Linen Act 1811��552 52 Geo III c 101, Charities Procedure Act 1812��400 c 102, Charitable Donations Registration Act 1812��400 53 Geo III

Table of Statutes xliii c 102, Insolvent Debtors Act 1813�� 228, 229 c 127, Ecclesiastical Courts Act 1813 (‘Lord Stowell’s Act’)�� 146, 356 55 Geo III c 26, Importation Act 1815 (the ‘Corn Law’)��5, 17 c 50, Gaol Fees Abolition Act 1815��558 57 Geo III c 19, Seditious Meetings Act 1817��574 c 57, Militia Act 1817��531 58 Geo III, c 69, Vestries Act 1818 (‘Sturges Bourne’s Act’)��403 59 Geo III c 12, Poor Relief Act 1819 ��403 c 46, Appeal of Murder Act 1819��514 c 66, Cotton Mills Act 1819�� 291, 293 c 81, Charities Inquiry Act 1819��400 c 91, Charity Estates Act 1819��400 60 Geo III and 1 Geo IV c 1, Unlawful Drilling Act 1819��15 c 2, Seizure of Arms Act 1819��15 c 4, Misdemeanours Act 1819��15 c 6, Seditious Meetings Act 1819��15 c 8, Blasphemous and Seditious Libels Act 1819��15 c 9, Newspaper and Stamp Duties Act 1819��15 1 Geo IV, c 93, Wages of Artificers 1820��297 1 & 2 Geo IV, c 47, Disenfranchisement of Grampound Act 1821��16 3 Geo IV, c 38, Punishment for Manslaughter Act 1822��581 4 Geo IV c 34, Master and Servant Act 1823��282, 289, 290, 301, 302 c 53, Benefit of Clergy Act 1823��553 c 54, Benefit of Clergy Act 1823��553 c 64, Gaols Act 1823�� 558, 559 c 77, Reciprocity of Duties Act 1823��524 c 83, Factors Act 1823��232 5 Geo IV c 61, Insolvent Debtors Act 1824��229 c 83, Vagrancy Act 1824�� 395, 591 c 95, Combination of Workmen Act 1824�� 288, 289 c 98, Bankruptcy Act 1824��228 6 Geo IV c 16, Bankrupts Act 1825�� 226, 228 c 50, Juries Act 1825��35, 539 c 63, Cotton Mills Act 1825��291 c 78, Quarantine Act 1825��554 c 91, Bubble Companies Act 1825�� 241, 245 c 94, Factors Act 1825��232 c 129, Combination of Workmen Act 1825��289, 301–06 7 Geo IV c 46, Country Bankers Act 1826��245

xliv Table of Statutes c 64, Criminal Law Act 1826��525 7 & 8 Geo IV c 18, Spring Guns Act 1827��478 c 28, Criminal Law Act 1827��539 c 29, Larceny Act 1827��50, 535, 554, 600 c 30, Malicious Injuries to Property Act 1827��553 c 71, Imprisonment for Debt Act 1827��222 9 Geo IV c 14, Statute of Frauds Amendment Act 1828��202 c 31, Offences against the Person Act 1828�� 50, 554, 581 10 Geo IV c 44, Metropolitan Police Act 1829�� 567, 568 c 97, Cheshire Police Act 1829��568 11 Geo IV & 1 Will IV c 27, Lighting and Watching Act 1830��570 c 66, Forgery Act 1830��554 c 68, Carriers Act 1830��199 c 70, Law Terms Act 1830��42 1 & 2 Will IV c 37, Truck Act 1831�� 297, 298 c 39, Cotton Mills Act 1831��291 c 56, Bankruptcy Court Act 1831��228 c 60, Vestries Act 1831��90 2 Will IV, c 34, Coinage Offences Act 1832��554 2 & 3 Will IV c 39, Process in Westminster Law Courts Act 1832 ��54 c 42, Allotments Act 1832��141 c 45, Representation of the People Act 1832 (the ‘First Reform Act’)�� 16, 17, 169, 400 c 57, Charities Procedure Act 1832��400 c 123, Forgery, Abolition of Punishment of Death Act 1832��554 c 162, Punishment of Death Act 1832��554 3 & 4 Will IV c 27, Real Property Limitations Act 1833��175 c 42, Civil Procedure Act 1833��51, 55 c 74, Fines and Recoveries Act 1833��175 c 89, Metropolitan Police Act 1833��569 c 90, Lighting and Watching Act 1833��84, 570 c 98, Bank of England Act 1833��246 c 103, Factories Act 1833��26, 291–96, 586 c 105, Dower Act 1833�� 175, 351 c 106, Inheritance Act 1833��175 4 & 5 Will IV c 15, Exchequer Receipt Act 1834��30 c 76, Poor Law Amendment Act 1834�� 21, 28, 30, 354, 382, 403–06 c 94, Trading Companies Act 1834��246 5 & 6 Will IV

Table of Statutes xlv c 38, Prisons Act 1835�� 558, 559 c 54, Marriage Act 1835 (‘Lord Lyndhurst’s Act’)��347 c 69, Parish Property Act 1835��405 c 76, Municipal Corporations Act 1835��15, 28, 29, 91, 570, 576 c 83, Letters Patent for Inventions Act 1835��270 6 & 7 Will IV c 32, Building Societies (Benefit) Act 1836��152 c 71, Tithe Commutation Act 1836��146 c 85, Marriage Act 1836�� 347, 371 c 86, Registration of Births, Deaths and Marriages Act 1836��383 c 114, Trials for Felony Act 1836�� 587, 588 c 115, Inclosure Act 1836��142 7 Will IV & 1 Vic c 26, Wills Act 1837��175 c 69, Tithe Act 1837��146 c 73, Chartered Companies Act 1837��246 c 80, Usury Act 1837��222 c 84, Forgery Act 1837��554 c 85, Offences against the Person Act 1837��554 c 86, Burglary Act 1837��554 c 87, Robbery from the Person Act 1837��554 c 88, Piracy Act 1837��554 c 89, Burning of Buildings Act 1837��554 c 91, Punishment of Offences Act 1837 ��554 1 & 2 Vict c 71, Small Tenements Recovery Act 1838��150 c 100, Forms of Pleadings Act 1838��223 2 & 3 Vict c 47, Metropolitan Police Act 1839��570 c 54, Custody of Infants Act 1839 (‘Talfourd’s Act’)�� 353, 381 c 56, Prisons Act 1839��558 c 71, Metropolitan Police Courts Act 1839��234 c 81, Highway Rates Act 1839��156 c 93, County Police Act 1839��571 3 & 4 Vict c 77, Grammar Schools Act 1840��417 c 88, County Police Amendment Act 1840��571 4 & 5 Vict c 35, Copyhold Enfranchisement Act 1841��135 c 56, Substitution of Punishments for Death Act 1841��554 5 Vict, c 5, Court of Chancery Act 1841��31 5 & 6 Vict c 39, Factors Act 1842��232 c 55, Railway Regulation Act 1842��487 c 99, Mines and Collieries Act 1842�� 294, 298 s 109, Parish Constables Act 1842��572

xlvi Table of Statutes c 122, Bankruptcy Act 1842��228 6 & 7 Vict c 23, Copyhold Act 1843��135 c 73, Solicitors Act 1843��175 c 85, Evidence Act 1843 (‘Lord Denman’s Act’)��55 c 96, Libel Act 1843��585 7 & 8 Vict c 112, Merchant Seamen Act 1844��490 7 & 8 Vict c 15, Factories Act 1844�� 294, 295, 414, 488–90, 586 c 55, Copyhold Lands Act 1844��135 c 76, Transfer of Property Act 1844��175 c 85, Railway Regulation Act 1844��74, 247 c 96, Execution Act 1844��223 c 101, Poor Law Amendment Act 1844��30, 354 c 110, Joint Stock Companies Act 1844�� 245, 247, 249 c 111, Joint Stock Companies Winding Up Act 1844 ��247 c 113, Joint Stock Banks Act 1844��247 8 & 9 Vict c 12, Satisfied Terms Act 1845��175 c 16, Companies Clauses Consolidation Act 1845��247 c 18, Land Clauses Consolidation Act 1845��157 c 20, Railway Clauses Consolidation Act 1845�� 157, 247 c 29, Print Works Act 1845��295 c 106, Law of Real Property Amendment Act 1845��175 c 109, Gaming Act 1845��207 c 118, Inclosure Act 1845��142 c 119, Conveyance of Real Property Act 1845��175 c 127, Recovery of Small Debts Act 1845��224 9 & 10 Vict c 22, Importation of Corn Amendment Act 1846��17 c 62, Deodands Act 1846��476 c 93, Fatal Accidents Act 1846 (‘Lord Campbell’s Act’)�� 466, 476, 482, 485, 486 c 95, Recovery of Small Debts Act 1846 (also called the County Courts Act 1846)�� 52, 224, 600 c 96, Nuisances Removal Act 1846��161 10 & 11 Vict c 29, Factories Act 1847�� 295, 296 c 34, Town Improvements Clauses Act 1847��163 c 102, Bankruptcy Act 1847��228 c 109, Poor Law Board Act 1847��408 11 & 12 Vict (1848) c 31, Poor Law Procedure Act 1848��30 c 36, Entail Amendment (Scotland) Act 1848��128 c 42, Indictable Offences Act 1848��37, 588 c 43, Summary Jurisdiction Act 1848��37

Table of Statutes xlvii c 44, Justices Protection Act 1848�� 37, 47, 301 c 63, Public Health Act 1848��163 c 78, Criminal Law Administration Amendment Act 1848�� 50, 589, 601 c 123, Nuisances Removal Act 1848��161 12 & 13 Vict, c 18, Petty Sessions Act 1849��37 13 & 14 Vict c 20, Parish Constables Act 1850��572 c 54, Factories Act 1850��296 c 61, County Courts Extension Act 1850��54 14 & 15 Vict c 25, Landlord and Tenant Act 1851�� 137, 169 c 28, Common Lodging Houses Act 1851��180 c 34, Labouring Classes Lodging Houses Act 1851��180 c 83, Court of Chancery Act 1851��56 c 99, Evidence Act 1851��55, 198 15 & 16 Vict c 51, Copyhold Act 1852��135 c 76, Common Law Procedure Act 1852�� 41, 55, 223 c 79, Inclosure Act 1852��142 c 83, Patent Law Amendment Act 1852�� 270, 272 c 86, Chancery Procedure Act 1852��56, 158 16 & 17 Vict c 41, Common Lodging House (Amendment) Act 1853��180 c 83, Evidence Amendment Act 1853��600 c 99, Penal Servitude Act 1853�� 551, 561 c 104, Factories Act 1853��296 c 128, Smoke Abatement, London Act 1853��162 c 137, Charitable Trusts Act 1853��401 17 & 18 Vict c 31, Railway and Canal Traffic Act 1854�� 200, 259 c 79, Sale of Beer Act 1854 (the ‘Wilson-Patten Act’ or ‘Sunday Beershop Act’)��577 c 86, Youthful Offenders (Reformatory Schools) Act 1854��564 c 90, Usury Laws Repeal Act 1854��129, 214, 215, 222 c 113, Real Estate Charges Act 1854��169 c 120, Merchant Shipping Act 1854��486 c 125, Common Law Procedure Act 1854�� 49, 51, 220 18 & 19 Vict c 63, Friendly Societies Act 1855�� 304, 305 c 121, Nuisances Removal Act 1855��161 c 122, Metropolis Management Act 1855�� 162, 181 19 & 20 Vict c 27, Pawnbrokers Act 1856��233 c 38, Factory Act 1856�� 488, 489, 491 c 47, Joint Stock Companies Act 1856��249 c 69, County and Borough Police Act 1856��572 c 107, Smoke Abatement, London Act 1856��162

xlviii Table of Statutes c 119, Marriage and Registration Act 1856��371 20 & 21 Vict c 3, Penal Servitude Act 1857�� 561, 562 c 45, Summary Jurisdiction Act 1857��50 c 48, Industrial Schools Act 1857��564 c 85, Matrimonial Causes Act 1857�� 364, 365, 366, 368, 369, 377 21 & 22 Vict c 27, Chancery Amendment Act 1858 (‘Lord Cairns’s Act’)��56, 159 c 91, Joint Stock Banks Act 1858��249 c 97, Public Health Act 1858��164 c 98, Local Government Act 1858��164 22 Vict, c 34, Molestation of Workmen Act 1859�� 303, 307, 309 22 & 23 Vict c 14, Pawnbrokers Act 1859��234 c 35, Law of Property Amendment Act 1859 (‘Lord St Leonard’s Act’)�� 175, 176 c 61, Matrimonial Causes Act 1859��366 23 & 24 Vict c 21, Pawnbrokers Act 1860��233 c 34, Petitions of Right Act 1860��27 c 77, Nuisances Removal Act 1860��161 c 127, Solicitors Act 1860��63 c 136, Charitable Trusts Act 1860��398 c 144, Matrimonial Causes Act 1860�� 365, 367 c 145, Trustees’ Powers Act 1860 (‘Lord Cranworth’s Act’)��176 c 151, Inspections (Mine Regulation) Act 1860��298 24 & 25 Vict c 94, Accessories and Abettors Act 1861��580 c 95, Criminal Statutes Repeal Act 1861��580 c 96, Larceny Act 1861��580 c 97, Malicious Damage Act 1861��580 c 98, Forgery Act 1861��580 c 99, Coinage Offences Act 1861��580 c 100, Offences against the Person Act 1861��580 c 134, Bankruptcy Act 1861��229 25 & 26 Vict c 42, Chancery Regulation Act 1862��176 c 48, Factory Acts Extension Act 1864��489 c 53, Land Registry Act 1862��176 c 89, Companies Act 1862�� 249, 254, 328 26 & 27 Vict c 117, Nuisances Removal (Amendment) Act 1863��161 c 124, Alkali Act 1863��167 28 & 29 Vict c 75, Sewage Utilisation Act 1865��164 c 79, Union Chargeability Act 1865�� 403, 408 c 86, Partnership Act 1865 (‘Bovill’s Act’)��248

Table of Statutes xlix c 126, Prison Act 1865�� 559, 562, 606 29 & 30 Vict c 28, Labouring Classes Dwelling Houses Act 1866��181 c 32, Matrimonial Causes Act 1866��368 c 39, Exchequer and Audit Departments Act 1866��30 c 90, Sanitary Act 1866��166 c 122, Metropolitan Commons Act 1866��142 30 & 31 Vict c 4, Sale of Reversions Act 1867��211 c 6, Metropolitan Poor Law Act 1867�� 165, 411 c 29, Banking Companies (Shares) Act 1867��250 c 69, Real Estate Charges Act 1867��169 c 102, Representation of the People Act 1867 (the ‘Second Reform Act’)�� 18, 169, 170, 181, 184, 304, 421 c 103, Factory Acts Extension Act 1867��489 c 141, Master and Servant Act 1867�� 307, 308, 309 31 & 32 Vict c 24, Capital Punishment Amendment Act 1868��556 c 99, Artizans’ and Labourers’ Dwellings Act 1868 (the ‘Torrens Act’)�� 181, 182 c 116, Larceny and Embezzlement Act 1868��304 c 118, Public Schools Act 1868��418 c 122, Poor Law Amendment Act 1868�� 30, 354, 384 32 & 33 Vict c 41, Poor Rate Assessment and Collection Act 1869��184 c 55, Municipal Franchise Act 1869��18, 29 c 56, Endowed Schools Act 1869��418 c 61, Trades Union Funds Protection Act 1869�� 304, 305, 306 c 71, Bankruptcy Act 1869�� 229, 230 c 99, Habitual Criminals Act 1869��591 c 110, Debtors Act 1869��224 33 & 34 Vict c 35, Apportionment Act 1870��205 c 75, Elementary Education Act 1870�� 18, 418, 420–22, 447, 448 c 93, Married Women’s Property Act 1870��378 34 & 35 Vict c 31, Trade Union Act 1871��306, 311, 319, 320, 325, 326, 328, 329, 336 c 32, Criminal Law Amendment Act 1871�� 307, 308 c 70, Local Government Board Act 1871��165 c 112, Prevention of Crimes Act 1871�� 591, 608 35 & 36 Vict c 15, Royal Parks and Gardens Act 1872��575 c 33, Ballot Act 1872��79 c 38, Infant Life Protection Act 1872��383 c 93, Pawnbrokers Act 1872��234 36 & 37 Vict

l Table of Statutes c 12, Custody of Infants Act 1873��381 c 76, Railways Regulation Act 1873��259 36 & 37 Vict c 66, and 38 & 39 Vict, c 77, Supreme Court of Judicature Acts 1873 and 1875 (the ‘Judicature Acts’)�� 1, 43, 51, 52, 55–57, 59, 60, 91, 92, 98, 106, 197, 207, 211, 272, 319, 381, 462 37 & 38 Vict c 42, Building Societies Act 1874��152 c 44, Factory Act 1874��296 c 48, Hosiery Manufacture (Wages) Act 1874��298 c 50, Married Women’s Property Act (1870) Amendment Act 1874��378 c 62, Infants Relief Act 1874��203 c 78, Vendor and Purchaser Act 1874��174 c 88, Births and Deaths Registration Act 1874��383 38 & 39 Vict c 36, Artizans’ and Labourers’ Dwellings Improvement Act 1875 (the ‘Cross Act’)�� 181, 182 c 55, Public Health Act 1875�� 165, 167, 181 c 60, Friendly Societies Act 1875��383 c 63, Sale of Food and Drugs Act 1875��586 c 86, Conspiracy and Protection of Property Act 1875��309, 311, 317, 319, 321, 336, 337 c 87, Land Registration Act 1875��176 c 90, Employers and Workmen Act 1875�� 298, 309 c 92, Agricultural Holdings (England) Act 1875�� 137, 172 39 & 40 Vict c 22, Trade Union Act 1876�� 328, 329, 330 c 56, Commons Act 1876��142 c 75, Rivers Pollution Prevention Act 1876��167 c 79, Elementary Education Act 1876��423 c 80, Merchant Shipping Act 1876��458 40 & 41 Vict c 21, Prison Act 1877��560 c 39, Factors Act 1877��232 c 69, Municipal Corporations (New Charters) Act 1877��572 41 & 42 Vict c 16, Factory and Workshop Act 1878�� 296, 489, 491 c 19, Matrimonial Causes Act 1878��370 c 31, Bills of Sale Act 1878�� 235, 236 42 & 43 Vict c 6, District Auditors’ Act 1879��30 c 55, Prevention of Crime Act 1879��591 c 63, Artizans’ and Labourers’ Dwellings Improvement Act 1879��182 c 64, Artizans’ and Labourers’ Dwellings Act (1868) Amendment Act 1879��182 43 & 44 Vict c 42, Employers’ Liability Act 1880�� 467, 476, 482, 491, 494–96, 499, 508

Table of Statutes li c 47, Ground Game Act 1880�� 172, 523 44 & 45 Vict c 41, Conveyancing Act 1881�� 126, 177 c 44, Solicitors’ Remuneration Act 1881��177 45 & 46 Vict c 38, Settled Land Act 1882�� 171–72, 176, 177, 179 c 39, Conveyancing Act 1882��177 c 51, Bills of Exchange Act 1882�� 220, 235, 236 c 54, Artizans’ Dwellings Act 1882��182 c 75, Married Women’s Property Act 1882��29, 225, 378, 379 46 & 47 Vict c 31, Payment of Wages in Public Houses (Prohibition) Act 1883��298 c 36, City of London Parochial Charities Act 1883��401 c 51, Corrupt and Illegal Practices Act 1883��79 c 52, Bankruptcy Act 1883�� 224, 230 c 57, Patents, Designs and Trade Marks Act 1883��272 c 61, Agricultural Holdings (England) Act 1883��172 c 62, Agricultural Holdings (Scotland) Act 1883��137 47 & 48 Vict c 41, Building Societies Act 1884��52 c 68, Matrimonial Causes Act 1884��366 48 & 49 Vict c 3, Representation of the People Act 1884 (the ‘Third Reform Act’)�� 79, 88, 498 c 15, Registration Act 1885��79 c 69, Criminal Law Amendment Act 1885��601 c 72, Housing of the Working Classes Act 1885�� 182, 183 49 & 50 Vict c 27, Guardianship of Infants Act 1886�� 369, 381 c 52, Married Women (Maintenance in Case of Desertion) Act 1886��370 50 & 51 Vict c 25, Probation of First Offenders Act 1887��608 c 47, Truck Act 1887��298 51 & 52 Vict c 10, County Electors Act 1888��90 c 41, Local Government Act 1888��30, 90, 183, 573, 593 52 & 53 Vict c 44, Prevention of Cruelty to, and Protection of, Children Act 1889��384 c 45, Factors Act 1889��232 c 49, Arbitration Act 1889��51 c 56, Poor Law Act 1889��384 c 76, Technical Instruction Act 1889��447 53 & 54 Vict c 39, Partnership Act 1890�� 220, 248 c 45, Police Act 1890��594 c 59, Public Health Act 1890��182 c 64, Directors Liability Act 1890��212

lii Table of Statutes c 70, Housing of the Working Classes Act 1890�� 182, 183 54 & 55 Vict, c 3, Custody of Children Act 1891��385 56 & 57 Vict c 63, Married Women’s Property Act 1893��379 c 71, Sale of Goods Act 1893�� 200, 205, 215, 220, 232, 236 c 73, Local Government Act 1894��30, 90 57 & 58 Vict, c 30, Finance Act 1894��82 58 & 59 Vict, c 39, Summary Jurisdiction (Married Women) Act 1895��370 59 & 60 Vict c 16, Agricultural Rates Act 1896��84 c 30, Conciliation Act 1896��315 c 44, Truck Act 1896��298 c 51, Vexatious Actions Act 1896��100 60 & 61 Vict c 57, Infant Life Protection Act 1897��383 c 65, Land Transfer Act 1897��177 c 87, Workmen’s Compensation Act 1897�� 177, 491, 495, 498–99, 501, 503, 504 61 & 62 Vict c 36, Criminal Evidence Act 1898�� 540, 601, 603 c 41, Prison Act 1898��76, 606 c 58, Marriage Act 1898��371 62 & 63 Vict c 13, Elementary Education (School Attendance) Act (1893) Amendment Act 1899��450 c 17, Tithe Rent-charge (Rates) Act 1899��84 c 37, Poor Law Act 1899��384 63 & 64 Vict c 27, Railway Employment (Prevention of Accidents) Act 1900��459 c 51, Moneylenders Act 1900��213–14, 254 1 Edw VII, c 10, Larceny Act 1901��104 2 Edw VII c 28, Licensing Act 1902��370 c 34, Patents Act 1902��271 c 42, Education Act 1902��447–52, 454 3 Edw VII c 36, Motor Car Act 1903��508 c 38, Poor Prisoners’ Defence Act 1903��102 c 43, County Courts Act 1903��92 4 Edw VII, c 18, Education (Local Authority Default) Act 1904��451 5 Edw VII, c 18, Unemployed Workmen Act 1905��425 6 Edw VII c 24, Solicitors Act 1906��104 c 41, Marine Insurance Act 1906��220 c 47, Trade Disputes Act 1906��309, 323, 336, 337, 340 c 57, Education (Provision of Meals) Act 1906��451 c 58, Workmen’s Compensation Act 1906��500, 501, 504, 505 7 Edw VII

Table of Statutes liii c 17, Probation of Offenders Act 1907��608 c 23, Criminal Appeal Act 1907��602 c 24, Limited Partnership Act 1907��241 c 29, Patents and Designs Act 1907��272 c 33, Qualification of Women Act 1907��91 c 43, Education (Administrative Provisions) Act 1907��452 c 46, Employers’ Liability Insurance Companies Act 1907��502 c 47, Deceased Wife’s Sister’s Marriage Act 1907��371 c 50, Companies Act 1907��254 8 Edw VII c 40, Old Age Pensions Act 1908��431 c 57, Coal Mines Regulation Act 1908��325 c 66, Public Meeting Act 1908��597 c 67, Children Act 1908�� 383, 385, 610 9 Edw VII c 7, Labour Exchanges Act 1909��425 c 22, Trade Boards Act 1909��324 c 44, Housing and Town Planning Act 1909�� 183, 191 10 Edw VII & 1 Geo V, c 8, Finance (1909–10) Act 1910��85 1 & 2 Geo V c 13, Parliament Act 1911��85 c 55, National Insurance Act 1911�� 429–31 2 & 3 Geo V c 2, Coal Mines (Minimum Wage) Act 1912��325 c 3, Shops Act 1912��325 3 & 4 Geo V c 27, Forgery Act 1913��604 c 30, Trade Union Amendment Act 1913�� 80, 330, 337 4 & 5 Geo V c 10, Finance Act 1914��85 c 29, Defence of the Realm Act 1914��78, 334 c 58, Criminal Justice Administration Act 1914��608 c 78, Courts (Emergency Powers) Act 1914��185 5 & 6 Geo V c 54, Munitions of War Act 1915�� 331, 332 c 97, Rent (War Restrictions) Act 1915��185 6 & 7 Geo V c 31, Police Act 1916��598 c 50, Larceny Act 1916��604 7 & 8 Geo V c 7, Rent (Amendment) Act 1918��186 c 25, Courts (Emergency Powers) Act 1917��186 c 32, Trade Boards Act 1918��332 c 39, Education Act 1918 (the ‘Fisher Act’)�� 452, 455 c 61, Wages (Temporary Regulation) Act 1918��333 c 64, Representation of the People Act 1918 (the ‘Fourth Reform Act’)��79, 91

liv Table of Statutes 9 & 10 Geo V c 35, Housing and Town Planning Act 1919�� 187, 191 c 46, Police Act 1919��595 c 57, Acquisition of Land (Assessment of Compensation) Act 1919��157 c 66, Profiteering Act 1919��262 c 69, Industrial Courts Act 1919��333 c 71, Sex Disqualification (Removal) Act 1919��79, 107 c 90, Rent Act 1919��186 c 99, Housing (Additional Powers) Act 1919��187 c 102, Old Age Pensions Act 1919��433 10 & 11 Geo V c 17, Rent Act 1920�� 185, 186 c 30, Unemployment Act 1920��434 c 50, Mining Industry Act 1920��334 c 55, Emergency Powers Act 1920�� 78, 334, 335 c 63, Married Women (Maintenance) Act 1920��370 c 81, Administration of Justice Act 1920��374 11 & 12 Geo V c 1, Unemployment Insurance Act 1921��435 c 15, Unemployment Insurance (No 2) Act 1921��435 c 24, Deceased Brother’s Widow’s Marriage Act 1921��372 c 51, Education Act 1921�� 452, 453 c 55, Railways Act 1921�� 264, 334 c 62, Unemployed Worker’s Dependents (Temporary Provisions) Act 1921��435 c 67, Local Authorities (Financial Provisions) Act 1921��437 12 & 13 Geo V c 17, Finance Act 1922��446 c 22, Unemployment Insurance Act 1922��435 c 56, Criminal Law Amendment Act 1922��601 c 57, Solicitors Act 1922��103 13 & 14 Geo V c 19, Matrimonial Causes Act 1923�� 374, 375 c 24, Housing Act 1923�� 188, 191 c 32, Rent Act 1923��187 c 42, Workmen’s Compensation Act 1923�� 500, 504, 505 14 & 15 Geo V c 30, Unemployment Insurance (No 2) Act 1924��435 c 33, Old Age Pensions Act 1924��434 c 35, Housing (Financial Provisions) Act 1924��188 15 & 16 Geo V c 14, Housing Act 1925��190 c 18, Settled Land Act 1925��179 c 19, Trustee Act 1925��179 c 20, Law of Property Act 1925��120, 129, 135, 155, 179 c 21, Land Registration Act 1925�� 177, 179 c 22, Land Charges Act 1925�� 155, 179

Table of Statutes lv c 23, Administration of Estates Act 1925��179 c 45, Guardianship of Infants Act 1925��381 c 51, Summary Jurisdiction (Separation and Maintenance) Act 1925��370 c 69, Unemployment Insurance Act 1925��435 c 70, Widows’, Orphans’ and Old Age Contributory Pensions Act 1925��434 16 & 17 Geo V c 20, Board of Guardians (Default) Act 1926��438 c 29, Adoption of Children Act 1926��386 c 60, Legitimacy Act 1926��386 c 61, Judicial Proceedings (Regulation of Reports) Act 1926��375 17 & 18 Geo V c 14, Poor Law Act 1927��438 c 21, Moneylenders Act 1927��214 c 22, Trade Disputes and Trade Unions Act 1927�� 336, 337, 340 c 30, Unemployment Insurance Act 1927��435 c 31, Audit (Local Authorities) Act 1927��438 19 & 20 Geo V c 17, Local Government Act 1929��438 c 36, Age of Marriage Act 1929��372 20 & 21 Geo V c 32, Poor Prisoners’ Defence Act 1930��102 c 34, Coal Mines Act 1930��77, 263 c 39, Housing Act 1930�� 188, 190 c 43, Road Traffic Act 1930�� 508, 509 21 & 22 Geo V c 31, Marriage (Prohibited Degrees of Relationship) Act 1931��372 c 36, Unemployment Insurance (No 3) Act 1931 (the ‘Anomalies Act 1931’)��436 c 42, Agricultural Marketing Act 1931��263 22 & 23 Geo V c 24, Wheat Act 1932��263 c 48, Town and Country Planning Act 1932�� 191, 192 c 54, Transitional Payments (Determination of Need) Act 1932��436 23 & 24 Geo V c 12, Children and Young Persons Act 1933�� 387, 610, 611 c 15, Housing (Financial Provisions) Act 1933��189 c 24, Solicitors Act 1933��104 c 31, Agricultural Marketing Act 1933��263 c 32, Rent Act 1933��187 c 36, Administration of Justice (Miscellaneous Provisions) Act 1933�� 509, 588 c 51, Local Government Act 1933 ��91 24 & 25 Geo V c 23, Workmen’s Compensation (Coal Mines) Act 1934��502 c 29, Unemployment Act 1934�� 89, 436, 439 c 41, Law Reform (Miscellaneous Provisions) Act 1934��99, 482 c 56, Incitement to Disaffection Act 1934��596

lvi Table of Statutes 25 & 26 Geo V, c 30, Law Reform (Married Women and Joint Tortfeasors) Act 1935��99, 379 26 Geo V & 1 Edw VIII c 6, Public Order Act 1936�� 575, 597 c 18, Sugar Industry (Reorganization) Act 1936��263 c 41, Education Act 1936��454 1 Edw VIII and 1 Geo VI c 57, Matrimonial Causes Act 1937�� 370, 375 1 & 2 Geo VI c 3, National Health Insurance (Juvenile Contributors and Young Persons) Act 1937��433 c 26, Rent Act 1938��187 c 45, Inheritance (Family Provision) Act 1938�� 179, 380 c 53, Hire Purchase Act 1938�� 238, 239 2 & 3 Geo VI c 27, Adoption of Children (Regulation) Act 1939�� 386, 387 c 71, Rent Act 1939��187 3 & 4 Geo VI, c 13, Old Age and Widows’ Pension Act 1940��439 4 & 5 Geo VI, c 31, Goods and Services (Price Control) Act 1941��239 5 & 6 Geo VI, c 9, Restoration of Pre-war Trade Practices Act 1942��338 6 & 7 Geo VI c 5, Minister of Town and Country Planning Act 1943��192 c 29, Town and Country Planning (Interim Development) Act 1943��192 7 & 8 Geo VI c 31, Education Act 1944�� 453–56 c 47, Town and Country Planning Act 1944��192 8 & 9 Geo VI c 28, Law Reform (Contributory Negligence) Act 1945��482 c 36, Distribution of Industry Act 1945��192 c 41, Family Allowances Act 1945��442 9 & 10 Geo VI c 34, Furnished Houses (Rent Control) Act 1946��185 c 46, Police Act 1946��594 c 59, Coal Industry Nationalisation Act 1946��340 c 62, National Insurance (Industrial Injuries) Act 1946�� 441, 500, 505 c 67, National Insurance Act 1946��441 c 68, New Towns Act 1946�� 192, 193 c 81, National Health Service Act 1946�� 444, 445 10 & 11 Geo VI c 44, Crown Proceedings Act 1947��27 c 49, Transport Act 1947��340 c 51, Town and Country Planning Act 1947��192 11 & 12 Geo VI c 29, National Assistance Act 1948��441 c 38, Companies Act 1948��254 c 41, Law Reform (Personal Injuries) Act 1948��507 c 43, Children Act 1948��387

Table of Statutes lvii c 58, Criminal Justice Act 1948�� 611, 614 c 66, Monopolies and Restrictive Practices (Inquiry and Control) Act 1948��263 13 & 14 Geo VI c 51, Legal Aid and Advice Act 1949�� 102, 376 c 98, Adoption of Children Act 1949��387 14 & 15 Geo VI, c 9, Restoration of Pre-war Trade Practices Act 1950��338 5 & 6 Eliz II c 11, Homicide Act 1957�� 582, 612 c 31, Occupiers’ Liability Act 1957��479 6 & 7 Eliz II, c 17, Recreational Charities Act 1958��446 8 & 9 Eliz II c 29, Marriage (Enabling) Act 1960��372 c 58, Charities Act 1960�� 392, 447 10 & 11 Eliz II, c 48, Law Reform (Husband and Wife) Act 1962��380 Married Women’s Property Act 1964 (c 19)��380 Matrimonial Proceedings and Property Act 1970 (c 45)��349 Fair Trading Act 1973 (c 41)��272 Sex Discrimination Act 1975 (c 65)��598 Finance Act 1977 (c 36)��147 Unfair Contract Terms Act 1977 (c 50)�� 200, 509 Public Passenger Vehicles Act 1981 (c 14)��509 Administration of Justice Act 1982 (c 53)��482 Road Traffic Act 1988 (c 52)��509 Enterprise and Regulatory Reform Act 2013 (c 24)�� 490, 491 Consumer Rights Act 2015 (c 15)��509

lviii

1 Institutions and Ideas This book explores the history of legal doctrines and forms within the society that generated them. It considers the political, social and economic pressures which affected the law’s development and the law’s influence on political, social and economic change. This first chapter lays a foundation for what follows. It divides the time span of the book into two parts, making its break at 1875, when the court system was given more coherent structure by the Supreme Court of Judicature Acts. Each part begins with relations between law and society, the economy and politics. We then turn to the apparatus of executive government, the court system and the legal professions. Finally, we examine contemporary ideas about politics, social relations and law.

Part 1: Industrialisation 1750–1875 A. Society and Law The social and economic changes that thrust Britain forward from her early Georgian to her late Victorian condition were the greatest in her history. In 1700, most people still lived in rural areas, but by comparison with other European states the country was already an advanced commercial economy: less than half the male workforce worked on the land and the rest worked at secondary and tertiary trades (building, manufacturing, transport, retail).1 By 1900, this mainly rural society had evolved into a predominantly urban society, as a result of population growth, town growth and migration from country to town. In 1750, the population of England was 5.7 million; in 1801 it was 8.3 million; by 1851 it had doubled to 16.8 million; and by 1900 it had nearly doubled again to 30.5 million.2 Earlier marriage and improved life expectancy meant that more children survived into adulthood to found families of their own.3 The types of families in which people lived changed little: unmarried cohabitation was rare, very few marriages were formally ended by divorce,4 and only a minority of households contained more than two generations. But the places 1 L Shaw-Taylor and EA Wrigley, ‘Occupational Structure and Population Change’ in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: 1700–1870 (Cambridge University Press, 2014). 2 RA Houston, ‘The Population History of Britain and Ireland 1500–1750’ in M Anderson (ed), British Population History from the Black Death to the Present Day (Cambridge University Press, 1996); J Jefferies, ‘The UK Population: Past, Present and Future’ in Office for National Statistics, Focus on People and Migration (Palgrave Macmillan, 2005) 3. 3 See p 342. 4 See pp 356–58.

2 Institutions and Ideas where people lived changed significantly.5 In 1800, 30 per cent of the population lived in towns and cities, by 1850 this had risen to 50 per cent, and by 1900 to 75 per cent.6 In 1800, agriculture employed 35 per cent of the male workforce, by 1850 this had fallen to 22 per cent, and by 1900 to 16 per cent. These shifts were the result of a long period of industrialisation, the timing and intensity of which varied from one place to another, but which was far advanced in the main industrial centres by 1850.7 Before the 1980s many scholars believed that these changes had created new class tensions, and new political ideologies, by the end of the 1700s. Historians including Jonathan Clark then proposed a different interpretation of the years running from 1688 to 1832, emphasising the social and political continuities of the period and speaking in terms of a ‘long eighteenth century’.8 In Clark’s view, the early 1800s were the tail end of a period during which the nation was dominated culturally and politically by the monarchy, the aristocracy and the Church of England; before the 1830s this dominance was barely affected by the spread of religious Nonconformism9 or by the emergence of an urban middle class with its own distinctive viewpoint. This ancien regime then abruptly gave way, as a result not of social pressure from below but of political failures at the top, as Peel and Wellington weakly conceded Catholic emancipation in 1829 and extension of the Parliamentary franchise in 1832. This analysis has itself been challenged, however, for instance by Boyd Hilton,10 who has argued that the years from 1780 to 1830 saw a revival rather than a continuation of conservative ideologies that was provoked by the emergence of progressive ideas inspired by the Revolutions in America and France.11 In his view, also, late eighteenth-century society was not simply divided into two groups – the landed classes and the rest12 – as by this time there had emerged a bourgeoisie,13 whose political interests and outlook became aligned with those of the landed elite only later in the nineteenth century.14 5 M Anderson, ‘What Is New about the Modern Family?’ in M Drake (ed), Time, Family and Community (Wiley-Blackwell, 1983); FML Thompson, The Rise of Respectable Society: A Social History of Victorian Britain, 1830–1900 (Fontana Press, 1988) 178. 6 See generally JG Williamson, Coping with City Growth During the British Industrial Revolution (Cambridge University Press, 1990). 7 See pp 6–7. 8 JCD Clark, English Society 1688–1832: Ideology, Social Structure and Political Practice During the Ancien Régime (Cambridge University Press, 1985). From an extensive literature in the same vein, see also eg F O’Gorman, The Long Eighteenth Century: British Political and Social History 1688–1832, 2nd edn (Bloomsbury, 2016). 9 By the 1840s Dissenters made up around one-tenth of the population and membership of their congregations was growing at a faster rate than the general population: MR Watts, The Dissenters, vol 2: The Expansion of Evangelical Nonconformity (Oxford University Press, 1995) 23. On the political impact of Nonconformism from the late 1700s to the early 1900s, see E Biagini, ‘Politics and Social Reform in Britain and Ireland’ in T Larsen and M Ledger-Lomas (eds), The Oxford History of Protestant Dissenting Traditions, Volume III: The Nineteenth Century (Oxford University Press, 2017). 10 B Hilton, A Mad, Bad, and Dangerous People? England 1783–1846 (Clarendon Press, 2006). 11 See also K Wilson, The Sense of the People: Politics, Culture and Imperialism in England 1715–1785 (Cambridge University Press, 1995); M Philp, Reforming Ideas in Britain: Politics and Language in the Shadow of the French Revolution, 1789–1815 (Cambridge University Press, 2013). 12 As contended in eg EP Thompson, ‘Patrician Society, Plebeian Culture’ (1974) 7 JSH 382; J Cannon, Aristocratic Century: The Peerage of Eighteenth Century England (Cambridge University Press, 1984). 13 Hilton (n 10) ch 3. See also eg P Langford, A Polite and Commercial People: England, 1727–1783 (Oxford University Press, 1989); AJ Kidd and D Nicholls (ed), The Making of the British Middle Class? Structures of Regional and Cultural Diversity since the Eighteenth Century (Sutton, 1998). For a survey of this debate, see D Wahrman, Imagining the Middle Class: The Political Representation of Class in Britain, c 1780–1840 (Cambridge University Press, 1995) ch 1. 14 As argued in eg FML Thompson, Gentrification and the Enterprise Culture: Britain 1780–1980 (Oxford University Press, 2001).

Part 1: Industrialisation 1750–1875 3 On the latter view, typical members of the upper, middle and working classes corresponded to the notional actors of classical economics – the landowner who took rent, the businessman or trader who competed for profits, the labourer who drew wages. These divisions implied social barriers of education and work experience, of accent and culture, that were hard to bridge, though some movement between classes was possible.15 A farm labourer’s son who worked on the land had minimal prospects of social advancement, but a successful tenant farmer might become a small squire and an ambitious apprentice might advance to journeyman and eventually to master and alderman. For working class boys, the chances of acquiring non-manual jobs when they grew up probably depended more on the proliferation of such roles than it did on failures by middle class sons to acquire them.16 For women, meanwhile, the barriers to certain kinds of employment were legal as well as social. Women remained barred from most professions, and from the ability to obtain a degree.17 Protective measures would also be enacted to prevent women and children from working in certain particularly grueling occupations, and to limit the hours for which they could be employed.18 And although there were no legal restrictions on women running businesses, the ability of married women to do so was constrained to some extent by the legal restrictions on their ownership of property and their ability to enter contracts.19 Two aspects of the interrelation between English law and society distinguished the country at the start of our period. First was the virtual absence of laws whose overt purpose was to segregate special elites or to restrain upward social movement. There were no separate estates of nobility, clergy and bourgeoisie, each subject to its own legal regime; the common law allowed scope for the vagaries of local custom, but it was opposed to legal pluralism on such a scale. At the top of the social pyramid the aristocratic elite had not sought purity of caste by defining the group within which its members might marry.20 At the bottom, feudal serfdom had disappeared over time, the depopulation of the fourteenth century contributing much to the process. There remained only the bound condition of the Scottish miners (until 1796)21 and enslaved Africans in the towns (until their emancipation conferred by Lord Mansfield in 1772).22 Labour migration from one part of the country to another in search of work was somewhat curtailed by the laws of settlement,

15 For an argument that Britain’s greater social mobility contributed to its early industrialisation by comparison with other European states, see D Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present, 2nd edn (Cambridge University Press, 2003) 48–50 (more homogenised patterns of consumption and expenditure in Britain), 128–130 (undesirable social segregation of business enterprise in France and Germany). 16 WG Runciman, Very Different, But Much the Same: The Evolution of English Society Since 1714 (Oxford University Press, 2015) 145, noting that strategies used by the middling sort to stop their children falling down the social ladder included education, marriage and capital to start a business. 17 See further p 449. 18 See further pp 290–96. 19 See further pp 347–50. 20 Not all of the children of peers were ennobled and the Crown preserved its prerogative to create new peers. 21 See eg R Page Arnot, A History of the Scottish Miners from the Earliest Times (Allen & Unwin, 1955) ch 1. The bondage was lifted by statutes of 1774 and 1799. 22 Somersett’s case (1772) 20 St Tr 1; on which see: J Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004) 305–23; G van Cleve, ‘Somerset’s Case and its Antecedents in Imperial Perspective’ (2006) 24 L&HR 601; A Jackman, ‘Judging a Judge: A Reappraisal of Lord Mansfield and Somerset’s Case’ (2018) 39 JLH 140.

4 Institutions and Ideas which placed parishes under an obligation to provide only for the poor folk who were settled there.23 However, the major limitations placed on social groups were of political rights – rights to vote and hold political office, which were restricted on grounds of gender, religion and wealth. Secondly, a preference had emerged for individual private property rights over notions of obligation to family or larger community. In law this was marked by rules allowing the alienation of land on death as well as during life, a process much advanced in 1540 when freehold land became open to testamentary disposition. By the 1600s private property was deeply entrenched as the starting point for political thought. Whether society was perceived as the product of a social contract or as the accretion of historical experience, it had become an ordering which preserved property before all else through the law and government.24 This was mirrored in a strong aversion to taxation, the unrestrained exercise of which was a contributing cause of the civil war and which was viewed by many as a fundamental violation of personal liberty.25 In eighteenth-century England, the gradations of social rank were keenly observed. Society was dominated by a ruling class whose wealth lay primarily in land, and whose members treated each other according to an elaborate code of refined manners and formal honour. Rank insults were settled by duel26 and proprietary grievances by a Chancery suit. They expected, though they did not always receive, a loyal subservience from those below. The counterpart of this deference was a measure of responsibility, rough or oppressive though this might have been. For the propertied divided amongst themselves, according to rank, responsibility for maintaining the poor and disciplining the vagrant, pursuing the criminal to justice and maintaining the roads, bridges and riverbanks.27 In every advancement people looked to the patronage of ‘friends’,28 and the system of government bred a plethora of offices which could be used to satisfy such demands. Some were sinecures, others carried more or less arduous duties. Some could be made to generate remarkably large incomes. Nowhere was the network of place more evident than in the manifold clerkships, masterships and stewardships of the courts. Justice after all was a major activity of government. The emergence of a middle class with interests that differed from those of the landed order was rooted in economic circumstance. The increase in commercial, manufacturing and industrial activity that occurred during the eighteenth and early nineteenth centuries

23 D Eastwood, Governing Rural England: Tradition and Transformation in Local Government 1780–1840 (Clarendon Press, 1994) 25–28. For the poor law system, see pp 393–97 and 401–11. 24 CB MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press, 1962). 25 J Frecknall-Hughes, ‘The Concept of Taxation and the Age of Enlightenment’ in J Tiley (ed), Studies in the History of Tax Law, vol 2 (Hart, 2007). Contrast the modern argument that private property is not a ‘law of nature’ but a legal convention defined in part by the tax system: L Murphy and T Nagel, The Myth of Ownership: Taxes and Justice (Oxford University Press, 2002). 26 S Banks, A Polite Exchange of Bullets: The Duel and the English Gentleman, 1750–1850 (Boydell Press, 2010). 27 See pp 19–20. 28 ‘Friendship’ could cross gender divides: E Chalus, ‘“To Serve My Friends”: Women and Political Patronage in Eighteenth Century England’ in A Vickery (ed), Women, Privilege and Power: British Politics, 1750 to the Present (Stanford University Press, 2001); and span large social distances: ‘Lord Sydney was my friend,’ claimed Mary Burgess, one of the first convicts transported to Australia, ‘and I understood I was not to be sent abroad’: M Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (Macmillan, 1978) 92.

Part 1: Industrialisation 1750–1875 5 swelled the middle ranks to a size and proportion that compelled a political reckoning. They came to see their interest as lying in the freedom to compete in markets rather than in protection from foreign and colonial trade. The food needed for the growing population gave these new perceptions a sharp focus. The wars with France at the turn of the eighteenth century made the supply of corn from continental markets difficult, pushed up home prices and induced a major wave of inflation. Agricultural owners and producers at home shared in a new prosperity which rescued many from long-borne debt.29 The process lasted long enough for a new order of expectation to grow, only to be rudely unsettled with the ending of hostilities. The Importation Act 1815 (better known as the Corn Law) involved no new principle in its imposition of a duty on imported corn until the price rose above a set level. But in raising that level from 66s to 80s it erected a barrier which had a real impact on the lowered prices of peace time. Forty years earlier, it had been the agricultural progressives who had sought free trade in corn and the manufacturers who had wanted protection. After 1815 their positions were reversed: the protection of corn became a guarantee of agricultural incomes, but it meant a reduction of manufacturing profits through the higher wages required for the labour force. As the numbers of agricultural workers fell in proportion to those of workers in industry, manufacturing, transport and construction, and as people quit the country for the towns in search of work, the pattern of economic life changed. In the country, the proportion of hired agricultural labourers to employers grew,30 and in the towns a similar process overtook many of the old ‘guild’ arrangements of the craft trades, replacing them with wage labour.31 The flexible concept of the labour contract allowed this to happen without serious legal impediment.32 But the law’s resources would be severely strained by a growing need for housing, for protection against unemployment, sickness, old age and accident, for an amelioration of the horrifying living conditions in the towns and cities, and for suppression of the ‘dangerous classes’ who lived off urban predation. Urbanisation generated an ever-increasing anxiety as to whether traditional institutions were sufficiently robust to suppress crime and maintain social control. Governing rural society had never been without its challenges, but the requisite instruments and ideologies had evolved over a long time. Parish, manor and church officials, backed by the social and legal power of landowners and magistrates, had generally managed to keep order in communities that were in any case self-policing and endowed with their own strategies for penalising offenders. The growth of towns and cities, however, was accomplished less by natural increase than by flight from the land. By 1851 roughly half of the adults living in London, Glasgow and Manchester had been born elsewhere, and so had a third of the people in Lancashire.33 From the end of the eighteenth century, the more thoughtful began 29 G Hueckl, ‘English Farming Profits during the Napoleonic Wars’ (1967) 13 EEH 331; AH John, ‘Farming in Wartime, 1795–1815’ in EL Jones (ed), Land, Labour and Population in the Industrial Revolution: Essays Presented to JD Chambers (Edward Arnold, 1967). 30 L Shaw-Taylor, ‘The Rise of Agrarian Capitalism and the Decline of Family Farming in England’ (2012) 65 Econ HR 26. 31 There was significant variation from one craft to another: consider eg the cases of butchers, builders and weavers, discussed in M Hoogenboom et al, ‘Guilds in the Transition to Modernity: The Cases of Germany, United Kingdom, and the Netherlands’ (2018) 47 Theory and Society 255. 32 See pp 274–83. 33 J Vernon, Modern Britain, 1750 to the Present (Cambridge University Press, 2017) 89. See also C Pooley and J Turnbull, Migration and Mobility in Britain Since the Eighteenth Century (UCL Press, 1998).

6 Institutions and Ideas to reflect that people displaced from their rural environment might lose their personal inhibitions and external constraints once they were submerged in the anonymity of city life. London was a particular problem and concerned commentators such as Patrick Colquhoun began to write of the London poor as though they were synonymous with a criminal underclass who posed a threat to the very continuance of civilised society.34 The anxiety occasioned by the difficulty of containing urban crowds also forms the context against which we must place a steady reduction in public punishment that finally culminated in the abolition of public execution in 1868.35 The capital statutes had in the meantime been much whittled away. This was an amelioration in the law accomplished in part because of the availability of transportation to Australia. But practical difficulties, most notably an increased resistance from the Australian colonies themselves, eventually forced the abandonment of transportation.36 Instead, there was erected an architecture of imprisonment that, if not entirely new, was undertaken on a much greater scale than before. This was made possible by increasing wealth: the fruits of the industrial revolution would be spent in part on incarcerating social miscreants. However, it was a matter of long debate how the detention of these miscreants could best be secured. Traditionalists, fearful of centralised state power, advocated the revitalisation of established local institutions such as the watch. Robert Peel and the reformers urged the creation of a professional police force that could operate in circumstances where local cooperation was doubtful. Peel prevailed but the defeat of the old amateur system was not decisively accomplished until the 1850s.37 Thus it took about 100 years for the patchwork of local, sometimes medieval, practices to be replaced by a criminal justice system equipped with the apparatus of a modern, bureaucratised and centralised state power – a development which is examined in chapter eight.

B. Economic Growth and Law In recent decades, economic historians have shown that there was a steady increase in industrial productivity in the eighteenth and early nineteenth centuries, but that before 1830 aggregate economic growth was slow, meaning there was no abrupt discontinuity between 1770 and 1830 which earlier scholars identified as the ‘industrial revolution’.38 Even so, historians still agree that a profound structural change took place in the English economy between 1700 and 1850, albeit that this had a longer incubation period, and showed greater diversity of pattern across the country, than was once believed.39 This was enabled by the 34 P Colquhoun, A Treatise on the Policing of the Metropolis (C Dilly, 1797). See too p 526, n 81 and text. 35 See pp 551–57. 36 See pp 548–51. 37 See pp 565–73. 38 eg NFR Crafts and CK Harley, ‘Output Growth and the British Industrial Revolution: A Restatement of the Crafts-Harley View’ (1992) 45 Econ HR 703. 39 J Langton, ‘The Industrial Revolution and the Regional Geography of England’ (1984) 9 TIBG 145; J Langton and RJ Morris (eds), Atlas of Industrializing Britain, 1780–1914 (Routledge, 1986); J Mokyr, ‘Accounting for the Industrial Revolution’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation 1700–1860 (Cambridge University Press, 2004); E Griffin, ‘Patterns of Industrialisation’ in M Hewitt (ed), The Victorian World (Routledge, 2012); N Goose, ‘Regions, 1700–1870’ in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: 1700–1870 (Cambridge University Press, 2014).

Part 1: Industrialisation 1750–1875 7 development of an increasingly sophisticated payments system that supported trade and the mobilisation of capital.40 Technological advances made a significant contribution, through many small improvements to the techniques of hand production,41 through the application of new sources of power to manufacturing, mining and industry, and through the automation of processes accompanied by the use of factory systems (meaning the concentration and close supervision of semi-skilled workers in a single place).42 After 1800 levels of employment, productive efficiency and outputs in all three sectors grew, supported by improved transport links and distribution centres (roads, canals, railways, docks, warehouses). After 1850 economic growth began to outstrip population growth, producing a sustained increase in real wages and living standards.43 From the 1850s until the 1870s, England would be the world’s leading exporter of industrial products and manufactured goods before losing primacy to Germany and the United States in the last decades of the century. What role was played in all of this by law? Proponents of new institutional economics would say a significant causative role.44 Conceived in reaction to the unrealistic assumptions made by neoclassical economics, that perfect competition is possible and market participation cost-free, this school of economic theory holds that the efficiency of markets depends on the ‘institutions’ which form their environment. These are the political, social and legal norms and rules which affect the costs incurred and risks run by market actors, rendering some markets more competitive than others. Couched in such terms, the story of English economic growth from 1700 to 1850 might run something like this, as Ron Harris has written:45 The political and legal institutions of Britain, notably parliament, the common law and the constitution, created the preconditions for the functioning of the market. The state created institutions that defined and protected property and lowered transaction costs. These included tradable government bonds, bills of exchange, insurance schemes, joint-stock companies, patent law and contract law … These institutional innovations facilitated the development of overseas trade, capital markets and technological inventions, and the rest followed.

As Harris also says, however, no historian would subscribe to such an account without heavy qualification. In part we can attribute this scepticism to different disciplinary 40 S Quinn, ‘Money, Finance and Capital Markets’ in Floud and Johnson, vol 1 (n 39). 41 On the persistence of craft production, see R Samuel, ‘Workshop of the World: Steampower and Hand Technology in Mid-Victorian Britain’ (1977) 3 HWJ 6; C Sabel and J Zeitlin, ‘Historical Alternatives to Mass Production: Politics, Markets and Technology in Nineteenth-Century Industrialisation’ (1985) 101 P&P 133. 42 K Bruland, ‘Industrialisation and Technological Change’ in Floud and Johnson, vol 1 (n 39). It remained the case in 1850 that ‘the typical worker was not a machine-operator in a factory but … a traditional craftsman or labourer or domestic servant’: EA Musson, The Growth of British Industry (Batsford, 1978) 141. 43 The extent of these is debated: J Humphries, ‘Household Economy’ and H-J Voth, ‘Living Standards and the Urban Environment’ in Floud and Johnson, vol 1 (n 39); GR Boyer, ‘Living Standards, 1860–1939’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 2: Economic Maturity, 1860–1939 (Cambridge University Press, 2004). 44 See eg DS Acemoglu, S Johnson and JA Robinson, ‘Institutions as the Fundamental Cause of Long-Run Growth’ in P Aghion and SN Durlauf (eds), Handbook of Economic Growth (North-Holland, 2005); D North, Understanding the Process of Economic Change (Princeton University Press, 2005); LJ Alson, ‘New Institutional Economics’ in SN Durlauf and LE Blume (eds), The New Palgrave Dictionary of Economics, 2nd edn (Palgrave Macmillan, 2008) vol 6, 32–39. On the significance of this scholarship for legal historians, see J Getzler, ‘Theories of Property and Economic Development’ (1996) 26 JIH 639; R Harris, ‘The Encounters of Economic History and Legal History’ (2003) 21 L&HR 297. 45 R Harris, ‘Government and the Economy, 1688–1850’ in Floud and Johnson, vol 1 (n 39) 205.

8 Institutions and Ideas methodologies: historians identify actual events for which they seek explanations that are supportable by empirical evidence; economists posit hypotheses and use models to test these which only partly correspond to actual events.46 Historians doubt the claims of new institutional economists because they entail too linear and too simplistic a causal e xplanation of the relation between institutions and economic growth and ignore the likelihood that causality might run in the other direction, ie that economic growth might cause institutions to change. In Julian Hoppit’s words, moreover:47 a key limitation of such approaches is their teleological nature, extracting certain features from the past which are held to lead to those later conditions requiring explanation and emphasis, commonly liberty, representative government and secure property rights. … Institutions, moreover, are considered (and measured) mainly in terms of functional relationships to modern economic criteria, not to ideas, culture and politics. Such selectivity makes the approach markedly ahistorical.

The historical evidence does not clearly support a simple narrative of institutional cause and economic effect in England between 1700 and 1850. Government policy did not consciously promote industrialisation in this period, for ‘Parliament and the Crown acted in response to identified interests and new industries had no established lobby’; before repeal of the Corn Laws in 1844, the ‘great interest protected … was not manufacturing but agriculture’.48 Development of the financial system after 1689 responded primarily to the Government’s need to finance wars and so a capital market developed that favoured public debt instruments.49 To preserve the Bank of England’s privileges, limits were placed on the general banking sector, which was consequently under-capitalised, focused on short-term rather than long-term lending, and prone to frequent crises.50 There is no clear evidence that the lack of formal financial services impeded the growth of enterprise, but one cannot say either that the banking sector was well adapted to support it.51 Nor does it appear that the efficiency level of the economy changed much before 1770 – two or three generations after 1689.52

46 J Habakkuk, ‘Economic History and Economic Theory’ (1971) 100 Daedalus 305, esp 311–12. 47 J Hoppit, ‘Political Power and British Economic Life, 1650–1870’ in Floud, Humphries and Johnson, vol 1 (n 39) 347–8. 48 CK Harley, ‘The Legacy of the Early Start’ in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 2: 1870 to the Present (Cambridge University Press, 2014) 19. cf MW McCahill, ‘Peers, Patronage, and the Industrial Revolution, 1760–1800’ (1976) 16 JBS 84, 85: ‘In the 1780s the House of Commons had no representatives of Black Country ironmasters, West Riding woolen manufacturers, or Lancashire cotton magnates; only in 1790 did Robert Peel, the great cotton baron, purchase a seat at Tamworth and enter the House.’ But see too JM Norris, ‘Samuel Garbett and the Early Development of Industrial Lobbying in Great Britain’ (1958) 10 Econ HR 450. 49 PGM Dickson, The Financial Revolution in England: A Study of the Development of Public Credit 1688–1756 (Macmillan, 1967); C Desan, Making Money: Coin, Currency, and the Coming of Capitalism (Oxford University Press, 2014) ch 7. 50 LS Pressnell, Country Banking in the Industrial Revolution (Clarendon Press, 1956); JD Turner, Banking in Crisis: The Rise and Fall of British Banking Stability, 1800 to the Present (Cambridge University Press, 2014) chs 3 and 4. 51 AL Murphy, ‘The Financial Revolution and Its Consequences’ in Floud, Humphries and Johnson, vol 1 (n 39). 52 G Clark, ‘The Political Foundations of Modern Economic Growth: England 1540–1800’ (1996) 26 JIH 563; S Quinn, ‘The Glorious Revolution’s Effect on English Private Finance: A M icrohistory, 1680–1705’ (2001) 61 JEH 593. On the claim that the 1689 settlement promoted economic growth because it rendered property rights more secure from state expropriation, see pp 155–56.

Part 1: Industrialisation 1750–1875 9 Turning to the legal institutions which are the main concern of this book, there are also good reasons to doubt that English law of the eighteenth and early nineteenth centuries exemplifies Max Weber’s famous proposition that ‘the rationalisation and systematisation of the law in general and … the increasing calculability of the functioning of the legal process in particular, constitute[s] one of the most important conditions for the existence of … c apitalistic enterprise.’53 Weber himself identified an ‘England Problem’ for his theory, noting that the country’s early emergence as an industrial economy occurred despite the complexity of its court system and the conceptual untidiness of the common law.54 Whether or not one shares Weber’s belief that the formal features of English law were less ‘rational’ than those of civilian jurisdictions, his analysis rather missed the point that ‘the features by which one labels a legal system as rational or irrational make little difference at the level of individual traders’.55 If English businessmen ignored or worked around the law when making commercial deals, and if they took their disputes to arbitration rather than the courts – and it seems that many did56 – this weakens the claim that the development of contract doctrine gave them the certainty they needed to trade and thereby contributed to economic growth. Similarly, the administration of bankrupt estates was found unsatisfactory by many traders who entered composition agreements with their debtors when they could.57 Negative evidence can also be found when one considers the slow pace at which the limited liability company emerged as a readily available and widely adopted form of business organisation, forcing the conclusion that English law was not ‘particularly instrumental to business needs and did not define, transfer or protect property rights in a very efficient way’.58 The same point can also be made about the opaque and muddled law governing water rights, a key issue for early industrialists and manufacturers whose machinery was water-powered, and who had to put up with legal uncertainty for more than a century.59 Nor is there evidence that the patent system fostered innovation and thereby stimulated industrialisation. Many inventions were not patented, suggesting that the patent system made no difference, and when inventions were patented this could hold back technological development. So even if it is true that the patent system ‘was on balance a positive institution … in no way can we credit it with giving Britain the edge that turned it into the first industrial nation.’60

53 G Roth and R Wittich (eds), E Fischoff (trans), M Weber, Economy and Society: An Outline of Interpretive Sociology (Bedminster Press, 1968) vol 2, 847. 54 Weber (n 53) vol 2, 890–91, and vol 3, 977. On Weber’s efforts to explain this problem away, see DM Trubek, ‘Max Weber on Law and the Rise of Capitalism’ [1972] Wisconsin Law Review 720, 746–48. But for a different interpretation of his views, arguing that he identified formal justice and guaranteed rights, rather than logically formal legal thought, as the features of law that facilitated the rise of capitalism, see S Ewing, ‘Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law’ (1987) 21 Law & Society Review 487. 55 S Hedley, ‘The “Needs of Commercial Litigants” in Nineteenth and Twentieth Century Contract Law’ (1997) 18 JLH 85, 89. 56 See p 220. 57 See p 230. 58 Harris (2004) (n 45) 237. See pp 240–52. 59 Getzler (1996) (n 44) 650–54; elaborated in J Getzler, A History of Water Rights at Common Law (Oxford University Press, 2004). 60 J Mokyr, ‘The Institutional Origins of the Industrial Revolution’ in E Helpman (ed), Institutions and Economic Performance (Harvard University Press, 2008). See too C MacLeod and A Nuvolari, Patents and Industrialisation: An Historical Overview of the British Case, 1624–1907 (Report to the Strategic Advisory Board for Intellectual Property Policy) (Intellectual Property Office, 2011). For general discussion, see pp 265–69.

10 Institutions and Ideas These matters are discussed further in chapter three. As we say there, the rules of contract law became better adapted to the needs of businessmen and once this had happened they were invoked against trading partners when other means of enforcement failed. Once the limited liability company form had become available, it would eventually prove to be a cheap and effective device through which to raise business capital (though take-up was slow before the late 1800s). However, the question is not whether entrepreneurs ever took advantage of these benefits, but whether they were a significant cause of England’s precocious economic development before 1850. And the most one can say about this is that the case is unproven because there is no way to test the relative importance of such legal changes and the other social phenomena that were temporally associated with economic growth: ‘the expansion of international trade, technological progress, rising levels of literacy and increasingly democratic systems of national governance.’61

C. Politics and Law In the political struggles of the seventeenth century, rival claims to ultimate authority had placed the idea of law at the heart of political debate. The constitutional settlement of 1689, by which Parliament offered William and Mary the Crown on terms acknowledging the supremacy of the King-in-Parliament, was to establish itself as a final outcome. It was a victory for the organised strength of landed wealth over royal absolutism, for the rule of law over the vagaries of prerogative. In the succeeding century, political theory and the constitutional organisation of the state would continue to be matters of high debate among gentlemen, but the critical events of 1688 would come to be characterised in terms of continuity rather than revolution: it would come to be said that there had been no break and that Parliament had merely filled the gap occasioned by James II’s flight. The Hanoverian succession put paid to ideas of royal absolutism. Montesquieu’s vision of a state in which power was divided and balanced by law gained its immediacy from the British example.62 A great literature of political thought, from John Locke through David Hume, Adam Smith and John Millar, to Edmund Burke and Thomas Paine – examined its implications from a variety of perspectives. But it was William Blackstone who gave it that peculiar legitimacy which stems from describing its legal foundation. Since his Commentaries on the Law of England (1765–69) took constitutional principle as the first level in the whole edifice of the common law the impression was the more imposing.63 Blackstone did not ignore philosophical debate, but he borrowed eclectically.64 He derived from Hugo Grotius, Samuel von Pufendorf and Jean-Jacques Burlamaqui a theory of natural law established through divine revelation and human reason, and used it to illuminate the perfection 61 P Johnson, Making the Market: Victorian Origins of Corporate Capitalism (Cambridge University Press, 2010) 108. 62 H de Charles Montesquieu, L’Esprit des Lois (1748); in English (T Nugent trans) The Spirit of Laws (Nourse & Vaillant, 1752). 63 W Blackstone, Commentaries on the Laws of England 4 vols (Clarendon Press, 1765–69). The constitutional narrative in the Commentaries is well discussed by David Lemmings in his editorial introduction to Book 1 of the Oxford Edition (Oxford University Press, 2016). 64 P Lucas, ‘Ex Parte Sir William Blackstone, “Plagiarist”: A Note on Blackstone and the Natural Law’ (1963) 7 AJLH 142.

Part 1: Industrialisation 1750–1875 11 of the common law.65 He took from Locke a contractual theory of the formation of society and a labour theory justifying the recognition of private property.66 His contractualist view was notional rather than real; but if he could not, with Hume or Burke, discount such imaginings as fanciful, he did accord a place to historical justification – some drawn from Roman analogy, more from an English inheritance stretching back to a golden Saxon age. Yet for Blackstone the ideal of individual liberty, which already touched so many practical issues of government, was the bedrock on which the law was founded. Robustly, if derivatively, he pronounced the right of personal security, the right of personal liberty, and the right of private property to be absolute. It was his manner to follow such dogmatic assertion by almost offhand qualification: there were indeed exceptions where the great liberties were ‘required by the laws of society to be sacrificed to public convenience’. Nonetheless, individual freedom remained the presumptive condition against which all else was to be measured, beginning with the elements of the constitution: the separation of the legislature, executive and judiciary that was so striking to a Frenchman like Montesquieu; the sovereign Parliament which took the advantages, but avoided the disadvantages of monarchy, aristocracy and democracy by combining all three elements in King, Lords and Commons; the court system through which all had access to the law’s protection; the rights of each subject to petition the King or either House of Parliament and to protect himself by bearing arms (suitable to his condition and degree). The positive ability of each House to initiate bills and the negative power of each to veto them, in accordance with well-elaborated procedure, was held to invest the Kingin-Parliament with ‘sovereign and uncontrollable authority … To do every thing that is not naturally impossible.’67 From this stemmed the limitations, both legal and political, upon the powers of the other two branches of government. The monarch, still in reality the source of all executive power, could act under his prerogative only to the extent that this had not been overtaken or curtailed by statute. He might retain a wide discretion to conduct relations with foreign states; but his army was allowed him by Parliamentary vote each year, and his power to tax his subjects, to pay for wars or for any other purpose, had to be assigned by legislation that was first introduced in the Commons.68 As new departments were added to the central bureaucracy – such as those of the Secretary of State for War and the PostmasterGeneral – it was Parliament that empowered them. The monarch no longer had the power to suspend statutes generally or to dispense with their application to particular cases. Even his role in the legislature was in practice becoming formal, since the power to disapprove a bill sent forward by both Houses was no longer used.69 At the outset of the seventeenth-century struggles, Chief Justice Coke seemed to have pronounced the independent authority of the common law as a standard against which the

65 He nowhere averted to the possibility of statute failing to be law because it contravened natural law. There was an innate positivism about his refusal to follow Locke into speculation about any ultimate power to remove the legislature: ‘No human laws will … suppose a case, which must at once destroy all law and compel men to build afresh upon a new foundation’: Blackstone (n 63) vol 1, ch 5. 66 Blackstone (n 63) vol 1, ch 4. 67 Blackstone (n 63) vol 1, ch 5. 68 Blackstone (n 63) vol 1, ch 8. 69 Anne had rejected the Scots Militia Bill in 1707, since when the veto had not been used, though it would occasionally be used against colonial bills in the ensuing century.

12 Institutions and Ideas judges could measure the validity of legislation,70 and this idea occasionally resurfaced in the next century. However, the courts mounted no direct challenge to the legal supremacy of Parliament. Whatever the notion of the rule of law might now imply, however much the common law might be paraded as an emanation of natural law declared by the judges on the basis of immemorial custom, whatever the defects to be found (by Blackstone’s account) in most statute law, the judges’ powers were confined to interpreting its meaning in order to apply it. This still left them with considerable scope for action, particularly once the Act of Settlement 1701 had transferred the power to dismiss judges from the monarch to Parliament,71 preventing any repetition of James II’s meddling with the judiciary,72 and in the long term enabling the separation of executive and judicial power and the emergence of an independent judiciary that would stand apart from politics.73 The theory of parliamentary sovereignty was pragmatic dogma lying beyond proof. One factor which supported it was the host of rules, some enshrined in statute, some contained in Crown Charters or through other exercises of the royal prerogative, some fixed by long use and perhaps supported by decisions of the courts, which defined each constituent part of the legislature. After the Act of Settlement 1701, the monarchy was an inheritance determined by the legislature’s will rather than divine ordination.74 The House of Lords was composed of all English peers temporal, together with the two archbishops and 24 bishops representing the established Church and the 16 representative peers of Scotland.75 Most complex of all, the Commons consisted of the 92 county members and the 421 representatives of the chartered boroughs; to which union had added 36 county and nine burgh members for Scotland in 1707.76 In the English counties the franchise was uniform and relatively straightforward, belonging to the 40s freeholders. In the boroughs, it varied with the charter, which was often obscure in its initial terms or had become so through the later manipulations of monarchs keen to control their Parliaments. Much therefore had come to depend on local custom. Only a few had an occupier franchise, rather more a householder qualification (measured mostly by liability to poor rate) and some a freehold or burgage tenure basis. Many were controlled by the freemen and more by the borough corporation, a self-perpetuating clique; some, where the town had gone (like Old Sarum), were the fief of a few plot-owners, making the ‘rotten’ borough an entirely saleable property.77

70 Dr Bonham’s Case (1610) 8 Co Rep 107. It is debatable whether Coke was assuming a power to declare statutes void as incompatible with some form of higher order law or merely asserting a power to interpret statutes: I Williams, ‘Dr Bonham’s Case and ‘Void’ Statutes’ (2006) 27 JLH 111 (favouring the latter view). 71 M Nash, ‘The Removal of Judges under the Act of Settlement (1701)’ , unpublished paper, 18th British Legal History Conference, July 2007; online at http://www.law.harvard.edu/programs/ames_foundation/BLHC07/Index. html. 72 Much deplored in the nineteenth century by the quintessential Whig historian, Lord Macaulay. George III also forswore his right to reappoint the judges on ascending the throne, a position at once affirmed by Parliament: Commissions and Salary of Judges Act 1760. 73 R Stevens, The English Judges: Their Role in the Constitution (Hart, 2002) 1–7; W Cornish, ‘Government and People’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010) 32–35. See also pp 38–9. 74 Blackstone (n 63) vol 1, ch 6. 75 ibid 155–57. Heirs with courtesy titles were not members. Union with Ireland in 1800 added 28 representatives. The royal prerogative to create new peers was preserved without impediment in 1721 by a Commons eager for honours. See generally, FW Maitland, The Constitutional History of England (Cambridge University Press, 1908) 347–51. 76 Union with Ireland would add 64 county and 36 borough members, giving a total house of 553. 77 See generally, Maitland (n 75) 351–57.

Part 1: Industrialisation 1750–1875 13 Parliaments, moreover, had been extended from three to a maximum of seven years at George I’s accession,78 so that the business of election, for all that a serious contest might arise,79 was intermittent. At once one encounters the gap between constitutional description and political reality. The representation of landed property, so admired by Burke as the wisest way of ‘holding all physical and moral natures each in their appointed place’,80 was secured through various types of influence. The Lords were themselves leading figures among the landowners, great, substantial and moderate. But it was their very considerable control over Commons seats which made them the fulcrum of the ‘balanced constitution’. Yet the Crown as a great landholder also had its share of interest in the Commons; and if the Hanoverians could no longer employ the royal prerogative to rewrite borough franchises, they and their intimates could still use the power of purchase and reward to increase the strength of the Court ‘party’. The legacy of Stuart ambition meant that such manifestations of influence were watched with particular jealousy: the country ‘party’, with a centre of gravity among the county members of the Commons, was the grouping from which the King and his advisers might most consistently expect opposition. In Blackstone’s legal perceptions, the monarch was the figure in which all executive power coalesced. The one constitutional means by which he was provided with advice was through his Privy Council.81 But that body was too large and too independent of mind for this to remain a manageable modus operandi. Furthermore, government was becoming a matter of continuous administration on various fronts – the collection of revenue, the organisation of the armed forces, the supervision of the overseas trade and colonies, and the maintenance of civil peace.82 However much the domestic economy might be freed from state regulation, central government was the subject of accretion. When royal authority depended so much on influence bought through the rewards of office, the growth was limited only by the size of the Crown’s revenue. The various Departments of State were presided over either by the holders of an ancient office, such as the Lords Commissioners of the Treasury83 and the Secretaries of State (originally a Tudor office),84 or by an office-bearer established by more recent statute. These executive chiefs gained their positions as the confidants of the monarch and tended to form an inner circle of advisers. Queen Anne had held regular ‘Cabinets’ and the idea persisted, dividing at some stages into inner and outer ranks, but still contributing to a process in which the monarch would play a decisive personal role. The chief among these ministers, forerunner of the modern prime minister, remained in place so long as he kept the royal confidence, although it was already part of that favour that he should also enjoy the support of the Commons on most issues. His relationship with the monarch was personal and his dismissal did not precipitate the resignation of the rest of the cabinet as a matter of course. The convention of ministerial responsibility to the Commons

78 Septennial Act 1715. 79 Contests were not common but could become very expensive. 80 E Burke, Reflections on the Revolution in France (J Dodsley, 1790). 81 Blackstone (n 63) vol 1, ch 5. 82 See further pp 20–1. 83 From this office in commission, the First Lord would, in the nineteenth century, come normally to be the Prime Minister and the Chancellor of the Exchequer, ie the finance minister. 84 For most of the eighteenth century there were two – by the 1780s a Home Secretary and a Foreign Secretary. In 1801, a third became Secretary for War and the Colonies, the office not being divided until 1854.

14 Institutions and Ideas only began to develop after the extension of the Parliamentary franchise in 1832, and the transfer of departmental financing from the King’s civil list to the consolidated fund.85 The most telling image of the eighteenth-century constitution is one of balance rather than separation. Between the three constituent parts of central government there were a host of linkages: the King’s ministers were normally members of one or other House; the House of Lords kept its function as the final appellate court;86 and the Lord Chancellor, a royal nominee with a Cabinet seat, functioned as both judge and legislator. In the small world of national politics, such cross-functions could head off frontal collisions, while doing something to constrain individual actors, including the monarch. In the counties and boroughs, meanwhile, an interweaving of functions made it impossible to distinguish between the legislative, executive and judicial elements of local government: in the shires, powerful families and individuals found informal ways to accommodate their rivalries and treated their charge over local activities – as Lords Lieutenant, justices of the peace, and commissioners – as natural adjuncts of their social supremacy;87 in the boroughs, corporations determined rights to trade by issuing bye-laws and granting individual freedoms.88 The authority of law was needed to support those aspects of government which imposed duties on individuals – and most aspects of government came to this in the end. The jurisdiction and other powers of the justices was largely to be found in statute, that of manorial tribunals was mostly a matter of custom, corporations might look to the express terms or the implications of their charters. The courts of common law were becoming keener to try questions of jurisdiction or authority to act,89 taking an interferer’s view of those special processes which Lord Mansfield would group together as the ‘prerogative writs’ – n otably habeas corpus, prohibition, mandamus and certiorari. Typically, King’s Bench under Mansfield would construe the bye-law-making power of a borough corporation (conferred in very general terms) so that it was used only to regulate and not to restrain trade;90 the decisions had a dramatic effect in breaking up the local monopolies of trade guilds.91 But not all ‘governmental’ decisions were yet subject to such external discipline. Borough corporations were still regarded by Lord Eldon as free to take self-interested decisions about expenditure of their own monies,92 but this was a last bastion of privilege reflecting the curious function of boroughs in the constitution of the Commons, and in the 1820s and 30s the courts of equity began to turn against it. Property held on charitable trust had long been useable only for the purposes prescribed by the settlor. Particular, and then more general, funds of boroughs came to be treated as a like case,93 a change that was virtually complete by 1835, when new 85 This transfer, begun in earnest in 1816, was carried much further between 1830 and 1837. 86 But note the emergence of a convention in the eighteenth century that only legally qualified members of the House should participate in its judicial business: C Jones and S Farrell, ‘The House of Lords, 1707–1800’ in C Jones (ed), A Short History of Parliament (Boydell Press, 2009) 158–60. 87 See pp 19–20. 88 See pp 46, 525ff, 538ff. 89 See pp 47–8, 49–50. 90 eg Harrison v Godman (1756) 1 Burr 12. 91 eg RS Neale, Bath: A Social History, 1680–1850 (Routledge & Kegan Paul, 1981) 63–69. 92 Mayor of Colchester v Lowten (1813) 1 V & B 226 (corporation entitled to pay bill of costs of Town Clerk’s agent in fighting an election to the office as this was sufficiently ‘connected with Corporate Purposes’). 93 Funds raised by rate or duty for the execution of public works by virtue of statute were held on trust: Att-Gen v Brown (1818) 1 Swans 265; Att-Gen v Mayor of Dublin (1827) 1 Bligh NS 312, (1834) 3 Cl & F 289. Likewise lands and revenue held for public purposes by virtue of charter or custom: Att-Gen v Viscount Gort (1816) 6 Dow 136; Att-Gen v Heelis (1824) 2 Sim & St 67. Old boroughs could not pay any of their income to support local churches: Att-Gen v Aspinall (1837) 2 My & Cr 613; Att-Gen v Wilson (1840) 1 Cr & Ph 1.

Part 1: Industrialisation 1750–1875 15 municipal corporations replaced the boroughs, their powers and duties carefully delimited by statute.94 These were some of the final steps taken in the establishment and refinement of a rule of law that was highly sensitive to individual liberty and private property, and insistent that there should be accountability for all action in the name of government. In the early years of George III’s reign, this theme became the focus for a growing dissatisfaction with the results of the 1689 settlement. John Wilkes and his associates twisted the tails of ministers, first by securing the rulings from the Court of Common Pleas that general search warrants were against the liberty of the subject guaranteed by common law.95 On three occasions the freeholders of Middlesex then elected Wilkes a county Member of Parliament, and each time the Crown, by alleging seditious libel against him, caused the Commons to refuse him membership, on the third occasion substituting Colonel Luttrell – the Crown’s man who had come second in the race. Thus was demonstrated both the extent of royal influence in the lower chamber and the fundamentally undemocratic way in which this might be used.96 The stage was set for a persistent radicalism whose main achievements would eventually come in 1832, after years of war with America and France and (often fearful) observation of their constitutional experiments. For so long as these wars lasted, ministries which took to calling themselves ‘Tory’ could rule virtually uninterrupted. They could attack any threatening signs of dissidence with the might of the law, their train of prosecutions against authors, printers and radical activists97 supported by new legislation on the definition of treason, seditious meetings, illegal oathtaking and mutiny, a prohibitive stamp duty on the popular press and even a temporary suspension of habeas corpus. However, the intensification of such measures in the troubled years after 1815, culminating in the Peterloo Massacre and the Six Acts,98 gave focus to a

94 In particular the borough fund was to be used only for given purposes and any surplus was to be applied for the public benefit of the inhabitants and the improvement of the borough: Municipal Corporations Act 1835, s 92. Further discussion in S Anderson, ‘Local Government’ in W Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 425–44. 95 The cases disapproved warrants to search for and arrest the authors, printers and publishers of issue number 45 of the North Briton (Wilkes v Wood (1763) 2 Wils KB 203, 204; Leach v Money (1765) 19 St Tr 1001); then disapproved warrants to arrest the plaintiff and seize his papers on suspicion (Entick v Carrington (1765) 2 Wils KB 275; Wilkes v Lord Halifax (1769) 2 Wils KB 1406). Discussion in T Hickman, ‘Revisiting Entick v Carrington: Seditious Libel and State Security Laws in Eighteenth Century England’ in A Tomkins and P Scott (eds), Entick v Carrington: 250 Years of the Rule of Law (Hart, 2015). 96 The argument came to rest chiefly on the scope of Commons privilege: having expelled Wilkes (which had first occurred five years before), could the House declare him an incapable candidate so that votes given him were wasted? It assumed power to do so, but powerful voices at the time (led by Burke and Grenville) strove to maintain the decision in Ashby v White (1703) 2 Ld Raym 938 that the existence of a privilege was a matter either of statute or common law, not of resolution by the House concerned. Eventually, the Commons expunged its record of the Middlesex elections: Sir WS Holdsworth, A History of English Law, vol 10 (Methuen, 1938) 539–44. 97 While Tom Paine was successfully prosecuted in absentia for seditious libel in The Rights of Man, Part II (1792), prosecutions against Home Tooke and others were dismal failures; the colourful advocacy of Erskine did much to shame even special juries into acquitting: LP Stryker, For the Defence: Thomas Erskine, One of the Most Enlightened Men of His Times, 1750–1823 (Staples Press, 1949); EP Thompson, The Making of the English Working Class (Gollancz, 1963) ch 5. 98 On 16 August 1819, 15 people were killed and hundreds injured when cavalry troops charged into a crowd of radical protesters at St Peter’s Field, Manchester. Subsequent legislation banned unlicensed public meetings, empowered magistrates to search private houses for weapons, etc: Unlawful Drilling Act 1819, Seizure of Arms Act 1819, Misdemeanours Act 1819, Seditious Meetings Act 1819, Blasphemous and Seditious Libels Act 1819, Newspaper and Stamp Duties Act 1819; discussed in M Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime, c 1770–1820’ (1990) 10 OJLS 307.

16 Institutions and Ideas new unease among the burgeoning middle classes of the industrial towns.99 The heirs of Charles James Fox, now the out-of-office ‘Whigs’, discovered their reformist leanings and allowed Lord John Russell to emerge as the respectable champion of moderate change in the Commons franchise.100 Among the radicals, only a fringe contemplated physical violence as the means to reform, and the bulk accepted that Parliament itself could be induced to make its lower house appreciably more representative: a democracy of manhood suffrage according to the most extreme radicals, a revised representation of the propertied according to the rest (through many different proposals). In the event, the spectre of civil unrest loomed large enough to goad even a reluctant House of Lords into acquiescence in the Reform Bill promoted by Lord Grey’s Whig Government. In 1830 the new revolution in France, replacing the autocratic Charles X with Louis Philippe, seemed to be sparking the ‘Swing’ outbreaks of violence and threats in the agricultural south and west of England. The demonstrations which followed the Lords’ rejection of the Reform Bill of 1831 contributed to Tory divisions and Grey persuaded William IV to pledge the creation of new peerages to carry the Bill. Before so terrible a threat the Lords capitulated.101 Disenfranchisement of rotten and pocket boroughs, even when balanced against increased representation for burgeoning cities, reduced the number of borough members from 465 to 399, while county seats rose from 188 to 253. In England and Wales, the vote went in the counties to 40s freeholders (for the most part), to £10 copyholders and long leaseholders and to £50 tenants on shorter terms and at will;102 in the boroughs to £10 occupiers who also satisfied residence and ratepaying qualifications.103 The electorate grew by half (to 652,000)104 but even so the results fell far short of the campaigners’ expectations. At a few points there appeared to be decisive change. The constitutional relationship of central executive to legislature at last emerged in essentially modern form, even if there was much still to come in the full political sense. The Crown lost its direct influence over Commons seats and the personal direction of the monarch over the course of executive government was finally ousted: in 1834 Peel could not sustain office against repeated Commons defeats, for all the King’s support. Collective responsibility of Prime Minister and Cabinet and the individual responsibility of Ministers for their departments were to establish their conventional character under repeated resort. Constitutional historians and theorists recognised the peculiar force of these and other practices.105 But it was not until their later treatment by Dicey as constitutional conventions that they would find any clear status in terms of law.106

99 See pp 573–75. 100 In 1821 he secured the disenfranchisement of a rotten Cornish borough: Disenfranchisement of Grampound Act 1821. 101 Representation of the People Act 1832, discussed in P Salmon, ‘The English Reform Legislation, 1830–32’ in D Fisher (ed), The History of Parliament: The House of Commons, 1820–32 (Cambridge University Press, 2009). 102 Shorter leaseholds were those from 20 to 60 years; in the case of the tenancies less than these, the measurement was £50 rent rather than annual value. 103 The latter conditions were designed to stop the multiplication of votes; so was the exclusion of some f reeholders. They did not succeed. 104 Out of a population for the United Kingdom of 13.9 million (1831 census). 105 O Hood Phillips, ‘Constitutional Conventions: Dicey’s Predecessors’ (1966) 29 MLR 137. 106 AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1885) ch 14. See too C Munro, ‘Dicey on Constitutional Conventions’ [1985] PL 637; NW Barber, The Constitutional State (Oxford University Press, 2010) ch 6.

Part 1: Industrialisation 1750–1875 17 The relation of legislature and executive came under novel strains because – and this was the real mark of 1832 – they both began to engage in new realms of activity. Parliament ceased to be an institution preoccupied with the initiatives of individuals, and of local and private groups.107 Cabinets fostered programmes of general legislation and law was becoming a positive instrument of social policy which might introduce new institutions of central and local government or confer new executive powers on existing bodies. As Dicey remarked, the franchise reform of 1832 stands as a clear example of how law can affect and lead ‘public opinion’ as distinct from responding to it.108 The very idea that legislation might remake the world was a strong element in that influence. The antagonisms of upper, middle and working classes, heightened by the events of 1830–1832, soon appeared to have been little altered by the outcome. Middle-class representation in the Commons had increased only modestly: there were some radicals – particularly on the Whig fringe – but still some 500 members were for the landed i nterest, a figure which would slip by only a fifth in the period to 1865.109 Prime ministers and cabinets were drawn mainly from the landed class, whether the Government was Whig or Tory. The working-class activists who had debated and organised in favour of reform took their bitter disappointment and frustration into the fragmented groups which made up the complex phenomenon of Chartism.110 The People’s Charter of 1838, a temporary common denominator, expressed a continuing belief in change through the machinery of law. It restated a demand for universal manhood suffrage, along with five other claims that had been widely debated for a decade and more; two of these – annual parliaments and the secret ballot – had been placed out of prospect by Grey even before the first Whig Bill had been presented.111 Middle-class concerns, meanwhile, were brought to bear on substantive issues by the campaign for repeal of the Corn Law.112 The protection of domestic agriculture was the result of a long series of enactments, and Wellington had accepted in 1827 that legislation should be used to temper their impact. Now their very existence was threatened by class arguments: the protection of agriculture meant high food prices that ate into wages. Against such rhetoric, whipped up by Cobden, Bright and others in the Anti-Corn Law League, the protectionist case that the campaign was a conspiracy to lower wages made little ground. Peel was persuaded and pushed repeal through Parliament but then went out of office with the Tory party severed on the issue.113 The middle classes discovered that they had the power to oppose the agricultural interest. In a world troubled by the rumblings of Chartist violence and demands for a ten-hour working day, to say nothing of the misery in Ireland, they could 107 On ‘private’ acts during the eighteenth century, see p 20. 108 AV Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 2nd edn (Macmillan, 1914) 42–43. 109 The 1832 Act probably increased the electorate by around 45 per cent, but this only meant a rise from 3.2 to 4.7 per cent of the population: Hilton (n 10) 124–26; and until well after 1867 a considerable proportion of seats would not be contested: T Lloyd, ‘Uncontested Seats in British General Elections, 1852–1910’ (1965) 8 HJ 260. 110 The first outcome was the short-lived Grand National Consolidated Trades Union and its sorry tail-piece, the prosecution of the ‘Tolpuddle Martyrs’ of Dorset in 1834: see pp 298–99; and see generally M Chase, Chartism: A New History (Manchester University Press, 2007). 111 Of the others: the property qualification for MPs would be abolished in 1858, and the payment of members would have to wait until 1911; on the equalisation of electoral districts and the secret ballot, see pp 79–80. Beside their political demands, many in the Chartist movement also pressed for reform of the tax system; for the details and after-effects of this agitation, see S Utz, ‘Chartism and the Income Tax’ [2013] BTR 192. 112 C Schonhardt-Bailey, From Corn Laws to Free Trade: Interests, Ideas, and Institutions in Historical Perspective (MIT Press, 2006); A Howe, ‘Free Trade and its Enemies’ in M Hewitt (ed), The Victorian World (Routledge, 2012). 113 Importation of Corn Act 1846.

18 Institutions and Ideas accept the settlement of 1832 as a sufficient representation. The regular testing of ministerial responsibility in the 1850s gave a satisfying patina to the theory of Parliamentary sovereignty. The fluidity of politics – enhanced by the split between Peelites and Protectionists and a loose notion of party loyalty which allowed considerable play for individual conscience and interest – bolstered the primacy of the lower house in the new constitutional order. In the 1850s, when Bright and his friends tested opinion by promoting further reform bills, Palmerston and other leaders could brush them aside, but the issue could not be dismissed for long. By the time of Palmerston’s death in 1865, opinion had decisively shifted in favour of more reform: the Reform Act of 1867 gave the vote to all male householders in the towns, and lowered the rating limit for occupiers in the counties to £12, increasing the electorate from just over one million to almost two million.114 It gave voting rights to the upper ranks of the working class, who by their earnings and educational aspirations had marked themselves out as an ‘aristocracy of labour’. They had begun to acquire an organised strength, through their trade unions, and to an extent through political societies, which drew a grudging respect. To this attitude the general orderliness and high moral tone of the great suffrage meetings contributed significantly. The debates on the Bill raised the position of women as a serious issue for the first time. The democratic radicals and Chartists had devoted little energy to female suffrage,115 but the conventions which condemned middle-class women by social propriety, limited education and professional embargo to a life of child-bearing and domestic supervision was starting to produce a reaction. JS Mill’s plea in the Commons for the admission of women to the suffrage on the same property conditions as men met the standard conservative reaction: they would only abuse it, through ignorance and emotionalism.116 However, the defeat (by 196 to 73) was not humiliating and the campaign would secure their admission to the municipal franchise two years later.117

D. Executive Government and Law i. Eighteenth-Century Government ‘In 1836, as in 1689, there was still nothing in local government that could be called a system.’118 So wrote Beatrice and Sydney Webb in their massive study of English local government, which characterised the eighteenth century as a period of unfettered local autonomy, corruption and legal anomalies; only in the nineteenth century would matters

114 Representation of the People Act 1867. There was a redistribution of 25 county and 15 town seats. Five large cities acquired a third seat, but only under a limitation of each elector’s votes to two, which was added by the House of Lords (s 9). 115 Despite the appearance of Mary Wollstonecraft’s Vindication of the Rights of Women in 1792, Jeremy Bentham prevaricated on the subject and James Mill opposed. 116 PD 1867 CLXXXVII 817–29. Mill’s The Subjection of Women, written in 1861, was only published in 1869. Discussion in J Rendall, ‘John Stuart Mill, Liberal Politics, and the Movements for Women’s Suffrage, 1865–1873’ in A Vickery (ed), Women, Privilege and Power: British Politics, 1750 to the Present (Stanford University Press, 2001). 117 Municipal Franchise Act 1869, ss l, 9; closely followed by the Elementary Education Act 1870, s 29, which gave women the right to be elected to school boards. But the common law disability of married women was held still to exclude them: R v Harrald (1872) LR 7 QB 361. 118 S Webb and B Webb, English Local Government, vol 4: Statutory Authorities for Special Purposes (Longmans & Co, 1928) 478.

Part 1: Industrialisation 1750–1875 19 begin to improve, once it was recognised that the ‘evils of the Industrial Revolution’ had ‘completely undermined the old principles of government’,119 and once executive government was put on a more rational footing by the assertion of central state control and the creation of professional bureaucratic hierarchies.120 In their poor opinion of the eighteenth century, the Webbs followed reforming Whigs of the 1830s and campaigning administrative centralisers of the mid-century like Edwin Chadwick;121 and they were followed by historians of the Victorian state working in the decades after WWII, whose accounts of a centralising and expanding executive, formed in response to the great social problems of the industrial era, rather downplayed the administrative achievements of the preceding century.122 Since the 1980s, work by historians of the eighteenth century, and of earlier periods, has forced a reassessment. They have shown that population growth in the Tudor period created problems of poverty, vagrancy and disorder, in response to which parish vestries were given new powers and responsibilities to act as the instruments of secular as well as religious social policy, subject to the appellate authority of the justices of the peace. As a result, the maintenance of public order and the provision of social welfare were carried forward in the late sixteenth and seventeenth centuries through legalised forums such as County Assizes and Quarter Sessions (meetings of the justices held in each county and borough four times a year); the period was also marked by vibrant civic participation: in Mark Goldie’s phrase, there was an ‘unacknowledged republic’ of parish and county office-holders.123 For the eighteenth century, Paul Langford, Joanna Innes and David Eastwood have painted a similar picture of parish activity overseen by a civic-minded and self-activating landed elite with a shared vision of consensual and non-partisan association among the propertied leaders of society. Whether serving in their ‘administrative’ or ‘judicial’ capacities as justices (which they did not themselves distinguish),124 they formulated

119 ibid 413. 120 On the effect of the Webbs’ political agenda on their work, see AJ Kidd, ‘Historians or Polemicists? How the Webbs Wrote Their History of the English Poor Laws’ (1987) 40 Econ HR 400; AJ Kidd, ‘The State and Moral Progress: The Webbs’ Case for Social Reform c 1905 to 1940’ (1996) 7 TCBH 189. 121 eg Sir Edwin Chadwick, On County Government in Combination with Union Organisation, for the Improvement of Local Administration (1879). See also LJ Hume, Bentham and Bureaucracy (Cambridge University Press, 1981) 225–26. 122 O MacDonagh, ‘The Nineteenth-Century Revolution in Government: A Reappraisal’ (1958) 1 HJ 52; D Roberts, Victorian Origins of the Welfare State (Yale University Press, 1960); WC Lubenow, The Politics of Government Growth: Early Victorian Attitudes Towards State Intervention 1833–1848 (David & Charles, 1971) chs 1 and 2; O MacDonagh, Early Victorian Government 1830–1870 (Weidenfeld & Nicholson, 1977) 12–13 and 124–25; URQ Henriques, Before the Welfare State: Social Administration in Early Victorian Britain (Longman, 1979) 252–69; B Keith-Lucas, The Unreformed Local Government System (Croom Helm, 1980). 123 M Goldie, ‘The Unacknowledged Republic: Officeholding in Early Modern England’ in T Harris (ed), The Politics of the Excluded, c 1500–1800 (Palgrave Macmillan, 2001). See too P Slack, Poverty and Policy in Tudor and Stuart England (Cambridge University Press, 1988) 114–31; K Wrightson, English Society 1580–1680 (Routledge, 1990) 39–65 and 149–82; MJ Braddick, State Formation in Early Modern England, c 1550–1700 (Cambridge University Press, 2001); S Hindle, The State and Social Change in Early Modern England 1550–1640 (Palgrave Macmillan, 2002). See also B Waddell, ‘Governing England through the Manor Courts, 1550–1850’ (2012) 55 HJ 279. 124 D Lemmings, Law and Government in England During the Long Eighteenth Century: From Consent to Command (Palgrave Macmillan, 2011) 21: ‘the lack of procedural differentiation between administrative and criminal business’ derived from medieval ideas of communal obligation under the law which held local communities to be responsible not only for maintenance of the peace but also for administrative duties such as upkeep of the highway. In the eighteenth century there was no sense that the magistracy might be affected by the principle in Entick v Carrington (1765) 2 Wils KB 275, that ministers of the Crown with executive functions had no investigatory or judicial powers.

20 Institutions and Ideas and implemented domestic social policy in the absence of any systematic programme emanating from central government.125 We shall return to the judicial role of the magistrates within the criminal justice system.126 Here we would stress how much of their time was taken up by ‘administrative’ matters including the enforcement of parish obligations to implement the poor law system and maintain the physical fabric of the counties.127 We would also note that a measure of the dynamism with which landed elites undertook the business of domestic government is their legislative activity. After 1689 the number and regularity of statutes greatly increased: between 1485 and 1688 about 2,700 were enacted, but between 1689 and 1800 there were about 14,000.128 Of these some 75 per cent – 10,000 statutes – were not ‘public’ but ‘private’, meaning they were focused on particular regions and interests.129 Many of these may look to modern eyes like measures enacted by the landed elite to serve their own economic interest – eg the thousands of Enclosure Acts passed in the later 1700s.130 But many others were passed for more self-evidently ‘public’ purposes: the paving, lighting or watching of streets, construction and regulation of market places, rebuilding of churches, improvement of roads, bridges and harbours, establishment of theatres, county halls and prisons, of small debt courts, workhouses and boards of poor law guardians.131

Central government did enact some public legislation with a social policy focus, on crime, vagrancy, imprisonment for debt and the poor law,132 but its main legislative effort lay elsewhere. The need to fund a series of wars starting in the late 1600s and continuing through the 1700s stimulated the creation of a powerful ‘fiscal-military’ state that enacted (increasingly regressive) tax legislation and employed revenue officers to collect the money.133 However, David Eastwood has argued that this central government a ctivity 125 P Langford, Public Life and the Propertied Englishman, 1689–1798 (Clarendon Press, 1991); D Eastwood, Governing Rural England: Tradition and Transformation in Local Government 1780–1840 (Clarendon Press, 1994). Landowners varied in their attitudes and as Langford makes clear in ch 6 of his book, many were often absent from their estates. 126 See pp 36–7. 127 Eastwood (1994) (n 125) chs 2 and 3; P Polden, ‘Justices of the Peace and their Courts’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (OUP 2010) 914–24; Lemmings (2011) (n 124) ch 2. 128 J Hoppit, ‘Patterns of Parliamentary Legislation, 1660–1800’ (1996) 39 HJ 109; J Hoppit, Britain’s Political Economies: Parliament and Economic Life, 1660–1800 (Cambridge University Press, 2017) ch 2. 129 ‘Public’ or ‘general’ acts, and ‘private’ or ‘local’ acts, were categories of legislation whose meaning shifted somewhat over time: S Lambert, Bills and Acts: Legislative Procedure in Eighteenth Century England (Cambridge University Press, 1971). 130 For which see pp 139–41. 131 J Innes, ‘The Local Acts of a National Parliament: Parliament’s Role in Sanctioning Local Action in Eighteenth Century Britain’ (1998) 17 Parl Hist 23, 24. See too Langford (1991) (n 125) 155–66; S Handley, ‘Local Legislative Initiatives for Economic and Social Development in Lancashire, 1689–1731’ (1990) 9 Parl Hist 14. 132 J Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy’ (1990) 40 TRHS (5th series) 63; J Innes, ‘The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain’ in L Stone (ed), An Imperial State at War: Britain from 1689 to 1815 (Routledge, 1994). 133 J Brewer, The Sinews of Power: War, Money and the English State, 1688–1783 (Unwin Hyman, 1989). See too S Dowell, A History of Taxation and Taxes in England (Longmans, Green & Co, 1884) vol 4; P Mathias and P O’Brien, ‘Taxation in Great Britain and France, 1715–1810’ (1976) 5 JEH 601; P O’Brien, ‘The Political E conomy of British Taxation, 1660–1815’ (1988) 41 Econ HR 1; WJ Ashworth, Customs and Excise: Trade, Production, and Consumption in England 1640–1845 (Oxford University Press, 2003). Wars were also funded by borrowing: Dickson (n 49); D Stasavage, Public Debt and the Birth of the Democratic State: France and Great Britain, 1688–1789 (Cambridge University Press, 2003).

Part 1: Industrialisation 1750–1875 21 was ‘functionally delimited’ and ‘did not come into conflict with traditional areas of jurisdiction’ which continued to rest on popular participation into the early 1800s.134 Replacement of this devolved, participatory system of government with a centralised, command-based system of the kind that characterised the Poor Law Amendment Act 1834 therefore marked an ideological shift. This was triggered by a welfare crisis that came to a head in the 1830s and 1840s and its long-term effect would be that many citizens became disengaged from governmental and legal business in which they were no longer given an active part to play.135 Eastwood is surely right to stress the continuities in local government, and the strength of local loyalties and perspectives, that persisted into the nineteenth century. But it is likely that popular disengagement from administrative and legal forums happened less suddenly than he allows. David Lemmings has made an argument to this effect,136 identifying several causes rooted in the eighteenth century: the imposition of unpopular taxes and use of revenue officers with summary powers,137 the adoption of more streamlined but less open processes to deal with the increased volume of administrative business in Quarter Sessions,138 an increase in the number of offences that were summarily justiciable (and so were not tried with a jury), a shift from private to public prosecution of criminal cases, and a relative decline in the amount of civil litigation which reduced exchanges of legalised social culture and values through participation in the court system.

ii. Nineteenth-Century Government a. Creation of New National Agencies In the years after 1832 the new Whig Government initiated moves to eliminate the ‘old corruption’ of sinecure offices,139 assumed an ‘unprecedently wide-ranging’ responsibility for domestic policy-making, enacted legislation to restructure local government in ambitious ways, and created, in the Poor Law Commission, ‘a body exercising exceptionally wide and continuing powers over local authorities’.140 This set a precedent for the creation of a series of national agencies over the following decades that would be charged with the regulation and administration of economic and social life. Most of their interventions were focused on the activities of private enterprise: factories, mines and workshops, railways

134 Eastwood (1994) (n 125) 4; D Eastwood, Government and Community in the English Provinces, 1700–1870 (Macmillan, 1997) 18. 135 Eastwood (1994) (n 125) chs 5–7 (poor law) and 8–9 (policing and prisons). 136 Lemmings (2011) (n 124). 137 Blackstone thought that the employment of this ‘multitude’ of officers rendered the influence of central government ‘most amazingly extensive’: Blackstone (n 63) vol 1, 336. 138 cf Eastwood (1997) (n 134) 99: by the early nineteenth century ‘most counties were run by an inner cabinet of senior magistrates, under the direction of a regular Chairman of Quarter Sessions, and served by a virtually full-time Clerk of the Peace.’ 139 WD Rubinstein, ‘The End of “Old Corruption” in Britain, 1780–1860’ (1983) 101 P&P 55; P Harling, The Waning of ‘Old Corruption’: The Politics of Economical Reform in Britain, 1779–1846 (Clarendon Press, 1996); A Howe, ‘From “Old Corruption” to “New Probity”: The Bank of England and its Directors in the Age of Reform’ (1994) 1 FHR 23. 140 J Innes, ‘Central Government “Interference”: Changing Conceptions, Practices and Concerns, c 1700–1850’ in J Harris (ed), Civil Society in British History: Ideas, Identities, Institutions (Oxford University Press, 2003) 49. See too J Parry, The Rise and Fall of Liberal Government in Victorian Britain (Yale University Press, 1993) chs 3–5.

22 Institutions and Ideas and shipping, land rights and finance in the agricultural sector. Few administrative and regulatory schemes would be run centrally in the public name, the exceptions being the postal service,141 and to an extent the poor law and the prisons. Public health legislation, which had to tackle an accumulation of dangers, began as regulation of the outworks of the free market; but a more interventionist, managerial form would gradually emerge, as local government, to an extent under central supervision and with central financial assistance, entered the business of water supply, sewage disposal, burial of the dead and eventually slum clearance, housing provision and an outcrop of municipal services. Peter Jupp has attributed the origins of all this to expansion of the Parliamentary franchise, which produced an embourgeoisement of Parliament that empowered middleclass technocrats to initiate reform against the wishes of landed elites.142 But Peter Harling and Philip Mandler have persuasively countered that the landed classes remained dominant in Parliament after 1832, and that although the Whig elite favoured the centralisation and rationalisation of government services they also favoured the economic retrenchment by which this was accompanied.143 Government spending was reduced when the war with France ended, and even in the 1840s, there was ‘little expectation … that [it] should use a very significant proportion of national resources to attempt to ameliorate social injustice …; an expensive state was still usually associated with “extravagance” and the perpetuation of unfair privileges.’144 Between 1820, after military spending had been wound down, and 1900, when the Boer War produced another spending spike, central government expenditure grew in absolute terms, but fell from about 10 per cent to about 7–8 per cent of gross domestic product;145 in 1869, ‘only 2.1 per cent of the Government’s gross expenditure of £75.5m … was spent on civil servants’ salaries and on the running of public departments’, at a time when ‘much larger proportions were being spent on servicing the National Debt (38 per cent) and on the armed forces (36 per cent) than on civil administration as a whole (16 per cent)’;146 and in the 1870s when British central government spending was running at around eight per cent of GDP, the equivalent figures for France and the German states were 13 and 12 per cent.147 While noting the emergence of new agencies, therefore, we must not lose sight of the fact that in the 1830s most members of the political class had a deep faith in private initiative, were suspicious of government and abhorred taxation. The reduction and control of public expenditure were necessary steps in the creation of the political consensus on which the Gladstonian fiscal c onstitution would come in

141 MJ Daunton, Royal Mail: The Post Office since 1840 (Athlone Press, 1985) esp ch 8. 142 P Jupp, ‘The Landed Elite and Political Authority in Britain, c 1760–1850’ (1990) 29 JBS 53. 143 P Harling and P Mandler, ‘From “Fiscal-Military” State to Laissez-Faire State, 1760–1850’ (1993) 32 JBS 44, building on P Mandler, Aristocratic Government in the Age of Reform: Whigs and Liberals 1830–1852 (Oxford University Press, 1990). Whether the same attitude was taken towards the new Poor Law by landed elites in the localities has been disputed: ‘Debate – The Making of the New Poor Law Redivivus’ (1990) 127 P&P 183. 144 Harling and Mandler (n 143) 69. 145 P Brien and M Keep, The Public Finances: A Historical Overview (House of Commons Library Briefing Paper No 8265, 22 March 2018). 146 EJ Evans, The Shaping of Modern Britain: Identity, Industry and Empire 1780–1914 (Pearson Education, 2011) 273, citing H Mann, ‘On the Cost and Organisation of the Civil Service’ (1869) 32 Journal of the Royal Statistical Society 38. 147 Harling and Mandler (n 143) 56–60; M Mann, The Sources of Social Power: Volume 2, The Rise of Classes and Nation-States, 1760–1914, 2nd edn (Cambridge University Press, 2012) ch 11.

Part 1: Industrialisation 1750–1875 23 time to rest.148 In the meantime, as Simon Devereaux has written, the centralising impact of the new government agencies was:149 quite limited and, in some cases, largely overborne after a few years’ unsatisfactory and antagonistic efforts to implement them. Whitehall’s inspectorates were often pitiably small and ineffective by comparison with the stated principle of centralised supervision with which they were launched. At least as often as not, negotiation and persuasion were the means by which more uniform standards of regulation were only slowly disseminated throughout the nation. Historians of Victorian governance are now more generally impressed by the extent to which, until the turn of the twentieth century, ‘local’ authority – informed by a powerful libertarian rhetoric – remained the prevailing cultural norm rather than central prescription, inspection and enforcement.

It follows that there was a paradoxical aspect to Victorian state activity, for in the long run ‘centralisation, forged at a time when laissez-faire was the dominant ideology, would make many social reforms and a paternalistic state possible.’150 Different parts of this story are told in later chapters. Among other matters, these examine the stuttering history of the measures implemented to redress the problems of public health and urban pollution (discussed in chapter two),151 to regulate the employment of women and c hildren in factories and mines (chapter four),152 to provide care for orphaned and deserted children (chapter five),153 to reform the poor law system and the provision of education (chapter six),154 and to regulate health and safety in the workplace (chapter seven).155 Besides the particular social and economic issues to which all of these gave rise, they also raised more general questions of administrative policy: how much responsibility should be taken by the state for the resolution of such social problems and how much left to self-help and charitable endeavour; if their resolution required expenditure, where should the costs of this fall; did their resolution require the imposition of a standardised policy by central government or was it preferable to devolve responsibility for individuated policy-making onto local government or inspectorates; and how much independence and discretion should such bodies be given, and to what degree of oversight and control should they be subjected, by government and by the courts?

148 GC Peden, ‘From Cheap Government to Efficient Government: The Political Economy of Public Expenditure on the United Kingdom, 1832–1914’ in D Winch and PK O’Brien (eds), The Political Economy of British Historical Experience, 1688–1914 (Oxford University Press, 2002); W Funnell, ‘Victorian Parsimony and the Early Champions of Modern Public Sector Audit’ (2004) 9 Accounting History 25. On taxation, see pp 81–8. 149 S Devereaux, ‘The Historiography of the English State During “the Long Eighteenth Century”’ (2009) 7 History Compass 742, 749–50. 150 J McLean, Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge University Press, 2012) 32, observing that ‘Whigs and Utilitarians favoured centralised government despite their apparently shared preference for laissez-faire policies [while] Tories … on the whole disapproved of laissez-faire policies, but tended to favour localism which was in practice the surest mechanism for delivering laissez-faire policies.’ cf P Harling, ‘The Powers of the Victorian State’ and P Baldwin, ‘The Victorian State in Comparative Perspective’, in P Mandler (ed), Liberty and Authority in Victorian Britain (Oxford University Press, 2006), both arguing that government was more interventionist than one might have supposed from the current scholarly orthodoxy that ‘negative liberty’ was the dominant political ethic. On the Victorian period as an age of ‘laissez-faire’, see pp 67–72. 151 See pp 161–67. 152 See pp 290–96. 153 See pp 382–87. 154 See pp 401–11 and 411–24. 155 See pp 486–91.

24 Institutions and Ideas b. Legal Status of the New Agencies By the 1830s a ‘permanent’ civil service had evolved: a body of central government administrators which did not change with a change of government. But government departments were still small and ‘ministers expected to attend to administrative detail’; only in the 1840s and 1850s did it become usual for civil servants to exercise powers that were vested by law in their ministers.156 This was a development entwined with emerging notions of collective responsibility of the central executive to Parliament,157 and it was only in the mid-century that the modern idea of a ministry became settled, ie that each of the main government departments would be headed by a member of Cabinet on whom statutory executive powers were conferred by Parliament, who would answer for the exercise of these powers in Parliament, and who was given direction over and responsibility for a bureaucracy which would for the time being pursue his policies.158 One eighteenth-century practice, designed to curb excesses of individual authority, had been to place political overlordship of executive action into the hands of a board rather than an individual. After 1832, the idea of boards acquired an extension, when they came to be conceived as a way of conferring semi-autonomous authority for particular administrative functions, thereby achieving distance from the immediately political. Boards would have a long and varied history.159 But the immediate experience showed that if regulation were not made the direct responsibility of a minister with real authority then little headway would be made. The Poor Law Commissioners, appointed as an independent ‘board’ to give central direction to the revised policies of 1834, were to suffer for their independent structure and were reconstituted with Parliamentary representation in 1847 (as the Poor Law Board).160 The Railway Department in the Board of Trade (1840) would itself become a ‘Board’ (still departmental – 1844) and then a Commission (independent – 1846) before being re-absorbed de facto (1849), then de jure (1851) into the Board of Trade.161 Between the 1850s and 1906 those boards which remained constitutionally distinct from ministries were in all important cases placed under some form of ministerial supervision, and in this way, the orthodoxy of executive accountability to Parliament became finally settled.162

156 S Anderson, ‘Central Executive: The Legal Structure of State Institutions’ in W Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010) 345. 157 GW Cox, ‘The Development of Collective Responsibility in the United Kingdom’ (1994) 13 Parl Hist 32. 158 H Parris, Constitutional Bureaucracy: The Development of British Central Administration Since the Eighteenth Century (Allen & Unwin, 1969) 93–105 and ch 5; N Chester, The English Administrative System, 1780–1870 (Clarendon Press, 1981) 93–95. On the legal status of ministries and other Crown Agencies, see Anderson, ‘Central Executive’ (n 156) 361–66. And for later developments, see pp 88–90 of the present volume. 159 For lists of the ministries and boards existing in 1832 (12 and 9 respectively) and afterwards (by 1855, 15 and 21), see FG Willson, ‘Ministries and Boards: Some Aspects of Administrative Development Since 1832’ (1955) 33 Public Administration 43; and see Parris (1969) (n 158) 80–93. On the variety of legal forms taken by statutory agencies, see Anderson, ‘Central Executive’ (n 156) 347–60. 160 See pp 403–08. 161 H Parris, Government and the Railways in Nineteenth-century Britain (Routledge & Kegan Paul, 1965). 162 See Willson (n 159) for details.

Part 1: Industrialisation 1750–1875 25 c. Legal Powers of the New Agencies The new governmental bodies needed legal authority for their activities – for all decisionmaking, executive and judicial, as well as the acquisition and dispensing of money.163 But the conferral of such powers was repeatedly challenged in Parliament. Powerful groupings like the railway interest, whose prospects always depended on the course of legislation, could achieve a great deal by the ‘friendship’ of members of each house.164 They could be called on to argue against or ‘amend away’ proposals for increasing bureaucratic powers.165 Occasionally they could be used for positive attack, for instance, by procuring counterenactments.166 Resistance to new legislation might also be sought in other quarters – where for instance the interests of professional groups (such as the lawyers) would be affected, their own spokesmen could be enleagued. Equally, since government servants were a far from uniform breed, there might be help from a man in senior post who shared a mistrust for accretions of bureaucratic power.167 As an answer to the difficulties in procuring new legislation, the bureaucracy might seek delegated authority to make orders or rules. As early as 1833, Parliament was prepared to concede such authority to the new factories inspectorate and a year later to the poor law commissioners. Gradually standard types of delegated legislation would develop: if made by central authority, it would be subject to tabling before Parliament or very occasionally to approval by affirmative resolution; if made by local authority, it might need the approval of a minister.168 The pressure for delegated powers came from experience of many types of regulation. If businesses were to fall under constraints, they would be anxious to know the standards they had to meet and would proclaim it a particular burden to be left to the discretion of an inspector. The enforcing officers themselves would favour clear standards when these could be prescribed, for they would then be empowered to act in a uniform manner and to draw moral support from doing so.169 Yet powers of delegation were often resisted and inspectorates were left to struggle on, perhaps proclaiming their policies through circulars, notices and the like.170 These would lack legal authority and might be challenged as an overreach, or an advance fettering, of discretion. It was also contested whether the new inspectorates should be given adjudicative as well as rule-making powers. There were precedents for this: justices of the peace had been vested with authority not merely to find that individuals were transgressing legal standards 163 For the position of earlier local authorities, see pp 36–7; as for ministries and ‘the Crown’, see pp 26–7. 164 RW Kostal, Law and English Railway Capitalism 1825–1875 (Clarendon Press, 1997) esp ch 3. 165 See eg pp 176–79, 291–97 and 486–91. 166 See eg pp 223–24 and 489. 167 See eg p 164. 168 The diffusion of delegated legislation remained problematic for much of the nineteenth century: JE Pemberton, British Official Publications (Pergamon Press, 1971) ch 10. Just as they had supervised the bye-law making of the old borough corporations, so the courts required the new municipal corporations not to make bye-laws that were ‘manifestly unreasonable’: Kruse v Johnson [1898] 2 QB 91. 169 O MacDonagh, ‘Delegated Legislation and Administrative Discretions in the 1850s: A Particular Study’ (1958) 2 VS 29; O MacDonagh, ‘Coal Mines Regulation: The First Decade, 1842–1852’ in R Robson (ed), Ideas and Institutions of Victorian Britain Ideas and Institutions of Victorian Britain: Essays in Honour of George Kitson Clark (Bell, 1967). 170 It was only in the 1850s that the new central bodies began to acquire significant powers to make orders and the like: Parris (1969) (n 158) 188–96.

26 Institutions and Ideas but to adjudge them in the wrong and impose fines or other punishment upon them.171 And the first factory inspectors were indeed put in the position of magistrates for the purpose of enforcing the Factories Act 1833. However, hostility to factory inspectors led the Home Secretary to direct them not to use their judicial powers, and after a decade these were removed from the statute book.172 Instead, as in many other instances, the new inspectors were confined to the role of prosecutors and the tribunals before which they had to take their complaints, if they could not negotiate an informal solution, were the justices of the peace in petty sessions.173 It became part of the essentially ‘judicial’ conception of the justices’ functions that they were often charged with administering the minor criminal jurisdictions of administrative regulation. ‘Interfering’ administration was thus made subject to ‘law’ as this was understood by a less than impartial outside body. On the bench of justices, the attitudes of many of those most directly in the line of regulatory fire might find strong representation. In the boroughs the landlords of insanitary housing and the purveyors of adulterated food, in industrial areas the mill-owners and workshop proprietors, could muster a substantial presence, either personally or through their families and friends. The reports of the early factory and mine inspectors make clear how nakedly partisan the justices could be in resisting attempts at enforcing new legislation, even when its terms were clear enough.174 When agencies were given adjudicative powers, there was no sense that such a combining of executive and judicial functions might be constitutionally problematic; on the contrary, the ‘flexibility, continuity and relative political neutrality’ of the agencies were thought to make them ‘ideally constituted for the specialised purposes of dispute-resolution’, and charging them with this responsibility brought the added benefit that it would ‘preserve central control over the entire administration of the law’.175 As the century unfolded, however, the non-judicial tasks of the agencies were transferred to government departments, and their judicial tasks were vested in bodies which became known as ‘administrative tribunals’ and which themselves came to seem anomalous in time. One problem would be that ‘although their function was understood to be essentially similar to that of courts, they did not belong to the judicial branch of government and they were not staffed by judges who enjoyed security of tenure and salary protection.’176 It would also come to seem undesirable for adjudicative powers to be vested in anonymous civil servants who would typically exercise their powers in private and free from procedural regulation.177 d. Legal Accountability of the New Agencies The approach taken by the courts to enforcing the legal duties of a central government body depended on whether it was a ministry and therefore entitled to the exceptional legal 171 See pp 48–9. 172 See pp 293–94. 173 H Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in 19th-Century England (University of Toronto Press, 1985) 103–15. 174 See pp 295–96 and 488–89. 175 C Stebbings, Legal Foundations of Tribunals in the Nineteenth Century (Cambridge University Press, 2006) 63. 176 P Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016) 329–30. 177 Criticised in Lord Hewart, The New Despotism (Ernest Benn, 1929), as to which see p 95.

Part 1: Industrialisation 1750–1875 27 privileges which were conferred on ‘the Crown’, or whether, as a creature of statute, it had been given an independent existence as a ‘Board’. In the former case, the rule that the Crown could do no wrong continued to preclude suits against it entirely in the case of torts178 and created special difficulties in the case of repossession of land and breach of contract.179 Mandamus would not lie against the Crown to compel the performance of any duty. This was a shackle on any complete idea of a rule of law; but Crown servants were individually liable for legal wrongs which they committed, and in practice the Crown might be expected to indemnify them for liabilities they incurred although it was not vicariously liable for their actions as a matter of law.180 The Poor Law Commissioners, by contrast, were liable to the same general extent as local authorities and the limited range of functions of most central authorities made this difference less striking than might at first appear. Yet any body which was not the Crown had potentially to face a wider array of challenges. Nineteenth-century judges had no notion of administrative law, in its modern sense of a generalised set of rules governing the judicial review of executive decision-making, but they were prepared to pass judgment on the legality of many decisions, regulations and actions by agencies acting with statutory authority in particular contexts.181 Moreover, the decisions taken by those bodies which exercised adjudicative powers, such as the tithe and enclosure commissioners,182 were usually made subject to a right of appeal, and points of law could also be taken to the superior courts following an eighteenth-century precedent for statutory case stated from the commissioners for window and excise duties.183 e. A Golden Age of Experts? In the influential model of Victorian state growth proposed by the historian Oliver MacDonagh,184 an administrative unit (typically led by inspectors) was created only after a scandalous state of affairs had been revealed (emigrants exploited at sea, children in mines) and Parliament had made an ineffective attempt to abolish it by general legal prohibitions or the conferment of powers on local authorities. Once the bureaucracy was installed, it would assess the factors that would make for at least commonsense remedies. Soon it would find its legal powers in need of strengthening and so it might press for central direction that would bring with it ministerial responsibility for the operation. Eventually the new agency would work itself into a position where it had the power to establish a full administration, attacking the continuing problems by publicity, persuasion and, if necessary, prosecution; assembling statistics; initiating and following up technical advances; conducting 178 A plaintiff ’s only hope was an ex gratia payment, and this did not change until the Crown Proceedings Act 1947. 179 The proceeding was by petition of right and needed the fiat of the Attorney-General. It was somewhat improved by the Petitions of Right Act 1860. The procedure for a declaration only became general in the present century. 180 The Crown remained protected from vicarious liability until 1947, whereas other governmental bodies became subject to it in 1866. In the case of mandamus not even a Crown servant could be compelled to perform a duty owed solely to the Crown: R v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313, 319. 181 See Stebbings (2006) (n 175) 229–72; S Anderson, ‘Judicial Review’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). 182 For which see pp 141–42 and 146–47. 183 C Stebbings, ‘The Appeal by Case Stated from Determinations of General Commissioners of Income Tax’ (1996) 8 BTR 611; Stebbings (2006) (n 175) 237–50. 184 MacDonagh, ‘Nineteenth-Century Revolution’ (n 122); applied in his A Pattern of Government Growth: The Passenger Acts and their Enforcement (MacGibbon & Kee, 1961).

28 Institutions and Ideas e xperiments that might lead to new general policies. By this stage a new breed of administrator would have emerged, equipped with a specialised professional expertise. MacDonagh’s analytical framework once enjoyed a considerable vogue among historians of the nineteenth-century state, but since the 1980s the scholarship has moved in new directions,185 partly as a result of the cultural and linguistic turns which have been taken in the literature, partly perhaps as scholars’ own attitudes towards government and its activities have changed, from the optimism and trust engendered by the post-WWII welfare state to the scepticism or hostility towards big government of more recent times.186 It has also become more widely appreciated that the state ‘not only now acts, but has always acted through a complex series of partnerships with other public or private bodies, more or less formally constituted’.187 So one cannot understand the Victorian state without locating executive activity in a wider ‘mixed economy of provision’.188 MacDonagh and historians working in his tradition have also been criticised for presenting the new bureaucrats’ expertise in an uncritically positive light,189 while remaining ‘largely indifferent or oblivious to any potentially negative implications’ of their self-sustaining nature – identified by Max Weber and other social scientists as ‘constraining upon both individual [administrators] and their changing political “masters” alike.’190 f. Local Government The years after the First Reform Act saw the enactment of measures that diminished the role played by justices of the peace as instruments of government. The Poor Law Amendment Act 1834 relieved them of responsibility for adjudicating settlement cases under the old poor law and created a central Poor Law Commission to oversee the national operation of the new one. The Municipal Corporations Act 1835 stripped them of their executive responsibilities in the boroughs, and at the same time reformed the borough benches: the power to appoint magistrates was removed from the corporations and vested in the Crown; municipal corporations were also empowered to ask for stipendiary rather than lay magistrates.191 In the shires, local government would remain headed by Quarter Sessions until the creation of elected county councils in 1888,192 but the appearance of modern police forces between 1829 and 1856 introduced new prosecutors and left the justices in 185 But note C Mills, Regulating Health and Safety in the British Mining Industries, 1800–1914 (Ashgate, 2010). 186 As contended in MJ Wiener, ‘The Unloved State: Twentieth-Century Politics in the Writing of Nineteenth-Century History’ (1994) 33 JBS 284. 187 J Innes, ‘Forms of Government Growth, 1780–1830’ in D Feldman and J Lawrence (eds), Structures and Transformations in Modern British History (Cambridge University Press, 2011) 76. 188 A phrase used in G Finlayson, Citizen, State, and Social Welfare in Britain 1830–1900 (Oxford University Press, 1994). 189 eg R MacLeod (ed), Government and Expertise: Specialists, Administrators and Professionals, 1860–1919 (Cambridge University Press, 1988); RM Hartwell, ‘Entrepreneurship and Public Enquiry: The Growth of Government in in Nineteenth-Century Britain’ in FML Thompson (ed), Landowners, Capitalists and Entrepreneurs (Clarendon Press, 1994). 190 Devereaux (n 149) 744–45. 191 Requests were usually granted and the Crown would then make appointments on the advice of the Home Secretary. 192 See pp 90–91. On the administrative structure of parish and county government during the early and mid- Victorian period, see S Anderson, ‘Local Government’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 445–66.

Part 1: Industrialisation 1750–1875 29 a supervisory role,193 and their responsibility for local gaols went to the national system in 1877.194 The Municipal Corporations Act 1835 is often characterised as a partisan Whig measure designed to break Tory control of borough corporations, redistribute their patronage and reduce their influence on parliamentary elections. There is truth in this, but it is also true that many contemporaries believed borough corporations to be self-serving, unrepresentative oligarchies.195 The statute reduced their legal powers,196 and introduced a new franchise, giving the vote to male householders resident within seven miles of the borough who had paid the poor rate for three years – a requirement introduced to pacify cabinet dissenters which resulted in a municipal electorate that was actually smaller in some places than the parliamentary borough electorate, despite the absence of a minimum property qualification; in practice only the most settled and respectable could meet it.197 The municipal franchise was later extended to other ratepayers, including women in 1869, although married women still could not qualify because the common law deemed them incapable of owning land,198 a state of affairs that continued until the enactment of the Married Women’s Property Act 1882.199 The extension of the municipal franchise led to a change in the social profile of corporation membership, and to the growing participation of women in local government affairs, trends which contributed to the emergence of ideas about the different spheres of central and local government, but which in the long run would undermine the arguments of those who wished to exclude women from the Parliamentary franchise.200 g. Legal Relations Between Central and Local Government The growth of representative democracy and increase in central and local government power gave added point to the question of where the balance of power lay between them. Corporations and parishes resisted impositions if they could find the legal means

193 See pp 570–73. 194 See pp 562–63. 195 GBAM Finlayson, ‘The Municipal Corporation Committee and Report, 1833–35’ (1963) 36 BIHR 36; GBAM Finlayson, ‘The Politics of Municipal Reform, 1835’ (1966) 81 EHR 673; J Phillips, The Great Reform Bill in the Boroughs: English Electoral Behaviour 1818–1841 (Clarendon Press, 1992) 42–44; P Salmon, Electoral Reform at Work: Local Politics and National Parties, 1832–1841 (Boydell Press, 2002) 211. 196 For details, see Anderson, ‘Local Government’ (n 192) 425–45. 197 Salmon (n 195) 219–21. 198 Municipal Franchise Act 1869; R v Harrald (1871) LR 7 QB 361. Comparative discussion in B Bader-Zaar, ‘Rethinking Women’s Suffrage in the Nineteenth Century’ in KL Grotke and MJ Prutsch (eds), Constitutionalism, Legitimacy, and Power: Nineteenth-century Experiences (Oxford University Press, 2014). 199 On which, see B Griffin, ‘Class, Gender and Liberalism in Parliament, 1868–1882: The Case of the Married Women’s Property Acts’ (2003) 46 HJ 59. And see further pp 376–80. 200 Themes explored in B Weinstein, ‘Local Government’ in D Brown et al (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018). See too P Hollis, Ladies Elect: Women in Local Government, 1865–1914 (Oxford University Press, 1987); KY Stenberg, ‘Working-Class Women in London Local Politics, 1894–1914’ (1998) 9 TCBH 323. On the nature of ‘political’ activity by nineteenth-century women, see: K Gleadle, Borderline Citizens: Women, Gender and Political Culture in Britain, 1815–1867 (Oxford University Press, 2009); S Richardson, The Political Worlds of Women: Gender and Politics in Nineteenth Century Britain (Routledge, 2013).

30 Institutions and Ideas of doing so.201 And in any case the most that Parliament would often do was to enact permissive legislation that empowered local authorities to take action at their own discretion;202 time and again the result was inaction or the keenest parsimony,203 which neither central government nor potential beneficiaries could impugn. Relations between central and local government went beyond issues of duty versus discretion, however. An elaborate notion of accountability by law was beginning to affect both the collection of revenue through taxes and rates, and its disbursement. Until 1833, the Treasury’s methods had retained a cumbersome, pre-banking character, but the system of collection and expenditure was then placed under the careful administration of a Comptroller-General, who presented regular accounts to Public Accounts Commissioners.204 Moneys collected for the consolidated funds were held by the Bank of England and disbursed on the Comptroller-General’s authority, he being responsible for seeing that it was employed only for purposes sanctioned by Parliament. These were developed by Gladstone’s financial reforms into the modern institutions of Comptroller and Auditor-General and Public Accounts Committee of the Commons.205 Eighteenth-century practice, which had allowed paymasters and money-holders to put funds to personal use until they were paid out, was replaced by severe scruple at all stages. To bring the many local authorities under financial scrutiny was not an easy undertaking. It was, for example, essential to the policy embodied in the Poor Law Amendment Act 1834 that a new degree of financial control should be given to the Poor Law Commissioners (then Board) over the guardians of the poor law unions: the crucial elements of audited accounts and personal liability to surcharge for amounts spent on unauthorised purposes (such as toys for workhouse children) were part of the original scheme.206 These elements were then strengthened: the justices lost a right of alleviation in 1844; the Board itself, as an alternative to the courts, became a tribunal of appeal in 1848; and in 1868 it acquired the power to appoint the district auditors, who in 1879 became civil servants under the Local Government Board.207 By then they had acquired the audit of local education and sanitary authorities and were additionally given similar powers over the new county councils and district councils in the 1880s and 1890s.208 Only the municipal corporations, perhaps because their basic reform came as early as 1835, stayed partly beyond the reach of central audit. The new corporations had been subjected to statutory limits upon their purposes, but they retained the right to elect their own auditors.209 The stick of central audit did reach them to the extent that they bit the carrot of central-local relations: the 201 eg certiorari lay to quash an order of the Poor Law Commissioners requiring the establishment of a Board of Guardians, when the existence of such a board already precluded their power: R v Poor Law Commissioners for England and Wales, Re St Pancras Parish (1837) 6 Ad & E 1. 202 J Prest, Liberty and Locality: Parliament, Permissive Legislation, and Ratepayers’ Democracies in the Nineteenth Century (Clarendon Press, 1990). 203 TS Aidt, M Daunton and J Dutta, ‘The Retrenchment Hypothesis and the Extension of the Franchise in England and Wales’ (2010) 120 Economic Journal 990: extension of the municipal franchise to the urban middle classes resulted in a diminution of spending on health-related urban amenities for which ratepayers would not pay. 204 Exchequer Receipt Act 1834. 205 Exchequer and Audit Departments Act 1866. 206 Exchequer Receipt Act 1834, s 15. See S and B Webb, English Local Government vol 8: History of the Poor Law (Longmans, Green & Co, 1929) 210–14. 207 Poor Law Amendment Act 1844, s 37; Poor Law Procedure Act 1848, s 4; Poor Law Amendment Act 1868, s 24; District Auditors’ Act 1879. 208 Local Government Act 1888, s 71(3); Local Government Act 1894, s 58. 209 The position survived until 1972.

Part 1: Industrialisation 1750–1875 31 grant-in-aid. First applied to promote simple popular education in the 1830s,210 it became a regular factor in other programmes of positive action from the 1850s onwards. It was introduced then for local police forces and brought with it not only financial inspection by central audit but substantive inspection for ‘efficiency’.211

E. The Court System i. Central and Local Elements a. Jurisdictions Tables 1.1, 1.2 and 1.3 appear on the next pages. They give an impression of the range of court systems around 1800 and the extent to which they changed during the nineteenth century. Civil and criminal jurisdictions are presented separately, for, despite some awkwardnesses of fit, this had become the basic distinction in the minds of lawyers. The constitutional struggles of the seventeenth century had put paid to any structural division between private rights defined by common law and a ‘public law’ by which government might employ a dispensing power to override those rights. The presence of the common law judges at the centre of both the civil and the criminal jurisdictions is a first feature of the whole. They had long played a key role in English government, since the time when Norman and Plantagenet kings had sent out pairs of judges on twice-yearly circuits to the County Assizes. The eighteenth-century monarchs and princes on the European continent faced grave difficulties in extending their law and authority throughout their realms.212 By contrast, the Hanoverian Kings inherited a judicial system which encompassed both England and Wales. The accommodation with Scotland, while leaving the Scots judicature intact, had also placed it under the ultimate sovereignty of Parliament and there, at least after 1750, the rule of the Highland chiefs gave place to the King’s law.213 Ireland was the case apart. But the Irish problem was not one of competition between judicial systems; it was the much graver difficulty of securing English authority, including its legal institutions, against ever-brewing insubordination. There were three common law courts: King’s (or Queen’s) Bench, Common Pleas and Exchequer.214 Each consisted of a chief justice and three puisne judges.215 There was also the Court of Chancery, composed simply of the Lord Chancellor and, beneath him, the Master of the Rolls, until in 1813 a Vice-Chancellor was added. There were therefore very few judges by comparison with the large ranks of career judiciary that could be found in the civilian legal systems of Europe. This difference of structure dated from the thirteenth century when the civilians had first developed a system of inquisition by judge as 210 See pp 413–14. 211 See pp 572–73. 212 eg HE Strakosch, State Absolutism and the Struggle for the Rule of Law: The Struggle for the Codification of Civil Law in Austria 1753–1811 (University of Sydney Press, 1967) 7–14. 213 Subject, that is, not only to the enactments of the Westminster Parliament but also to a final right of appeal from the courts to the House of Lords (as was Ireland). 214 The Court of Exchequer exercised an equitable as well as a common law jurisdiction until 1841: Court of Chancery Act 1841, s 1. 215 Known in the Court of Exchequer by the titles of Chief Baron and Baron.

LOCAL COURTS manorial Courts Baron (J)

borough and market

Courts Leet (J)

Borough Courts

CENTRAL COURTS

CIVILIAN COURTS

House of Lords

Court of Delegates (–1833) JC of Privy Council (1833–)

Courts of Requests

Special Franchises

regional

Exchequer Chamber Exchequer (till 1841)

common law

County Palatine and Welsh Courts (J)

justices

King’s Bench

Exchequer

Quarter Sessions Common Pleas

special purpose Commissioners of Sewers

Other

Lord Chancellor

ViceChancellor

maritime

ecclesiastical

equity

Provincial (Canterbury, York)

Master of the Rolls

Bishop

Assizes at Nisi Prius (J)

32 Institutions and Ideas

Table 1.1 Main courts and other bodies dealing with non-criminal disputes

Admiralty

Prize

London Consistory

Archdeacon

Petty Sessions

KEY Limited appeal (writ of error from courts of record, certiorari from other courts)

ARBITRATION statutory

regular body

Rehearing Referral for trial

ad hoc

Case stated (J)

Trial by jury

Table 1.2 Courts and tribunals dealing with non-criminal disputes after 1880 LOCAL COURTS

CENTRAL COURTS House of Lords

Court of Appeal (after 1934) general

County Courts (J) (un til 1

Chancery Division

Queen’s Bench Division 934 )

Single Judge (J)

DC

Single Judge (J)

DC

Probate, Divorce and Admiralty Division Single DC Judge (J)

(as prescribed in statute) justices: specific non-criminal jurisdictions

Arbitration

Petty Sessions

Special Tribunals KEY

DC (J)

Divisional court High Court Empowered to try with a jury Appeal by rehearing

Statu- Regula- Ad tory tory Hoc

Appeal by right or with leave Appeal by case stated Removal by certiorari

Part 1: Industrialisation 1750–1875 33

Quarter Sessions

High Court of Justice

Supreme Court of Judicature

34 Institutions and Ideas Table 1.3 Main criminal courts in the nineteenth century Meeting of common law judges (–1848)

Court of Crown Cases Reserved (1848–)

King’s Bench

Assizes (J)

Quarter Sessions

(J)

Information (misdemeanours)

Grand Jury

Indictment upon Depositing to Magistrate

Coroner’s Inquest into death (J)

KEY Removal by certiorari or writ of error (to 1858) Review by case stated thereafter Reference of case at court’s discretion Pre-trial procedures (J)

Trial by jury Rehearing

No (J)

Petty Sessions

Part 1: Industrialisation 1750–1875 35 the form of trial, while the English common law had built up the system of jury trial.216 To continental observers, the resulting divergence gave the English system the appearance of a marvel, a conjuring trick made possible only by constant resort to lay participation, not only in the form of juries, but also through the benches of justices of the peace.217 b. Juries The jury was England’s longest surviving instance of government by rotation. By the 1700s it had assumed various forms: the trial jury of 12, which is our prime concern; the grand jury of 12 or sometimes many more members, which presented serious crimes for trial; the coroner’s jury, which considered cases of suspicious death;218 and juries of presentment, which investigated neglects and nuisances before local courts. The trial jury had undergone a process of change: the medieval jury, which at least to some extent had decided cases of its own collective knowledge,219 had given place to a body which decided (still unanimously) upon evidence given before it in court. The jury still allowed the law to remain close to local sentiment. Common jurors, who tried the general run of cases, might include shopkeepers and agricultural labourers,220 men well below the ‘esquires, merchants and bankers’ of a special jury.221 However, the possibility that either side, in misdemeanour trials as well as civil proceedings, might require a special jury suggests one way in which there was scope for social manipulation in the system.222 And since juries tried cases under the direction of a judge or bench of justices, there was also room for influence on their deliberations and even in some instances the power to refuse to accept their verdict.223 The greater wonder was that the jury continued as a necessary element in all trials at common law. In 1670, the Court of King’s Bench had held that juries should no longer be liable to attainder for refusing to convict a person accused of crime.224 And this sovereign power of acquittal, together with habeas corpus, soon became elemental to the liberty of the free-born Englishman, envied by Montesquieu and proudly proclaimed by Blackstone and many others.225 In criminal cases it seems that there was ‘widespread and routine jury mitigation or nullification of the harshness of eighteenth-century penal legislation’; and 216 For a structural and political explanation of the divergence, see JP Dawson, A History of Lay Judges (Harvard University Press, 1960) esp 129–36. 217 Compare Sydney Smith’s view that there was no substitute for the unpaid magistracy since a ‘set of rural judges, in the pay of the government, would very soon become corrupt jobbers and odious tyrants, as they often are on the continent’: (1826) 44 Edinburgh Review 441. 218 P Polden, ‘Coroners and their Courts’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010). 219 The extent to which this occurred is controversial; the literature is reviewed in D Klerman, ‘Was the Jury Ever Self-Informing?’ (2003) 77 Southern California Law Review 123 (answering with a qualified ‘yes’). 220 The standing of assize jurors was generally higher than at Quarter Sessions: E Halévy, A History of the English People in the Nineteenth Century, vol 1: England in 1815 (Ernest Benn, 1949) 112–15. Until 1825, the qualification to be a common juror was obscure, being left largely to petty constables and under-sheriffs. Under the Juries Act 1825, s 1, common jurors had to occupy premises of £20 annual value (£30 in London and Middlesex). 221 The judges did not allow special juries in the most serious criminal cases – treason and felony. 222 Hence the widespread allegations of jury-fixing in the sedition trials of the 1790s; see eg J Bentham, Elements of the Art of Packing as applied to Special Juries (Effingham Wilson, 1821); see p 15. 223 For the development of such controls, see pp 14 and 196. 224 Bushell’s Case (1670) 6 St Tr 999, Vaughan 135. 225 TA Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (University of Chicago Press, 1985) ch 6.

36 Institutions and Ideas even after this severity was mitigated by reforms of the 1820s, 30s and 40s, there continued to be ‘“partial” verdicts to push criminality under low capital thresholds, or merciful acquittals in the face of overwhelming evidence’.226 The nineteenth century was to make the deployment of juries more selective. The jury system was gradually confined to the trial of the most serious criminal offences, together with those in the medium range where the accused (or sometimes the prosecution) was not content with summary trial before magistrates.227 Special juries lost their importance,228 but common juries continued to be selected by a householder property qualification. This was relatively radical when set in 1825 by Peel’s reforming legislation but had taken on an anti-democratic air long before its abolition in 1971.229 In civil litigation a gradual preference emerged for the Chancery mode of trial – by judge alone, with appeal to further judges; but this happened mostly after 1875.230 c. Justices of the Peace The office of justice of the peace, established by the fourteenth century, had become in postfeudal England a prime institution of the governing class. Compared even with juries, the justices were a body remarkable for their independence. In social origin they were drawn primarily from the social apex,231 particularly in the counties where squirearchy and clergy predominated.232 In the towns, they might come from lower ranks and might even be degraded to the level of London’s corrupt ‘trading justices’;233 as the new manufacturing and industrial regions developed, the mill- and mine-owners would also be drawn onto benches, to continue there the hostilities over discipline and conditions that infected many workplaces.234

226 K Smith, ‘Criminal Law’ in WR Cornish et al, The Oxford History of the Laws of England: vol XIII: 1820–1914 Fields of Development (Oxford University Press, 2010) 118. 227 See pp 599–600. 228 JC Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform’ (1987) 8 JLH 148. 229 WR Cornish, The Jury (Allen Lane, 1968) 26–27. Even more strikingly, the use of qualificatory standards restricted to European minorities when the jury system was exported to the colonies meant that it was often viewed by the colonised as an instrument of arbitrary authority and racism: R Vogler, ‘The International Development of the Jury: The Role of the British Empire’ (2001) 72 Revue internationale de droit penal 525. In England there were regional variations in the methods by which jurors were selected; steps to eliminate these were prompted by the introduction of women jurors following the enactment of the Sex Disqualification (Removal) Act 1919: K Crosby, ‘Keeping Women Off the Jury in 1920s England and Wales’ (2017) 37 LS 695; K Crosby, ‘The Jury Franchise and Ideals of Citizenship in Interwar Britain’ (2019) 37 L&HR 163. 230 M Lobban, ‘The Strange Life of the English Civil Jury, 1837–1914’ in J Cairns and G Mcleod (eds), ‘The Dearest Birth Right of the People of England’: The Jury in the History of the Common Law (Hart, 2002); C Hanly, ‘The Decline of Civil Jury Trial in Nineteenth Century England’ (2005) 26 JLH 253. 231 The Justices Qualification Act 1731 imposed the property qualification of an annual income of £100, which would remain until 1906. The appointment lay with the Lord Chancellor – for the counties, on the recommendation of the Lord Lieutenant; for the boroughs, on the corporation (until 1835). 232 On composition, see E Moir, The Justices of the Peace (Harmondsworth, 1969) chs 4–7; Eastwood (1994) (n 125) ch 4; Polden, ‘Justices of the Peace’ (n 127) 907–13. The number of clergy appointed as JPs decreased after the 1830s, as the Church authorities became concerned over the possible incompatibility of their pastoral and penal roles: WM Jacob, The Clerical Profession in the Long Eighteenth Century 1680–1840 (Oxford University Press, 2007) 233–34. 233 N Landau, ‘The Trading Justice’s Trade’ in N Landau (ed), Law, Crime and English Society 1660–1830 (Cambridge University Press, 2002). 234 R Swift, ‘The English Urban Magistracy and the Administration of Justice During the Early Nineteenth Century: Wolverhampton 1815–1860’ (1992) 17 Midland History 75; D Hay, ‘England, 1562–1875: The Law and Its Uses’ in D Hay and P Craven (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 (University of North Carolina Press, 2004) esp 98–101 and 105–09. See too pp 285–88.

Part 1: Industrialisation 1750–1875 37 The first concern of these magistrates was with the command structure of social control, over outbursts of rioting as well as day-to-day crime.235 They were the representatives of civil power when armed force was called in, the supervisors of police, the main prosecuting authorities, and often enough the judges. At their Quarter Sessions they sat with a jury to try serious offences which did not carry a mandatory death sentence. In their own localities they came to sit, mainly in pairs, to dispense summary justice at what became known as petty sessions; out of sessions, they would also dispense summary justice from their own homes, ‘amateur, untrained, and questionably impartial’.236 The eighteenth century saw a shift in the focus of Quarter Sessions business, as the resolution of interpersonal quarrels was pushed down to individual justices and Quarter Sessions became taken up with the prosecution of property crimes, and with more ‘administrative’ matters: implementation of the poor law, oversight of prisons and lunatic asylums, upkeep of roads and bridges.237 In the nineteenth century they continued to play a central role in the administration of criminal justice, and a large increase in the number of summary offences in the 1840s created pressure for reform of their courts. Some steps were taken by Jervis’s Acts of 1848–49, which laid down a code of procedure and opened up the courts to the public.238 Meanwhile, the justices were beginning to shed many of their administrative functions, and by the end of the century the magistracy had evolved into a primarily judicial office.239 In London and a few other cities, the lay justices were replaced or supplemented by stipendiary magistrates, who came to be drawn from the bar.240 But, for all the antagonism that lay justices aroused from time to time, the movement towards professional substitutes never became significant. In 1919, women were brought into the system, where they found new opportunities for active citizenship and were instrumental in the creation of a separate criminal justice system for juveniles.241 The lay magistracy proved to be the least transferable of all English institutions of government, but at home it has shown great resilience and is still used today, not only in minor administrative- cum-judicial tasks, such as issuing warrants of arrest and liquor licensing, but also to conduct the bulk of criminal business and to exercise important jurisdictions over family matters and landlord–tenant relations.242 For most of their history, the selection of benches was hidden and undemocratic, and the nature of the institution, requiring substantial, intermittent, unpaid service, ensured that whatever the party affiliations of the magistrates, they were strong in loyalty among themselves and towards the police and others who ran local services.

235 See the early chapters of R Vogler, Reading the Riot Act: The Magistracy, the Police and the Army in Civil Disorder (Open University Press, 1991). 236 Polden, ‘Justices of the Peace’ (n 127) 925–26. On their judicial functions, see too RS Tompson, ‘The Justices of the Peace and the United Kingdom in the Age of Reform’ (1986) 7 JLH 273; Eastwood (1994) (n 125) ch 8; P King, ‘The Summary Courts and Social Relations in Eighteenth-Century England’ (2004) 183 P&P 125. The justices also settled many interpersonal quarrels about assault, etc, by informal arbitration: see pp 280 and 515. 237 On this side of the justices’ activities, see pp 19–20. 238 Indictable Offences Act 1848, Summary Jurisdiction Act 1848, Justices Protection Act 1848, Petty Sessions Act 1849; discussed in D Freestone and J Richardson, ‘The Making of English Criminal Law: (7) Sir John Jervis and His Acts’ [1980] Crim LR 5. 239 See pp 28–9. 240 RM Jackson, ‘Stipendiary Justices and Lay Magistrates’ (1946) 9 MLR 1. 241 AFH Logan, ‘Making Women Magistrates: Feminism, Citizenship and Justice in England and Wales, 1918–1950’ (PhD thesis, University of Greenwich, 2002); available at: http://gala.gre.ac.uk/6229. 242 See pp 150, 184–87 and 369.

38 Institutions and Ideas d. Judges The royal judges had to be men of high social rank, for their task was to carry central authority to the shires and county benches where the great landowners sat on their commissions. For Victorian advocates of self-improvement, the judges were the shining exemplars of social ascent, men who by their determined brilliance had risen from humble to noble rank, through the bar to the bench. Abbott, Lord Tenterden, was the son of a Canterbury barber, Copley, Lord Lyndhurst, the son of an American painter, and above all the Scott brothers, Lords Stowell and Eldon, the sons of a Newcastle coal merchant. But in the period 1760–1832, they were a small minority, and most judges came from landed and professional families. It would have been remarkable had it been otherwise. Those who acquired highest office were expected to buy an estate commensurate with their station;243 and they all had to display the social accomplishment befitting their place. Perhaps of more interest is that, in the ensuing 75 years, the judiciary was increasingly drawn from middle-class stock, the proportion from professional (particularly legal) backgrounds increasing to 60 per cent, those from the landed class giving way to those from the entrepreneurial class.244 The polite professions of the eighteenth century – the church and the armed services – remained the preserves of the old upper ranks for a much longer time. Since the appointment of judges was to remain a matter for government, the upper benches were largely inhabited by men who had participated in political life. Those who filled the ‘political’ judgeships – the Lord Chancellorship and the Chief Justiceships – had often served as Law Officers of the Crown.245 Many puisne judges were former MPs or Parliamentary candidates, although this may have been because they sought political office as a stepping stone to judicial appointment. Throughout the 1700s and 1800s, they were more likely to be preferred when their own party was in power.246 Even after 1875, the s prinkling of mediocre Tories among Lord Halsbury’s judicial appointments aroused criticism in and

243 FML Thompson, English Landed Society in the Nineteenth Century (Routledge & Kegan Paul, 1963) 51–58. Details of the judges’ wealth are in D Duman, The Judicial Bench in England 1727–1875: The Reshaping of a Professional Elite (Boydell & Brewer, 1982) 126–34; and for their earnings on the bench: 117–26. In 1750, the puisne judges earned a salary of £1,000 and fees from suitors; gradually the former was increased and in 1825 set at £5,500 (£5,000 in 1832); at the same time, the fee element was removed. The Chief Justices, and even more, the Lord Chancellor, earned more from both sources but in addition held the appointment to many offices. This patronage largely disappeared in 1825. In 1832, the Lord Chancellor received £10,000 (and £4,000 as speaker of House of Lords), the Chief Justices £8,000). On salaries, see too P Polden, ‘The Judiciary’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 985–86. 244 D Duman, ‘A Social and Occupational Analysis of the English Judiciary, 1770–90 and 1855–75’ (1973) 17 AJLH 353; Duman (1982) (n 243) chs 3 and 4. Also of interest is that many early and mid-Victorian judges were much younger than their modern counterparts, contrary to the ‘popular impression of Victorian office-holders … that they were elderly’: RFV Heuston, ‘Judicial Law Making in Victorian England’ (1988) 12 Holdsworth Law Review 16, 19. 245 JL Edwards, The Law Officers of the Crown (Sweet & Maxwell, 1964) ch 5; Duman (1982) (n 243) 87–88. Lord Mansfield (for substantial periods) and Lord Ellenborough (briefly) were both members of Cabinet while Chief Justice of King’s Bench; thereafter, as the Cabinet acquired its modern significance, only the Lord Chancellor was a member. The tradition (never a strict convention) that the Chief Justiceship of the King’s Bench (later the Lord Chief Justiceship) would be offered to the Attorney-General of the day survived into the twentieth century. But the manipulation by which the office was kept for Sir Gordon Hewart (Attorney-General in 1921–22) damaged the notion of judicial independence: AT Lawrence J took the office pro tem, after signing in advance his letter of resignation. 246 D Lemmings, ‘The Independence of the Judiciary in 18th Century England’ in P Birks (ed), The Life of the Law (Hambledon Press, 1993); D Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford University Press, 2000) 271–92. Of 139 judges appointed in the period 1832–1906, 80 had been MPs and another 11 candidates: HJ Laski, Studies in Law and Politics (George Allen & Unwin, 1932) 168–69. Of these 61 held seats at the time of appointment. See too Polden, ‘Judiciary’ (n 243) 971–78.

Part 1: Industrialisation 1750–1875 39 beyond the legal professions,247 and as late as 1956, ‘a quarter of all the senior judiciary had either been MPs or Parliamentary candidates.’248 Yet the idea inexorably took hold that judges should stand above and apart from politics and the business of government, legal technocrats who should avoid comment on political issues and who should be entitled in turn not to be criticised by politicians. And even in the nineteenth century, political affiliation must be ranked a secondary factor, below the homogenising influences of social class and professional experience.249 These elements of common background were shared by the new ranks of judges, since appointments to the County Courts (after 1846) and to the courts of empire were also invariably made from the ranks of the barristers. They formed a body of men whose common training, outlook and mutual loyalty played a key part in the development of the common law – though in an age of strong judicial personalities, the combativeness, exhibitionism and idiosyncracies of some could antagonise their judicial brethren and aggravate counsel.250 e. Judicial Law-Making Under the evolving doctrine of Parliamentary sovereignty agreed in 1689, legislation took primacy as a source of law,251 though there was scope for judicial policymaking through the interpretation of statutes (subject to Parliament’s sovereign power to override judicial interpretations by statutory amendment).252 Furthermore, Parliament did not become a regular source of general law through legislation until the nineteenth century,253 and before then the chief burden of propounding the general law continued to fall on the judges. They teased it out of customary expectations and their own earlier decisions, adding twists and refinements as they felt the need. It can be easy for modern lawyers to misperceive the nature of judicial law-making before the mid-nineteenth century because the doctrines of judicial precedent and stare decisis with which we are now familiar are Victorian rationalisations of past practice.254 In earlier times, the courts would seek out and follow precedents when it suited them, but they did not always do so, and were always apt to justify their decisions by the invocation of moral precepts, references to customary practice, or a weighing-up of utilities, in pronouncements which were thought not to create new law but to ‘express what 247 They were by no means all bad. According to RFV Heuston, Lives of the Lord Chancellors, 1885–1940 (Oxford University Press, 1964) ch 5, seven out of 30 appointments to the High Court were ‘dubious’. 248 Stevens (2002) (n 73) 153, n 33. 249 M Lobban, ‘The Politics of English Law in the Nineteenth Century’ in P Brand and J Getzler (eds), Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times (Cambridge University Press, 2012) 106–12, rightly cautioning against simplistic assumptions about the judges’ political views and the impact of these on development of the law. 250 For an enjoyably gossipy account of this, see Polden, ‘Judiciary’ (n 243) 986–91. 251 MA Sieghart, Government by Decree: A Comparative Study of the History of the Ordinance in English and French Law (Stevens and Sons, 1950) 50: ‘acknowledgement of the subordinate nature of the Common Law was … the price paid by the Common Lawyers for their alliance with Parliament … to defeat the claims of the Monarch jure divino’. 252 WN Eskridge Jr, ‘All about Words: Early Understandings of the Judicial Power in Statutory Interpretation, 1776–1806’ (2001) 101 Columbia Law Review 990, 998–1009; Cane (n 176) 33–35. 253 For the patterns of eighteenth-century legislation, see pp 20–21. And for discussion of the nineteenth-century legislative process, see S Anderson, ‘Parliament’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). 254 W Cornish, ‘Sources of Law’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1 820–1914: English Legal System (Oxford University Press, 2010) 44–52. On the emergence of the rule that the House of Lords was bound by its own previous decisions, see D Pugsey, ‘London Tramways (1898)’ (1996) 17 JLH 172.

40 Institutions and Ideas was already common throughout their jurisdiction – albeit dormant perhaps and awaiting the reviving embrace of a judicial declaration.’255 Impediments to development of the idea that binding rules could be derived from earlier court decisions were the paucity and often patchy quality of printed law reports, the House of Lords’ practice of settling disputes by vote rather than the articulation of reasons,256 and the absence of rules requiring the three common law courts to follow one another’s decisions – although in practice they usually did so by a convention based on ‘comity’.

ii. The Civil Courts a. Courts of Common Law The royal courts occupy the centre of Table 1.1. The three courts of common law had evolved as distinct institutions during the Middle Ages. So long as the judges and lesser officers lived by their fees, competition between the three, and with other jurisdictions, was a vital motive in their development as institutions and in the rules which they created to satisfy the demands of litigants. Acceptance of the central courts as a state service, funded out of general revenue as well as litigants’ fees, grew in the eighteenth century alongside notions of judicial independence. It produced a new frame of reference, one that was a necessary precursor to the unification of the legal system. Even so, the process of dismantling the offices of profit within the courts was to prove particularly laborious and costly.257 The royal courts had developed over a long period towards a balance between competition and cooperation. Common law actions had to be instituted in King’s Bench, Common Pleas or Exchequer and the initial, documentary stages of the litigation were a matter for that court alone, including the argument of preliminary points of law on demurrer.258 This took place during a law term before the court sitting as a bench of judges in Westminster Hall. However, the action was rarely tried there but was dealt with on an Assize circuit under the Nisi Prius system.259 The judge might be any one of the 12, not necessarily from the court of the proceedings; and the jury would be summoned to the Assize court from the county. If the result of the trial went on review,260 the case would pass back to its own court; but after that there was the possibility of a review by writ of error to a body drawn from the other judges.261 Maintaining the equilibrium of this bifurcated system was inherently difficult and depended upon two factors: the generation and recording of substantive rules and the development of formal procedures. The royal judges had begun the process of formulating a discrete common law of civil obligation – rules that applied between one individual and another as well as between Crown and subject – even before their courts emerged as bodies distinct from the Royal Council. In a world where legal rights were barely distinguishable 255 Cornish, ‘Sources’ (n 254) 45. 256 See JB Landau, ‘Precedents in the House of Lords’ (1951) 63 JR 222. 257 For a full account of these offices, distinguishing those which had become complete sinecures, see WS Holdsworth, A History of English Law, vol 1 (Methuen, 1922) 246–52 (common law) and 435–42 (Chancery); and many nineteenth-century official investigations. For the reform process, see P Polden, ‘The Superior Courts of Common Law’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 625–30. 258 See p 42. 259 Nisi prius: unless the case had already been heard at Westminster. 260 For the techniques, see p 42. 261 See pp 41–2.

Part 1: Industrialisation 1750–1875 41 from customs of the locality, there had been a novel self-consciousness about constructing rules that were common to the country, principles which would determine what were wrongful invasions of land and injuries to it, wrongful misappropriations of chattels and damage to them, wrongful interference with expectation, whether in the fulfilment of agreements or the maintenance of good reputation. The number of writs and bills available to commence a common law action was always limited and it was for the judges to determine what factual circumstances would justify an action under any one of them. This provided the other half of the restrictive process; the need to find a form of action gave that element of uniformity and certainty which is a necessary condition of a rule. The process made it natural for the common law to carry forward its settled rules into changed times where they might withstand pressures for alteration. Yet there was room for adaptations, as the resort to incontrovertible allegations and fictions of various kinds makes plain. The sufficiency of the formally pleaded case was the issue that could be raised before the full court on demurrer and the defendant who chose to raise it had to forego his trial with a jury on the merits.262 Before the age of print, sufficient pleadings were collected in pleading manuals and tutoring manuals, some of which were incorporated with other materials into what we now know as Year Books; from the sixteenth century they also featured in collections of private law reports. As jury trial gradually became the standard method of the common law courts, pleadings started to appear as its corollary. They recorded the allegation and the defence and as jurors became less and less likely to know anything personally of the merits, they came to be supported by evidence at the trial. The pleadings would pare down the area of contention between the adversaries and would (at least ideally) give notice of the disputed facts, which it would then be for one or other to make out if he could. However, a complex web of pleading rules developed in which the unwary could find themselves stuck,263 and dissatisfaction grew until the system was simplified by the Common Law Procedure Act 1852.264 The use of a jury to determine facts which could be brought together only with difficulty, and which might be illiterate, also held its own imperatives: the trial had to take place at one time, and to be as brief and as much in oral form as possible. As evidence came to be admitted and the skills of lawyers expanded from the drafting of pleadings to the examination of witnesses and the argument of cases to juries, there developed new refinements. Although the parties were allowed to speak and present their point of view, they were held to be incompetent as sworn witnesses, and so were others interested in the outcome of the suit.265 Rules, such as that against hearsay, would disallow evidence that a jury could not be trusted to weigh. Judges would not only direct the jury on the applicable law but would rule that certain issues were for them to decide as matters of law. Unsurprisingly these included all questions on the construction of documents: but there came to be many others, as judges felt a growing need to curb the sympathetic enthusiasms of juries.266

262 On development of the common law through the writ and pleading system, see JH Baker, The Oxford History of the Laws of England: Volume VI 1483–1558 (Oxford University Press, 2003) chs 17 and 18. 263 WS Holdsworth, A History of English Law, vol 9 (Methuen, 1926) 262–307. 264 Polden, ‘Superior Courts’ (n 257) 580–91. See further p 55. 265 Jeremy Bentham’s ridicule of the rules excluding all interested persons as sworn witnesses was the first p innacle of his critique of evidence law: J Bentham, An Introductory View of the Rationale of Evidence in Collected Works, vol 6 (William Tait, 1843) 487–89 and 506–17. 266 See p 196.

42 Institutions and Ideas That the corps of judges was so tiny reinforced the adversarial nature of litigation in the common law courts. The main initiatives in furthering an action or defence were not directed by the court but left to the parties; and so it was hazardous for a litigant to act w ithout professional assistance. Here was a natural environment for technical objections and procedural stratagems, choking, fee-sucking devices that were the bane of eighteenth-century litigation. Lord Mansfield, while Chief Justice of King’s Bench, sought to free the main branches of process; but under his successors, the parasitic growths crept back.267 Since costs had long been on an indemnity basis, the loser paying a large portion of the winner’s costs, a common law action was not worth risking for relatively small sums or injuries and was in any event beyond the means of most people. Litigation also became more complex for another reason. The traditional process, working towards a jury’s verdict, did not encourage the development of an appellate structure. To the written record of a suit, formed from writ and pleadings, objections in point of law lay initially by demurrer268 and this stage came to be open to higher review: the writ of error allowed argument of the same type to be put to a further body of the judges269 and from them error could be taken again to the House of Lords.270 The trial itself had no formal record that was open to the same challenge. Yet, as witnesses became a regular phenomenon, some corrective device seemed necessary to ensure that the growing body of procedural and evidential rules were applied and that the judge’s summing up on the evidence was good in law. From the late 1600s, a succession of techniques were tried, some operable only with the cooperation of the trial judge – notably the taking of a special verdict271 and the statement by him of a special case for the opinion of the full bench.272 One, however, namely the motion for a new trial, depended only on counsel raising an objection at the relevant point in the trial. These were important developments in the evolution of the common law towards a less formal process with a regular right of appeal on legal and procedural issues arising out of the trial. But in their eighteenthcentury forms, they prompted yet more factitious gamesmanship. While Blackstone could find the motion for a new trial a great improvement on any alternative, within a century

267 CHS Fifoot, Lord Mansfield (Clarendon Press, 1936) chs 3 and 8. 268 With time, it became possible to raise objections to the pleadings after the trial by means of a motion in arrest of judgment or for judgment non obstante veredicto, both before the full bench. Too often, it seems, these became devices for delay after losing at trial: see generally, R Sutton, Personal Actions at Common Law (Butterworth, 1929) 129–32. 269 In the case of Kings Bench and Exchequer, this body (the Court of Exchequer Chamber) consisted of the judges of the other two common law courts; in the case of Common Pleas error lay to the Kings Bench. In 1830, the three courts were put on the same footing, appeal lying to an Exchequer Chamber consisting of the judges of the other two courts: Law Terms Act 1830, s 8. 270 English appeals to the Lords were rare until the nineteenth century. To answer difficult questions, the Lords might seek the advice of all the judges. On the Lords generally, see AS Turberville, The House of Lords in the Eighteenth Century (Clarendon Press, 1927); AS Turberville, ‘The House of Lords as a Court of Law, 1784–1837’ (1936) 52 LQR 189; P Polden, ‘The Judicial Roles of the House of Lords and Privy Council, 1820–1914’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010). 271 This required the jury to answer a set of specific questions about the facts so that the full bench might rule on their actionability in law. It displaced the device of a demurrer to evidence: see eg Lickbarrow v Mason (1787) 2 TR 63, (1793) 4 Bro PC 57; Gibson v Hunter (1794) 6 Bro PC 235. 272 This followed upon the taking of a general verdict. One variant allowed the judge to take a verdict subject to argument upon a point reserved by him for the full bench; if this succeeded, a contrary verdict would in effect be substituted. This device limited counsel to arguing the specific point reserved.

Part 1: Industrialisation 1750–1875 43 Maule J would condemn it as ‘incomparably the worst’ mode ever invented of administering justice.273 b. Chancery: The Administration of Equity The Court of Chancery, which administered a distinct set of principles known as equity, was by the 1700s no longer a thrusting competitor of the common law courts. The Lord Chancellor had first acquired jurisdiction as the royal officer who reviewed petitions to the monarch, the ultimate fount of justice. In the Tudor and Stuart period, his responsiveness to the needs of the propertied private suitor had not only swelled his caseload (and concomitant fees) but had provided a major technique in stepping beyond bounds set by common law doctrine. From this process emerged such crucial ideas as the settlement of land and other trusts of property, and the mortgage as a security interest.274 Chancery also had its own prerogatives in the matter of remedies. It did not in general award monetary amounts; damages or debts due were for a jury’s verdict at common law. Instead Chancery directed its orders to the person of the defendant, and backed them by imprisonment for contempt: from this came the remedies of specific performance, rescission, rectification or cancellation of documents, and above all of injunction. Injunctions were in general prohibitory but could be mandatory. They were to give equity a significant place in the control of public authorities as well as private litigants.275 In the eighteenth century, equity was fast becoming a body of settled doctrine which formed an addendum to the substantive rules and remedies of common law. True, equity had the power to override common law where a difference arose. But this was no longer a matter of virulent contest as it had been under James I. The central courts did not need to jockey for constitutional position; within the new vision of statehood the common law courts had acquired an independent judiciary. Their interest, as well as that of the politically dependent Lord Chancellor, was to build interconnections between law and equity. It had become merely curious that equity could be applied in only the Chancery and Exchequer courts. The oddity, however, was structural. It would require a whole series of interstitial reforms before the administration of both could be brought under the single roof provided by the Judicature Acts 1873–75.276 Part of the structural difference lay in procedure. Chancery had not dealt with the severe limitations upon its judicial manpower by resorting to jury trial. Suits were in consequence likely to come before the Chancellor or Master of the Rolls at various stages, there being no trial in the common law sense to give focus to the whole.277 The court, moreover, delegated ministerial tasks such as the taking of accounts and the holding of trust funds to lesser officials, notably the Masters in Chancery.278 The processing of Chancery litigation was heavily dependent on the written record; the originating bill and subsequent pleadings held labyrinthine mysteries which gave reforming lawyers in the nineteenth century much 273 Blackstone (n 63) vol 3, ch 24; WF Finlason, An Exposition of Our Judicial System and Civil Procedure (Longman, 1877) 359. 274 See pp 120–24 and 129–30. 275 See pp 94–5 and 157–61. 276 See pp 56–7 and 91–2. 277 In 1813, a Vice-Chancellor was added, and in 1841, two more. From them, as from the Master of the Rolls matters could be reheard before the Chancellor. 278 There were also the Examiners, the Registrars and the notorious Six Clerks.

44 Institutions and Ideas cause for jocular impatience;279 and if litigation required evidence from witnesses, it was not heard in court but was commissioned: interrogatories (formal questions) were prepared by one party and notified in advance; the examiner or commissioner (outside London a local justice or person of similar standing) then recorded answers to them under oath. By the time of Lord Eldon’s Chancellorship (1801–1827), the court had become a byword for cost and delay, and even after decades of administrative and procedural changes, the court still had a ‘forbidding reputation’ in the 1860s, although by then ‘it was no longer a national scandal.’280 c. The Civilian Jurisdictions: Ecclesiastical and Admiralty The ecclesiastical courts, together with the Court of Admiralty, ranked as ‘civilian’, ie they applied rules and followed procedures that came originally from the canon and mercantile laws of continental Europe.281 In London at least, they were served by their own corps of professionals, the advocates and proctors of Doctors’ Commons,282 the judges for the various London courts being largely drawn from among the advocates. The number of ecclesiastical courts was large, for each archdeacon had his own court, and there were additional franchises (the peculiars), giving some 330 throughout England; above these came the courts of the bishops, then the Provincial courts of the Archbishops of Canterbury and York and finally the High Court of Delegates, acting in the name of the monarch.283 The medieval system of church courts had been reshaped only marginally by Henry VIII and had continued to exercise a wide jurisdiction over the spiritual and material life of the community at large, not merely over the clergy. Some aspects of this were essentially punitive.284 But the ecclesiastical courts also dealt with matters of church property, notably the vexing issue of tithes, and with matrimonial disputes and the probate of wills,285 so far as the estate consisted of personal property rather than freehold land. In the seventeenth century, the courts intervened actively in many disputes important to the equanimity and orderliness of local communities.286 A century later this interference was losing its vitality, but the probate business, most of it not immediately contentious, continued to provide the ecclesiastical courts with a regular function. It gave a steady flow of work to the proctors and advocates, lawyers who practiced in the courts and who looked anxiously on reform proposals fearing they might lose the work.287 There was also a jurisdiction 279 Lord Bowen, ‘Progress in the Administration of Justice during the Victorian Period’ in Committee of American Law Schools (ed), Selected Essays in Anglo-American Legal History, vol 1 (Little, Brown, 1907); A Birrell, ‘Changes in Equity, Procedure and Principles’ in WB Odgers (ed), A Century of Law Reform (Macmillan & Co, 1901). 280 P Polden, ‘The Court of Chancery, 1820–1875’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010) 691 (concluding a detailed account at 646–91). 281 For the evolution of the civilian jurisdictions and their history during our period, see Holdsworth, vol 1 (n 257) 544–68 (admiralty) and 598–632 (ecclesiastical); RB Outhwaite, The Rise and Fall of the English E cclesiastical Courts 1500–1860 (Cambridge University Press, 2006); P Polden, ‘The Civilian Courts and the Probate, Divorce, and Admiralty Division’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010). 282 For their qualification, see p 60. 283 But this simplified description disguises a web of intricacies. 284 See pp 517–18. 285 And grants to administer the estates of those dying intestate. 286 See p 48. 287 As became evident before the Ecclesiastical Court Commission, see its Report, (199) XXIV 1831–32; for the continuing opposition to reform and the eventual transfer of both probate and matrimonial causes away from the ecclesiastical courts, see pp 364–65 and also Polden, ‘Civilian Courts’ (n 281) 702–14; BG Hutton, ‘The Reform

Part 1: Industrialisation 1750–1875 45 in matrimonial disputes, although this was only of limited importance in the absence of judicial divorce in the modern sense.288 The Court of Admiralty administered the law of the sea. Its commercial jurisdiction had been roughly appropriated by the seventeenth-century common lawyers,289 but it survived with power to try cases on seamen’s wages, collisions and other torts at sea, salvage, droits (perquisites) of the Lord High Admiral in wrecks, and in wartime prize. Business boomed during the wars with France, but in peacetime the court became idle (hearing only 37 causes in 1832). Statutory changes beginning in the 1850s then increased its popularity again, helped along by the growth of British merchant shipping as international trade increased in the latter half of the century. d. Local and Special Courts On the left-hand side of Table 1.1 stand a plethora of institutions that defy real classification, let alone exhaustive description.290 At one pole are those which were in a sense regional substitutes for the central courts: the Great Sessions of Wales, a court of pleas established by Henry VIII as a bond in the complete union of Wales and England;291 and the Courts of Pleas and Chancery in the Palatinates of Durham and Lancaster.292 Among the jurisdictions for special purposes are courts which recur in different parts of the country, such as the courts of the various forests (here also the assize judges presided at the highest level); and the commissioners of sewers who oversaw the drainage of land and its protection from the sea. Other courts belonged to particular localities. London had its own hierarchy of sheriffs’ courts, mayor’s court, royal judge on commission and finally House of Lords. In Devon and Cornwall, the Stannary courts dealt not only with claims to mining rights but with disputes more generally in their communities. In Oxford and Cambridge, the University Chancellors held courts for civil suits involving members of colleges and others. At local level there were a multiplicity of courts, some lively, a great many moribund. The ancient communal courts of county and hundred had largely ceased to function, save in a few places.293 But the courts of the manors,294 once a key feature of feudal lordship, had

of the Testamentary Jurisdiction of the Ecclesiastical Courts, 1830–1857’ (PhD thesis, Brunel University, 2003); available at: https://bura.brunel.ac.uk/bitstream/2438/5389/1/FulltextThesis.pdf. 288 See pp 355–56. 289 Holdsworth, vol 1 (n 257) 568–73. 290 See further HW Arthurs, ‘“Without the Law”: Courts of Local and Special Jurisdiction in 19th Century England’ (1984) 5 JLH 130; P Polden, ‘Local Courts’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010). 291 As a court of record, it was subject to the supervision of King’s Bench by writ of error; and since the common law courts came to acquire coterminous jurisdiction in most instances it declined into a species of local court. Brougham and the first generation of reformers were particularly scathing about it and it was abolished in 1830: Holdsworth, vol 1 (n 257) 122–32. 292 In these courts there had long been a tendency to follow common law and equity, which with time had increased by appointing the central judges to the court of pleas: Holdsworth, vol 1 (n 257) 109–17. The third county palatine to survive was Chester, with its own Chief Justice who also sat in the Great Sessions of Wales. Its courts came under the same obloquy and were abolished at the same time. 293 Hence they are not included in Table 1.1. 294 Waddell (n 123). Manor courts originally comprised both courts baron (courts of claims) and courts leet (essentially local criminal courts), but with time the two had often become confounded.

46 Institutions and Ideas survived longer. One part of their jurisdiction was over the copyhold land in the manor, the court standing guardian of such customary rules as those determining inheritance and the lord’s right of heriot, and equally acting as register of transactions in the land.295 Alongside this there might also be a general court of the manor for civil suits. A borough was generally granted one or more courts under its charter and where the town itself continued to flourish, so in all likelihood did its tribunals.296 At the time of market or fair, there might still be a summary court of piepowder dispensing rapid justice to traders and customers. If the town was a port, it would have a court of admiralty to deal with a range of shipping and wharving disputes. The older institutions in the boroughs were often wanting. From around 1750 new courts began to be instituted by local Act. Commonly known as courts of requests or of conscience, they spread as local initiative dictated, hearing claims for small amounts, mostly debts, before a tribunal drawn from local merchants and other borough worthies, sitting without a jury. The courts were frequently directed by their statutes to try cases according to ‘equity and good conscience’ (rather than by common law); and even more importantly a ‘no certiorari’ clause made review by the King’s Bench possible only in rare cases. In this way there built up over the period to 1845 some 400 of these courts, all limited in their geographical jurisdiction, some limited to claims of £2, others of £5, a few of the latest to £10 or even £20. By the 1820s they handled some 200,000 cases a year (two and a half times the number heard by the superior courts).297 The commissioners in the courts of requests were largely the same, or very similar, men to those who sat on the borough benches: untrained and unpaid local worthies whose grasp of legal principle could be shaky and whose administration of justice could be high-handed.298 But while the justices would blossom in the nineteenth century into a still more significant lay tribunal, the courts of requests would be displaced by lawyers’ courts – the county courts, whose judges were drawn from the ranks of the bar. As we shall see, this marked a parting of the ways that was crucial to the Victorian reforms of judicature.299 Even before those reforms, the common law courts had sought to exert some control over the mass of local courts. Initially the prime motivation for this lay in competition for jurisdiction, which led the judges to remove cases wholesale for trial in their own courts. Writs existed, for example, by which a party could have a case in an ancient county or manorial court removed to Westminster; Blackstone blamed the decay of these courts

295 See pp 133–34. 296 The Tolzey Court of Bristol, the Liverpool Court of Passage, the Norwich Guildhall Court and the Salford Hundred Court were proud and much-used institutions which continued past the nineteenth-century reforms until 1971. A great miscellany of local courts were formally abolished at that juncture. 297 C Brooks, Lawyers, Litigation and English Society since 1450 (Hambledon Press, 1998) 41–42. A detailed picture can be found in the Court of Requests Return, PP 1839 (338) XLII. On the important role played by the courts of requests in the enforcement of small debts, see p 223; also MC Finn, ‘Debt and Credit in Bath’s Court of Requests’ (1994) 21 Urban History 211; MC Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2003) ch 5. For a well-known account of the Birmingham Court by a leading commissioner, see W Hutton, Courts of Requests: Their Nature, Utility and Powers Described (Pearson and Rollason, 1787). 298 Commissioners were generally required to satisfy a property qualification, the amount of which varied between localities. See eg B Keith-Lucas and F Lansberry, ‘Old Corruption: Government in the Boroughs’ in F Lansberry (ed), Government and Politics in Kent, 1640–1914 (Boydell Press, 2001) 80. 299 See pp 52–4.

Part 1: Industrialisation 1750–1875 47 on this very possibility.300 However, as the judges became concerned with the quality of their authority, rather than the amount of business before them, forms of intervention were fostered, in which judgments given by lower tribunals were scrutinised for errors of law or procedure. Within their own immediate sphere, we have seen how the common law courts expanded their supervision from review of the case as pleaded to review of it as proved; and how one major difficulty was to provide an adequate summary of events at the trial upon which to conduct a review that was not a retrial.301 The same dilemma arose in developing procedures for the review of inferior jurisdictions. Once the lower court’s judgment had been executed, a collateral action could be brought at common law alleging that the execution constituted a wrongful invasion of personal or property rights. This could serve to raise an objection that the lower court lacked any jurisdiction in the matter; but since the officers of the lower court were thereby exposed to personal liability, the tactic was reserved for blatant excesses. If the lower court was a court of record (as were, for instance, the market courts of piepowder) the writ of error lay to King’s Bench to raise errors of law that appeared on the face of the written record: and from other courts much the same result had been achieved by use of the prerogative writ of certiorari.302 Here too the search was often said to be for lack of jurisdiction; this was a counter-strategy against ‘no certiorari’ clauses in Acts of Parliament. There was a manifestly greater readiness to use certiorari rather than a collateral action as a medium of interference, whether put in terms of jurisdiction, action or error on the face of the record. The King’s Bench in Lord Mansfield’s time further expanded its scope by receiving affidavits from witnesses to the lower proceedings.303 In civil cases particularly,304 this became a significant way of acquiring an account of what had happened, since the ‘record’ below was usually elliptical, omitting any reference to the proof. This greatly increased the chance of imposing a standard interpretation upon a great host of statutory rules. But here, as elsewhere, too much came to depend upon the niceties of form. Opportunities proliferated for exhausting an adversary by stratagems of delay and cost, certiorari being notoriously expensive.305 The procedure applied even more to criminal than to civil process and its debilitating effects in the hands of the astute and unscrupulous will be discussed again in that context.306 The fear of central review spread to such an extent that Parliament was constantly being asked to introduce protection in this or that instance by means of the ‘no certiorari’ clause.307 Here was a prominent motive behind 300 Blackstone (n 63) vol 3, 33–37. 301 See p 42. 302 S Anderson, ‘Judicial Review’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010) 488–92. 303 R v Wakefield (1757) 2 Kenyon 164; R v Hitcham (Inhabitants) (1760) 2 Burr 910, 1035; cf R v Oulton (Inhabitants) (1735) Cas temp Hard 169. 304 For the position in criminal cases, see p 50. 305 In particular, the Quarter Sessions Appeal Act 1731, s 2, required the defendant and two sureties to enter recognisances each for £50, from which costs would be extracted if he failed; whereas if he succeeded he was not entitled to costs: J Chitty, The Practice of the Law (S Sweet, 1834) vol 2, 225–26. 306 See p 49. 307 A very restricted view of lack of jurisdiction, when challenged by collateral action, was taken by Commons Plea in Brittain v Kinnaird (1819) 1 Brod & B 432, a case much followed in other decisions. All concerned attempts to make justices pay damages for exceeding jurisdiction, a hazard from which they were eventually protected by the Justices Protection Act 1848. For these and other developments of the 1830s and 1840s see Smith, ‘Criminal Law’ (n 226) 492–98. These cases were not allowed to make much impact on the availability of certiorari.

48 Institutions and Ideas the creation of local courts of requests for the collection of small debts. The amounts at stake demanded a rapid, cheap and above all final, process, and the insistence of the rising class of traders upon new local tribunals of their own, rather than an adapted version of some ancient court,308 registers the strength of their feeling against the institutional structures and procedures inherited from the old common law.

iii. The Criminal Courts By the eighteenth century, the processes of the criminal law were conducted very largely in the name of the central state, though there was much about them that maintained a local character. Certainly, it was on the monarch’s behalf that offenders were prosecuted. The courts mainly concerned are shown in Table 1.3. The most serious offences – those carrying the penalty of death – were almost always tried before a royal judge sitting with a jury at assizes. Under the ‘Bloody Code’, these included not only murderers and rapists, but also the robbers, burglars, forgers, serious thieves and others who committed one of the great splay of capital offences against property. The non-capital crimes classified either as felonies or misdemeanours would mostly be dealt with by the justices of the peace sitting with a jury at their Quarter Sessions. Minor offences could be disposed of summarily by the justices in their home districts, sitting in pairs or sometimes singly.309 The ecclesiastical courts still kept their separate power to police the morals of their flock, where the wrong lay outside the compass of the common law. In the seventeenth century, the archdeacon’s court would hear a regular string of cases involving minor defamations, drunkenness, swearing, brawling, adultery, failure to attend church and other spiritual lapses. Really serious offences might warrant ex-communication, but more frequently the punishment was an expiatory confession or a payment in lieu. As the eighteenth century drew on, it was this part of jurisdiction that fell most evidently into decline, the inadequacies of the sanctions being accorded the blame. The legislature could have altered them had it chosen to do so, but a deeper malaise seems to have been at work: a loss of respect for the authority of the established church which had to do with the gentrification of its clergy. In many cases, the parson had ceased to be an intermediary between the village and its governors, becoming instead a ‘squarson’ with a substantial tenanted farm. The enforcement of order passed to the landed class, the clergy finding their way onto the bench of justices as administrators of the state’s secular morality.310 A very considerable transformation of the criminal process was set in train in the 1820s. In place of exemplary execution and transportation abroad, imprisonment at home became the chief instrument for punishing serious crime; and professional police began to be employed on a systematic basis.311 An essential concomitant of these steps was to confine the justices more distinctly, if not entirely, to an adjudicatory role.312 As we shall see,313

308 Blackstone (n 63) vol 3, 81–83, lamented the loss of jury trial and pointed to the revival of the ancient county court of Middlesex by statute (23 Geo II, c 33) as the proper model; but in vain. 309 See pp 36–7. 310 Eastwood (1994) (n 125) 79–82. 311 See pp 546–63 and 565–73. 312 They would continue such administrative tasks as issuing warrants and granting alehouse licences. 313 See pp 599–600.

Part 1: Industrialisation 1750–1875 49 the magistrates’ courts, as well as holding preliminary inquiries into charges of indictable crime that were destined for trial at Assizes or Quarter Sessions, came to try an increasing proportion of all criminal charges. Lesser indictable offences could be dealt with by them summarily, in most instances, at the option of the accused. The list of such offences would grow longer as the work of higher courts grew unduly burdensome.314 Here too a technique for avoiding jury trial was quietly developed. Though it was not in the end carried so far, a broadly similar process was at work as that which occurred in the civil courts. Adjustments were introduced which pared down the gravest cases to a number which could be supervised by a small central judiciary.315 One element in this was a determination to reduce opportunities for upsetting convictions. Criminal procedure had long contained a variety of guarantees that were essential to any real notion of a rule of law. Habeas corpus, available in any common law court and Chancery, restrained both unauthorised detention and undue failure to put on trial.316 In addition, the accusation – indictment being the usual form, for serious crime317 – had to specify all the essential allegations which made up the offence; and as evidence came to be introduced, a number of restrictive rules developed, such as those which kept previous convictions and involuntary confessions from the jury. Law of this kind burgeoned in the eighteenth century, as those accused of crime came to have the advantage of legal representation a little more regularly.318 Indictments also came to be subjected to the kind of scrupulous criticism that infected the process of pleading in civil actions.319 The casuistries of the law on the subject suggest that they were being used as an escape route from the exigencies of the Bloody Code by those who could afford counsel to argue the objection. Even so, objections to these defects in the process had in the main to be taken at the trial itself. Opportunities for removal of cases out of assizes and local jurisdictions were few, the main exception being that statutes creating summary offences often allowed the case to be entirely reheard at Quarter Sessions. The chance of review after conviction was likewise constricted. Objections to an indictment had to be taken to the King’s Bench by way of writ of error, and so were confined to objections evident in the document itself. Points of law or of evidence arising at the trial could only be aired there and then, unless the judge could be persuaded to reserve a point (after a special verdict) for the opinion of his brothers. This process was eventually expanded (so as also to cover Quarter Sessions) with the establishment in 1848 of a Court of Crown Cases Reserved; but even after this

314 The process began with the Common Law Procedure Act 1854, s 3. See RM Jackson, ‘The Incidence of Jury Trial during the Past Century’ (1937) 1 MLR 132. 315 Assisted in increasingly generous measure by barristers sitting part-time as recorders and deputy chairmen of Quarter Sessions. 316 Blackstone (n 63) vol 3, 131–33; RJ Sharpe, The Law of Habeas Corpus (Clarendon Press, 1976). 317 A grand jury had, as a preliminary measure, to find that an indictment was ‘true’. This protection was denied when the crown proceeded by way of information: this was only open in cases of misdemeanour, but was used, for instance, in seditious libel prosecutions: see p 516. 318 JM Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and N ineteenth Centuries’ (1991) 9 L&HR 221; JH Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, 2003); TP Gallanis, ‘The Mystery of Old Bailey Counsel’ (2006) 65 CLJ 159. 319 JF Stephen, History of the Criminal Law in England (Macmillan & Co, 1883) vol 1, 273–94.

50 Institutions and Ideas there was no right of appeal.320 The judges held over only a handful of cases each year for further argument. At the summary level, the chance of raising similar points increased significantly from the mid-eighteenth century. Certiorari from King’s Bench would lie to the justices and that court began to require (if necessary by mandamus) the lower court to state all facts (and the evidence for finding them) necessary to give jurisdiction.321 As in civil cases, Parliament sought to provide against this new interference by enacting ‘no certiorari’ clauses; but here too the court refused to read these as referring to issues of ‘jurisdiction’; and it took such an extensive view of what went to jurisdiction as to allow almost any error of law to be raised by certiorari.322 Parliament only arrived at a true means of inhibition when it began to prescribe short forms for the recording of convictions.323 The record once more became faceless and certiorari lost its impact. By 1857, the Government felt obliged to provide a way of raising points of law from magistrates, but without the laboured formalities of certiorari: it did so by giving both defence and prosecution the right to have a case stated for the opinion of Queen’s Bench or other common law court.324

iv. Dispute Settlement Beyond the Courts Courts are institutions developed by state authority to decide disputes on the complaint of one party and empowered by that authority to enforce their orders. But in any society, respected figures are likely to emerge to whom disputants may together refer their differences; resolution will then come from the third party’s own judgment or from his proposal of solutions which the contenders are persuaded to accept. In English life, the idea of turning to third parties to arbitrate or mediate disputes was deep-rooted: in the seventeenth century personal quarrels often went to arbitration by a local gentleman. Arguments over the terms of labour were also settled in this way in the eighteenth century and a series of Acts would seek to bolster the process.325 Still more commonly, disputes among merchants and between them and their customers also went to arbitration.326

320 Criminal Law Administration Amendment Act 1848. The court also suffered from two other problems: the judges had to agree a verdict unanimously and its jurisdiction was too narrow in remit. The Criminal Court of Appeal was consequently created in 1908 with a new set of rules: P Handler, ‘The Court for Crown Cases Reserved, 1848–1908’ (2011) 29 L&HR 259; and see pp 588–89 and 601–05. 321 A Rubinstein, Jurisdiction and Illegality: A Study in Public Law (Oxford University Press, 1965) 71–73. The decisions could be most scrupulous: eg R v Daman (1819) 2 B & Ald 378 – conviction for taking fish quashed for failure to state that the owner of the fish had prosecuted. 322 Chitty, The Practice of the Law (1834) vol 2, 224, giving the propensity of justices to convict for game offences without just cause as the reason. As with civil causes, the court would on occasion supplement its view of the lower proceedings by receiving affidavits: ibid 223–24. Further discussion in D Hay, Criminal Cases on the Crown Side of King’s Bench: Staffordshire, 1740–1800 (Staffordshire Record Society, 2010) 327–42; K Costello, ‘The Writ of Certiorari and Review of Summary Criminal Convictions, 1660–1848’ (2012) 128 LQR 443. 323 For early experiments, see the Larceny Act 1827, s 71 and the Offences against the Person Act 1828, s 27. The provision was made general by the Summary Jurisdiction Act 1848, s 17. 324 Summary Jurisdiction Act 1857, ss 2–7. Sir George Grey, the Home Secretary, said that ‘otherwise they could not give the magistrates a large increase in jurisdiction’: PD 1857 CXLVI 1020. 325 See pp 283–90; and for the nineteenth-century arbitration of industrial disputes, see also JA Jaffe, ‘Industrial Arbitration, Equity, and Authority in England, 1800–1850’ (2000) 18 L&HR 525. 326 PL Sayre, ‘Development of Commercial Arbitration Law’ (1928) 37 Yale Law Journal 595; RB Ferguson, ‘The Adjudication of Commercial Disputes and the Legal System in Modern England’ (1980) 7 British Journal of Law and Society 141; Arthurs (1985) (n 173) esp ch 3; CR Burset, ‘Merchant Courts, Arbitration, and the Politics of Commercial L itigation in the Eighteenth-Century British Empire’ (2016) 34 L&HR 615.

Part 1: Industrialisation 1750–1875 51 Putting out issues for settlement occurred in so many circumstances that it was difficult for the central courts to fix on a clear line of policy towards the whole phenomenon. Arbitration could be preferable to court process for a host of reasons: because it was speedier, or cheaper, or more private; or because it would provide a more informed judgment upon the issues, or would be based upon more acceptable norms; or because it would more easily enable disputants to go on living and dealing with each other. If the reason why a court could not offer the same advantages was inherent in its structure, it might welcome the spread of arbitration. In the sixteenth century, Chancery, the Star Chamber and the Council had all referred disputes to arbitrators as a means of expanding slender resources. But the common law courts of the early modern period, in their hunger for jurisdiction, seem to have adopted a more antagonistic view. As they did in this period with the lesser courts, they might insist that a dispute be removed into their court. In the case of arbitration this was achieved by allowing one party who had submitted to arbitration nonetheless to bring a common law suit at any time before the arbitrator made his award.327 But here too the common law judges began to move from expropriation to strategic supervision. So far as concerned commercial disputes, the eighteenth-century judges, led by Lord Mansfield, sought to juridify business customs by absorbing them into the common law itself: Mansfield used the jury, the common law’s own machine for bringing communal understanding to the determination of disputes, but his jury comprised special jurors from the City of London, many of them sitting regularly to determine crucial cases on the import of financial, insurance and trading customs.328 As a result many of the obvious differences between common law rules and commercial arbitration disappeared. Even so, arbitration lost nothing in popularity, since there were other reasons for preferring it; and the common lawyers were in no position to take over all the work, even if they had wanted to.329 Instead, an atmosphere of accommodation was fostered by the creation of machinery for enforcing the submission to arbitration and the arbitrator’s award through court process,330 and later for allowing the arbitrator to state a case for the court’s guidance on a matter of law.331 After the Judicature Acts this was to become open to demand by one party.332 The judges’ attitude by 1800 is probably best understood in the way that it was described a century later by a leading commercial judge, Scrutton LJ:333 In countless cases parties agree to submit their disputes to arbitrators whose decision shall be final and conclusive. But the Courts, if one of these parties brings an action, never treat this agreement

327 Vynior’s Case (1610) 8 Co Rep 81b came to be treated as the basic authority for this rule. 328 See p 217. 329 Arthurs (1985) (n 173) 62–77. Compare US jurisdictions where nineteenth-century courts made a determined effort to suffocate arbitral proceedings: M Horwitz, The Transformation of American Law 1780–1860 (Harvard University Press, 1977) ch 5. 330 Arbitration Act 1698. The Civil Procedure Act 1833, ss 39–41 required the court’s leave before revoking a submission to arbitration under the 1698 Act, and gave further assistance. 331 Common Law Procedure Act 1854, s 8. 332 By the Arbitration Act 1889, s 19; Lord Bramwell’s original bill, however, had provided only for a power to state a case: EJ Cohn, ‘Commercial Arbitration and the Rules of Law: A Comparative Study’ (1941) 4 University of Toronto Law Journal 1, 19. The change to compulsion aroused no real comment and was probably treated as one more step in the process of replacing the tribunal’s discretion with a party’s right to review of the law by a higher tribunal. Within the structure of the courts proper this had been a long development recently completed with the Judicature Acts. 333 Czarnikow Ltd v Roth Schmidt & Co [1922] 2 KB 478, 487–88.

52 Institutions and Ideas as conclusively preventing the Courts from hearing the dispute. They consider the merits of the case, including the fact of the agreement of the parties, and either stay the action or allow it to proceed according to the view they form of the best method of procedure; and they have always in my experience declined to fetter their discretion by laying down any fixed rules on which they will exercise it.

Only thus is it possible to understand two centuries of case law in which the courts chose to interfere only intermittently with the arbitration process. They held moreover that the parties might agree that no action could be brought on a contract until the amount due had been settled by arbitration.334 Sanctity of contract permitted so much, though ‘public policy’ would not allow a total ouster of jurisdiction.335 This left an ultimate power to direct and control, enough to preserve the rule of the common law. The judges could still insist on procedural fair play; and more fundamentally they could insist upon their own standards of ‘public policy’ should any obvious conflict of objectives emerge. Arbitration was, after all, a common condition on which the economically powerful did business, and through which they might seek to sustain their monopolistic control of a market.336

v. Reform of the Courts In the half century after 1830, the overgrown thicket of civil courts was formed, by hard pruning and some replanting, into an ordered plantation. Much of its characteristic shape would nonetheless remain. The largest change came not in the regrouping of superior courts (which occurred finally with the Judicature Acts 1873–75) but in the creation of a complete system of county courts.337 The Recovery of Small Debts Act 1846 (also called the County Courts Act 1846) created some 500 county courts for the whole of England and Wales, arranged into 59 circuits, each with its judge, a barrister of at least seven years’ standing.338 They were lawyers’ courts, in which the judge sat with a five-man jury only if a party requested it, and they mainly replaced the courts of requests staffed by lay commissioners or part-time professional judges. The right of representation was confined to members of the bar and attorneys.339 A trend that local trading interests had been fostering for a century was decisively reversed. Coming at the very moment of the free-trade victory, the county courts were

334 Scott v Avery (1856) 5 HL Cas 81; so held by the House of Lords after considerable division among the judges. The decision was the more striking in that the only legal action permitted by the agreement to arbitrate was to enforce the award; so the arbitrator in effect had power to settle all issues in disputes between the parties in the course of reaching his award. Building societies thereby found themselves unable to recover their members’ debts (Municipal Permanent Investment Building Society v Kent (1884) 9 App Cas 260) and needed the Building Societies Act 1884 to rescue them. 335 The limit began to be expressed in this way from the mid-1700s; eg Kill v Hollister (1746) 1 Wils KB 129; Thompson v Charnock (1799) 8 TR 139; cf Wellington v Mackintosh (1743) 2 Atk 569. 336 As to this concern, see p 260; and also S Brekoulakis, ‘The Historical Treatment of Arbitration Under English Law and the Development of the Policy Favouring Arbitration’ (2019) 39 OJLS 124. 337 P Polden, ‘The County Courts’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010); also, P Polden, A History of the County Court, 1846–1971 (Cambridge University Press, 1999). 338 Because the judgeships were part-time, the judges were at first paid by litigants’ fees, though in 1850 salaries (£1,200–£1,500) were substituted. 339 Section 91.

Part 1: Industrialisation 1750–1875 53 the lawyers’ particular spoil in the overall thrust of middle-class confidence.340 The movement gained some of its impetus from the swelling ranks of both legal professions.341 The campaign was begun in earnest by Henry Brougham who made an eloquent speech in support of his reforming bill of 1830 and continued his attack on ascending the Woolsack in the same year. He dwelt upon the inadequacies of the courts of requests and other local civil courts, scattered in small pockets, their jurisdictions limited in different ways and their authority to compel appearance and enforce judgment often insecure. Brougham’s proposals ran into the personal opposition which he so often generated, in this case from the former Lord Chancellor, Lyndhurst, who had his own ideas on judicial reform. But Lyndhurst also gave voice to feelings widely shared: that a phalanx of courts under lawyers’ control would create a large new patronage for the Lord Chancellor, would endanger the idea of a central bar and would rob the existing tribunals of their simplicity and their sensitivity to local expectations (including a natural inclination to see traders’ debts enforced – though this was scarcely emphasised). Certainly, such anxieties were aired in legal journals and by witnesses before the Common Law Commissioners, to whom the dispute was referred. But that reform-minded body of lawyers came down in Brougham’s direction, not hesitating to disparage the courts of request for lacking the restraining hand of the common law and its procedure.342 Even so, the change had to await two experiences. One was the introduction of the various commissions and inspectorates – over poor law, factories and tithe, for instance – which suggested new chances for a scrupulous and dedicated public service. This did a good deal to dissipate fears that new posts multiplied nothing but patronage and place. The other was the preoccupation, which became intense after 1838, with sanctions for recovering debts and in particular with the role that should in future be allowed to imprisonment for debt. The striking of a new accord on the matter was, as we shall see, a protracted business in which the new county courts were to form an important element, their lawyer-judges appearing to stand apart from any creditor interest.343 By the 1840s both political parties favoured a version of Brougham’s bill, Lyndhurst taking it up for the Tories and Cottenham pushing it through for the Whigs. Within ten years, during which there were some important modifications of detail, it became clear that the county courts were a success.344 For traders they handled a very large number of small claims for debt, their maximum jurisdiction being raised from £20 to £50 as soon as 1850.345 Most significant of all, they taught that the convoluted rituals of the superior courts were capable of amendment even within an adversarial process under 340 There was some disgruntlement – attorneys could not become judges, and the fees for appearance were set low enough to start immediate campaigns for their increase – which brought changes in 1850; but this seems secondary. 341 See pp 59–60 and 62–3. 342 Fifth Report, PP 1833 (247) XXII. 343 See p 224. 344 This was the verdict of a County Courts Commission chaired by Lord Romilly MR: PP 1854–55 [1914] XVIII. 345 In March–December 1847, the courts handled 429,215 plaints, claiming an average of three guineas and recovering about a half the total claimed (many claims being effectively uncontested). Between 1859 and 1891, the number of plaints would grow 28%, while the population increased 44%: see Sir J Macdonnell, ‘Statistics of Litigation in England and Wales since 1859’ (1894) 57 Royal Statistical Society Journal 452, 500–04. Acts of 1856 and 1867 allowed the court jurisdiction over larger claims by agreement and penalised in costs superior court proceedings which could have been brought in a county court.

54 Institutions and Ideas the control of lawyers. Their judges tried the great bulk of cases by themselves without juries being called for. The courts took over from the courts of requests the initiatory process by simple plaint, without adherence to forms of action or scrupulous pleading. Likewise, they continued the practice pursued in the courts of requests, of allowing parties to appear as witnesses. A method was devised of appealing on a point of law (to two judges of a superior court sitting out of term) which was not allowed to disintegrate into expensive caprice.346 Beside such Victorian plainness, the superior courts appeared a minaretted extravagance. Jeremy Bentham had taught younger radicals to rank ‘Judge & Co’ at the head of the demonship.347 Beginning with the Select Committee procured by Michael Angelo Taylor into the workings of the Chancery court in 1811, they were a regular target of invective, in Parliament and outside.348 Successive editions of John Wade’s Extraordinary Black Book listed in relentless detail the earnings and perquisites of office-holders in the courts, and the opportunities for expensive delay which each party could turn against the other and lawyers could turn to themselves.349 Occasionally, a determined man might seek to straighten some part of the edifice – as when Lord Mansfield had cut away at procedural complexities and delays in King’s Bench,350 or when Lord Brougham worked his way through the backlogs of Chancery during his time as Lord Chancellor. But the direct passages which they unblocked had a habit of resealing themselves. Five years after Brougham’s departure from the Woolsack there were 850 suits awaiting trial in Chancery and a practitioner could write: ‘No man, as things now stand, can enter into a Chancery suit with any reasonable hope of being alive at its termination if he has a determined adversary.’351 The major efforts to subject the superior courts to even a first measure of utilitarian efficiency divide into three stages. The first, which occurred in the years around and after 1832, had a greater impact on common law than on chancery. This was the period when Brougham’s onslaught led to the investigations of both the Common Law Commissioners352 and the Land Law Commissioners.353 Dominated by lawyers of moderately reformist bent, the thrust of their recommendations was towards making the old formal system more efficient on its own premises. The forms of action were purged of outmoded relics, such as the ancient real actions for the recovery of land, and some procedures were markedly simplified.354 Above all, under the influence of Serjeant Stephen355 and Baron Parke, the

346 County Courts Extension Act 1850. 347 See eg J Bentham, ‘Truth v Ashhurst’ in Collected Works, vol 5 (William Tait, 1843) 231–37. 348 PP 1810–1811 (244) III; 1812 (273) II. 349 eg J Wade, The Extraordinary Black Book: An Exposition of Abuses in Church and State, Courts of Law, Representation, Municipal and Corporate Bodies (Effingham Wilson, 1832) ch 8. See generally, ER Sutherland, ‘The English Struggle for Procedural Reform’ (1926) 39 Harvard Law Review 725. 350 Fifoot (1936) (n 267) ch 3; Sir WS Holdsworth, A History of English Law, vol 12 (Methuen, 1938) 588–605. 351 G Spence, Equitable Jurisdiction of the Court of Chancery (Stevens, 1839) Preface. The problem was that no Lord Chancellor wanted to give up his place in government, and so none admitted that his workload was too large. 352 Their first three Reports concerned the common law courts: PP 1829 (46) XI, 1830 (123) XI, 1831 (92) X; for their other work, see pp 53 and 223. 353 See p 175. 354 For ensuing legislation, see in particular the Process in Westminster Law Courts Act 1832, on uniformity of process. 355 For Stephen as an advocate of scientific pleading, see J Stephen, A Treatise on the Principles of Pleading in Civil Actions (J Butterworth & Sons, 1824).

Part 1: Industrialisation 1750–1875 55 system of pleadings was subjected to a new drive for scientific accuracy. The Hilary Rules of 1834 curtailed the ability of the defendant to defeat the true purpose of pleading by hiding behind the General Issue – that blanket denial (‘Not guilty’) of all the plaintiff ’s allegations, which gave nothing in advance away. Instead, specific excuses (in the form of confession and avoidance) had to be specially pleaded.356 These shifts unquestionably sprang some of the man-traps of common law litigation. But being impelled by formal accuracy, they created their own problems. Some of the judges, notably Parke B, could insist on correctness in pleading even against the perceived merits of the case.357 Opinion soon swung against this new scientism, and the Common Law Commissioners of 1851 spoke of ‘technical and captious objections … not only useless but mischievous’.358 The next stage in the 1850s entailed a new round of investigation and recommendation.359 It was at this point, in the wake of the county court reforms, that the greatest changes were initiated. First, there was a real shift towards a more flexible procedure, in which formalities were reduced and formal errors lost much of their consequence. At common law, the choice of a form of action ceased to govern the whole exercise from the outset. The form did not have to be indicated in the writ but only in the plaintiff ’s first pleading; all relevant forms could be used in a single action and incorrect choices saved by amendment.360 The forms ceased to be structural and under the Judicature Acts their entire abandonment could follow.361 A few, such as Parke B, looked upon the change as incorrigible laxity. But on the whole the common lawyers were content with other buttresses, such as the expanded bases for appeal and the growing control by judges over juries. More generally, insufficiencies of pleading became curable by amendment. No longer could a ‘relevant’ variance between facts pleaded and facts proved of necessity defeat a claim or defence at trial.362 Even the parties at last became competent to give evidence.363 Secondly, the movement to coalesce the various courts advanced. Not only were the ecclesiastical jurisdictions transformed,364 but a cultural exchange began between common law and equity. In Chancery the oral examination and cross-examination of witnesses 356 WS Holdsworth, ‘The New Rules of Pleading of the Hilary Term, 1834’ (1923) 1 CLJ 261. 357 ‘His keenest delight was to non-suit a plaintiff in an undefended action for some inaccuracy of expression’: CHS Fifoot, English Law and Its Background (G Bell & Sons, 1932) 154–55; for examples of Parke at play, see Fifoot (1936) (n 267) 236–41. 358 PP 1851 [1389] XXII 33. They nonetheless acknowledged the very real advance secured by the 1834 Rules. 359 Common Law Commission: 1st Report (forms of action, pleadings) PP 1851 [1389] XXII; 2nd Report (parties as witnesses, discover, trial by jury, remedies) 1852–53 [1626] XL; 3rd Report (common law and chancery) 1860 [2614] XXXI. Chancery Commission: 1st Report (procedure) PP 1852 [1437, 1454] XXI; 2nd Report (probate reform) 1854 [1731] XXIV; 3rd Report (evidence) 1856 [2064] XXII. Both commissions were composed of leading judges and barristers. They were preceded by a number of Select Committees much concerned with costs and delays. 360 Common Law Procedure Act 1852, s 3; see CM Hepburn, ‘The Historical Development of Code Pleading in America and England’ in Committee of American Law Schools (ed), Selected Essays in Anglo-American Legal History, vol 2 (Little, Brown, 1907). 361 Supreme Court of Judicature Act 1873, s 3. The Commissioners of 1851 boldly recommended abandonment: Report (n 359) 34–35. 362 Evidence Act 1851, s 13. ‘Material’ variances of no injurious consequence had already gone: Civil Procedure Act 1833, s 23. 363 Evidence Act 1851, s 2; ‘interested persons’ had been admitted, to a small degree, by the Civil Procedure Act 1833, s 26, but mainly by the Evidence Act 1843 (also known as Lord Denman’s Act). 364 In 1857, the probate jurisdiction was at last transferred to a new probate court, which had district registries for the use of provincial solicitors; and a new Divorce Court was created to handle judicial divorce; for the latter, see pp 363–65.

56 Institutions and Ideas was admitted in 1852 (though until the Judicature Acts it continued to take place before separate examiners).365 It became possible for Chancery to decide questions of common law for itself – a shift which much advanced the prospect of speedy relief.366 Each jurisdiction was empowered to award the remedies that previously had been the preserve of the other: chancery to give damages, common law to grant injunctions, specific performance and other types of equitable relief.367 Moreover, the increasing pressure of work in Chancery led to one major change in structure there. In 1851, a Court of Appeal in Chancery, composed of the Lord Chancellor and two Lord Justices, was interposed between first instance and the House of Lords.368 The changes of the 1850s were overturned at the third stage, the administrative reforms of the Judicature Acts 1873–75.369 These alterations were the most striking of all, if attention is confined to appearances. The three courts of common law, and the courts of chancery, admiralty, probate and divorce were all made part of a Supreme Court of Judicature. The new Supreme Court was divided into a Court of Appeal and, below it, a High Court of Justice composed of Divisions reflecting the old jurisdictions (see Table 1.2). All parts of this new structure were empowered to apply the rules of common law, equity and the civilian courts.370 But the amalgamation was one of jurisdiction, not of doctrine. Each body of law was to be preserved as a setting for its particular rules. The few instances of direct clash were dealt with either by specific statutory provision or by the general rule that equity was to prevail over common law.371 The changes that came were accordingly not so much a matter of power as of influence, and chief among them was to be the effect of the more numerous common law judges upon the distinct traditions of equity.372 The superior courts – now the exclusive domain of the bar and the bench drawn from it – were kept distinct from the inferior civil courts and the general run of criminal courts, despite proposals for more complete integration.373 The separation was not a complete one, since oversight from the centre continued to be an important function. Within each High Court division, three of its judges would sit as a Divisional Court constituting an appeal court from the county courts and magistrates’ courts.374 The Queen’s Bench Divisional Court, moreover, exercised the main jurisdiction to issue the prerogative writs against inferior

365 Chancery Procedure Act 1852, ss 28 and 29 (part of a very substantial reform of Chancery procedure). 366 See p 216. 367 Chancery Amendment Act 1858 (also known as Lord Cairns’s Act). 368 Court of Chancery Act 1851. 369 Preceded by an imposing Royal Commission on the Judicature: 1st Report: PP 1868–1869 [4130] XXV (need for supreme court); 2nd Report: 1872 [C 631] XX (county courts). See generally P Polden, ‘Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature’ (2002) 61 CLJ 575; MJ Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery [Parts One and Two]’ (2004) 22 L&HR 389 and 566; P Polden, ‘The Judicature Acts’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). 370 Supreme Court of Judicature Act 1873, s 24. 371 Supreme Court of Judicature Act 1873, s 25. 372 See p 216. 373 See Judicature Commission, 2nd Report (n 369) 13; Lord Hatherley LC’s Appellate Jurisdiction Bill of 1870 proposed an integration of criminal with civil appeals; but nothing came of it. 374 Originally the Divisional Courts were to be courts of reference by individual judges of the division, after the practice of the common law courts. Lord Hatherley’s attempt in 1870 to implement the plan included an integration of criminal with civil work to the extent of giving the Court of Appeal jurisdiction over both. A regular court of appeal for criminal cases would have to wait for a considerable time further: see pp 601–05.

Part 1: Industrialisation 1750–1875 57 tribunals and public officers of all kinds. The old scheme of assizes, by which royal judges conducted both civil and criminal trials in the provinces, was retained. The one important alteration was that the courts were to function in London and at assizes at the same time. An old pattern of life at the common law bar was broken up amid dismayed regret.375 To a significant degree, the Judicature Acts reduced the judges’ exposure to outside influence. Some sat mainly in London, an increasing proportion of cases were heard without a jury, the appellate judges no longer doubled as trial judges but worked in the rare atmosphere of their own courts. Indeed, this separation of appeals completed a development which had been slow to evolve precisely because it ran counter to the notion of final disposal by a jury. As we have seen, even when methods of raising issues of law were extended from the pleadings to the actual trial, the judges did a good deal to preserve their discretion over the referral of issues. A losing party’s right to question the outcome of the trial was the subject of difficulties which were only resolved in the latter stages of reform. In the upper house the judicial business was by now distinct from the political, in the sense that lay peers did not vote.376 Even as its appellate business had built up during the nineteenth century, it had somehow been handled by a small coterie of lawyers, current and former Lord Chancellors and a few ennobled judges.377 In 1876 they were at last supplemented by other very senior judges, who were made life peers (Lords of Appeal in Ordinary).378 So this third tier became the rarely accessible apex of the superior court pyramid – a structure which confirmed the bar’s exclusive rights of practice and its role in supplying the judges of consequence. In their adapted environment, the judicial Lords (who were also the main members of the Judicial Committee of the Privy Council for the Empire) would have to manage the tensions between the professional and the political that are the lot of final courts everywhere. They would continue to announce themselves pure d eclarers of common law, mere fixers of the dictionary meanings of statutory words.379 But they were not, on the domestic side, required to interpret a single constitutional document (as in the United States); and on the colonial side, there was a distance of superiority as well as geography.380 Their interventions in political matters would remain sufficiently sporadic for their claims to a perfect objectivity to get by.

375 See p 92. 376 The convention became plain in the 1840s but took 50 years to be settled beyond question. Lay members were still regular in the Judicial Committee of the Privy Council in the 1860s: RB Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (University of North Carolina Press, 1978) 29–34. 377 In the 1820s, when business first accelerated, lay peers were drafted in to make a quorum on an extraordinary rota: Stevens (1978) (n 376) 19–23. After that there were just enough ‘law lords’ to cope – though there were crises in the mid-50s and late 60s. The Judicial Committee of the Privy Council had taken over its appellate business from the civilian courts and the colonies in 1833 at Brougham’s instigation. He had larger visions of a single court of final appeal with himself as President, which had some effect on the failure of his campaign: DB Swinfen, ‘Henry Brougham and the Judicial Committee on the Privy Council’ (1974) 90 LQR 396. 378 An attempt to make the great Baron Parke a life peer had been defeated in 1857 because such an undermining of established tradition was said to be beyond the royal prerogative. Parke (by then childless) became Lord Wensleydale in the ordinary way: Stevens (1978) (n 376) 39–44; FML Thompson, English Landed Society in the Nineteenth Century (Routledge and Kegan Paul, 1963) 51–55. 379 The keystone in the doctrine of stare decisis – the rule that the House of Lords bound even itself – was fixed in position by London Street Tramways Co v London County Council [1894] AC 489, adopting the view taken earlier in Beamish v Beamish (1861) 9 HLC 274. Discussion in Pugsey (n 254). 380 cf P Mitchell, ‘The Privy Council and the Difficulty of Distance’ (2016) 36 OJLS 26.

58 Institutions and Ideas

F. The Legal Professions In manufacture and trade, bastions of monopoly such as the guilds had been disintegrating since the 1600s and would disappear almost entirely with the freeing of international trade in the years up to 1850. Yet it was at just this time that the first examples of the modern professional monopoly in services appeared, led by the two legal professions: the barristers and the attorneys (or solicitors, as they later, more decorously, became).381 The bar, as the senior branch, had acquired its monopoly over the right to represent clients as advocates in the courts of common law and equity by the late middle ages. With this had come self-governance by the Inns of Court and a developed system of formal training. In 1729 the attorneys gained a monopoly over the institution of litigation on behalf of clients, and the preparation of its documentation. Their monopoly over conveyancing, shared with the senior branch, was given in 1804. The younger Pitt, seeking to increase the stamp duty upon attorneys’ practising certificates and articles of clerkship conceded this as a quid pro quo.382 Its value then lay primarily in the surrounding business that conveyancing attracted, but conveyancing itself would come in time to provide the ballast which stabilised the entire solicitors’ profession. The practice of an attorney was scarcely proper for an eighteenth-century gentleman. But there was an upper echelon of solicitors who provided discreet and highly valuable services in organising the settlements and other legal business of the aristocracy and gentry;383 flourishing beneath them were successful and respected men, providers of legal and financial services to the growing middle classes, agricultural and commercial.384 The doubtful reputation which such men sought to shake off came from the lower end of the trade, the ‘pettifoggers’ who had cynically fomented Dickensian litigation to live off the proceeds, against whom indeed the monopoly of 1729 had been granted, but whose activities persisted for many years, particularly in London.385 If attorneys already varied considerably in their positions and interests, so to a lesser extent did the bar. Although a much smaller, closer-knit body, it had long since ceased to be merely an adjunct of the landed class. A substantial proportion of its clientele came from a lower social order and so also did a good number in its own ranks. The esoteric skills demanded in its practice called for those whose cleverness and determination would secure great practices before leading to judicial and occasionally to high political office.

381 Attorneys had originally been attached to the common law courts, solicitors to Chancery, but eighteenthcentury practice was to admit them to both. However, something of the distinction in respectability would continue for much longer. 382 The stamp on annual practice certificates was first imposed in 1785 (£5 in London, £3 in the provinces – doubled in 1804). The stamp on articles began in 1794 (£100 in London, £50 in the provinces – increased by 10%, in 1804; never a tax objected to by those concerned with barriers to entry). In addition, a conveyance had since 1785 attracted a stamp if drawn by an attorney, a burden which helped the argument that unqualified conveyancers should be excluded. See R Robson, The Attorney in Eighteenth Century England (Cambridge University Press, 1959) ch 2; H Kirk, Portrait of a Profession: A History of the Solicitor’s Profession 1100 to the Present Day (Oyez, 1976) 130–31. 383 See pp 122 and 126; see also the early chapters of V Belcher, Boodle, Hatfield & Co: The History of a London Law Firm in Three Centuries (Boodle, Hatfield & Co, 1985). 384 For examples see M Birks, Gentlemen of the Law (Stevens, 1960) chs 8, 9, and 11; Robson (n 382) ch 9; M Miles, ‘Eminent Practitioners: The New Visage of Country Attorneys c 1750–1800’ in GR Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984); P Aylett, ‘Attorneys and Clients in Eighteenth Century Cheshire: A Study in Relationships 1740–1785’ (1987) 69 Bulletin of the John Rylands Library 326. 385 Robson (n 382) 134–54; PJ Corfield, Power and the Professions in Britain, 1700–1850 (Routledge, 1995) ch 4.

Part 1: Industrialisation 1750–1875 59 At the same time there was room for those of more modest ambition, including members of the gentry who acted during County Assizes but otherwise devoted themselves to their family estates.386

i. Barristers In the later eighteenth century, the practising bar was very small, although its size cannot be measured with accuracy.387 Many who were called to the bar never practised, or did so only occasionally, a fact that indicates something of its special status. By 1835 Duman estimates that the number lay between 450 and 1010; by 1885 between 660 and 1450. He also shows that the number of initial admissions to the Inns fluctuated considerably, a peak of over 300 per annum in 1835, falling rapidly thereafter to a number perhaps half that in 1858, before climbing again to a steadier mid-point.388 These are not the statistics of major growth or even of steady progress.389 The 1840s were years of serious overcrowding in the bottom ranks and a time too of much hostile criticism from outside, some of it rooted in simple envy. Yet there remained about the bar a special aura that combined glamour with dignity. The criminal and (later) the divorce courts provided newspapers with dramatic fare and leading counsel acquired familiar names. The bar’s peculiar combination of camaraderie and competitiveness made its groupings social first and professional second. In London, the four Inns of Court (Inner and Middle Temple, Lincoln’s and Gray’s Inn) acted as dining clubs, often boisterous, sometimes solemn. Each was presided over by a self-perpetuating Bench which was responsible for admissions and calls to the bar and which administered formal discipline.390 The Inns were active during the four short terms of the common law year. But as much of the bar went off with the judges on assize, a similar life centred around the Messes of the different circuits. These were comradely bodies without formal powers.391 Nonetheless they played a vital 386 R Cocks, ‘Dignity and Emoluments: Thomas Blofeld’s Life as a Victorian Barrister’ (1978) 8 Kingston Law Review 37. 387 On the eighteenth-century bar, see D Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford University Press, 2000); on the nineteenth-century bar, see D Duman, The English and Colonial Bars in the Nineteenth Century (Croom Helm, 1983); R Abel, The Legal Profession in England and Wales (Blackwell, 1988); P Polden, ‘Barristers’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). 388 Duman (1983) (n 387) 6–9. See also Abel (1988) (n 387) Tables 1.1 and 1.10–1.12. 389 At the same period, the number of solicitors with practising certificates remained virtually stationary, despite the considerable rise in the general population: H Kirk, Portrait of a Profession: A History of the Solicitor’s Profession 1100 to the Present Day (Oyez, 1976) 42. One part of the explanation must lie in the reforms of court process. The bar, by contrast, was providing the means of entry to county court judgeships, legal positions in the colonies, and positions in the new central and local bureaucracies. 390 For the origins of these arrangements, see AWB Simpson, ‘The Early Constitution of the Inns of Court’ (1970) 28 CLJ 241. The judges were members of the separate Serjeants’ Inn (which survived until the Judicature Acts). The 12 common law judges acted as visitors to the other Inns, which was held to exempt them from supervision by mandamus: R v Benchers of Gray’s Inn (1780) 1 Doug KB 353; and see R v Benchers of Lincoln’s Inn (1825) 4 B & C 855. The Benchers insisted on their right to refuse admission as they chose until 1837, when, in the face of considerable criticism, they ceded a right of appeal to the judges: B Abel-Smith and RB Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750–1965 (Heinemann, 1967) 63–64. 391 On their role: R Cocks, ‘The Bar at Assizes’ (1976) 6 Kingston Law Review 36; R Cocks, The Foundations of the Modern Bar (Sweet & Maxwell, 1983) 147–53; D Lemmings, ‘Ritual, Majesty and Mystery: Collective Life and Culture among English Barristers, Serjeants and Judges, c 1500 – c 1830’ in W Pue and D Sugarman (eds), Lawyers and Vampires: Cultural Histories of Legal Professions (Hart, 2003) 59–62.

60 Institutions and Ideas role in building and maintaining those practices that preserved and spread business within the circuit: barristers from outside it could appear only if the client paid a ‘special’ fee and offered a brief also to a circuit member; King’s (or Queen’s) Counsel were generally expected to appear with a junior; and the junior was to receive two-thirds or three-fifths of his leader’s fee.392 The Messes would retain their distinctive vitality until the Judicature Acts. It was then that the new overlap between London and assize sittings was to bifurcate the bar’s world and new organisations would become necessary for its cohesion. The eighteenth-century bar required no formal training of its entrants, but merely a period of five years between admission and call to practice during which dining rites in the Inns were to be observed. Pupillage first emerged in the 1770s as an optional form of practical training, following the practice of apprenticing bar students to London solicitors or attorneys.393 But the earlier function of the Inns as educational bodies had disintegrated, leaving a gap which was not filled by the ancient universities. On the continent the universities took the lead in legal education, but in England, only the small band of civilians drew upon this tradition, receiving their degrees in civil law from Oxford or Cambridge before entering practice at Doctors’ Commons. Entrants to the common law bar were left to fit themselves for practice, doing their own reading and becoming pupils to barristers, special pleaders or conveyancers as they chose. The establishment of English law chairs at Oxford (1758) and then Cambridge (1800) had no effect on professional qualification. Apart from Blackstone’s distinguished tenure of the Vinerian Chair at Oxford, the posts became sinecures for practitioners.394 In 1762, the Inns accepted some need to improve the quality of entrants by allowing Oxford and Cambridge graduates to be called after only three years.395 But it was not until the mid-nineteenth century that even a few leaders of the profession were to take a serious interest in systematic learning as a pre-requisite for practice:396 both Bethell (afterwards Lord Westbury LC) and Palmer (afterwards Lord Selborne LC) were prominent advocates of reform. A Select Committee of the Commons in 1846 recommended the properly scientific teaching of law in the ancient universities and examination for both admission and call to the bar.397 A Royal Commission in 1854 espoused Westbury’s case for a ‘Legal University’ formed in London out of the Inns of Court (and financed from the considerable funds which they took from students).398 Selborne later ran a sustained campaign to establish a ‘General School of Law’ which would provide a common training for entry to both legal professions; he presented bills on the subject to Parliament between 1871 and 1876.399 392 For numbers of silks, Abel (1988) (n 387) Table 1.24. 393 Polden, ‘Barristers’ (n 387) 1023–24. 394 H Lawson, The Oxford Law School 1850–1965 (Clarendon Press, 1968); P Lucas, ‘Blackstone and the Reform of the Legal Profession’ (1962) 77 EHR 456. 395 Later extended to graduates of Trinity College, Dublin and (in the case of the Middle Temple) of the new universities of Durham and London (1840s). On a different tack, the Inner Temple insisted on a preliminary test in the classical languages (1829–1854). 396 On the nineteenth-century education of barristers, see P Polden, ‘Education of Lawyers’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 1175–97. 397 PP 1846 (686) X; for the malaise of the period, Cocks (1983) (n 391) ch 2. 398 PP 1854–55 [1998] XVIII; Cocks (1983) (n 391) 93–102; CW Brooks and M Lobban, ‘Apprenticeship or Academy? The Idea of a Law University, 1830–1860’ in JA Bush and A Wijffels (eds), Learning the Law: Teaching and the Transmission of the Law in England, 1150–1900 (Hambleden Press, 1999). 399 Cocks (1983) (n 391) 172–80; Abel-Smith and Stevens (n 390) 76.

Part 1: Industrialisation 1750–1875 61 The bar was obliged to respond to such pressures, for these were years when lawyers attracted prominent hostility in the press and elsewhere. In 1852, the Inns joined to form a Council of Legal Education, which established five readerships in basic subjects; to be called, a student had now to attend the lectures or pass an examination.400 In 1872, the examination before call was at last made compulsory, though the standard was scarcely demanding. No formal qualification was imposed on initial entry as a student; and the larger plans for a General School foundered upon a lack of any sustained concern and antagonism to the idea of joint training for the two branches.401 Oxford and Cambridge in their turn, together with newer institutions such as the University of London colleges,402 began at last to build up their teaching of law, but in an historical, theoretical and universalist mode, which contrived both to allay academic suspicions and to steer clear of the technical mysteries of practice.403 The first generation of law teachers in the universities contained scholars of considerable distinction: Henry Maine, James Bryce, Frederick Pollock, William Anson, and above all AV Dicey and Frederic Maitland. But the coming leaders of the bar were rarely their pupils and the practising profession could afford to take only spasmodic notice of their writings. It had not had to espouse education as a pre-condition of its professional status and it still believed that the advocate’s craft was to be learned in life at the bar rather than in letters. Advocacy had long ceased to be a pursuit of gentlemanly leisure. The barrister’s skills were needed at the hard edges of existence and success was measured in brief fees. Perhaps in consequence, this tough, competitive reality was encased in a peculiarly refined etiquette.404 Barristers did not form partnerships; neither (by and large) did they take clients directly but only through the instruction of an attorney.405 Their fees were in nature honoraria;406 they did not sue for them, but neither did they owe duties to attorney or client to conduct a case with due care or indeed at all. When facing the client, they could remember their duty equally to assist the court; when facing the court they could hold out their responsibility to represent whoever first sought their advocacy. The whole amounted to an individual code of professional honour whose keeping lay not so much in formal powers of the benchers of the Inns as in the informal approval or disapproval that came from judges and fellow counsel,407 and, in their deferential but decisive way, from instructing attorneys. It is in the

400 Cocks (1983) (n 391) 97–100 gives details of what was taught. 401 In 1877, Lord Cairns and Holker A-G promoted a bill to set up an educational council for the Inns alone; but this was not proceeded with. 402 University College, London established chairs in English law and jurisprudence (first held by Amos and Austin) in 1826; its rival, King’s College, also introduced some teaching of law from an early stage: JH Baker, ‘University College and Legal Education 1826–1976’ (1977) 30 CLP 1; Abel-Smith and Stevens (n 390) 165–68. 403 International and Roman law, jurisprudence and the history of the constitution and the land law predominated. 404 P Polden, ‘The Institutions and Governance of the Bar’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 1096–107. 405 But the bar long avoided having to admit this as a strict rule of etiquette, fearing the power that this could confer to wreck individual careers: Brougham was once so threatened. It became a matter of particular tension in the 1840s when numbers at the bar rose steeply. The Act of 1846 creating the County Courts expressly precluded barristers from direct access; but in 1852, Brougham procured a reversal of the rule and a provision that attorneys might not instruct other attorneys as advocates there: Abel-Smith and Stevens (n 390) 57. 406 Their clerks could set fees by negotiation with attorneys. The only control exercised by the courts lay in their power to tax the costs payable by one side (normally the loser) to the other. 407 WW Pue, ‘Exorcising Professional Demons: Charles Rann Kennedy and the Transition to the Modern Bar’ (1987) 5 L&HR 135.

62 Institutions and Ideas intensity of these beliefs, and in the admirations and the loyalties, and the fierce judgments and hostilities engendered by them, that the historian will find the clue to the unique forms of the institution.

ii. Attorneys If, in the eighteenth century, the social condition of individual attorneys could vary considerably, their ranking as a group was moderate. They bore the stamp of the tradesman, an apprenticeship of five years in articles of clerkship being treated as the condition of the court-work monopoly granted in 1729.408 More damagingly, the image of the pettifogger, clinging leech-like to his client, persisted in literature as in life. The nineteenth-century rise of this second tier of legal practitioners to the status of solicitors was accordingly a considerable movement, which approximated more closely than did the bar to the rise of the modern professions in general. Actual numbers are not known for most of the eighteenth century but by 1800 there were about 1,800 practising attorneys in London and perhaps 3,500 outside.409 By 1841 the total (measured by numbers of practising certificates) had risen to just over 10,000, a figure which was to remain roughly consonant for another 30 years before rising to a peak of around 17,000 in 1911.410 This expansion reflected the increase in commercial and industrial activity during the 1800s: solicitors profited from handling the legal work needed for railway projects and also did well out of banking, insurance, tax and insolvency.411 In addition they provided legal services to an increasingly numerous and prosperous class of property-owners, whose needs created so much work that the solicitors became more preoccupied with preserving their acknowledged territories than in expanding their frontiers. They could allow others with organisational and managerial skills to occupy adjacent preserves: accountants, land agents and surveyors, estate agents and auctioneers, patent agents, bankers, insurers, friendly and building society managers. The solicitors did little to impede the arrival of these more junior professions and less to merge with them or absorb them. Their hostility was mainly directed towards encroachment on their court work and conveyancing monopolies. A significant part was played by professional bodies in steering the profession toward respectability, although the first major step towards monopoly in 1729 came before any such organisation had emerged: the Society of Gentlemen Practisers was formed only in 1739, when the 1729 Act was renewed.412 The Society was active in trying to rid court practice of unqualified pettifoggers.413 It was strong enough to challenge the important local monopoly over document writing enjoyed by the Scriveners Guild in the City of London414 and it negotiated with Pitt over the conveyancing monopoly in 1804.415 Yet the Society was from

408 See Kirk (n 389) 72–73. An attorney was expected to use the tradesman’s entrance when calling at a barrister’s residence. 409 Robson (n 382) App 4. 410 A figure not to be exceeded until after 1945: Kirk (n 389) 108. 411 P Polden, ‘Solicitors’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 1131–47. 412 Birks (n 384) 144–51; Kirk (n 389) 23. 413 The Society procured legislation preventing the backdating of admissions: Continuance of Laws Act 1749, s 12. 414 Litigation on the question lasted from 1749–1760: Harrison v Smith (1760) in Holdsworth, vol 12 (n 350) 71. 415 See p 58.

Part 1: Industrialisation 1750–1875 63 the outset an elite group of leading London attorneys, whose unrepresentativeness stood out as numbers expanded. Eventually it was absorbed into an Incorporated Law Society, which was founded in 1823 and received a royal charter in 1831 – a broader institution which was to become the modern Law Society.416 It was to establish for the rest of the nineteenth century an influential position as the body to which governments turned on questions of legal and professional moment and it became closely involved in the veritable stream of legislation which came to affect solicitors’ practice. Yet it would not be until the twentieth century that the Society could claim as members more than half of those with practising certificates.417 The profession divided not only between the well-established and the new entrants but also between the metropolis and the provinces.418 Given a court structure with so strong a centralising tendency, the rift was of long standing and bred a succession of country solicitor associations, the best-known being the Metropolitan and Provincial Law Association which flourished in the tense middle years of the nineteenth century.419 The establishment of the Incorporated Law Society had one early consequence: in a new effort to protect the monopolies and to discomfort the unqualified, the cause of formal education was taken up positively. The judges had long admitted attorneys to practice, but the step was a final formality after articles.420 In 1836 masters of court and ILS examiners were empowered to test the legal knowledge of candidates. Levels were not high, but the Society began to provide lectures in the main fields (common law, equity, bankruptcy, conveyancing and criminal law). In 1860, it was able to add a preliminary examination in general knowledge; growing respectability was underpinned by this impediment to entry from the lower classes, which operated particularly against the managing clerks of attorneys themselves.421 When the monopoly over court work was created, it carried no educational precondition, but it did not come entirely without supervision. The judges held the power to strike an attorney from the roll for misconduct, either in the processing of litigation or in handling a client’s money or other affairs.422 Given the attorneys’ lack of training in accountancy, the absence of any duty on them to file accounts, and the increasing involvement in conveyancing and other property dealings, financial defalcations were to increase with industrialisation.423 Disciplinary proceedings before the court were an embarrassment to the whole profession, admirably calculated to fan old prejudices. The Law Society would have liked a larger say in the process, hoping thereby to deflect the public gaze; but until the last quarter of the nineteenth century it still lacked the measure of trust and influence that such a demand would need by way of support.424 416 Birks (n 384) 155–57; Kirk (n 389) 29–30; D Sugarman, ‘Bourgeois Collectivism, Professional Power, and the Boundaries of the State: The Private and Public Life of the Law Society, 1825–1914’ (1996) 3 International Journal of the Legal Profession 81; Polden, ‘Solicitors’ (n 411) 1155–65. 417 Kirk (n 389) 42. 418 Birks (n 384) 151–55. 419 Birks (n 384) 212–13. Its organ was the Law Times (from 1857 the Solicitor’s Journal). 420 Birks (n 384) 171–72, taking the enrolment of William Hickey as illustration. 421 However the Solicitors Act 1860, s 8, gave the judges power to grant exemptions which they exercised freely; the ILS took a further 20 years to get what it wanted in practice. 422 Kirk (n 389) 72ff. 423 On the legal problems which could arise when solicitors mixed their clients’ funds with their own, see G Virgo, ‘Re Hallett’s Estate (1879–80)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). 424 See p 104.

64 Institutions and Ideas

G. The Influence of Ideas i. Ideologies In a society where political processes are influenced by many people, there emerge congeries of beliefs and attitudes for which the term ‘ideology’ does service. It is a useful concept since what must be described is a condition that is less precise than a philosophy or any other systematically elaborated set of beliefs. An ideological position attracts for its emotional as much as for its rational appeal and draws on the great variety of psychological and social factors that condition individuals. The term carries the added overtone that much justification offered for policy and decision dresses up a narrow self-interest in the finery of large, unselfish principle. Any form of social history seeks to elucidate the ideological because of its force in shaping social life. Part of the difficulty in doing so is that ideas and attitudes of apparently different depths appear in overlay, producing complex and changing positions in individuals and in groups. For our purposes what matters is to identify those ideologies which were the mainsprings for political action and so were likely to affect the deployment of legal machinery. A helpful first step is to set out four recurrent dichotomies which underlay ideological positions which were taken in our period, and contributed to their formation at least among the politically influential. These are the distinctions between individualism and collectivism, between altruism and egoism, between idealism and utilitarianism, and between a belief in the perfectability of man and a belief in his innate viciousness. a. Individualism and Collectivism We start with a substantial ambiguity. These terms may be used to describe the approach to an analytical problem. The individualist aims to isolate the particular characteristics which distinguish the individual inhabitant of a larger world; it is typically the method of the biologist.425 In contrast, the collectivist aims to show the interrelationship of function between integers in a complex whole; here lie many of the preoccupations of chemistry and physics. But in the study of societies, where description so easily slides into prescription, the terms have come to be used not merely to identify different ways of analysing people in society but also to express the first premise of a political philosophy. Thus individualism has often been associated with liberalism, with pleas for a social organisation which leaves individuals free to realise their own abilities and desires so far as this is compatible with the same wish in others.426 Collectivism has become allied with socialist or communist principle according to which the interests of the individual are subjugated to the higher good of the state or the local community. And when the terms are used in their methodological

425 In this sense, eg Jeremy Bentham was clearly individualist: LJ Hume, Bentham and Bureaucracy (Cambridge University Press, 1981) 58–62. 426 The thinker most often identified with this position is John Stuart Mill, on whom see eg J Gibbins, ‘JS Mill, Liberalism and Progress’ in R Bellamy (ed), Victorian Liberalism: Nineteenth-century Political Thought and Practice (Routledge, 1990); M Lobban, ‘Theories of Law and Government’ in W Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010) 94–100; S den Otter, ‘Individual and Social Responsibility in Nineteenth-Century British Political Thought’ in M Lobban and J Moses (eds), The Impact of Ideas on Legal Development (Cambridge University Press, 2012) 59–66.

Part 1: Industrialisation 1750–1875 65 sense they take the appearance of a precondition to ideology. But an individualist in this sense may not be an advocate of minimal government. Thomas Hobbes, first individualist among English philosophers, was a deep pessimist who argued that society was a necessary protection against violent destruction and that it must involve unquestioning subjugation to a sovereign ruler.427 b. Altruism and Egoism In the later nineteenth century, notions of individualism and collectivism became caught up with ideas of egoism and altruism. These terms found their way into the English language in the 1850s through translations of the work of Auguste Comte.428 In its purest form, altruism entailed living entirely for the benefit of others, but there were different ideas of what it demanded of individuals in everyday life. The moral and philanthropic activities of charitable associations, often under the influence of Christian sentiment, were thought by some to epitomise altruism, characterised as they were by action for the benefit of others. But altruism increasingly came to be associated with socialist and collectivist ideals and many came to believe that government action was essential to the achievement of a truly altruistic society, a viewpoint which coincided with what the politician George Goschen described as an ‘awakening of the public conscience as to the moral aspects of many sides of our industrial arrangements’.429 As first conceived, altruism was a moral system based on something other than Christian belief and its associations with scientific ethics and humanism signalled danger to Christians who warned of the moral chaos of a life not governed by belief in rewards and punishments in the afterlife.430 As the term ‘altruism’ entered the early twentieth century, however, its ‘anti-Christian pedigree had been largely forgotten’.431 c. Idealism and Utilitarianism The idealist starts from the premise that persons and things have an essential quality or ideal which it is the object of inquiry to discover and promote. In Christian societies, idealist philosophies held a long dominance, finding expression in social theories based on the idea of a natural law.432 In the eighteenth century, deductions about the essential needs of man acquired individualistic connotations in theories of organisation based on a social contract,433 and became allied to libertarian ideals in demands for the natural 427 For a good introduction, see SA Lloyd and S Sreedhar, ‘Hobbes’s Moral and Political Philosophy’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (online edition), available at https://plato.stanford.edu/archives/ sum2018/entries/hobbes-moral. 428 M Bourdeau, ‘Auguste Comte’ in Zalta (n 427), part 5.4; available at https://plato.stanford.edu/archives/ sum2018/entries/comte. 429 GJ Goschen, Essays and Addresses on Economic Questions (Edward Arnold, 1905), quoted in T Dixon, The Invention of Altruism: Making Moral Meanings in Victorian Britain (Oxford University Press, 2008) 230. 430 On the relationship between altruism, Christianity and immortality, see Dixon (ibid) ch 3. 431 Dixon (n 429) 371. See also S Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 1850–1930 (Clarendon Press, 1991) ch 2. 432 eg AJ Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford University Press, 1998). 433 Most obviously in the work of Jean-Jacques Rousseau: C Bertram, ‘Jean Jacques Rousseau’ in Zalta (n 427) part 3; available at https://plato.stanford.edu/archives/fall2018/entries/rousseau.

66 Institutions and Ideas rights of man.434 Yet idealist positions could also lead to views of an ordered society in which each man had his place and function within the collectivity. The utilitarian, repelled by the innate metaphysic of the search for an ideal, started from the pyschological observation of the human tendency to maximise happiness and pleasure and minimise unhappiness and pain. Social action was explained, and moral injunctions were prescribed, by reference to this one motive force. In the age of the Enlightenment, when rationalist concern for betterment of the human condition came to the fore, utilitarian analysis gained ground. Utilitarian premises were applied equally to an analysis of the economic functioning of society and to the organisation and activities of government. Thus, in the political philosophy of Jeremy Bentham, the legislator’s task was to procure the greatest happiness of the greatest number of those who formed the community over which he had power.435 d. The Perfectability and Non-perfectability of Man The conception of original sin – alluringly symbolised in Adam’s plucking of the apple for Eve – has attracted the pessimists among theologians and philosophers of the Christian tradition, distinguishing them from optimists who in varying degrees have believed that man is capable of a Utopian existence in which his inherent abilities are fully realised. A dismal view of man’s spiritual fate posited an afterlife in the flames of torment. Indeed, the Protestant ethic – the desperate struggle of the Calvinist to redeem himself through unrelenting work – was taken by Max Weber and RH Tawney to be a mainspring of capitalist endeavour:436 an ideology in itself. If that description must now be treated as an exaggeration, a belief in man’s essential nastiness remains a crucial starting point for many in the overall formation of ideologies, just as for others it was the belief that essentially all is for the best. For instance, compare Adam Smith’s belief in the ultimate beneficence of individuals pursuing their self-interest (the ‘invisible hand’ of God still remaining the final guide) with Bentham’s growing fear of ‘sinister interest’ and the abuse of power.437

ii. Eighteenth-Century Theories of Society and the State From such elements, the eighteenth-century ruling class generated grand theories of their society and state that were highly self-confident, containing much of their own 434 Consider eg John Locke’s argument that men have rights to ‘life, liberty, and estate’ in a pre-political state of nature, and that these natural rights put limits on the legitimate authority of the state: A Tuckness, ‘Locke’s Political Philosophy’, in Zalta (n 427) part 1; available at https://plato.stanford.edu/archives/sum2018/entries/locke-political. 435 F Rosen, ‘The Origins of Liberal Utilitarianism: Jeremy Bentham and Liberty’ and S Conway, ‘Bentham and the Nineteenth Century Revolution in Government’ in Bellamy (n 426); Lobban, ‘Theories of Law and Government’ (n 426) 74–84. Bentham held that happiness and unhappiness are governed by the ‘two sovereign masters’ of pain and pleasure; action by the legislator should increase the sum of their pleasures or reduce the sum of their pains; pleasure and pain are thus the focus of government but also the means of achieving its goals, since pleasure and freedom from pain provide the motives for individuals which can be fostered by the legislator in promoting the greatest happiness: A Goldworth (ed), J Bentham, Deontology together with A Table of the Springs of Action and Article on Utilitarianism (Clarendon Press, 1983) 87: P Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford University Press, 2006) 34. 436 T Parsons (trans), M Weber, The Protestant Ethic and The Spirit of Capitalism (Allen & Unwin, 1930); RH Tawney, Religion and the Rise of Capitalism: A Historical Study (J Murray, 1926). See too R Whatmore, ‘The Weber Thesis: “Unproven yet Unrefuted”’ in W Lamont (ed), Historical Controversies and Historians (Routledge, 1998). 437 M Morris (trans), E Halévy, The Growth of Philosophic Radicalism (Faber & Faber, 1928) 89–120.

Part 1: Industrialisation 1750–1875 67 freedom of action, little of the fear of God. These were couched either in idealist or utilitarian terms. The idealist tradition of Locke was carried forward by, for instance, William Blackstone, for whom the very constitution was merely a part of the Rights of Persons. The state arose from a social contract between the ‘original founders’ and existed solely for the protection of each individual’s life, liberty and property. And of these three the greatest was property, since nothing ‘so generally strikes the imagination, and engages the affections of mankind’.438 Limited recognition of property was held to have existed from the earliest ages ‘by the law of nature and reason and to have broadened its character out of the need to increase sustinence’ for a growing population. Property in land was a natural adjunct of occupation for production; property in its produce a recognition of the labour needed to secure it.439 Here began the association of labour with property, and with its economic counterpart – value – that would eventually found the Marxist critique of capitalist exploitation. In the end there is much of the utilitarian about these calculations of what ‘natural justice’ demanded or the social contract implied. A tradition of thought which saw society solely in terms of its historical experience had as its spokesmen David Hume and his followers (including Adam Smith and John Millar) in Scotland, and then Edmund Burke. As the Rousseau-inspired rhetoric of natural rights was turned against the French court and its aristocracy, the conservative implications of this opposite approach inspired Burke’s greatest eloquence.440 All that people could look to for protection against internal strife and tyranny was their own institutions and traditions; change which did not evolve gradually from that experience would throw a society back to its primitive, bounden condition. Britain had evolved by hard-won struggle a government in which those with the greatest stake in the property of the nation were represented, and under that system a freedom of mercantile transaction was creating an ineluctable capacity for growth. Thus the conservative tradition, which was to take such a prominent place in the coming course of English history, received its classic formulation at a time when the few had much to conserve and when the idea of conceding power to the multitude was scarcely on the horizon of political debate.

iii. An Age of Laissez-Faire With his nose for provocative generalisation, AV Dicey characterised the years between the First and Second Reform Acts as an Age of Laissez-Faire, preceded by an Age of Tory Paternalism and succeeded increasingly by an Age of Collectivism; against this last it was his object to warn.441 Dicey saw the ‘public opinion’ that dominated his middle period as both individualistic and utilitarian, the latter ideology ultimately deriving from the thought of one man, Jeremy Bentham, whose brand of utilitarianism Dicey depicted as liberal and non-interventionist. Various aspects of this characterisation have proven controversial during the 100 years that have passed since Dicey wrote, and historians of mid-nineteenth-century government 438 Commentaries, vol 2, ch 1. 439 Without property there would be ‘innumerable tumults’; and the same fear is used by Blackstone to justify the most contentious of all aspects of property, the right of inheritance by the family. 440 Burke (n 80). 441 Dicey (1914) (n 108).

68 Institutions and Ideas continue to disagree how much central government activity, and how much ideological opposition to state intervention, there actually was between 1832 and 1867, whether Bentham himself was as great an individualist as Dicey claimed, and how much influence Bentham actually had on mid-century political culture. As we have noted, Oliver MacDonagh and other historians of the Victorian state identified the decades after the First Reform Act as a time when a great shift took place from the amateurish, semi-private conduct of public affairs to systematic action by a centralised administration staffed by a professional bureaucracy.442 They took this shift to be extensive and so they could not believe that the main trend of opinion at just the same time was opposed to state interference. However, more recent scholarship has stressed the contested and often ineffective nature of mid-century administrative initiatives, suggesting that there is more to be said for Dicey’s view if one looks at the actual practice of government rather than the rhetoric of contemporary centralisers. Nor should it be overlooked that much early administration was preoccupied with the regulation of social problems which were themselves created by an economic system that was conceived in terms of private enterprise and market forces – the essentials of laissezfaire policies which, in the great debates about the Corn Laws and other forms of protection against foreign competition, received a triumphant endorsement in the 1840s.443 To understand Bentham’s ideological inheritance, it must be appreciated that his ideas evolved and that although the strands in his work were ‘joined up’ in his own thinking, different people seized on different ideas and ‘took them in different and often unBenthamic directions’ with the result that ‘his legacy turned out to be a highly fragmented one’.444 In Keith Smith’s words, ‘Bentham’s greatest happiness principle could be credibly translated into any system which promoted the nation’s greatest economic success [and] utility could lend itself to both severe forms of laissez-faireism as well as considerable extensions of state intervention.’445 MacDonagh made a similar point when he distinguished ‘Benthamism in its later form’, meaning the views of those (like John Stuart Mill) whose libertarian visions of utilitarianism were ‘entangled with two great anti-collectivist influences, political individualism and the notion of the natural harmony of economic interest’, from ‘administrative Benthamism’, meaning the views of those (like Edwin Chadwick and James Fitzjames Stephen) whose calls for state intervention found inspiration in Bentham’s ideas about the creation of modern, accountable bureaucratic structures of government, focused on ‘the regulatory aspects of law and the problems of legal enforcement, … administrative ingenuity and inventiveness, … rejection of prescription, … [and] faith in “statistical” inquiry.’446 Mill’s views also evolved, and he took a more positive view of executive action in his later writings, but his essay On Liberty was strongly antipathetic to the ‘revolution in government’

442 See p 19. 443 A theme explored in K Smith, ‘Law and Political Economy’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010) 159–88. 444 Lobban (n 419) 72. 445 Smith (n 443) 172; adding at 228 that ‘in the context of political economy, seeking to identify Utilitarianism as either collectivistic or individualistic, interventionist or non-interventionist, is an analytically doubtful, if not futile exercise.’ 446 MacDonagh, ‘Nineteenth-Century Revolution’ (n 122) 65. This assessment, and MacDonagh’s further assertion that administrative Benthamism ‘had ‘a large measure of eccentricity and irrelevance’ and ‘had no influence upon opinion at large or, for that matter, upon the overwhelming majority of public servants’, triggered two decades of scholarly debate, reviewed in Devereaux (n 149) 745–46.

Part 1: Industrialisation 1750–1875 69 which MacDonagh identified, unlike the ideals of ‘administrative Benthamites’ which ‘went with the grain’ of this revolution.447 There is no doubt that some of Bentham’s writing on political economy merits the description ‘individualist’, eg his argument for repeal of the Usury Laws in the Defence of Usury and his motto in the Manual of Political Economy that in the economic realm government should ‘Be quiet’.448 But his wrestling with economic concepts led him away from Adam Smith’s world where the enlightened effects of individual self-interest usually required markets to be left free and competitive. Bentham came to contemplate state intervention in order to maintain investment and employment, compulsory saving and state participation in life assurance and friendly societies, the storing of food supplies and regulation of the maximum price of staple foods. The circle of his old age must have known something of all this. He himself had by then become less concerned with the perfection of a market economy and more preoccupied with a structure of government in which a functioning democracy could curb the self-interested instincts of those with power.449 How were Bentham’s ideas diffused? He produced no Koran or Kapital, nor was he even a Blackstone or a Smith. Occasional pieces of his massive oeuvre reached a reasonably wide public directly. But more became better known abroad through publication there, and much more, including his long final labours towards a Constitutional Code, was left unfinished. Any influence that he exerted therefore occurred through a complex process of absorption and interpretation by others, to which the historian Samuel Finer attached the ‘Benthamic’ labels of Irradiation (acceptance by a circle of intimates), Suscitation (propagation by means of reviews, carefully orchestrated investigations by parliamentary committees, royal commissions and the like, and circulation of their findings to the influential) and Permeation (working within bureaucracies established to promote utilitarian policies).450 The circle into which James Mill drew Bentham in the second decade of the nineteenth century included such notable figures among the political economists as David Ricardo, George Grote, John McCullough, Nassau Senior and Thomas Tooke; the radical lawyers, Samuel Romilly, Henry Brougham, Henry Bickersteth, Joseph Parkes and John Austin; and political figures such as Joseph Hume, Francis Place and John Roebuck. Through them there were

447 JS Mill, On Liberty (John Parker & Son, 1859). On Stephen’s counterblast, Liberty, Equality, Fraternity (H Elder & Co, 1874), see KJM Smith, James Fitzjames Stephen, Portrait of a Victorian Rationalist (Cambridge University Press, 1988) ch 7. 448 J Bowring (ed), The Works of Jeremy Bentham, vol 3 (William Tait, 1843) 33. The Defence of Usury was published in 1787; the Manual was started in 1790 and further material was added in later. A new edition of his work in this area is underway, four projected volumes which are intended to supersede W Stark (ed), Jeremy Bentham’s Economic Writings (Allen & Unwin, 1952–54); the first has been published: M Quinn (ed), J Bentham, Writings on Political Economy, vol I (Oxford University Press, 2016). 449 In early work he assumed that legislators would always seek to promote the greatest happiness of their communities, but his view changed as he became aware of ‘sinister interest’, following the failure of his Panopticon prison project: Schofield (n 435) ch 5. A sinister interest was one which sought to promote the happiness of a particular individual or group rather than the greatest number. Bentham initially identified the world of judges and lawyers as the prime example: see p 54 of the present volume. But he came to believe that sinister interest affected the workings of the whole political establishment, and this led him to conclude that effective government required democracy. In Plan of Parliamentary Reform (R Hunter, 1817) he identified the means by which ‘democratic ascendancy’ should be pursued: universal suffrage for men, equal electoral districts, annual elections and introduction of the secret ballot. Discussion in Schofield (n 435) ch 6. 450 SE Finer, ‘The Transmission of Benthamite Ideas, 1820–1850’ in G Sutherland (ed), Studies in Nineteenth Century Government Growth (Routledge & Kegan Paul, 1972).

70 Institutions and Ideas links to the younger leaders of the Whigs, such as Viscount Althorp and Lord John Russell. Hume and Place demonstrated the ‘suscitation’ of Select Committees in the 1820s451 and the technique was taken up in the 1830s and 40s, notably by Edwin Chadwick, but also by others in the circle. Chadwick would also become a highly public ‘permeator’, in the central administration of first the poor law and then public health; there were many others, including James Kay (later Kay-Shuttleworth) and Thomas Southwood Smith who worked with him on health aspects of poor relief,452 and Charles Poulett Thompson who became President of the Board of Trade (under Melbourne) in 1834. Men such as these knew much of the techniques for fostering ideas and pressing practical plans; in a changing world they would have an undeniable impact. But still the ‘philosophical radicals’, as Mill christened them, remained an allegiance primarily intellectual and only incidentally political. They did not seriously consider forming a separate party and their associations with the radical fringe of the Whigs was loose and shifting. They were a debating club without any common line upon the dictates of policy. Between them they pursued a number of striking ideas; but they were only one set of contributors to a larger whole.453 By this time, political economists had reconsidered Smith’s benign view of a society growing naturally in response to an increasing division of labour. Thomas Malthus’s warnings of the tendency of population increase to outstrip food production, with the inevitable result that the mass of people must remain condemned to a bare subsistence, seemed all too apparent in contemporary events.454 His was an explanation of the high economic rent that the landed classes had enjoyed during the war period and a justification of their subsequent interventions to protect the price of corn. His popularity with them was heightened by his support for conspicuous consumption among the few and his view that the poor law was an artificial interference which, by stimulating the birthrate and lowering the death rate, could only exacerbate the root problem. Malthus’s view of the Corn Laws was attacked by Ricardo in his analysis of economic functioning.455 His depiction of agricultural rent as a depletion of the capital otherwise available for industrial investment brought out the conflicting interests of landowners and manufacturers. At the same time, for all his emphasis on labour as the measure of value, Ricardo affirmed that the labouring class must take its earnings from a free and fluctuating market unsupported by poor law allowances or legal limits on hours or conditions. This provided the one efficient way of dividing the ‘Wages Fund’, that share of national income which was available to the needs of labour.456 In the hands of economists such as Senior and McCullough these arguments would be transmuted even more directly into prescriptions of policy. These they sometimes chose to express in terms of unremitting laissez-faire, as did the economic politicians of

451 See p 288. 452 See 161–63. 453 WA Thomas, ‘The Philosophic Radicals’ in P Hollis (ed), Pressure from Without in Early Victorian England (Edward Arnold, 1974). 454 Essay on the Principle of Population (J Johnson, 1798); see p 116; working on the assumption that each couple would produce twice as many children, Malthus pronounced that population grew geometrically while food supply could at best grow arithmetically. 455 Principles of Political Economy and Taxation (John Murray, 1817). 456 It remained a standard tool of analysis until disproved by JS Mill, Principles of Political Economy (JW Parker, 1848) 337–54.

Part 1: Industrialisation 1750–1875 71 the ‘Manchester school’, and the populists who followed them.457 At other times they were more circumspect, particularly as they grew older and less doctrinaire. They could feel that utilitarian calculations of the behaviour of economic man did not always dictate that government should ‘be quiet’, that sometimes the best way of tackling new social problems was well-directed, adequately supervised intervention. But even then their plans were drawn so as to leave as much scope as practicable for the free market. The case for the protection of factory children against intolerable hours was made out; but for Chadwick and his associates on the Factories Commission any solution should not compromise the freedom of adult operatives to work for as long as they had agreed.458 One reason why the utilitarians cannot be regarded as more than a contributory, and sometimes muted, force in building the non-interventionist ideology is that to claim more for them ignores the massive influence of the spiritual, moralistic movement that is labelled Evangelicalism. The comfort of an assured place in God’s estate, which characterised so much of the Established Church’s perception in the eighteenth century, had been disturbed by a new and anxious desire for salvation from original sin.459 Rooted partly in the Calvinist traditions of the Old Dissenters, it had been heightened by the sober, committed orderliness of the Methodist sects which sprang from Wesley’s beginning, and it found its way into the Church of England through the campaigning of the Clapham Sect and a wider missionary zeal. Here in various guises was a vital religion which demanded an act of profound submission and re-orientation in order to be saved: the subject must undergo within himself a conversion to the Lord and must thereafter work constantly and unselfishly for the good of others rather than himself. It was a profound source of inspiration for the whole spirit of selfhelp, that a moral force within was the only guide to righteousness. The eagerness to mould others sometimes, as in the new regimes imposed upon prisons, took on the appearance of force-feeding;460 but even there, as more benignly in the churches’ arrangements for popular education,461 there was a ready recognition that an individual could only find himself. As a utilitarian calculator, a man such as Chadwick could be drawn by experience of the intractable problems facing the state to an ever louder call for intervention and regulation. An evangelical in the mould of Lord Shaftesbury could equally ally his inspiration with the older beliefs of his aristocratic background: from the emergent state he was not afraid to demand a paternalistic responsibility. But such people had to battle against hostility and uncooperativeness ranging from grand denunciations of principle to penny-pinching refusals to provide financial support.462 In the end, therefore, one must conclude that they were

457 WD Grampp, The Manchester School of Economics (Stanford University Press, 1960); G Bresiger, ‘Laissez Faire and Little Englanderism: The Rise, Fall, Rise, and Fall of the Manchester School’ (1997) 13 Journal of Libertarian Studies 45; H Scott Gordon, ‘The London Economist and the High Tide of Laissez Faire’ (1955) 63 Journal of Political Economy 461; AJ Taylor, Laissez-faire and State Intervention in Nineteenth-century Britain (Macmillan, 1972) 27: Harriet Martineau’s Illustrations of Political Economy 25 vols (Charles Fox, 1832–33) gave her ‘undisputed pre-eminence’ as a vulgariser of classical economic theory. 458 See p 293. 459 B Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Thought, 1795–1865 (Clarendon Press, 1986). 460 See pp 557–63. 461 See pp 412–15. 462 Taylor (n 457) 58–62.

72 Institutions and Ideas only a counter-current and that the tides of economic rationality and religious feeling both ran strongly in the opposite direction.

iv. Stirrings of Socialism An ideology of labour, a belief that members of the working classes had a common interest at odds with those of landowners and capitalists, had its first significant manifestations in the 1790s and would spread with industrialisation. The case for the cohesiveness and effectiveness of this rise in working class consciousness has most memorably been made by EP Thompson.463 The methods of utilitarian calculation encouraged detailed factual investigation of social conditions for the purposes of statistical and other comparison, and the calculations of Dr Charles Hall and Patrick Colquhoun began to show the shape of the emerging capitalist society and the unequal proportions of national income drawn by different classes.464 More telling, however, was the idealistic case for man’s natural rights, tested by the French revolution and set in a British context by Thomas Paine’s Rights of Man. His case against the unscrupulous appropriation by the monarch and the great estate-owners through control of the political system was read and re-read in the constitutional clubs of the 1790s and for generations thereafter. In developing an attack on the Ricardian assumption of the capitalist’s right to take the profit of the production that he has organised,465 Thomas Hodgskin was drawn into a further attack on legislation and the utilitarian theory which denied that rights existed apart from and anterior to positive law.466 His object was to show that the only natural right of property was in the maker of the thing and that any positive law which gave ownership to another was artificial, distortive, and, above all, oppressive. In Paine’s own period the first ideas were beginning to be formulated of a future ideal state. He himself advocated the use of taxation as a weapon of redistribution to those in social jeopardy,467 an idea that would have to wait a century for implementation. Other more extreme precepts were canvassed. There might be no apparatus of the state: in William Godwin’s vision, the height at once of atomism and optimism, the abandonment of protection for private property would leave each with a frugal sufficiency, making him independent of others.468 Thomas Spence advocated the revival of local communities by the parishes re-annexing their lands for letting out to tenants; their rents would be a sufficient

463 EP Thompson, The Making of the English Working Class (Victor Gollancz, 1963). See too R Foster, Class Struggle and the Industrial Revolution (Weidenfeld & Nicholson, 1974) chs 1, 2 and 7; G Crossick, ‘The Labour Aristocracy and its Values: A Study of Mid-Victorian Kentish London’ (1976) 19 VS 301; G Stedman Jones, Languages of Class: Studies in English Working Class History 1832–1982 (Cambridge University Press, 1983) chs 1, 3 and 4; R McKibbin, ‘Why Was There No Marxism in Britain?’ (1984) 99 EHR 297; K McLelland, ‘Some Thoughts on Work and the “Representative” Artisan, 1850–1880’ (1989) 1 Gender & History 164; A J Reid, United We Stand: A History of Britain’s Trade Unions (Allen Lane, 2004). 464 C Hall, The Effects of Civilisation on the People in European States (Longman et al, 1805); P Colquhoun, A Treatise of the Wealth, Power and Resources of the British Empire (J Mawman, 1814). 465 For this, see his Labour defended against the Claims of Capital (1825). 466 The Natural and Artificial Rights of Property Contrasted (1832), a riposte to Brougham’s espousal of utilitarian law reform in the Commons. 467 T Paine, The Rights of Man (JS Jordan, 1791) Part II and Agrarian Justice (J Adlard, 1795). 468 W Godwin, Enquiry Concerning Political Justice, and its Influence on Morals and Happiness (G Robinson, 1793).

Part 1: Industrialisation 1750–1875 73 tax to provide the needs of government.469 What was absent was the idea of national control of land as the ultimate resource of society. As far as concerned the means of implementation, advocacy of change by violent overthrow was of necessity muted by the government’s readiness to prosecute treason and sedition. And until 1832, the campaign for Parliamentary reform by legislation held a real prospect of success on a substantial scale. In any case there was a third possibility: that example would lead to emulation without the need for arms or statutes. The ideas of Robert Owen, which made such a distinctive contribution to socialist ideology in Britain, underscored this prospect.470 Owen’s answer to the oppression of competitive capitalism was a communism born of cooperation. He did not look to the state but to far-seeing paternal individuals (such as himself) who would establish productive factory-villages with a view to providing the workers with a decent environment for living as well as working and a share in the profits of their production. Their evident superiority would be enough. Owenite communities for cooperative production were set up but in England they failed to establish any permanent foothold. It was to be in the simpler activity of cooperative distribution, and in mutual insurance and financial services, that a very substantial movement would grow. Its practical achievements would foster a working-class ideal that retained much of Owen’s essence: an optimistic belief that mutual action would of itself bring the working people a greater share in the national prosperity. It was to be a significant factor not only in developing the trade union movement, but in convincing those above that below them were emerging ‘industrious classes’ with whom it was on balance profitable to treat over political and legal rights.471 Much less peaceable were many of the voices associated with the Chartist movement. Amid all the bluster and carefully qualified incitements to physical force, two ultimate plans could be discerned. One, essentially radical and individualist, sought to foster the spread of independent peasant farming through the establishment of small freeholds; it thus ran in tandem with the freehold movements of the Manchester school, though without the same overt intention of multiplying votes in the process. This was associated mainly with Feargus O’Connor, who proved to lack the managerial skills to make his Chartist Land Company a viable institution.472 The vision of returning to a simple rural existence was, however, to have an unending appeal to the factory-tied labourers of the towns.473 The other, explicitly socialist, plan was the brain-child of Bronterre O’Brien. It entailed the progressive acquisition by central government of the land, ie land nationalisation. In order to be acceptable it would take place upon death, the heir being paid some c ompensation for his deprivation. The land would then be let out at competitive tender to tenants; but the 469 T Spence, The Constitution of a Perfect Commonwealth (T Spence, 1798); The Restorer of Society to its Natural State (J Smith, 1801). For the resurgence of the ‘single-tax’ idea, see p 171. 470 R Owen, Observations on the Effect of the Manufacturing System (1815); A New View of Society (Cadell & Davies, 1816); Report to the County of Lanark (Wardlaw & Cunninghame, 1820). 471 For general discussion, see G Claeys, Citizens and Saints: Politics and Anti-Politics in Early British Socialism (Cambridge University Press, 1989); C Williams and N Thompson (eds), Robert Owen and His Legacy (University of Wales Press, 2011). 472 J MacAskill, ‘The Chartist Land Plan’ in A Briggs (ed) Chartist Studies (Macmillan, 1959); A Hadfield, The Chartist Land Company (David & Charles, 1970); M Chase, ‘“We Wish Only to Work for Ourselves”: The Chartist Land Plan’ in M Chase and I Dyck (eds), Living and Learning: Essays in Honour of JFC Harrison (Scolar Press, 1996); M Chase, ‘“Wholesome Object Lessons”: The Chartist Land Plan in Retrospect’ (2003) 118 EHR 59. 473 See p 170.

74 Institutions and Ideas farming would have to conform to a plan which would assess national needs for foodstuffs and other natural produce. O’Brienite groups would survive the final end of Chartism itself. His ideas would re-emerge as one strain in the land reform movement that became increasingly insistent after 1867.474 O’Brien took the land as a case apart and his ideas did not extend to the socialisation of all the means of production and distribution with which Karl Marx was to become preoccupied in the 1860s. There was a movement for nationalisation of the railways, but this was a middle-class cause by which commercial users sought to attack the companies’ freight rates. Despite a battering from the railway interest, this was carried in the Railway Regulation Act 1844 so far as to give an option of state purchase after 21 years, but on such generous terms as to preclude the prospect ever being taken up. Freights came to be regulated instead and calls for nationalisation took an ancillary place in periodic confrontations on the subject.475 So the case remained until the railwaymen gained enough strength to shift the whole balance, but that would not be until the new century.476

Part 2: Passing Greatness 1875–1950 A. Society and Law Between 1851 and 1901, the population of England nearly doubled from 16.8 million to 30.5 million, and between 1901 and 1951 it grew by a third again to 41.2 million. During the same period, the relative numbers of city-dwellers grew, and the 37 ‘great towns’ of 1871 had become 75 by 1901 and 113 by 1931.477 The reasons for this varied with social sectors and are hard to pin down, but it is likely that for members of the urban working class a decline in fertility was offset by an increase in the chances of staying alive, particularly for young children.478 The families in which people lived also changed profoundly over this period. In 1875 fewer than 200 marriages were ended by divorce; by 1950 it was over 30,000.479 While this in itself is not evidence of increasing family instability – far more Victorian couples resorted to the remedies provided by the magistrates’ courts,480 and little scholarly work has been

474 EE Barry, Nationalisation in British Politics: The Historical Background (Jonathan Cape, 1965) ch 1. 475 On the regulation of freight (and passenger) charges, see T Leunig and N Crafts, ‘Did Early Utility Regulation Work? An Investigation of British Railway Regulation Prior to the First World War’ (Public Services Programme Discussion Paper Series: No 0804 August 2008). 476 Barry (n 474) ch 3. 477 ie towns with a population of 50,000 or more: DC Marsh, The Changing Social Structure of England and Wales 1871–1961 (Routledge & Kegan Paul, 1965) 66–76. 478 M Anderson (ed), British Population History: From the Black Death to the Present Day (Cambridge University Press, 1996) chs 5 and 6; S Szreter, Fertility, Class and Gender in Britain 1860–1940 (Cambridge University Press, 1996); S Szreter and A Hardy, ‘Urban Fertility and Mortality Patterns’ in MJ Daunton (ed), The Cambridge Urban History of Britain, vol 3: 1840–1950 (Cambridge University Press, 2000). 479 G Rowntree and NH Carrier, ‘The Resort to Divorce in England and Wales, 1858–1957’ (1958) 11 Population Studies 188. 480 See O McGregor, L Blom-Cooper and C Gibson, Separated Spouses (Duckworth & Co, 1970).

Part 2: Passing Greatness 1875–1950 75 done on the extent of informal separation481 – the ability of a growing number to exit from a failed marriage and be free to enter into a new one was nonetheless significant. Marriage itself remained popular, with over 350,000 couples tying the knot in 1950. Yet studies of children born outside marriage were beginning to provide evidence that a significant proportion were living with both of their parents, in sharp contrast to the position in the nineteenth century.482 Social perceptions – particularly those of class – began to shift from their mid-nineteenth century-forms. The antagonisms between landed elites and bourgeois businessmen, so intense in the 1830s and 1840s, came to mean less. As prosperity spread, the boundaries between them became blurred – by an intermingling of wealth and occupation, by intermarrying, and by a sharing of education and thus of speech and culture. After WWI, many great estates were split up, passing in farm-sized lots to tenants or newcomers;483 and while the snobbery of the high Victorian age was a long time dying, property owners of all kinds began more often to think of themselves as united rather than divided.484 Most of the wageearning working classes remained bound to a life of frugal subsistence, but their incomes and living standards improved, literacy levels increased, and there were new opportunities for sexual and cultural freedom.485 In religion, political allegiance, regional affiliation, occupation and earnings, there were many differences among them,486 and the period from 1850 to 1900 saw an increase in social mobility rates.487 Nevertheless, a basic division was established between those with property and those without. The economic underpinnings and political consequences of this realignment would bring many legal reorientations. Laws which explicitly discriminated against members of a particular class or rank had not often been created in the past; they usually marked a point of severe social tension – as with the Master and Servant Acts – and they did not survive in a post-1867 world in which such rules were seen to belie the equality inherent in a ‘rule of law’.488 There were, though, many laws which treated members of the working class in a disadvantageous manner and they lasted for a long time (although it should not be overlooked that our period also saw the greatly increased use of legislation to benefit those who could not help themselves against the vicissitudes of old age, sickness, unemployment and bad housing). Examples discussed in succeeding chapters include rules which sent working class debtors to prison for non-payment of debts while enabling middle class debtors to declare themselves bankrupt,489 rules which made divorces available only to 481 For a small-scale study of families in crisis, see R Pimm-Smith and R Probert, ‘Evaluating Marital Stability in Late-Victorian Camberwell’ (2018) 21 Family & Community History 38. See further pp 360–61 on other extra-legal methods of dealing with marital breakdown. 482 R Probert, The Changing Legal Regulation of Cohabitation: From Fornicators to Family (Cambridge University Press, 2012). 483 D Cannadine, The Decline and Fall of the British Aristocracy (Yale University Press, 1990) ch 3. 484 R McKibbin, Classes and Cultures: England 1918–1950 (Oxford University Press, 1998) chs 1 and 2. 485 E Griffin, Liberty’s Dawn: A People’s History of the Industrial Revolution (Yale University Press, 2013). 486 M Savage and A Miles, The Remaking of the British Working Class, 1850–1940 (Routledge, 1994); A August, The British Working Class 1832–1940 (Pearson, 2007); McKibbin (n 484) ch 4. 487 J Long, ‘The Surprising Social Mobility of Victorian Britain’ (2013) 17 European Review of Economic History 1. Afterwards, mobility rates atrophied and did not reach the same levels again before the 1970s, disappointing the hopes of those who supported the systematic provision of public education: McKibbin (n 484) ch 5. See also A Miles, Social Mobility in Nineteenth and Early Twentieth Century England (Palgrave Macmillan, 1999). 488 See pp 308–09. 489 See pp 224–25.

76 Institutions and Ideas those – primarily members of the upper and middle classes – who could afford them,490 and rules affecting the relations between employers and employees which discriminated against members of the working class.491 Then, as now, the weight of the criminal law also tended to fall most heavily on those in the lower tiers of society. In the second half of the nineteenth century there was an increasing awareness of persistent reoffenders accompanied by a profound scepticism about the possibility of reforming their character. From the Carnarvon Committee Report of 1863 up until the Gladstone Committee report of 1895, the theme was one of deterrence.492 A harsh penal regime was coupled with a policing system which, after a fitful start, was increasingly effective in the investigation of crime and the destruction of criminal networks. Allied to an increasing general prosperity, the result was a declining rate of offending and incarceration. And this in turn seems to have led to the declining fear of crime which, perhaps ironically, eventually led to the adoption of the more liberal penal policies characterised by the Prison Act 1898.493 Thereafter, the steady expansion of probation and, perhaps most importantly, the development of more enlightened policies in respect of young offenders, ensured that right up until the middle of the twentieth century there was little need to enlarge the prison system. For the most part, the Victorian establishment proved adequate. Whilst one must allow for many caveats, it also seems fair to say that it was during the first half of the century that the general populace became habituated to professional law enforcement and the policeman became endowed with that particular esteem associated with the not entirely mythical ‘Golden Age’ of policing. By the end of our period the system as a whole looked remarkably stable and cost-effective. Few predicted the challenges that were to come.

B. Economic Decline and Law An important counterpart of these changes in social relations was the decline of the country’s global economic dominance: it would never again experience the bullishness of the early 1870s. In agriculture, the vast profitability of corn production would be hit by competition, mainly from the North American prairies; domestic meat production would have to face foreign imports made possible by ship refrigeration. The depression of the later 1870s and 1880s, patchy though it was, would produce a new economic stability only in the Edwardian years; and in the process the aura which surrounded the great estates and their owners would dim. In export trading, Britain was overtaken in the late 1800s by Germany and the United States. Those countries, and lesser powers like France, began to move from a freeing of the barriers around their own markets back towards higher protection. For the British this brought into question the future of Cobdenite free trade.494 A ‘fair trade’ lobby demanded 490 GL Savage, ‘The Operation of the 1857 Divorce Act, 1860–1910: A Research Note’ (1983) 16 JSH 103. See also pp 363 and 365–66 of the present volume. 491 See eg pp 281 (breaches of employment contracts by employees triggered criminal liability, but breaches by employers merely triggered civil liability), 318 (combinations by businessmen against competitors were legal, but combinations by employees against employers were not) and 496 (‘fellow servant’ defence to tort action by employee against employer). 492 See pp 589–93. 493 See pp 605–07. 494 A Howe, ‘Free Trade and Global Order: The Rise and Fall of a Victorian Vision’ in D Bell (ed), Victorian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought (Cambridge University Press, 2007).

Part 2: Passing Greatness 1875–1950 77 retaliatory discrimination in British markets, or even a systematic policy of preference between the still expanding units of the British Empire. These challenges only held attention during the worst moments of trade depression and gained no real momentum until they were taken up by Joseph Chamberlain in 1903 under the banner of ‘tariff reform’.495 Thereafter the idea would have an allure for Conservative leaders, seeking an answer to unemployment and other social problems in some form of secure economic prosperity rather than state relief. The electorate, however, adhered to old faiths: protection still meant expensive food. Only the catharsis of the international economic collapse of 1929–32 would make it seem inevitable, and it was eventually instituted under Neville Chamberlain’s guidance in 1932, to include an Imperial Preference which meant that British farmers would have to share their home market with Dominion producers.496 A state which in living memory had intervened in the economy only in wartime had assumed a decisive role as a peacetime planner. The spread of international competition coincided with an increase in the scale of domestic industry. In the closing years of the nineteenth century, the registered company form came to be adopted by most industrial concerns as they outgrew the ownership and management of a single family or partnership.497 The company became the typical form of large business organisation, not only as a means of raising stock market finance and limiting shareholder liability, but also as a basis for employing career managers and defining chains of command and duties. The law imposed no constraints on the financial structure which might be chosen. Nor, save for an experiment with workmen’s compensation for accidents, did it oblige employers to look after their employees’ welfare; instead the state established its own schemes, paid for by both employer and employee in the case of national insurance against sickness and unemployment.498 The openness of the law of incorporation allowed endless adaptation and this flexibility also permitted the absorption of smaller businesses into larger corporate units, a process which became significant in the 1920s under the catch-word of ‘rationalisation’. It would lead after 1926 to larger groupings in successful, newer industries, such as cars (Austin, Morris), tobacco (Imperial Tobacco), rubber (Dunlop) and food (Unilever, Cadbury-Fry) and to national units that were related to international cartels, for instance in nickel (International Nickel) and chemicals (Imperial Chemical Industries). In the staple industries, the 1929 crisis led to calls for statutory backing. Anxieties over unemployment and overcapacity overrode worries about the growth of restrictive practices, and the G overnment used its powers to support cartelisation and restrict competition. The Coal Mines Act 1930 introduced a compulsory cartel scheme; marketing boards were created for coal, shipbuilding and agriculture in 1931; and substantial subsidies of between £30 and £40 million per annum were paid to encourage domestic agricultural production.499 In the aftermath of 1867, when the main unions were still confined to the skilled and semi-skilled trades, a new moderation entered labour relations. Older hostility against

495 SH Zebel, ‘Joseph Chamberlain and the Genesis of Tariff Reform’ (1967) 7 JBS 131; EHH Green, The Crisis of Conservatism (Routledge, 1995) 27–56. 496 The major dominions already had protectionist inhibitions on British imports where their domestic producers needed them. 497 See pp 256–57. 498 See pp 424–28 and 429–31. 499 M Daunton, Wealth and Welfare: An Economic and Social History of Britain 1851–1951 (Oxford University Press, 2007) 112–20; and see pp 261–64 of the present work.

78 Institutions and Ideas the unions, given force by repressive, abnegating law, was replaced by organisational rules (subject – at the unions’ behest – to a substantial measure of freedom from supervision and enforcement by the courts) and some freedom to withdraw labour and to support this with picketing activities.500 When, 20 years later, mass unionism embracing the unskilled began to take shape, there was a frightened reaction against this generosity, in which the judges played a prominent part. But its direct result would be a new set of concessions to a politically organised labour movement, which the Liberal Government of 1906 felt obliged to make. It would become plain in the years preceding WWI that the unions were acquiring a new scale of industrial power and might constitute a permanent threat to a capitalist economy. The pre-war talk of combined union action – the triple alliance of railway, dock and coal workers to effect, if necessary, a general paralysis of the economy – seemed to acquire new impetus in the charged atmosphere when the war came to an end. It led the coalition Government to convert wartime powers for repressing opposition, disaffection and interference with pressing needs into a peacetime equivalent.501 The Emergency Powers Act 1920 allowed the Government to proclaim a state of emergency and issue orders for preserving safety and securing supplies.502 Designed primarily to deal with major industrial conflict, the Act would come to demonstrate the histrionic and minatory potential of ultimate legal powers. It was, however, to be given full rein in the General Strike of 1926 when it was used not only (as on other occasions) to put the armed forces to running essential services but also to commandeer land and vehicles, to issue special licences to drive, to suppress meetings and to create special offences of spreading dissension. In the failure of the General Strike, legal process and the idea of legality played an essentially secondary role.503 The major unions were not able to sustain their position and unity in 1926 because of weaknesses in the British industrial structure which had been manifest since the sudden collapse of the post-war boom in 1920. If Britain weathered that first crisis without the financial chaos that overwhelmed Germany, the country was left with endemic unemployment that would prove hard to lift. And when the great collapse of 1929 came it would hit the country with particular virulence.504 The 1920s provided an anxious experience which turned many towards a far greater involvement of the state in planning and adjustment of the economy than had previously been contemplated save by those on the extremes of political debate. Law would be used not merely in support of private property and market transactions; it would make the state an owner and exploiter of crucial

500 See pp 303–11 and 317–24. 501 The regulations under the Defence of the Realm Act 1914, wide-ranging in their curbs upon civil liberties, had been used particularly to put down strikes and other labour trouble on Clydeside and elsewhere: GR Rubin, War, Law and Labour: The Munitions Acts, State Regulation, and the Unions, 1915–1921 (Clarendon Press, 1987). 502 After one month, the state of emergency required Parliamentary approval. Inter alia, special courts of summary jurisdiction would be set up: for the administrative structure that operated the Act under Conservative and Labour governments, see RH Desmarais, ‘The British Government’s Strikebreaking Organisation and Black Friday’ (1971) 6 JCH 112 and ‘Strikebreaking and the Labour Government of 1924’ (1973) 8 JCH 165. See also K Jeffery and P Hennessy, States of Emergency: British Governments and Strikebreaking since 1919 (Routledge, 1983) chs 1–5; C Wrigley, Lloyd George and the Challenge of Labour: The Post-War Coalition, 1918–1922 (Harvester Wheatsheaf, 1993) chs 7 and 8. 503 See pp 335–40. 504 See pp 434–37.

Part 2: Passing Greatness 1875–1950 79 resources, a regulator of major industries and financial institutions and guardian of the essential pre-conditions of a decent life.

C. Politics and Law i. Parliamentary Democracy The semi-democracy of 1867 was sustained by no compelling logic. In 1884 Gladstone oversaw an extension of the householder franchise to the rural as well as the urban population,505 supported by his own instinct for ‘the people’, by the Chamberlainites and by the Irish MPs (elected, since the secret ballot of 1872,506 without direct pressure from landlords’ agents). The Third Reform Act extended the franchise from one in three to two in three adult males, but the qualifications became more complex, turning on a residence requirement of one year for householders and others.507 Gladstone made the case for treating householdership as a rough correlative of the maturity and responsibility required in an elector. It was harder to justify the continued exclusion of women householders from the parliamentary franchise, although they enjoyed a number of local franchises as rate-payers.508 A small band of suffragists would keep up the case and exasperation eventually led the Pankhursts and their ‘suffragette’ followers to mount a campaign of civil disobedience. Politicians resisted this, but then abruptly used the sudden drafting of women into the wartime economy as a reason for conceding the vote in the last year of WWI.509 By then, the virtues of householdership (which would have excluded most women, just as it excluded most men who lodged or lived with relatives) no longer set a dependable barrier. The vote was given instead to adult residents and occupants,510 although women had to wait another ten years for real parity.511 The admission of rural householders to the Commons franchise in 1884 demanded a major restructuring of constituencies, for the increase in the numbers of voters

505 Representation of the People Act 1884. Lodgers whose lettings were for £10 annual value or more were included. Owners of businesses and graduates continued to have more than one vote. At the same period the electoral process became more respectable: Corrupt and Illegal Practices Act 1883. A sanguine view of the Act’s effectiveness is taken in C O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (Clarendon Press, 1962); a more qualified evaluation is offered by K Rix, ‘“The Elimination of Corrupt Practices in British Elections”? Reassessing the Impact of the 1883 Corrupt Practices Act’ (2008) 123 EHR 65. 506 On the Ballot Act 1872, see M Crook and T Crook, ‘The Advent of the Secret Ballot in Britain and France, 1789–1914: From Public Assembly to Private Compartment’ (2007) 92 History 449. 507 Registration Act 1885. The lodger provision proved so difficult that it was only returned in marginal constituencies: N Blewett, ‘The Franchise in the United Kingdom, 1885–1918’ (1965) 32 P&P 27. 508 See p 18. 509 Representation of the People Act 1918 (the Fourth Reform Act). The Act also removed the disqualification upon those in receipt of outdoor poor relief. 510 Electors could qualify in more than one constituency but could not vote more than once, with an exception for the last plural franchise, the university constituencies (which survived until 1948): Representation of the People Act 1918. 511 In 1918, the vote was restricted to women aged at least 30; the ‘flapper vote’ was admitted in 1928 and produced a majority of female electors. The Sex Disqualification (Removal) Act 1919 admitted women onto juries, as MPs and to all universities, offices and professions (with surviving limitations, particularly on married women in the Civil Service). It was held however not to have affected the exclusion of peeresses in their own right from the House of Lords: Viscountess Rhondda’s Claim [1922] 2 AC 339.

80 Institutions and Ideas (from three to five million) would have suddenly swollen the representative responsibilities of county members out of all recognition. The idea of proportional representation was canvassed but rejected as inconsistent with the engrained principle of representation from localities.512 Instead, in the redivision of 1885, single member constituencies were introduced and the number of seats increased from 416 to 643. The Liberal and Conservative parties, which had grown out of earlier roots after 1867, believed that they could manage a further intensification of democracy, and when Keir Hardie launched an Independent Labour Party in 1893, few believed that it had much prospect.513 Even court awards of injunctions and damages in civil suits against trade unions which had organised strikes seemed in the short term to provoke a reaction in favour of the Liberals.514 In their massive electoral victory of 1906, there were also elected 29 Labour Representation Committee candidates and 24 miners and ‘Lib-Labs’. But there would be little future for an independent labour movement if the unions could not support Labour MPs financially – and in the Osborne judgment of 1909, the House of Lords ruled that they could not do so.515 However, this second legal attack infuriated the Liberals, who responded in 1911 with legislation for the direct payment of MPs,516 followed by legislation which allowed the unions to establish separate political funds to which members would contribute unless they contracted out of doing so.517 Democratisation of the Commons brought with it a new discipline for its parties. Both Liberals and Conservatives began to build national machinery which would ensure that there were suitable candidates in position to contest elections, and the leaders of government and opposition began to expect their elected members to follow their lead in the voting lobbies, imposing their will through the party whips.518 The result was a decline in dissidence in the House of Commons and an increase in the tendency after 1868 of English voters to vote for parties rather than for individuals. As part of its appeal to voters, each party would pledge itself more or less specifically to a programme, and with a dependable parliamentary party, the victors would then begin to turn their platform into operative legislation. While either party could expect to have its way in the House of Commons so long as it commanded a working majority, it was very much part of the late Victorian realignments that

512 TR Bromund, ‘Uniting the Whole People: Proportional Representation in Great Britain, 1884–5, Reconsidered’ (2001) 74 HR 77; M Roberts, ‘Resisting “Arithmocracy”: Parliament, Community, and the Third Reform Act’ (2011) 50 JBS 381. There would remain advocates of proportional representation and the idea attracted a following which lasted up to the final dose of electoral reform in 1918: M Pugh, Electoral Reform in War and Peace 1906–18 (Routledge & Kegan Paul, 1978) ch 11. 513 H Pelling, The Origins of the Labour Party 1880–1900, 2nd edn (Clarendon Press, 1965); A Thorpe, A History of the Labour Party, 4th edn (Palgrave, 2015) ch 1. 514 See pp 322–23. 515 Amalgamated Society of Railway Servants v Osborne [1910] AC 87. 516 They went cautiously, setting the figure at £400 pa, equal to the amount paid to a junior clerk in the civil service. Lloyd George said that this was ‘not even a salary … just an allowance’, a distinction with which Parliamentarians continue to grapple more than a century later. 517 Trade Union Amendment Act 1913. See p 330. 518 GW Cox, ‘The Origin of Whip Votes in the House of Commons’ (1992) 11 Parl Hist 278. At the same period, other forms of discipline had to be built into Commons procedure, particularly in face of filibustering by Parnell’s Irish cohort. The Speaker’s guillotine upon debates, instituted in 1882, was one crucial step towards government control of the Parliamentary time-table. See AL Lowell, The Government of England (Macmillan, 1917) ch 35; E Hughes, ‘‘The Changes in Parliamentary Procedure, 1880–1882’ in R Pares and AJP Taylor (eds), Essays Presented to Sir Lewis Namier (Macmillan, 1956).

Part 2: Passing Greatness 1875–1950 81 only the Conservatives could count upon support in the House of Lords. The rough parity of Whigs and Tories among the peers up to 1867 then gave way to a permanent predominance of Conservatives, as financial and commercial interests, the old landed Whigs, and finally the Unionists deserted the Liberal ship. Under Lord Salisbury’s scrupulous command, the Lords tempered their inclination to govern even when in opposition, accepting the Third Reform Act and its attendant redistribution of seats, and even approving the democratisation of their own heartlands, the counties.519 But once the Liberal Government of 1906 began to feel that the party’s future lay in social reform and wealth redistribution – using graduated income tax to pay for increased opportunities for education, old-age pensions and national insurance against unemployment and ill health at work – the Lords made a succession of direct challenges.520 Lloyd George drew them into the dangerous game of rejecting the finance bill which embodied the People’s Budget of 1909, and in the resulting show-down they proved to lack the command of old positions which might have preserved their traditional powers. Only their prestige enabled them to survive as an almost supernumerary brigade in the constitutional ranks.

ii. The Cost of Government As the cost of government rose, the question of who should pay for it became a front marker of politics. Pressing needs could be financed, as they had long been, by loans. But loans had to be serviced and ultimately repaid. Since central government provided little by way of profit-making services, and local government had begun to do so only where the notion of municipal enterprise was catching on, the bulk of expenditure had to be met, immediately or in the long run, from taxes or rates. Central government had traditionally raised most of its revenues by indirect taxation upon commodities produced (excise), imported (customs) or sold (sales tax) rather than by taxation proportional to the income or wealth of individuals. Customs and excise duties, regressive in that they fell as a higher proportion of income on the less well-off, were relatively easy to collect. They could be assessed without investigation into personal affairs that was implicit in any tax on personal income or capital. Income tax had not proved wholly escapable, however. Under the younger Pitt it had largely taken over as a wartime tax from the earlier land tax, both taxes being upon annual accruals, declared or estimated.521 Peel had revived the income tax in 1842, following the legal patterns set in 1799 and 1802,522 and thereafter it never entirely disappeared, although Gladstone in particular was committed to its repeal and took this prospect as a pretext for refusing to make its incidence more just. In the run-up to the 1874 general election, when both parties were advocating abolition of the income tax, it was bringing in

519 See pp 90–91. 520 In particular, the Education Bill 1906 and the Licensing Bill 1908 were at the centre of inter-party controversy. 521 Pitt’s income tax of 1799 had to be repealed in 1816 under fire marshalled by the young Brougham: BEV Sabine, A History of the Income Tax (Allen & Unwin, 1966) 26–46. 522 The Income Tax Act 1803 (also known as Addington’s Act) had introduced the five Schedules (A-E) of returns for particular sources of income, which would have a long influence on the form of the tax. See M Daunton, ‘What is Income?’ and J Tiley, ‘Aspects of Schedule A’, both in J Tiley (ed), Studies in the History of Tax Law, vol 1 (Hart, 2004). See too A Likhovski, ‘A Map of Society: Defining Income in British, British Colonial and American Tax Legislation’ [2005] BTR 158.

82 Institutions and Ideas £5.7 million, while customs and excise were accounting for two-thirds of a total expenditure of £77 million.523 The only point at which capital itself was taxed was on death, when, for a long period, a jumble of duties had been extracted – inheritance duty on realty, probate duty on personalty and legacy duty from collateral and unrelated successors. The Conservatives had begun the process of reform in 1888, but it was the Liberals, with the declared intent of increasing revenue,524 who substituted a single estate duty payable on all wealth at death. The notion that taxation should be proportional – advocated by Mill for its equity and practised by Peel and Gladstone for its political appeal – was replaced by one of social responsibility.525 The estate duty was graduated: one per cent was payable on estates under £500, but then the rate climbed, being five per cent for estates worth between £25,000 and £50,000, and eight per cent for estates worth more than £1 million.526 Here was a machine that future Chancellors could use to extract increasing returns from the wealthy.527 The cost of local government grew still more rapidly than the cost of central government after legislation was enacted in the 1860s which established standards for poor relief, education, policing and public health, and as further legislation beginning in the 1870s switched from the permissive ethic which had formerly prevailed to the imposition of compulsory spending requirements. Thereafter, practically all public investment in Britain ‘was accounted for by local authority [spending on] … infrastructure and social overhead: roads, waterworks, schools, town halls, tram lines, electricity stations, gasworks, workhouses’; but although local authorities were required to undertake such projects, central government ‘was not willing to use general income taxes or indirect taxes to support or equalise the burden on local communities’ – and this created ‘a severe fiscal problem especially for the rapidly growing urban areas’.528 Some municipal corporations such as Bristol and Liverpool made money out of property development; others, such as Leeds, developed enterprises in gas, electricity and tramways and ‘effectively used the profits as a tax on ratepayers, non-ratepayers, and even non-residents’;529 many borrowed from the Public Works Loan Board.530 Otherwise they were dependent on local taxation. The principal means of this was the rate, which had come over time to be a levy on the estimated value of land to its occupier. Rates were quite easy to impose (since, as with the land tax and the income tax on land occupiers, they were based on a notional assessment of receipts less maintenance costs) and to collect. But rating was only gradually becoming 523 In contrast, by 1914 direct taxes were accounting for 60 per cent, of a much increased revenue. 524 Particularly to meet naval expenditure. 525 M Daunton, Trusting Leviathan: The Politics of Taxation in Britain, 1799–1914 (Cambridge University Press, 2001) esp chs 3, 4, 8, 10 and 11. Daunton emphasises the way in which Gladstone (and Peel before him) used fiscal reform to disarm political radicalism, as to which see also HCG Matthew, ‘Disraeli, Gladstone and the Politics of Mid-Victorian Budgets’ (1979) 22 HJ 615; G Stedman Jones, Languages of Class (Cambridge University Press, 1983) 167–78. 526 Finance Act 1894, Pt I. 527 Goschen called it ‘scaffolding for plunder’; but as Conservative Chancellor of the Exchequer he had made the 1888 moves. 528 R Millward and S Sheard, ‘The Urban Fiscal Problem, 1870–1914: Government Expenditure and Finance in England and Wales’ (1995) 48 Econ HR 501, 501. 529 Millward and Sheard (n 528) 527. See also H Finer, Municipal Trading: A Study in Public Administration (Allen & Unwin, 1941). 530 I Webster, ‘The Public Works Loan Board and the Growth of the State in Nineteenth-Century England’ (2018) 71 Econ HR 887.

Part 2: Passing Greatness 1875–1950 83 standardised. Previously there had been the wildest variations in estimated valuations for rates and in the extent to which the poorest plots and cottages bore any liability at all. In the towns, the practice grew up of ‘compounding’ the rent and rates of domestic lettings into a single payment to the landlord, who was then responsible for paying the actual rates to the local authorities, at a discount for his agency. How much was brought in by these arrangements varied significantly with local levels of wealth, and those towns with a low rateable base were forced to cut services, with the result that local government expenditure per head of population varied greatly from one area to another.531 No simple test could determine what should be paid for locally and what nationally. Between the evident cases (rubbish removal and street lighting, as distinct from foreign affairs and defence) stood divided and shifting ground.532 As rates continued to rise, agricultural occupiers (and owners) claimed that they were bearing a special burden; while radicals insisted that most of the increases were being recovered from urban property, where rising rateable values accompanied the main growth in municipal expenditure.533 The issue became central to the party divide, the inclination towards active change lying with the Tories. Disraeli’s wisdom in treating town and country alike was ceasing to be conventional; the party swung towards favouring its agricultural supporters by rating relief coupled with grants-in-aid from central to local government. Mid-Victorian Parliaments had sometimes accepted the concept of a central contribution for a specific aspect of a local service, most notably when the counties were obliged to establish professional police,534 but these were special cases.535 In 1888, as part of their new deal at the county level, the Conservatives sought a new, more general settlement of financial relations between central and local government.536 The Chancellor of the Exchequer, Goschen, replaced the particular contributions to local expenditure by an assignment of nominated portions of national revenue. Initially, these were certain licence fees (arms, dogs, game, male servants, various forms of retailing, etc) which had a local feel about them, together with part of the probate duty (the death duty on personalty), which was intended to represent a contribution of personal wealth to local services. In 1890, Goschen added beer and spirit ‘surtaxes’ (‘whisky money’) and hoped that he had achieved a lasting c ompromise.537 But home government stood on the threshold of a still greater expansion. By 1912, expenditure on the local services of poor relief, mental health, police and prosecutions, main roads, sanitary officers and education would grow three times (from £18 million to nearly £55 million). To this central government would contribute a proportion which in 1890 was 40 per cent, and which would continue at just under that

531 Millward and Sheard (n 528) 527. 532 Thus the upkeep of highways would seem more naturally a national concern when long-distance use predominated; this it did in the coaching era and again towards the end of the nineteenth century, but not during the ‘railway age’. 533 This long and intricate debate is unravelled by A Offer, Property and Politics 1870–1914: Landownership, Law, Ideology and Urban Development in England (Cambridge University Press, 1981) chs 10–14. 534 See pp 572–73. 535 The other instances were the contributions to costs of prosecution (1835) and of poor law medical officers (1846). 536 Daunton (2001) (n 525) ch 9. 537 Edward Cannan called the result an ‘atrocious jumble’: The History of Local Rates in England, 2nd edn (PS King, 1927) 145, and see generally ch 6.

84 Institutions and Ideas figure; but it would be unable to resist reverting to financial arrangements that gave it more control. An ever-watchful Treasury could scarcely accept the automatic payment over of sums collected in its name. Some services – notably the reorganised education system of 1902 – demanded separate treatment. For the politicians, grants for particular services enabled them to encourage acceptable spending, and, in a world where populist majorities were no longer merely theoretical, to discourage what the voters disapproved of. The long-term effects of this policy would be to undermine the autonomy of local government during the twentieth century.538 Rating relief of agricultural occupiers, likewise, was not an entire novelty in the late nineteenth century, since agricultural land had occasionally been exempted in part from particular rates.539 The Conservatives finally introduced it as a general rule in 1896;540 farmers were relieved of one-half of their liability to rates,541 the shortfall being made up from general taxation through grant-in-aid (but only to the extent of the loss in 1895–96). This was followed by a broadly similar reduction in the rate on the clergy’s tithe rent-charges, a departure from Disraelian orthodoxy for a second favourite.542 Here was a significant element in the Liberals’ Parliamentary victory of 1906 and one which powered them along their collectivising, interventionist track.543 By way of countering the Tory favouritisms, they began once more to examine not only out-and-out land reform (such as nationalisation and smallholdings) but also taxing the special increments to land values that stemmed from social prosperity.544 This meant a tax on capital value separate from that arising on death, implying a valuation of the land itself (as distinct from its annual value for rates) and in all probability an official compilation of landownership. These would provide the most provoking elements in Lloyd George’s ‘People’s Budget’ of 1909. During his own spell as Chancellor of the Exchequer, Asquith had already introduced a measure of differentiation into the income tax, adopting as his point of departure, the distinction between earned and unearned income.545 Lloyd George proceeded not only with an increase in the levels of this income tax,546 but would add to the burdens of the wealthy a supertax of 6d in the pound over £5,000 (payable on the amount by which incomes exceeded £3,000).547 He proposed doubling stamp duty, increasing the rates of 538 Further discussion in M Daunton, Just Taxes: The Politics of Taxation in Britain, 1914–1979 (Cambridge University Press, 2007) ch 11. 539 eg under the Lighting and Watching Act 1833, a rebate of one-third was given; and under the public health legislation, a rebate of a half in urban districts. 540 Agricultural Rates Act 1896. 541 Subsequently the rebate became 75%, in 1923 and the rating was abolished entirely in 1929. 542 Tithe Rent-charge (Rates) Act 1899; the loss was in this case passed back to other ratepayers: Cannan (n 537) 156. 543 I Packer, Lloyd George, Liberalism and the Land: The Land Issue and Party Politics in England, 1906–1914 (Boydell Press, 2001); P Readman, Land and Nation in England: Patriotism, National Identity, and The Politics of Land, 1880–1914 (Boydell Press, 2008); I Packer, ‘The Liberals, the Land Question and Fiscal Policy, 1906–1924’ (2011) 21 Cercles 11. 544 Offer (n 533) ch 19. 545 Following the recommendation of Sir Charles Dilke’s Select Committee on Income Tax, PP 1906 (365) IX, the new tax imposed a standard rate of 1s in the pound, with a reduction to 9d in the pound for earned income under £2,000 (the Select Committee had proposed £3,000 as the limit). There had been abatements before, eg on land and houses in Harcourt’s Budget of 1894, but their level was less distinctive. On the arguments concerning differentiation in income tax, see Daunton (2001) (n 525) ch 4. 546 He raised the standard rate to 1s 2d and added an intermediate rate of 1s on earned income from £2,000 to £3,000. 547 A super-tax had been proposed by the Dilke Committee (see n 545).

Part 2: Passing Greatness 1875–1950 85 estate duty and the taxes on tobacco, spirits and liquor licences, and introducing taxes on cars and petrol. By themselves all these would likely have been accepted as the prerogative of government. But the proposals for 2d in the pound on the capital value of vacant land, the same rate on mining royalties, a ten per cent reversion duty on benefits to the lessor at the termination of a lease, and above all a 20 per cent duty on the incremental value to land which had accrued at transfer (by sale, gift or on death), were too much. Attached to them would be an inquisitorial valuation of the land which would (somehow) attribute separate values to site and buildings. The Lords staged a revolt which could be put down only by an election (in January 1910) that reconfirmed Asquith’s Government in office.548 The Lords, moreover, were obliged to accept unequivocal statutory limitation of their powers. But here too the Parliament Act 1911, with its removal of the Lords’ veto on money bills and its constriction of their power over other bills to a delay of two sessions, could be obtained only by a second election (in December 1910 – again sufficiently in Asquith’s favour) and by making known George V’s undertaking to create as many Liberal peers as would be needed to ensure the bill’s passage.549 With this victory, the flight from landed property would begin in earnest. The yield of the land taxes would in fact prove to be disappointing. But the increment value tax, particularly once the courts held it to apply to the profits of speculative builders,550 had a depressing effect on housebuilding and a shortage began to threaten.551 The municipalities continued to press for more help and Lloyd George was moved in 1914 to adopt the Tory tactic of increased grant-in-aid. This was one of numerous reasons for needing once more to raise the major taxes and duties, so that his 1914 Finance Act pushed the top rate of incomecum-super tax to 13 per cent, on £9,000 and more. Wartime taxation would soon make even this seem modest.552 For all the apparent danger to land, the process of organising the new taxes on it – and in particular the complex new valuations for increment value tax – proved extraordinarily difficult. In 1914, Scrutton J held that the value of grass and other uncut crops (a constantly fluctuating figure) had to be included in the ‘gross value’ of farms, but deducted from the ‘full site value’ – an administrative nightmare.553 Lloyd George had been waiting for completion of the valuations before imposing that long-held objective of single-taxers and other reformers, a tax on the capital value of the site as such. In 1914, he sought to appease the municipalities partly by converting this into a rate on site values; but his plan was submerged first under an argument about how far it could be included in a money bill and then by pressure from industrial and other antagonists in his own party. Here was a sign that the whole Land Campaign was faltering.554

548 The Finance (1909–1910) Act was finally passed in April 1910, the Lords accepting the verdict of the electorate. 549 The Parliament Act 1911 also reduced the maximum life of a parliament from seven years to five. 550 Lumsden v IRC [1914] AC 877 (a 2:2 decision of law lords with Liberal connections; the issue well illustrated the intractable problems of detail that the whole endeavour invoked). 551 Lloyd George kept up heat on the land question by instigating a Liberal Land Enquiry, which produced detailed reports in 1913 (rural problems) and 1914 (urban). On the housing shortage that did in fact eventuate after WWI, see pp 183–84. 552 In 1918, the top rate for supertax payers became 10s 6d in the pound (52.5%). 553 IRC v Smyth [1914] 3 KB 406. 554 Offer (n 533) ch 22.

86 Institutions and Ideas During the years running up to WWI, the Gladstonian fiscal constitution had therefore begun to show signs of strain, as the politicians cast about for new expedients to pay for social welfare reforms, naval rearmament, and colonial wars. Nevertheless, the country’s fiscal system proved to be ‘more capable of sustaining the formidable demands of worldwide conflict than was the case in the other combatants.’555 The war’s demands meant ‘that the income tax became more progressive at the upper end’ and afterwards, such tax reductions as were introduced were targeted on the incomes of the lower middle-classes, a sensitive electoral constituency.556 But time would show that they and other members of the middle class were prepared to support high peacetime taxes, for the sake of the welfare and education benefits which they funded. This represented a significant shift in popular attitudes towards the state’s role as a taxer and spender and would become still more marked with democratisation of the franchise between 1918 and 1928.557 After the war, the Land Campaign received a coup de grace from Austen Chamberlain in his Budget of 1920, although Lloyd George continued to devise ways of giving it new life, so that the Liberal Party in the late 1920s had weapons in its armoury more radical than most of the Labour Party’s.558 Yet the failure of these ideas to resonate with the electorate became one measure of the extent to which Liberal politics had lost their way.559 Land was passing from the estate-owning class to those who exploited it. Meanwhile all income recipients – both earners and non-earners – were having to meet taxation demands which even the Labour leaders had not publicly contemplated before the war. The basic rate of income tax – a central barometer of all the pressures in public finance – would stay at 4s 6d in the pound (22.5 per cent) or more, save for four of Churchill’s budgets as Chancellor (1925–29). It would then climb gradually to cope with the difficulties of depression and recovery, until in 1938 Sir John Simon would carry it to 5s 6d. At the outset of the period, an influential royal commission recognised that the principle of graduation had become an accepted starting point and made a number of recommendations for rationalising the allowances and reliefs that helped those with small incomes and for rendering the supertax (or surtax as it would become) progressive in stages.560 These proposals were taken up in subsequent Finance Acts. There was also a certain amount of political preferment – the Labour party, led on finance by Snowden, seeking to load additional taxation directly on the rich, the Conservatives showing some liking for indirect taxes on commodities, which would bear ‘equally’ across the board. Even so, in two decades of predominantly Conservative Government, Britain would become known as a country of high taxation, a phenomenon attributable in part to policies pursued by Churchill, known

555 Daunton (2001) (n 525) 375. 556 ibid 379. 557 A harbinger of these changes was the introduction of the Old Age Pension in 1908: M Pugh, ‘Working-Class Experience and State Social Welfare, 1908–1914: Old Age Pensions Reconsidered’ (2002) 45 HJ 775. 558 Land and the Nation (1925) controversially proposed the substitution of tenants under county committees for owners of agricultural land; Towns and the Land, its urban counterpart, had nothing so spectacular to say. Labour’s rather lacklustre policy ideas during this period are contrasted with its more vibrant ideological progress in the 1930s by Thorpe (n 513) chs 3 and 4; cf RC Whiting, The Labour Party and Taxation: Party Identity and Political Purpose in Twentieth-Century Britain (Cambridge University Press, 2001). 559 GR Searle, The Liberal Party: Triumph and Disintegration, 1886–1929 (Macmillan, 1992); K Laybourn, ‘The Rise of Labour and the Decline of Liberalism: The State of the Debate’ (1995) 80 History 207. 560 Royal Commission on Income Tax, PP 1920 [Cmd 615] XVIII.

Part 2: Passing Greatness 1875–1950 87 to history as a champion of employers and the propertied class,561 but a Chancellor whose budgets aimed at the reduction of unemployment, ‘the appeasement of class bitterness, the promotion of a spirit of co-operation [and] the stabilisation of our national life.’562 The result was not to produce a fiscal system that took a significantly different share of GNP than in other countries, but a system did emerge that was structured differently: there was ‘a high reliance on direct taxation of personal income and profits, a narrow base of indirect taxes, and a low level of social security contributions from employers and workers.’563 As the tax burden on the rich grew heavier, evasion and avoidance of tax became correspondingly more acute, a problem not only because they reduced the Government’s income, but also because they threatened the consent and mutual trust of taxpayers and the legitimacy of the taxing state. Evasion was particularly associated with the income tax, though to some extent the requirement of proper accounting had been side-stepped by notional assessments – for instance on the annual rental value of land. In other cases, it could be overcome only by bureaucratic prying.564 Avoidance – reducing one’s tax liability by means within the law – posed problems of legal boundary rather than of concealed fact. In 1874, in a shift truly Diceyian in its significance (for all that it went unremarked), the Commissioners of the Income Tax, General and Special, had become subject to appellate review by the common law courts. A regular stream of tax decisions flowed from this source, judges and counsel assuming with equanimity that the interpretative task was one exactly suited to their skills.565 Arguments were devised by resort to a mixture of dictionary reference to the meaning of statutory words, grand ‘principles’ of the common law (sometimes banal, sometimes historically dubious) and appeals to ‘common sense’. The judges fashioned their views out of like material. They showed little inclination to resort to developed notions of economic theory, sensing perhaps that such theory was unlikely to provide any sophisticated answer to the line-drawing exercises in which they were primarily engaged. Nor did the judges show consistent favour towards either tax-gatherer or taxpayer. At a time when the Millian ethic of equality grounded most taxation, and income tax rates were minimal, any decision to protect one category of payer could be treated as passing the burden to others.

561 Most controversial is his part in the death of striking miners in South Wales in 1911; for this and other aspects of his attitude towards the labour movement, see C Wrigley, ‘Churchill and the Trade Unions’ (2001) 11 TRHS (6th series) 273. 562 M Daunton, Just Taxes: The Politics of Taxation in Britain, 1914–1979 (Cambridge University Press, 2007) 124. For the interwar period generally, see Sabine (n 521) chs 10 and 11; UK Hicks The Finance of British Government 1920–1936 (Oxford University Press, 1938); Daunton (ibid) chs 4 and 5; and for taxation policy during and after WWII see Daunton (ibid) chs 6 and 7. 563 M Daunton, ‘Payment and Participation: Welfare and State-Formation in Britain 1900–1951’ (1996) 150 P&P 169, 169. See also BG Peters, The Politics of Taxation: A Comparative Perspective (Blackwell, 1991) 27; J Harris, ‘Enterprise and Welfare States: A Comparative Perspective’ (1990) 40 TRHS (5th series) 175, 180–83. 564 For a long time the fear of this kept the collection of taxes primarily in the hands of local worthies, appointed Commissioners for the purpose. Even the Board of Inland Revenue, which replaced earlier arrangements at the centre in 1853, did not get power to appoint all Commissioners until 1931: Sabine (n 521) 15, 29, and 187. See also J Pearce, ‘How Central Government Learned about Income 1842–1970’ in J Tiley (ed), Studies in the History of Tax Law, vol 3 (Hart, 2009). 565 For detailed discussion, see C Stebbings, The Victorian Taxpayer and the Law: A Study in Constitutional Conflict (Cambridge University Press, 2009) esp ch 4. See also R Cocks, ‘Victorian Barristers, Judges and Taxation: A Study in the Expansion of Legal Work’ in Rubin and Sugarman (n 384).

88 Institutions and Ideas In the period between the wars, attitudes changed. A new emphasis was placed by the judges on strict interpretation against the Revenue, beneath which there lay a h ostility towards taxation as confiscation.566 The Duke of Westminster, instead of paying his employees in full, granted them seven-year covenants, which had the effect of transferring the covenanted amounts from his own income to theirs without his incurring any liability to tax. This was, in the House of Lords’ view, a permissible device.567 Other avoidance schemes proliferated, many of them using the machinery of the private company or the discretionary trust, and from 1922 onwards, the annual Finance Acts began to accumulate counter-measures.568

D. Executive Government and Law i. Central Government Governments after the Third Reform Act came under kaleidescopic ‘pressures from without’. Since 1832, the business of lobbying had been a prominent part of all the restless organising for economic advantage and social improvement: factory conditions, Corn Law repeal, temperance, compulsory education, and a host of other causes. In the closing decades of the century, to a more marked extent than before, there were also pressures from within. Central government was no longer a passive, sanctioning tool and ministries were determined to implement policy through legislation. To accomplish this, they had to wrest Parliamentary time away from the private members, a battle won by the closing decades of the century with a resulting shift away from the particularism and localism of earlier statutory activity and with profound repercussions for the relationships between the Crown, the executive, and the legislature.569 In 1870 an important step was taken in the ongoing process by which central bureaucracy was remodeled and repurposed when recruitment to the higher grades of the civil service was made competitive.570 Departments came to be charged with all the major activities of central government and to be staffed by permanent administrators who advised ministers on policy, pressed for increases in their own authority, and fought for their 566 Stevens (1978) (n 376) 204–09 traces these shifts in House of Lords’ judgments from the Lloyd George years. There were earlier precedents for the literal interpretation of tax statutes, as noted by Cairns LC in Pryce v Monmouthshire Canal and Railway Cos (1879) 4 App Cas 197, 202–03. Prior to WT Ramsay Ltd v IRC [1982] AC 300, tax law would remain ‘remarkably resistant’ to non-formalist methods of interpretation, as noted by Lord Steyn in IRC v McGuckian [1997] 1 WLR 991, 999. 567 IRC v Duke of Westminster [1936] AC 1. For seven-year covenants, see p 446, n 378. 568 When the Revenue promoted its own strategies through legislation, there was rarely any protest in Parliament; the only question was whether the Chancellor was prepared to include the Commissioners’ proposals in his Finance Bill: Sabine (n 521) 181–84 and 190–91. See also B Sabine, ‘Life and Taxes 1932–1992: Part 1: 1932–1945’ [1993] BTR 230; and three articles by DP Stopforth: ‘The First Attack on Settlements Used for Income Tax Avoidance’ [1991] BTR 86; ‘1922–36: Halcyon Days for the Tax Avoider’ [1992] BTR 88; and ‘The Legacy of the 1938 Attack on Settlements’ [1997] BTR 276. 569 P Fraser, ‘The Growth of Ministerial Control in the Nineteenth Century House of Commons’ (1960) 75 EHR 444; V Cromwell, ‘The Losing of the Initiative by the House of Commons 1780–1914’ (1968) 18 TRHS (5th series) 1. 570 The Treasury’s Order-in-Council was the culmination of reforms under the Civil Service Commission which followed upon the high, exaggerated criticism contained in the Northcote-Trevelyan Report of 1853. Discussion in H Pemberton, ‘The Civil Service’ in D Brown, R Crowcroft and G Pentland (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018) part 1.

Part 2: Passing Greatness 1875–1950 89 financial needs.571 Not all civil servants were equally energetic. Between 1906 and 1911, when they had the backing of the Liberal cabinet, policy innovations were pioneered in wage regulation and social insurance by administrators in the Labour Department of the Board of Trade, whose dynamism was sustained by a policy of recruiting professional experts into the department’s top ranks.572 But their performance can be contrasted with the ‘stodgy conservatism’ of older domestic departments such as the Local Government Board, which recruited out of the universities and then promoted by seniority.573 Indeed, it has been argued that between the Wars, the civil service as a whole combined to preserve class privilege and check administrative innovation, following a reorganisation in 1919 which put the permanent secretary of the Treasury at its head and increased Treasury controls over departmental spending so that costly policy proposals were frequently choked off at their early stages.574 Repudiating this claim, however, Jose Harris has noted that it ‘ascribes to bureaucratic conspiracy something that can much more simply be ascribed to the general political culture of the period’;575 that it ‘greatly exaggerates the uniformity of the official mind’ at a time when government was ‘fraught with inter- and intra-departmental disagreements over the proper sphere and direction of policy’ and when all departments ‘to a greater or lesser degree resisted Treasury control’;576 and that it ignores the fact that government and policy change did occur at many levels577 – for example, the streamlined cabinet system introduced during WWI was retained thereafter, as were the new Ministries of Labour, Pensions and Health; public expenditure grew at a faster rate than in any other peacetime period of the twentieth century (2.1 per cent per annum between 1924 and 1937); financial relations between central and local government were reformed;578 the poor law effectively disappeared following the enactment of the Unemployment Act 1934;579 and social insurance was harmonised and extended.580 It may be that opponents rather than proponents of state expansion dominated the civil service in the first half of the twentieth century, and that it was only during the exceptional circumstances of the two World Wars that there was any significant administrative expansion. But, as Harris says, ‘if civil servants preferred to keep taxes low, to encourage voluntary effort and to confine public administration so far as possible to the sphere of local government, so on the whole did the majority of the British public.’581 And judged against this background, the policies pursued by the Labour Government after WWII would entail

571 On relations between the Treasury and other departments, see M Wright, ‘Treasury Control, 1814–1914’ in G Sutherland (ed), Studies in the Growth of Nineteenth Century Government (Routledge & Kegan Paul, 1972). 572 R Davidson and R Lowe, ‘Bureaucracy and Innovation in British Welfare Policy, 1870–1945’ in WJ Mommsen (ed), The Emergence of the Welfare State in Britain and Germany 1850–1950 (Croom Helm, 1981) 264–77. 573 M Weir and T Skocpol, ‘“Keynesian Responses to the Great Depression’ in P Evans et al (eds), Bringing the State Back In (Cambridge University Press, 1985) 127. 574 See eg BB Gilbert, British Social Policy 1914–1939 (Batsford, 1970). 575 J Harris, ‘Society and the State in Twentieth-Century Britain’ in FML Thompson (ed), The Cambridge Social History of Britain, 1750–1950, vol 3: Social Agencies and Institutions (Cambridge University Press, 1990) 76. 576 Harris (n 575) 77. 577 Harris (n 575) 77–80. 578 See pp 83–4. 579 See pp 436–37. 580 See pp 432–34. 581 Harris (n 575) 76. For the view that suspicion of the welfare state was felt at a popular level as well as by more affluent members of society, see J Harris, ‘Did British Workers Want the Welfare State?’ in J Winter (ed), The Working Class in Modern British History (Cambridge University Press, 1983); P Thane, ‘The Working Class and State “Welfare” in Britain, 1880–1914’ (1984) 27 HJ 877.

90 Institutions and Ideas a radical departure.582 For the growth of social welfare provision, state guarantee of full employment, and nationalisation of key industries could only lead in one direction: central government growth.583

ii. Local Government In 1884, English local government was a hotch-potch. At its upper level, the justices of the peace whose sessions governed the counties were still appointed by mysterious nomination; yet the boroughs had acquired elective representation.584 At the lower level – primarily the 15,000 parishes – various forms prevailed: the old meeting of parishioners in open vestry, the closed self-perpetuating vestries secured by private Act or customary practice, the elected vestries of the Vestries Act 1831. Moreover, some of the most important local functions had passed to special bodies: the boards of guardians administered the poor law and had in many cases acquired public health and highway functions; school boards and school attendance committees were the instruments of compulsory education; and a variety of special institutions, such as turnpike trusts, were also still in existence from an earlier age. In 1888, the Conservatives created elected councils for counties and county boroughs, in large measure depriving the Quarter Sessions – ‘the rural House of Lords’ – of their administrative functions. Lord Salisbury, in his younger days a resister of the Second Reform Act, had learned the virtues of strategic concession, and he saw the advantage in cementing his new association with Joseph Chamberlain by such an apparently radical measure.585 And in the event, the new county authorities, which were elected upon the same franchise of rate-liability and residence that had been given to the reformed boroughs in 1835,586 had much the same social make-up of Quarter Sessions, ie they continued to be dominated by the landed class.587 The Liberals, who were the real progenitors of the move, followed it up by the creation of parish councils, and urban and rural district councils588 – lower-level, elected bodies to take over the main secular functions of the parish vestries and similar bodies, which covered public health, lighting, highways, public baths and libraries, and burial

582 J Tomlinson, Democratic Socialism and Economic Policy: The Attlee Years, 1945–1951 (Cambridge University Press, 1997); Thorpe (n 513) ch 6. 583 JE Cronin, The Politics of State Expansion: War, State and Society in Twentieth-Century Britain (Routledge, 1991); P Johnson, ‘The Welfare State’ in R Floud and D McCloskey (eds), The Economic History of Britain since 1700, vol 3: 1939–1992, 2nd edn (Cambridge University Press, 1994); CR Lowe, The Welfare State Since 1945, 3rd edn (Palgrave Macmillan, 2005) Pt 2. 584 See pp 28–9. 585 Local Government Act 1888. See B Keith-Lucas, The English Local Government Franchise: A Short History (Blackwell, 1952) ch 4. 586 Outside the boroughs, the electorate comprised those who had the £10 occupiers’ franchise for Parliament: County Electors Act 1888. 587 J Dunbabin, ‘British Local Government Reform: The Nineteenth Century and After’ (1977) 92 EHR 777, 794; E Bujak, England’s Rural Realms: Landholding and the Agricultural Revolution (Tauris Academic Studies, 2007) ch 5. This was despite the absence of any property qualification for councillors, or of ex officio positions for magistrates, or any plural voting for ‘property’. There were 61 county boroughs, more than originally proposed. To the London County Council, the Conservatives would add 28 Metropolitan Borough Councils in 1899. 588 Local Government Act 1894.

Part 2: Passing Greatness 1875–1950 91 grounds. Through them, the guardians of the poor would in future be nominated.589 All county and Parliamentary electors had a single vote.590 Then in 1918, the wives of occupiers were added.591 The result was that until 1945 the franchise for all local authorities retained a connection between property and political entitlement that had been abandoned at the national level. Arguments for efficiency and professional management were advanced to justify passing the more important functions of local government to the new county and county borough councils. It was a process fraught with political tensions – for education, in the Edwardian years; for poor relief in the 1920s.592 There would be strain on the one hand between central and county authority, and on the other between county and district levels. The legal bases of these power relationships were accordingly of first importance; so were those between elective bodies, such as the county and district councils, and specialised committees and boards, often containing nominated experts, which would be concerned in the detailed administration of new schemes of social protection.

E. The Court System In the period up to the Judicature Acts the restructuring of the court system had been conservative:593 the ‘unity’ of the whole was heightened; the primacy of lawyers was confirmed; courts at superior and inferior levels were kept apart so that a strong central bar might maintain an exclusive preserve and the highest judges command with a remote splendour.594 Following the Judicature Acts, events proved the legislation to be a terminus for reform efforts rather than a staging-post. In an age of democratic politics, the courts did adapt themselves to mass demands for adjudication. The county courts would hear much of rent restriction and workmen’s compensation.595 Magistrates would deal with security of tenants against eviction and maintenance of deserted wives.596 After the disruptions of WWI, the demand for divorce would mean that its deliberate restriction to London had to give way and a limited number of assizes began to be used.597 The need for expedition in commercial litigation, impelled by the increasing resort of disputants to arbitration, saw the 589 This ended the property qualification for guardians and the ex officio position of justices. 590 Women had continued, as in the past, to be qualified for the local franchises where they satisfied other requirements. But the Court of Appeal had held them excluded from election to the county councils (Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79) and this continued until the Qualification of Women Act 1907. 591 Representation of the People Act 1918: the wives newly admitted had to be over 30 until 1928. The requirement of occupation was still for six months (reduced in 1926 to three months), a factor which kept many from voting. 592 See pp 448–52 and 437–39. On the evolving relations between central and local government, see also M Loughlin, ‘Evolution and Gestalt of the State in the United Kingdom’ in A von Bogdandy, PM Huber and S Cassese (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press, 2017) 472–77: the Local Government Act 1933 marked the culmination of the principle established by the Municipal Corporations Act 1835, that local councils should be responsible for locally provided services; consequently, local government expenditure grew from 4.5 per cent to 18.4 per cent of GNP between 1890 and 1975, but this was fuelled ‘almost entirely by the provision of central government grants to local authorities.’ 593 See pp 54–6. 594 In 1876, the Supreme Court of Judicature opened with a complement of judges (and Blackburn and Gordon joined the House of Lords as Lords of Appeal in Ordinary – life peers at last). In 1920 there would be 23 judges and seven law lords; in 1940, 31 and seven. 595 See pp 184–87 and 502–03. 596 See pp 150 and 370. 597 See p 374.

92 Institutions and Ideas establishment in 1895 of a ‘Commercial Court’ within the Queen’s Bench Division, with judges of special experience, an accelerated procedure and fixed dates for trial.598 But all of this was change of a secondary kind. The only real alteration of structure came with the creation in 1907 of a Court of Criminal Appeal, giving those convicted of serious criminal offences by assizes or Quarter Sessions the right for the first time to appeal against either conviction or sentence.599 Parliament, with its sizeable representation of magistrates in both houses, had long refused to take this step; but the wrongful conviction by mistaken identity of Adolf Beck for a series of frauds upon women provoked outrage which could not otherwise be dispelled.600 Leading lawyers had given the idea little support. But the creation of the new court completed the supervisory net of the senior judiciary over civil and criminal jurisdiction. One consequence was that county Quarter Sessions began to seek legally qualified chairmen who would have the skill to avert criticism from above.601 Most other dissatisfaction with the courts was resisted – by the judges, by practitioners or by government. London remained the centre of the legal universe, the provinces making do with the assize system and the inferior jurisdictions. The assize arrangements had been somewhat expanded with the Judicature Acts, giving the busiest centres a sitting three or even four times a year. But there were problems: criminal justice required visits to more places, but civil justice longer visits to bigger towns; assizes had to fit into the unequal gaps between legal terms, with a wait of eight months between some assizes; and the amount of travelling provoked the judges.602 By the end of the century, cases awaiting trial were banking up in London and the delays were grudgingly met by the appointment of two more judges, assigned to the King’s Bench Division, and by minor adjustments in assize arrangements.603 There was regular discussion of increasing the monetary limits on county court jurisdiction.604 In 1903, indeed, the indomitable Sir Albert Rollit MP, President of the Law Society and representative both of the chambers of commerce and the municipal corporations, pushed through an increase in the maximum claim from £50 to £100.605 But he had to outface the opposition of the Lord Chancellor, Lord Halsbury, and all further movement in this direction was blocked until 1938, when a compromise increase to £200 was introduced, a defendant sued for more than £100 retaining the right to remove the case into the High Court.606 On the criminal side, by contrast, the process of shifting the trial of medium-range 598 This was the final upshot of the long campaign for special tribunals to hear commercial cases, sparked off by the ineptitude of Lawrance J in trying the case of Rose v Bank of Australasia [1894] AC 687: see p 220, n 226. 599 P Polden, ‘The Courts of Appeal’ in WR Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (Oxford University Press, 2010) 804–08, esp 806: ‘Only those who appealed solely on a point of law had an unrestricted right of access to the court, the others needing either the trial judge’s certificate or leave from the court itself.’ 600 See pp 601–02. 601 By 1936 a Royal Commission on the Despatch of Business at Common Law would recommend that most chairmen be legally qualified (PP 1936 [Cmd 5065] VIII paras 208 and 212; echoed by the Committee on Quarter Sessions PP 1936 [Cmd 5252] VIII. This was given effect from 1938 as chairmen retired, over the objection of Attlee, Cripps and others, who wanted the existing amateurs removed at once: Abel-Smith and Stevens (n 390) 107–08. 602 Polden, ‘Superior Courts’ (n 257) 636–40. 603 For details, Abel-Smith and Stevens (n 390) 93–98; and for the inter-war period, ibid 100–07. 604 For detailed discussion of the courts’ expanding jurisdiction, see Polden, ‘County Courts’ (n 337) 876–84. 605 This was the limit for debt and other common types of action: County Courts Act 1903, s 3. 606 Abel-Smith and Stevens (n 390) 92–93 and 109.

Part 2: Passing Greatness 1875–1950 93 offences into the summary jurisdiction of magistrates and away from jury trial proceeded more readily, the two largest moves coming in 1879 and 1925.607 The temporary abrogation of civil juries during WWI had an effect afterwards: in the inter-war period the use of trial juries became markedly more selective.608 In the ordinary courts the business of judging was passing, on the one hand to professional lawyers and on the other, to justices of the peace. The squirearchical domination of the magistracy was watered down with the abolition of the property qualification in 1906 and the admission of women in 1918.609 It also acquired a measure of specialisation with the creation in 1933 of a juvenile court panel within each bench. But the appointment of justices continued to be by the Lord Chancellor, very largely on the recommendation of the Lords Lieutenant of the counties: and they in turn came to be advised by small committees with a secret membership – an adaptation recommended by a Royal Commission and quietly taken up by Loreburn as Liberal Lord Chancellor.610 In the period to 1945 the magistracy changed only peripherally in social composition, partly because of the selection arrangements, but partly because the appointment needed a regular and voluntary commitment of time during the working week. Magistrates’ courts could be relied upon to underpin the interests of the state, supporting the police in their day-to-day work and denouncing the disrupters in times of tension, such as the General Strike. New demands for adjudication arose amid the outworks of a modestly collectivising state. The superior courts had early signalled how unequal they were to the task of nonmarket allocation by their failure to deal with railway rate-fixing in a manner acceptable either to the companies or their customers.611 When they were drawn into the workmen’s compensation scheme of 1897 they brought an elaborate procedure which heightened tensions.612 They were accordingly given no equivalent rule in the new institutions of social security. Old-age pensions, sickness insurance and unemployment insurance would all breed special tribunals for determining challenges by claimants to unfavourable decisions by administrators.613 Before this, the growing range of powers by which politicians and bureaucrats could directly affect the rights and freedoms of individuals had been subject to some degree of control by the ordinary courts. The early forms of regulation – of factories, mines, ships and so on – had required a criminal prosecution, normally before magistrates, as the sanction for failure to comply with the demands of an inspector. So equally with the exceptional compulsions of primary education and smallpox vaccination.614 Later, as positive intervention was added to regulation, and political choice became a necessary part of governmental action, the question of how far any decision could be reviewed became more complex and 607 RM Jackson, ‘The Incidence of Jury Trial during the Past Century’ (1937) 1 MLR 132. 608 After 1883, when it became the rule that common law actions would be tried by jury only if one side requested it, about 50% of actions were tried by judge alone. In 1918 the court was in most actions given its own discretion to refuse a jury. Although the previous position was reverted to in 1925, the 1918 provision was again substituted in 1933: Jackson (1937) (n 607). 609 One year before, women were admitted to juries; but there they still had to meet the householder property qualification. 610 See generally E Moir, The Justices of the Peace (Harmondsworth, 1969) 182–88. 611 See p 259. 612 See pp 502–04. 613 See pp 431–32. 614 See pp 421–23.

94 Institutions and Ideas difficult; but the procedures mostly remained the same. Now, over entitlements that seemed relatively precise (and so ‘justiciable’), the task of review was passed either to those politically responsible (such as ministers) or to bodies which were much like courts but which had an expertise in their own subject. The judges had perforce to accept these new procedures. Their sense of propriety was somewhat appeased by two factors: in some cases, they were still placed in the position of ultimate arbiters upon the scope of legal powers by typically Victorian provisions allowing an appeal from the tribunal to the High Court (or the statement of a case on a point of law);615 and where there were no such mechanisms, the courts might still have resort to the old prerogative writs, so much in use a century earlier, as a tool of central supervision and by no means supplanted by all the intervening regularisation of appeals and references.616 Two well-known judgments of the House of Lords – Board of Education v Rice617 and Local Government Board v Arlidge618 – took an accommodating line: interventionist government must needs have regular decision-making powers, some leading to the disturbance even of property rights, without regular supervision by the independent judiciary. Such adjudication had only to keep within the terms of the empowering statute and, where it was ‘judicial’ or ‘quasi-judicial’ in character,619 to comply with the basic standards of natural justice – no man to be judge in his own cause, every person affected to have the right to be heard, though not necessarily on the strict lines of common law procedure. Thus the Arlidge case upheld the ministerial practice of deciding to order the closure of premises for overcrowding after taking submissions from the occupier and receiving the report of a local inspector, but without showing that report to the occupier. These were influential precedents and they might be seen as portents of the ‘long sleep’ of judicial review of executive action during the twentieth century.620 But they could not guarantee a uniform line from a judiciary sensitive to Dicey’s peculiarly English version of the ‘Rule of Law’. A local authority bent on heterodox social policies, as the London Borough of Poplar had been for a quarter-century, could still draw the House of Lords into interpreting a statute in a way that enmeshed the actual text in a web of larger preconceptions: according to Roberts v Hopwood621 the Council’s statutory authority to pay its workers had to be exercised ‘reasonably’, which meant keeping to market rates, and observing such differentials between male and female employees as the market dictated. Councillors who acted otherwise exposed themselves to the penalties of ultra vires action: disallowance and personal surcharge (to which legislation then added disqualification from office). 615 See eg pp 431–32. 616 See pp 47–8. 617 [1911] AC 179. For the political background to this complex case, see pp 449–52. 618 [1915] AC 120. The members of the House had all been Liberal politicians: Stevens (1978) (n 376) 197–98 (under the rubric, ‘The Tragedy of Public Law’). 619 ‘Quasi-judicial’ decision-making was to be distinguished from merely ministerial: it involved some m easure of choice, as a matter of policy, among feasible alternatives, and so was not merely the application of law to given facts; but still it called for an assessment on a proper collection of information: for a significant instance, see R v Electricity Commissioners [1924] 1 KB 171. 620 S Sedley, ‘The Long Sleep’ in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford University Press, 2009). See too Loughlin (n 592) 480–82 and earlier academic criticism cited there. In the first half of the twentieth century it was hoped that tort law could be used to keep administrative bodies in check, but this proved ineffective owing to procedural and remedial hurdles: TT Arvind, ‘Restraining the State through Tort?’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2012). 621 [1925] AC 578.

Part 2: Passing Greatness 1875–1950 95 There were also judges ready to suspect that bureaucrats were manipulating the rules of parliamentary sovereignty to shelter from judicial scrutiny. There were, for instance, statutes in which delegated legislation, after being put through a prescribed procedure of laying before Parliament, was deemed to form part of the very Act. Eventually the House of Lords would rule that such a formula could not preclude the courts from considering whether the delegated legislation was ultra vires.622 Then there were provisions, dubbed ‘Henry VIII clauses’, which gave ministers the power to vary the terms of an Act by regulation, a procedure sometimes used to settle the relation of a complex new statute to other Acts. Both practices were extra-judicially denounced by Lord Hewart CJ as autocratic devices which made the droit administratif of France appear a paradigm of responsibility under law.623 He likewise had dark things to say of non-appealable tribunals in ministries, whose unpublished judgments formed no kind of precedent and were not always supported by statements of reasons.624 This curmudgeonly outburst was answered urbanely by the Donoughmore-Scott Committee on Ministers’ Powers, which took much the same line as was taken in the Rice and Arlidge judgments: all was essentially as it had to be; bureaucrats were not in the habit of betraying the trust given them; the only case was for marginal improvements – in standardising the steps for making delegated legislation, improving publication arrangements for the more important types, ensuring – by Standing Committees of each House – that Lord Hewart’s pet bugbears made no unnecessary appearances in statutes, and securing ultimate powers to refer questions of law from administrative tribunals to the ordinary courts where the function was strictly ‘judicial’.625 As we shall see,626 in the inter-war years the new forms of state provision, and especially those for the relief of unemployment, came under extreme pressure and would become enmeshed in a tangle of alterations – by statute and delegated authority – and of disputes, which were handled in their thousands by special tribunals. The county courts and magistrates’ courts had managed to absorb some of the resulting new business, but it is hard to see how they could have been adapted to provide any regular supervision or adjudication within the massive growth of administration. The logistic difficulties help to explain why the protests of leading lawyers were so infrequent and marginal.627 But in addition there

622 R v Minister of Health ex parte Yaffe [1931] AC 494, reversing the tendency first shown by the House of Lords in Institute of Patent Agents v Lockwood [1894] AC 347. 623 Lord Hewart, The New Despotism (Ernest Benn Ltd, 1929) 45–46. In ch 10 he listed 22 instances of ‘as if enacted in the Act’ and ‘modifying the Act’ clauses. The problems posed by delegated legislation in modern government were undoubtedly serious; they were reviewed in more temperate terms by eg Sir Cecil Carr, Delegated Legislation: Three Lectures (Cambridge University Press, 1921) and CK Allen, Bureaucracy Triumphant (Oxford University Press, 1931). See also M Taggart, ‘From “Parliamentary Powers” to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century’ (2005) 55 University of Toronto Law Journal 575; Cane (n 176) 276–79. 624 ‘It is a queer sort of justice that will not bear the light of publicity’: Hewart (n 623) 46–49. Hewart also castigated the Ministry of Justice plan (see pp 98–9) and a proposal to consult the courts for an opinion before litigation on the meaning of a statute: ibid ch 7. 625 Committee on Ministers’ Powers PP 1931–1932 [Cmd 4060] XII. 626 See ch 6, esp pp 424–28, 431–32 and 434–37. 627 The general attitude of the courts towards the validity of administration made it easy for them to accept what was done in wartime under massive emergency powers: this extended even to remarkable infractions of personal liberty: see esp R v Halliday, ex parte Zadig [1917] AC 260; Liversidge v Anderson [1942] AC 206 (with its wellknown dissent by Lord Atkin); discussed in AWB Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Oxford University Press, 1992).

96 Institutions and Ideas was plain hostility towards giving either type of lower court – professional judge or bench of justices – a role in direct social provision by the state. It came not only from bureaucrats and politicians but also from the labour movement. Some disputes could be conducted before special instances; the rest had almost always to be raised by political, rather than legal action. In this way the British reached a balance between the sovereignty of parliament, ministerial responsibility to parliament and the Rule of Law that would last until the 1960s.628

F. The Legal Professions Writing 50 years ago, Harold Perkin argued that the years before WWI saw a decampment of those sharing a middle-class ‘entrepreneurial ideal’ to the Conservative Party, leaving the Liberals to radical leadership embodying a ‘professional ideal’. The proportion of professional men on the Liberal benches in the Commons increased and lawyers became prominent among their leaders: Asquith, Lloyd George, Loreburn, Haldane.629 However, lawyers went into Parliament for various reasons: some were pure politicians; some used a Commons seat as a step towards the bench;630 some were looking for a second career in a ministerial post.631 It would be a mistake to infer from evidence about the background of MPs that the general run of barristers or solicitors were out of step with the entrepreneurial middle class. The ‘professional ideal’ which Perkin sought to typify was that of the expert whose secure position enabled him to espouse a disinterested concern for the public good. But the lawyers were separated from the state by the fee-paying of their clients, and to many it was an older, more competitive liberalism which spoke ideological truth. The importance of retaining the liberal character of the two professions stamps their history in the latter part of our period.632 They were hostile to the institution of state legal services in areas which were already colonised by private practitioners. Thus, as the modern administration of the criminal law grew, there arose a persistent campaign for a state prosecution service to work with the police forces. Yet a long succession of bills secured no more than a modest concession, the office of Director of Public Prosecutions.633 On the civil side, the solicitors were vehement in their attacks on the Land Registry’s proposals for its own conveyancing service and ran a long campaign to prevent the spread of registered conveyancing.634 To these illustrations of the point we shall add six more examples here: legal services in government; political responsibility for legal administration;

628 It was a compromise bred of experience and attitude and owed little, as Ernest Barker regretted, to any systematic theory of the state: ‘The “Rule of Law”’ (1914) 1 Political Quarterly 2; see also WJL Ambrose, ‘The New Judiciary’ (1910) 26 LQR 53. 629 H Perkin, The Origins of Modern English Society (Routledge & Kegan Paul, 1969) 437–54. 630 80 out of 133 judges appointed between 1832 and 1906 were MPs at the time (another 11 had been candidates); moreover 63 of them had been appointed when their party was in office: Laski (n 246) ch 7. On Halsbury’s judicial appointments, see RFV Heuston, Lives of the Lord Chancellors 1885–1940 (Clarendon Press, 1964) ch 5. Note also Duman (1983) (n 387) 106 and 108–09. 631 Duman (1983) (n 387) 184–91. 632 The World War would reduce the number of practitioners savagely, but this seems to have produced no shift in the central attitude. 633 See pp 587–88; and for detailed discussion, Smith, ‘Criminal Law’ (n 226) 63–70. 634 See pp 177–79.

Part 2: Passing Greatness 1875–1950 97 legal services for the poor; legal education; accountability to the public; and relations between the professions. We shall conclude with a note on women in the law.

i. Government Legal Services As government became more complex, it could not do without internal legal services, from advice on foreign affairs and high domestic policy to the collection of taxes and the conduct of its own conveyancing.635 There had long been a small group of legal advisers, besides the Lord Chancellor and Law Officers appointed by each government, the chief among them being the Treasury Solicitor.636 In the 1870s a legal service under him was to grow somewhat.637 Even so, the contrast with continental bureaucracies, chiefly composed of men who had studied law in a university, could not have been more striking. Following the advice of a Committee chaired by Jessel MR, the Treasury Solicitor developed a roving service of legal advisers available to all departments.638 Many of its members were not permanent civil servants, but came to Whitehall for a limited period away from private practice. This slender provision lasted until 1919, when a permanent staff became the regular arrangement. But, in the main, it was still possible to continue a small specialised service.639 This derived from its centralisation a measure of detachment rather like that claimed by the Law Officers in relation to the Cabinet; but at the same time, it stood at a distance from the core of decisionmaking. Even its members who were drawn from the bar did not ‘practise’,640 and cases in the superior courts, together with much opinion work, was given over to counsel in private practice, who were retained generally or specially by the Treasury or another department. The central government legal service was small, self-effacing and loyal to the traditions and etiquette of the professions in which its members had trained. In local government, much larger numbers came to be involved but traditions scarcely differed. Solicitors had long acted as clerks of the peace to borough justices and county Quarter Sessions and as clerks to local justices.641 With the growth of local bureaucracies, town and county clerks were frequently solicitors by background. In large cities and major counties, these offices became highly responsible posts dealing with major issues of policy and administration.642

635 G Drewry, ‘Lawyers and Statutory Reform in Victorian Government’ in R MacLeod (ed), Government and Expertise: Specialists, Administrators and Professionals, 1860–1919 (Cambridge University Press, 1988). 636 The office can be traced back to 1655; the term ‘solicitor’ here and elsewhere in government is not related to the junior branch of the private profession. 637 The special work of drafting legislation was only gradually turned into a professional task, the office of Parliamentary Counsel being established in 1869: Sir C Ilbert, The Mechanics of Law Making (Columbia University Press, 1914) ch 4; JHN Pearce, ‘The Rise of the Finance Act: 1853–1922’ in P Harris and D de Cogan (eds), Studies in the History of Tax Law, vol 7 (Hart, 2015) 79–86. 638 The new staff were not within the administrative grade and 20 years later, leading civil servants were still scoffing at the possibility: G Drewry, ‘Lawyers in the UK Civil Service’ (1981) 59 Public Administration 15, 23–24. 639 Centralisation would not be entirely maintained, the Post Office and the Inland Revenue in particular needing their own solicitor. 640 Those who were qualified as solicitors did not have to keep up their practising certificates. 641 The Justices’ Clerks Society was formed in 1839, well before the Magistrates’ Association. 642 Polden, ‘Solicitors’ (n 411) 1148–49. Consider also PWJ Bartrip, ‘County Court and Superior Court Registrars 1825–1875: The Making of a Judicial Official’ in GR Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984).

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ii. Court Administration: A Ministry of Justice? The courts were of course a major government service in their own right, depending for their professional judiciary almost entirely on the experienced stratum of the bar. The relationship was one of nice balance, for the number of superior courts in operation affected the size and earnings of the bar and in turn the bar’s ability to provide judges of suitable quality. Within government, the main responsibility for the judges lay with the Lord Chancellor and the small office (composed mainly of barristers) that he had acquired a decade after Judicature Acts.643 To him fell the duty of appointing the judges, court officers and justices of the peace. However, the Treasury dealt with the administrative side of the courts; and the Home Secretary, as well as having close associations with criminal justice by his charge over prisons and police, appointed the metropolitan and stipendiary magistrates and the recorders and legally qualified chairmen of Quarter Sessions.644 This historical mixture was said to combine the virtues of association (since the Lord Chancellor was always a leading member of the bar) and diffusion (since some of the appointments lay with a minister who would likely not be a lawyer). Certainly, proposals to create a Ministry of Justice, covering courts, appointments, law reform and the legal professions, attracted little following. Suggestions of this kind had occasionally been made in the nineteenth century,645 but the argument was urged most prominently by Lord Haldane during WWI. The version advocated by him, as chair of the Ministry of Reconstruction Committee on the Machinery of Government, would have given all judicial appointments to the Lord Chancellor but other judicial and legal concerns to a Home Office renamed the Ministry of Justice.646 This was for a time taken up by the Law Society; but it was opposed by the Conservative Lord Chancellor, Birkenhead, from a brief written by Sir Claud Schuster, the adroit Permanent Secretary of the Lord Chancellor’s Office: the Lord Chancellor, it was claimed, was an essential buffer for workable relations between the executive and the judiciary.647 Hewart, then Attorney-General, was to draw from this episode the implacable belief that Schuster was after a Ministry of Justice for himself – and to Hewart this was bureaucratic manipulation that threatened truly inviolable territory. Accordingly, in 1934 he denounced a mild plan to appoint a Vice-President in the Court of Appeal as the thin end of this very wedge.648 Such sensitivity may have been absurd, but the general feeling which lay behind it was certainly shared by leaders of the bar, who feared that the creation of a new Minister of Justice would be followed by the appointment of a non-lawyer to the 643 Muir Mackenzie was the first Permanent Secretary (1885–1915) and was succeeded by Claud Schuster (1915–44): G Drewry ‘Lord Haldane’s Ministry of Justice, Stillborn or Strangled at Birth?’ (1983) 61 Public Administration 396, 399–401; D Woodhouse, The Office of Lord Chancellor (Hart, 2001) ch 3. 644 This would in the event continue until 1949, despite the recommendation of the Macdonnell Royal Commission on the Civil Service (6th Report, PP 1914–1916 [Cd 7832] XII Ch 4 para 4) that all appointments should pass to the Lord Chancellor. 645 These had varied starting points: (i) Lord Langdale MR had seen it as a means of distributing the burdens of the Lord Chancellorship: eg PD 1836 XIV 44; (ii) the inadequacies of Lord Cranworth’s Statute Law Commissioners in the 1850s had suggested a full-time body to deal with consolidation and law reform: eg PD 1857 XLVI 790, 793; (iii) during the Judicature Acts reorganisation, the Legal Departments Commission had proposed the establishment of a single Ministry: Second Report, PP 1874 [C 1107] XXIV 104–105. See further, Fabian Society, A Ministry of Justice (New Fabian Research Bureau, 1933) 4–5 (written by RST Chorley). 646 Report, PP 1918 [Cd 9230] XII, Ch 10. See generally, Stevens (1978) (n 376) ch 2; Drewry (1983) (n 643); also Lord Schuster, ‘The Office of the Lord Chancellor’ (1949) 10 CLJ 175. 647 Lord Birkenhead, Points of View (Hodder & Stoughton, 1922) vol 1, 92. 648 PD (Lords) 1934 XCV 224–37. The first bearer of the title would have been Slesser LJ, who had been S olicitorGeneral in the first Labour Government.

Part 2: Passing Greatness 1875–1950 99 post. After the war, radical lawyers would press the cause of a Ministry of Justice which had attracted them since around the time of Hewart’s outburst.649 But the Lord Chancellor, Jowitt, reacted with almost equal vehemence. Nothing was to come of it even under a majority Labour Government. The real novelty of Haldane’s plan was that officials of the proposed Ministry would watch over law reform and study the development of each subject at home and abroad. The growth of central government in the previous century had meant that, in the fields which it supervised,650 there was frequent legislative change from within. Yet no tradition of regularly overseeing the general law had developed and the stimulus which had earlier come from such lawyerly organisations as the Society for Promoting Amendment of the Law and the National Association for the Promotion of Social Science had dwindled.651 The Victorian commissions and committees which had responded to these thrusts with large plans for reforming statute law and codifying criminal law and procedure652 had themselves led to little change. In the years after Judicature, their main achievements were the four statutes which codified particular aspects of commercial law;653 and through the Edwardian years a long wrangle, intimately connected with the solicitors’ interests in conveyancing, took place over the reform of land law.654 The failure of the Ministry of Justice plan meant that no systematic strategy was adopted during the 1920s. Each subject in contention was handled ad hoc, with resort to official committees for particular issues.655 Eventually in 1934, Sankey established a Law Revision Committee with standing functions. But on it, beside the Permanent Secretary to the Lord Chancellor’s Office, were four judges, five barristers, two solicitors and two law professors. Initiatives might now come from officials, but recommendations would mainly be left to representatives of the legal professions.656 And so matters would continue for the next 30 years.657 649 RST Chorley, ‘Essays in Law Reform: III. A Ministry of Justice and The Reform of Judicial Institutions’ (1933) 4 Political Quarterly 544. 650 See eg the growth of law on factories (pp 291–96), poor law (pp 403–11) and housing (pp 179–83). 651 Brougham was prominent in the early years of both organisations; their falling-off might be taken as an example of the general decline in reforming zeal that occurred in the late 1800s. See generally, M Lobban, ‘Henry Brougham and Law Reform’ (2000) 115 EHR 1204; L Goldman, Science, Reform and Politics in Victorian Britain: The Social Science Association 1857–1886 (Cambridge University Press, 2002). 652 See pp 579–87. Most was achieved in the relatively modest, but significant, field of consolidating successive statutes, a subject on which Lord Cranworth began a great project in 1853: Sir C Carr, A Victorian Law Reformer’s Correspondence (Bernard Quaritch, 1955) 8–9; AH Manchester, ‘Simplifying the Sources of the Law: An Essay in Law Reform’ (1973) 2 Anglo-American Law Review 395. Neither this nor later arrangements were as productive as they might have been, had there been a minister with overall responsibility. See generally Lord Jowitt, Statute Law Revision and Consolidation (Holdsworth Club of the University of Birmingham, 1951). 653 See pp 200 and 220. 654 See pp 173–79. 655 As happened for instance over legal education, divorce and other civil jurisdiction, and the treatment of children; see pp 104, 374–76 and 610–11. 656 Three more academic lawyers were added in 1937 in the hope of speeding progress. The Committee reviewed a number of aspects of what became the Law Reform (Miscellaneous Provisions) Act 1934 and the Law Reform (Married Women and Joint Tortfeasors) Act 1935 (PP 1933–34 [Cmd 4540, 4546, 4637] XI, 1934–1935 [Cmd 4770] X) and then reported on limitation of actions, the Statute of Frauds 1677, consideration, frustration and contributory negligence (PP 1936–37 [Cmd 5449] XIII; 1938–39 [Cmd 6009, 6032] XII). For an account of its work on frustrated contracts, see P Mitchell, ‘Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd (1942)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Restitution (Hart, 2008); and for an account of its work on tort law, see P Mitchell, A History of Tort Law 1900–1950 (Cambridge University Press, 2015) Part 2. 657 The pre-war committee would be revamped in 1952 as a Law Reform Committee, with in addition a Private International Law Committee (1952) and a Criminal Law Revision Committee (1959). Not till 1965, with the establishment of the English and Scottish Law Commissions, would law reform come of age.

100 Institutions and Ideas

iii. Legal Services for the Poor The nineteenth-century legal system, with its focus on individual rights, was largely the province of those who could afford legal advice and assistance. The coming world of social claims could not operate on such a basis, and the courts would play only a secondary part in it. Yet they were not wholly excluded from ‘mass law’ and this gave special urgency to questions of legal assistance for the poor. In an adversarial system, professional help was a pre-condition for penetrating an otherwise incomprehensible maze. The most obvious cases where help was essential were accident claims (particularly under the workmen’s compensation scheme of 1897) and divorce (much in demand after the upheavals of WWI).658 But other matters also went on a large scale to the courts, for example: housing, crime, agricultural tenancies, and debt enforcement.659 Taken as a whole, these raised two spectres for the legal professions: one was of litigation on a profit-sharing, ‘contingent fee’ basis – a practice which was becoming an established feature of litigation in the United States. The other was of a subsidised, state-run service of advice and representation for the poor. Contingent fee practice surfaced, as it was bound to do, within a system which offered the impecunious plaintiff practically no other recourse, and it had its appeal for those at the bottom end of the professions. But to the leaders it was anathema. For the solicitors it raised the old smear of ‘pettifogging’; for the bar it disturbed the balance between duties to court and client which was considered the nub of the adversarial process.660 The prospect of state legal services was equally disturbing. They could be attacked for their capacity to proliferate unwarranted claims and unjustifiable defences; but their root offence was that they might deprive private practitioners of business. The royal courts had long provided some means for an utterly poor person to bring a civil action (but not to defend one). By the in forma pauperis procedure, if a plaintiff had no assets of more than £5, the Lord Chancellor would assign counsel and attorney to conduct his case for nothing. But fear of vexatious suits had always infected these arrangements: by 1774 the pauper had first to secure counsel’s certificate of the merits of the claim, which doubtless called for strong tugs upon the ties of ‘friendship’.661 Even after the rules were finally reformed in 1883, raising the capital limit to £25 and admitting defendants as well, these preliminaries remained daunting and the procedure was used only rarely;662 in divorce cases, moreover, at least from 1890 the court declined to assign a solicitor and counsel to act, and since the registry officials were not reputed very helpful, few poor petitioners dared dispense with a solicitor, so even an in forma pauperis case would cost 25 guineas.663

658 See pp 502–07 and 374–76. 659 See pp 183–87, 599–601, 135–37 and 223–24. 660 The common law had long treated maintaining proceedings for another, and – even worse – doing so upon a champertous arrangement to share the proceeds, as a criminal and civil wrong: PH Winfield, The History of Conspiracy and the Abuse of Legal Procedure (Cambridge University Press, 1927) ch 6. 661 R Egerton, Legal Aid (Kegan Paul, 1945) ch 2, noting that that counsel and attorneys thereafter began to claim fees from the proceeds of successful actions (and costs) brought by paupers. On ‘friendship’, see p 4, n 28. 662 Egerton (n 661) 8–9. Vexatious litigation was addressed separately by legislation in 1896: M Taggart, ‘Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896’ (2004) 63 CLJ 656. 663 Polden, ‘Civilian Courts’ (n 281) 754, adding that as a result only 10% of divorce cases used the procedure in 1890, and after that only 10–15 cases a year; instead ‘the poor flocked to the police courts, where a separation order could be had for as little as six shillings.’

Part 2: Passing Greatness 1875–1950 101 On the criminal side, the judge might ask a barrister in court to give his honorary services in serious cases, usually murder, but this judicial practice was variable, and even when provided, ‘the quality of representation was frequently of doubtful value to the defendant, usually because of the short time available to prepare the defence, lack of an instructing solicitor, or, most likely, assignment of an inexperienced or newly fledged barrister.’664 Alternatively a defendant charged with any offence might issue a ‘dock brief ’, choosing from the dock any available counsel in court for a fee of one guinea; but even if a defendant could raise this sum, the quality of representation was variable and few availed themselves of the opportunity. In the last decades of the nineteenth century, ‘poor man’s lawyer’ organisations began to offer free advice and sometimes more substantial assistance in working-class areas.665 The mesh of motives behind these initiatives was complex. Much of the most helpful work stemmed from a genuine revulsion against the outworks of industrial progress. There were many lawyers who felt that, as professional men with a protected status, they – or at least their brethren – could do no less. Moreover, since charity was the keynote, the donors could control what was done and so could sift the meritorious from the stirrers of trouble and the artful dodgers. Equally, if there was control – as there was in the advice organisations – it could ensure that there was no diversion of work that would otherwise be paid for. But the schemes for aid in litigation were run ultimately by the courts, rather than the professions, and accordingly they posed some threat to private practice. Certainly, this last consideration dominated Law Society attitudes after 1914 when a revised Poor Persons Procedure666 coincided with the wartime upsurge in the demand for divorce. The new arrangements placed legal aid for High Court litigation in the hands of a court department but depended on the cooperation of barristers and solicitors prepared to work for nothing.667 As we shall see,668 their response fell far short of need; but the Law Society did little to encourage change until it was allowed to assume responsibility for the scheme. Once handed over, it set up panels throughout the country which quickly reduced the backlogs. It then insisted, for the rest of the inter-war period, that the scheme should be purely voluntary and should not slide into any form of cut-rate or contingent fee work.669 By the late 1930s this led the Society into serious conflict with Welsh solicitors, for whom the effects of economic depression were long-lasting. But it maintained its position until the next war brought an even larger wave of demands for divorce.670 Some form of payment

664 Smith, ‘Criminal Law’ (n 226) 79. 665 They began with the university settlement movement in the East End of London: Egerton (n 661) ch 5; D Leat, ‘The Rise and Role of the Poor Man’s Lawyer’ (1975) 2 British Journal of Law & Society 166. Bodies which provided funding to support litigation risked committing the offences of maintenance and champerty: C Harlow and R Rawlings, Pressure through Law (Routledge, 1992) 34–36 and 48–49. See too Ladd v London Road Car Co (1900) 110 LT 80; Wiggins v Lavy (1928) 44 TLR 721. 666 The Poor Person’s Rules 1914 were brought into effect only after considerable modification in the light of objections from both professions: Egerton (n 661) 10–13; Abel-Smith and Stevens (n 390) 140–42. 667 The new Poor Persons’ Department operated by referring applications to barrister and solicitor volunteers for reports, on the basis of which the court decided whether to issue an aid certificate. Applicants had to be worth less than £50, or £100 in special circumstances. 668 See pp 373–74. 669 On the Society’s bargaining before the Poor Persons’ Rules Committee (the second of two under PO Lawrence J), see Abel-Smith and Stevens (n 390) 147–48. 670 For this, see Egerton (n 661) 15–17; Abel-Smith and Stevens (n 390) 158–64. See also pp 375–76 of the present volume.

102 Institutions and Ideas became essential if this work was to be coped with, and during the war itself special departments had to be set up.671 The Society’s longer-term strategy, however, shifted: civil legal aid would become a state-subsidised service for county courts as well as the High Court and above, organised under the Society’s aegis and conducted by solicitors in private practice. The inter-war experience put the Society in a strong position to demand what became the crucial features of the modern system, set up in 1949.672 Both barristers and solicitors were to be paid at something below normal professional rates from government funds. While taking on a new type of state service, the profession was able to preserve the marks of its freedom to a unique degree. Significantly, the history of aid for criminal defendants took a different course towards its modern form. The Law Society did not find the same need to insist upon control, or upon charity; but then the pool of paying clients was unquestionably restricted. From 1903, the dock brief largely gave way to a system that was in principle more adequate: the magistrates or the trial court could grant representation by both counsel and a solicitor to a poor prisoner being tried on indictment. What is more, the defence became entitled not only to reasonable expenses but to a modest fee, paid for out of local rates.673 In 1930 the same approach was extended to summary charges when they were unusually grave or otherwise exceptional.674 The original step in 1903 derived at least part of its support from those who, five years earlier, had secured the criminal defendant’s right to give evidence with the purpose of obliging him to submit to cross-examination or risk the consequences. In a similar spirit, poor persons’ defence was made available only to those who would reveal their defence in advance, thus allowing a preliminary judgment upon it and an important advantage to the prosecution. Only a very small proportion of criminal defendants ever sought help on such terms.675 But the seed was planted for an aid system from public funds and was to grow on the civil side after 1949 and the criminal after 1960. While this became common ground, the separation of the two in terms of administration would persist, the courts continuing in charge of the criminal side, the Law Society of the civil.

iv. Professional Education and Entry Because law remained a craft mystery practised by the two professions, new entrants, whatever their social background, had not previously thought to study the subject in advance in a systematic way.676 If they went to university it was to acquaint themselves

671 These were established by the Law Society, first for service personnel and subsequently for civilians: Egerton (n 661) 18–19. 672 Legal Aid and Advice Act 1949, based on the recommendations of the Rushcliffe Committee, PP 1944–1945 [Cmd 6641] V. Discussed in RI Morgan, ‘The Introduction of Civil Legal Aid in England and Wales 1914–1949’ (1994) 5 TCBH 38. Various European countries and US cities already had more thorough-going provision, as made clear in EJ Cohn, ‘Legal Aid for the Poor: A Study in Comparative Law and Legal Reform’ (1943) 59 LQR 250. For the pressure groups, see Abel-Smith and Stevens (n 390) 318–19. 673 Poor Prisoners’ Defence Act 1903. For details of the scheme, Egerton (n 661) 20–22. 674 Poor Prisoners’ Defence Act 1930, based upon the First Report of the Finlay Committee on Legal Aid for the Poor, PP [1926] Cmd 2638 XIII. The Committee rejected the creation of a Public Defender as too expensive and difficult. For the background, see Abel-Smith and Stevens (n 390) 153–56; Smith, ‘Criminal Law’ (n 226) 82–83. 675 Abel-Smith and Stevens (n 390) 152–53. 676 See pp 61–2 and 63.

Part 2: Passing Greatness 1875–1950 103 with a literary or mathematical guise of gentlemanly learning.677 Only gradually would those who entered the professions take one of the law degrees which the universities were establishing.678 For the most part they would acquire their legal knowledge through training in articles (solicitors) or pupillage (barristers),679 and through undertaking the professional examinations. The solicitors, it will be recalled, had introduced these examinations with some eagerness, the bar with measured disdain. These attitudes would carry forward. In 1877, the Law Society succeeded in gaining control of the solicitors’ qualifying examinations, but although the syllabus was severely practical and ‘theoretical’ subjects were ignored, pass marks fell and ‘crammers’ proliferated to meet the perceived needs of articled clerks dissatisfied with the lectures provided to support them, although these were extended from London to a number of provincial centres.680 In 1903 it established a School of Law in London;681 and in 1922, on the initiative of its head, Professor Edward Jenks, attendance at lectures was made a prerequisite to entering the examinations.682 This in turn led to Law Society activity, not only in maintaining provincial lectures of its own, but in fostering law teaching in local universities.683 The teaching was towards its own examinations and relied heavily on part-time instruction by members of the profession, a development which left the Law Society largely in control but which brought a decorous association with higher learning. The bar, on the other hand, was frequently pressed, within and without, to adopt an educational plan of greater purpose.684 In particular, the notion of a legal university in London refused to die away: first an ‘Albert University’ was proposed with King’s and University Colleges (1884); then University College sought a charter for a separate university (the ‘Gresham’ charter) and wanted collaboration with the Inns and the Law Society (1891); the Herschell Commissioners, appointed to reorganise the University of London, sought to attract the Inns by offering them a considerable measure of autonomy to run a law school (1899). Nothing transpired, for in each case there proved to be intransigent hostility in some quarter of the Inns. It was built upon the combined beliefs that external schools could not profess to teach what was needed, that the true skills of the advocate could be learned only by practice, that any collaboration might lead to a combination of education with solicitors, which in turn might threaten the separate existence of the bar; and that outside education might in the end provoke a scramble of entrants such as had occurred 50 years before. The bar continued to prefer its rather feeble examination system,

677 In the nineteenth century, over half the bar would be graduates, the proportion of attorneys and solicitors much smaller: R Abel, ‘The Decline of Professionalism’ (1986) 49 MLR 3, 4; Abel (1988) (n 387) Tables 2.2, 2.3. 678 The provincial universities – starting with Manchester, Birmingham, Bristol, and Exeter – would introduce law teaching, mainly for Law Society examinations and only in the new century. 679 Even pupillage was not strictly required until 1959. While the earlier nineteenth century practice may have been for a long pupillage (two years), it seems that the habit dwindled: Abel (1986) (n 677). 680 Birmingham, Liverpool, Manchester and Newcastle were the first such centres: Abel-Smith and Stevens (n 390) 170 and 178. See generally Polden, ‘Education’ (n 396) 1198–201. 681 For preceding attempts to secure that some of the sums resulting from selling off the old Inns of Chancery should be devoted to professional education, see Abel-Smith and Stevens (n 390) 174–75. 682 Solicitors Act 1922, s 2, exempting (after a determined campaign) managing clerks admitted under the 10-year rule established in 1860 (p 63, n 421), those with approved degrees and those geographically remote. 683 In London, however, the private school, Gibson & Weldon, attracted more candidates than the Law Society’s School. The two were not merged until 1962. 684 See generally, Abel-Smith and Stevens (n 390) 168–80; Polden, ‘Education’ (n 396) 1195–97.

104 Institutions and Ideas for which scant teaching sufficed, in the knowledge that launching a career in any case depended upon finding a place in chambers and attracting work through the clerk and solicitors. A Committee under Lord Atkin in 1934 quickly concluded that legal education needed no basic improvement, and certainly no real enhancement of the provision in the universities.685

v. Accountability to the Public The Law Society had one further goal in the cause of autonomy, and this for a particular reason. Monopoly brought with it some public accountability for charges to clients and the professional body could never hope to bring the systems of taxing fees686 within its own control. But it did seek a role in disciplining solicitors who had defalcated or otherwise been guilty of professional misconduct. The bar, after all, dealt with such matters itself through the benchers of the Inns;687 yet solicitors came before the judges. No publicity could better stoke the fires of derision and mistrust. The change was not easily secured from Parliament: in 1888, the Law Society was permitted a committee to conduct preliminary investigations of alleged misconduct before any airing in open court; but not until 1919 did a Disciplinary Committee of Law Society Council members take over the whole matter, subject to a right of appeal to the High Court.688 It was a true investiture of respectability achieved despite a regular trickle of disenrolments. At the turn of the century, indeed, there had been a number of prominent scandals689 and the Society was obliged to seek power to refuse an annual practising certificate to solicitors who were undischarged bankrupts.690 In 1907 an internal committee favoured a stringent series of measures in the keeping of accounts, including a separate clients’ account for moneys held on trust and (by a majority) the annual auditing of books. It was not, however, until after the Solicitors Act 1933, when the Society finally acquired power to prescribe rules of good conduct, that the first of these proposals was implemented; and the second came only in 1945.691 It was always difficult to persuade the membership that business practices which ought to have been regarded as common precaution should be imposed by rule, even one that was internally agreed.692

685 Committee on Legal Education, PP 1934 [Cmd 4663] XI. The Committee was established by Sankey LC upon the urgings of Professor Harold Laski that England needed an equivalent of the Harvard Law School. The Committee did urge the creation of an Institute of Advanced Legal Studies; in 1948, the University of London undertook this. 686 For which, see p 61, n 406. 687 Formal disciplining through disbarring or other penalties was very rare, the spokesmen of the bar making much of the informal pressures that arose from Inn and bar mess life, together with the constant overseeing by judges in court: Duman (1983) (n 387) 34–37. See too Polden, ‘Institutions and Governance of the Bar’ (n 404) 1082–83. 688 See generally Kirk (n 389) ch 4; Abel-Smith and Stevens (n 390) 188–90; Polden, ‘Solicitors’ (n 411) 1160–65. 689 Including one ex-president of the Law Society. See Kirk (n 389) 97–99; M Lunney, ‘The Law Society and the Defalcation Scandals 1900’ (1996) 17 JLH 244; 690 Solicitors Act 1906. It also promoted the Larceny Act 1901, making fraudulent conversion of funds held by an agent an offence. 691 Birks (n 384), 273–75; Kirk (n 389) 105–06. In 1943 a compulsory compensation fund was established by the Law Society: Abel-Smith and Stevens (n 390) 192. 692 Kirk (n 389) 100–05; Birks (n 384) 272–75.

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vi. Relations Between the Two Legal Professions As free professions, both barristers and solicitors offered their services to the public at large. Accordingly, they played down the extent to which some among them might do all or most of their work for particular clients.693 But the structures within which they maintained this freedom were at once different and interdependent: accordingly, they were always a potential source of friction. The bar pursued its individualism to the extent of precluding partnerships.694 At the same time its work depended largely on introduction from solicitors. The exposure to risk which stemmed from this combination made the bar most reluctant to acknowledge, as a strict rule of etiquette, that solicitors were their only source of clients.695 To keep the matter equivocal at least provided ammunition if the solicitors should attack other points along the existing line of understandings. Of these the most vital was the bar’s exclusive right of audience in most superior courts: its preserve included not only the royal courts of justice but also assizes and those Quarter Sessions where the bar had asserted itself by regular attendance. The solicitors were never entirely happy with this and they watched out for chances of circumvention. The moves to increase the monetary limits to county court jurisdiction and to pass divorce work down to these courts were obvious instances.696 On a lesser scale, the solicitors fought for and eventually obtained certain rights to appear at Quarter Sessions on licensing appeals and then rating assessment appeals.697 With grudges about the distribution of work between the professions went an irritation over the barriers placed by the benchers of the Inns in the way of a solicitor switching to the bar. A certain looseness in the relationship had survived into the eighteenth century, when the bar had seen to it that attorneys were wholly excluded from the Inns of Court.698 This had been followed by a tightening of the requirement that, before applying for admission as a student of an Inn, an attorney must cease to practise and have his name removed from the roll. In the name of preventing any partisanship for former clients (or favouritism from them), the effective waiting period had, after 1834, become a prohibitive five years. In the 1870s the Law Society kept up pressure on the subject, itself improving the ability of barristers to become solicitors and then demanding reciprocal advantages. Under threat of legislation, the Inns eventually altered the position so that a solicitor of five years’ standing could sit the bar’s final examination after one year’s wait.699 693 The bar insisted that only those who engaged in free practice could enjoy its rights of audience. But it did not restrain such practices as the payment of retainers by clients to secure the services of counsel over time. Solicitors in the service of a business or government had only to take out a certificate in order to preserve their right of practice. 694 Victorian barristers mostly worked alone with their own clerks; gradually chambers sharing a clerk developed, though sets were typically only of four or five in the 1930s: Cocks (1983) (n 391) 9; Duman (1983) (n 387) 83; Polden, ‘Barristers’ (n 387) 1031–33. 695 In the mid-nineteenth century, while this was the general practice for superior court work, it did not wholly prevail in the criminal and bankruptcy courts. Even when the Bar Committee acknowledged it as the rule for contentious work in 1888, subsequent statements would not be so unequivocal: see Kirk (n 389) 172–74; Abel-Smith and Stevens (n 390) 222. 696 See pp 92 and 372–74. 697 Abel-Smith and Stevens (n 390) 236–38; Kirk (n 389) 155–62. 698 Kirk (n 389) 22–23. The attorneys and solicitors were thus left to make use of the Inns of Chancery; these however were always too small and local to serve as a professional institution; hence their winding up in the late nineteenth century. 699 Kirk (n 389) 179–81; Abel-Smith and Stevens (n 390) 226–27; Abel (1988) (n 387) Table 1.9. The period became six months in 1928.

106 Institutions and Ideas The difference was reduced, but continued to rub, along with other aggravations: the various practices by which the bar sought to spread (and to increase) its work; the peculiar condescension which left counsel free from obligation to appear on a brief and under no liability for negligence; above all, the exclusive entitlement to all the senior and many intermediate judicial offices, at home and in the colonies – leading to suspicions that, whenever new posts were created, the bar employed its parliamentary strength to annex them for itself. As the junior branch, the solicitors had the more pressing need of a professional body to defend its interests and in the 1870s the Law Society confirmed its primacy by absorbing its most substantial rival, the Metropolitan and Provincial Law Association.700 By the 1880s there were sectors of the bar which were becoming distrustful of their leaders’ organisations. The Inns were becoming more remote, since, with the disbanding of Serjeants’ Inn at the time of the Judicature Acts, the judges were returning to the Inn benches. When the Rules Committee of the Supreme Court chose to tackle the rising costs of litigation by clipping away at the procedural luxuriance from which the junior bar derived so much of its income, it suddenly realised how ill-represented it was. It insisted on forming a Bar Committee, which would have to be consulted before similar changes were made in future. Pressure followed on the benchers to convert the Committee into a Bar Council which could represent the whole bar and which would have the financial support of the Inns. In 1895 this arrangement was finally conceded in grudging terms chiefly notable for the undertakings not to trespass upon the traditional pastures of the Inns’ authority: admissions, formal discipline, education. The Council survived in this ancillary form since it proved a useful channel by which to decide questions needing a single voice – eg upon matters of bar etiquette – and through which to negotiate such matters as the Inns wished it to settle.701 The bar could afford so conservative a response because in the end it faced little more than niggling at the margins. The grand issue of fusion with the solicitors, though it had occurred in some of the colonies and in the United States, did not take hold in the home of the common law. It could not go entirely undiscussed. There were moments of special uncertainty in the bar’s history when its less assured members began to feel the attractions of partnership and direct access to clients.702 Outsiders, who tended to doubt a professional division which doubled the manpower engaged in higher litigation, were likely to stir the pot at such times; so did The Times in a substantial article in 1884. Calls for fusion were also likely to find a response among the upper echelons of solicitors, always well-represented on the Law Society. Yet the bar did not have to reckon on serious difficulty from the lower branch. For when the Law Society did test the issue among its members there proved to be a consistent majority against fusion. The smaller firms and one-man offices saw their guarantee of independence from larger firms in their ability to obtain expert advice and support from counsel.703

700 See p 63. 701 See generally, Abel-Smith and Stevens (n 390) 211–20: Duman (1983) (n 387) 68–71; these developments made it harder to distinguish the organs of the bar from trade unions than it had been for Dicey, writing in the Fortnightly Review in 1867: Cocks (1983) (n 391) 127–30. 702 Polden, ‘Solicitors’ (n 411) 1167–69. 703 Abel-Smith and Stevens (n 390) 227–30 and 235–36.

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vii. Women’s Entry into the Legal Professions The entry of women into the legal professions was dogged by male prejudice. Initially they were ineligible to join either profession and various female applicants for admission were rejected by the professional bodies and the courts in the late nineteenth and early twentieth centuries.704 It was not until 1915 that the exclusion of women was overturned by legislation.705 Prior to this, and despite the rebuffs which they received, a few women had been sufficiently determined to pursue their interest in law through higher education and had successfully completed degrees in the subject.706 After entry into the legal professions was opened up, it became clear that securing admission had only been the first of many battles that women would have to fight to secure equality of treatment. Once qualified, many found that professional success eluded them, especially at the bar.707 Their slow and difficult professional progress during the twentieth century has been attributed to many impediments, but it is clear enough that the overwhelmingly masculine environment, traditions and prejudices of the legal professions were prime causes.

G. Ideologies and Democracy We return finally to the larger world of ideas and the place within it of thinking about law and legal institutions. The democracy heralded in 1867 would produce not only the realignments of a propertied class facing a wage-earning class but a broader ideological shift towards collectivism.708 To conservers of the older liberal tradition, like Dicey, the new prospects of state regulation and direction were an incoherent but many-sided threat posed by legislative interference, bureaucratic inspection, ‘gas-and-water’ municipal socialism, the increasingly defiant organisation of labour and emergence of an Independent Labour Party. Collectivism, said Dicey, was ‘rather a sentiment than a doctrine’, a current of opinion that could not be ‘connected with the name of any one definite school’.709 As we have discussed,710 he sought to parade the influence of ‘Benthamite individualism’ upon thinking and events in the preceding period and it is always easier to impose unitary causal explanations on the past than on the confusing ebb and flow of the present. But for his distaste, he might have allowed more for the deep earnestness with which many in his own time not only furthered campaigns of social reform, but also sought a justification for their programmes in philosophic or economic theory. Their anxious studies were the product of revelations about the underside of industrial society. These came of age in detailed surveys of working-class households by

704 MJ Mossman, The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Hart, 2006) 113–17. 705 Sex Disqualification (Removal) Act 1919. 706 Mossman (n 704) ch 3. 707 P Polden, ‘Portia’s Progress: Women at the Bar in England, 1919–1939’ (2005) 12 International Journal of the Legal Profession 293; J Bourne, ‘Helena Normanton and the Opening of the Bar to Women’ (PhD thesis, KCL, 2014); available at: https://kclpure.kcl.ac.uk/portal/files/44958035/2014_Bourne_Judith_1069321_ethesis.pdf. 708 Collini (n 431) ch 8. 709 Dicey (1914) (n 108) 64–65 and 67. 710 See pp 67–70.

108 Institutions and Ideas Charles Booth and Seebohm Rowntree.711 They were supplemented by the personal experience of ‘East-ending’ at Canon Barnett’s Toynbee Hall712 and the university settlements and the sight of meetings and demonstrations by the unemployed. They were part of a wealthier, more experienced and more sceptical world, one less frightened of immediate violence but more aware of gulfs that might in the end mean deeper subversion. No longer was there so easy an acceptance of that rather blinkered calculation of human affairs which put its faith in the functioning of free markets. JS Mill, in restating classical political economy upon a presumption of non-interference by government, had found a growing range of justifications for overturning the presumption, and his influence for a modified liberalism was very considerable. Of the many manifestations of classical economics, Malthus’s answer to the threat of rising population – that the fittest must be left to survive – had produced wider intellectual repercussions. From it had stemmed the proofs of biological evolution provided by Charles Darwin and TH Huxley; and from them in turn came interpretations of the development of societies in evolutionary terms. To neo-Malthusians, such as Herbert Spencer,713 further progress demanded an even greater withdrawal of the state, a position advocated by other individualist thinkers of the 1880s and 1890s.714 But others would argue the converse: that the state must use its authority to advance the coming of a condition in which wealth and life chances were more evenly distributed among the population as a whole. Indeed, to those drawn to the potentially sinister science of eugenics, the state’s authority might be harnessed to biological improvement of the national stock, at least to the extent of preventing the feeble-minded, habitually criminal and mentally disturbed from reproduction, and of excluding incursions of aliens.715 Ideas of historical progression, broadly affinitive in character, informed the positivist philosophy of Auguste Comte.716 He saw morality moving from a theological beginning, through a metaphysical staging post to a scientific end point, in which tenets would

711 C Booth, Inquiry into the Life and Labour of the People in London (Macmillan, 1902–03, 17 vols); S Rowntree, Poverty, A Study of Town Life (Macmillan, 1901). 712 E K Abel, ‘Toynbee Hall, 1884–1914’ (1979) 53 Social Service Review 606; Dixon (n 429) ch 6. 713 See, in particular, H Spencer, Social Statics (John Chapman, 1851); id, A System of Synthetic Philosophy (Williams & Norgate, 1862–96, 10 vols); id, The Man versus the State (Williams & Norgate, 1884); discussed in JF Burrow, Evolution and Society: A Study in Victorian Social Theory (Cambridge University Press, 1966) ch 6; see also MW Taylor, Men Versus the State: Herbert Spencer and Late Victorian Individualism (Oxford University Press, 1992); EN Zalta (ed), D Weinstein, ‘Herbert Spencer’ in The Stanford Encyclopedia of Philosophy (online edition) https://plato.stanford.edu/archives/sum2018/entries/spencer. 714 Spencer’s position was given political focus in the 1880s by the Liberty and Property Defence League, on which see E Bristow, ‘The Liberty and Property Defence League and Individualism’ (1975) 18 HJ 761; and for a leading luminary, see C Fairfield, A Memoir of Lord Bramwell (Macmillan, 1898). Even more extreme liberals approached an anarchism which nonetheless remained distinct from that of figures on the far left such as William Morris: R Barker, Political Ideas in Modern Britain (Methuen, 1978) 50–60 and 71–79. 715 CD Darlington, Genetics and Man (Allen & Unwin, 1966) chs 13 and 14; GR Searle, Eugenics and Politics in Britain 1900–1914 (Noordhoff, 1976); DB Paul, ‘Darwin, Social Darwinism and Eugenics’ in J Hodge and G Radick (eds), The Cambridge Companion to Darwin, 2nd edn (Cambridge University Press, 2009). The concern for the condition of the national stock had legal repercussions in the conversion of incest into a common law crime and the measure for putting away habitual criminals in 1908, and the restriction of alien immigration in 1905: see pp 591–92. 716 M Pickering, Auguste Comte: An Intellectual Biography, vol 1 (Cambridge University Press, 2006). Harriet Martineau was the first to provide an English paraphrase of Comte’s ideas; and JS Mill lent a generally sympathetic weight to their spread in Auguste Comte and Positivism (N Trübner & Co, 1865).

Part 2: Passing Greatness 1875–1950 109 be tested by ‘positive’, rational enquiry, and which could encompass even a religion of common humanity. In the 1860s and 1870s his ideas would enjoy a considerable English following. Comte was heir to the rationality of the French enlightenment, Karl Marx to the shrouded metaphysics of Hegel. In Marx’s work, historical evolution became a dialectic struggle between social classes formed from the very modes of economic organisation. Using the tools of the English political economists, he re-analysed elements in industrial capitalism to show an expropriation by the bourgeois owners of the surplus value of labour; but the process of competition must in time squeeze the amount thus made available for the formation of new capital; inevitably a crisis must occur from which the working class would emerge to claim their real share of value and so be released from wage slavery to personal fulfilment. In the wake of this revolution, the state and law, instruments of bourgeois domination, would wither.717 As Marx was translated from the German, he was studied in British intellectual circles as a source of inspiration for the fight against the great inequalities produced by capitalism.718 However, he was read together with, for instance, the Gotha Programme of the German Social Democrats and with Bronterre O’Brien, Henry George and other nationalisers or capital taxers of land.719 Marxist ideas acquired a following in the Social Democratic Foundation, founded and dominated by HM Hyndman, and in some of the splinter movements from it.720 But any real presence would have to await the creation of the British Communist Party in the wake of the Russian Revolution.721 The socialism of the Fabian Society, as it came under the leadership of Sidney Webb, was a pragmatic programme of amelioration by the increasing intervention of the state, which was at no great remove from the thinking of radical liberals.722 By and large, those who took an intelligent interest in social issues sought ways of adapting the known world of private property and free contract, but they were at least suspicious of any dramatic breach with the present. Moderate radicals of a theoretical cast of mind might accordingly be drawn to the teaching of the Oxford philosopher, TH Green and 717 G Stedman Jones, Karl Marx: Greatness and Illusion (Allen Lane, 2016) situates Marx in his intellectual context, explains the development of his ideas and demonstrates how the version of these which became one of the twentieth century’s dominant political ideologies was invented by German socialists in the early twentieth century. 718 S Pierson, Marxism and the Origins of British Socialism: The Struggle for a New Consciousness (Cornell University Press, 1973); K Willis, ‘The Introduction and Critical Reception of Marxist Thought’ (1977) 20 HJ 417; M Taylor, ‘The English Face of Karl Marx’ (1996) 1 Journal of Victorian Culture 227; B Jackson,Equality and the British Left: A Study in Progressive Thought, 1900–64 (Manchester University Press, 2007); D Tanner, ‘The Development of British Socialism, 1900–1914’ in E Green (ed), An Age of Transition: British Politics, 1880–1914 (Edinburgh University Press, 1997); M Bevir, The Making of British Socialism (Princeton University Press, 2011). 719 See pp 73–4 and 171. 720 C Tsuzuki, HM Hyndman and British Socialism (Oxford University Press, 1961); H Collins, ‘The Marxism of the Social Democratic Federation’ in A Briggs and J Saville (eds) Essays in Labour History 1886–1923 (Palgrave Macmillan, 1971); Barry (n 474) 136–44; M Bevir, ‘The British Social Democratic Federation, 1880–1885’ (1992) 37 International Review of Social History 207. 721 For which, see J Klugmann, History of Communist Party of Great Britain, vol I: Formation and Early Years, 1919–1924 (Lawrence and Wishart, 1968). 722 N and J Mackenzie, The First Fabians (Weidenfeld & Nicolson, 1977) ch 7. See too AM MacBriar, Fabian Socialism and English Politics 1884–1918 (Cambridge University Press, 1958); W Wolfe, From Radicalism to Socialism: Men and Ideas in the Formation of Fabian Socialist Doctrines, 1881–1891 (Yale University Press, 1975).

110 Institutions and Ideas his Balliol circle.723 Like Marx, Green was led away from what appeared a calculating opportunism in utilitarian thought to seek more fundamental values in German idealist philosophy. His concern was with the conditions for the fulfilment of individual moral choice. In arguing that a society must act to secure the basic conditions that would make such choice meaningful for its members, he sought to preserve the essence of individualism in a ‘positive liberty’.724 But his thinking appealed to anti-individualists to the extent that he supported state intervention, whatever its effect on a strict freedom of contract, to secure public health by slum clearance and house-building, to promote moral wellbeing by supporting temperance and to provide compulsory education so that all children might escape ‘that kind of ignorance which practically excludes them from a free career in life’.725 Green was to influence some of the coming Liberal leaders – among them Milner, Asquith and Haldane – but he remained a somewhat withdrawn academic figure. In the next generation the revision of liberalism, shorn of idealist preamble, was argued forcefully, in the press as well as more scholarly books, by the sociologist, Leonard Hobhouse and the economist, JA Hobson.726 Hobhouse saw a process of growth from a world of myriad individual relationships through the development of associations such as trade unions and trading cooperatives, all of them voluntary collaborations, to association at national level expressed in legislation: legal regulation of activity by the state was thus a higher condition of what had gone before, higher because it replaced the debilitating inequities of the competitive order. If this was socialism it was a liberal form, distinct from a Marxian socialism devoted to state ownership of the means of production and distribution and to exploitation through central planning. Equally it was distinct from the ‘official socialism’ (promoted by the Webbs and other Fabians) in which the dedicated expert became the essential creator and manipulator of social progress. It was, in other words, an attempt to articulate a distinct liberal position among political theories all of which accepted a substantial role for collective organisation in modern industrial society.727 In any state which was to surrender or qualify the self-generative mechanisms of the market, the expert administrator was destined to assume a position of leadership. A figure of Platonic ancestry, he had appeared as the founder of Owenite communities and the priest in the Comteian religion of humanity, and he featured in the thinking of many Edwardians who worked on plans for educational and social reform. 723 A Vincent (ed), The Philosophy of TH Green (Gower Publishing, 1986); PP Nicholson, The Political Philosophy of the British Idealists: Selected Studies (Cambridge University Press, 1990); SM den Otter, British Idealism and Social Explanation: A Study in Late Victorian Thought (Clarendon Press, 1996). 724 TH Green, Liberal Legislation and Freedom of Contract (Slatter & Rose, 1881); id, Lectures on the Principles of Political Obligation (unpublished, 1886) in RL Nettleship (ed), Works of Thomas Hill Green: vol 2, Philosophical Works (Cambridge University Press, 2012). 725 Green (1881) (n 724). 726 M Freeden, The New Liberalism: An Ideology of Social Reform (Oxford University Press, 1978); S Collini, Liberalism and Sociology: LT Hobhouse and Political Argument in England 1880–1914 (Cambridge University Press, 1978); P Weiler, The New Liberalism: Liberal Social Theory in Great Britain, 1889–1914 (Garland, 1982); PJ Cain, Hobson and Imperialism: Radicalism, New Liberalism, and Finance 1887–1938 (Oxford University Press, 2002); J Scott, ‘Leonard Hobhouse as a Social Theorist’ (2016) 16 Journal of Classical Sociology 349; D Bell, ‘Democracy and Empire: JA Hobson, LT Hobhouse, and the Crisis of Liberalism’ in D Bell, Reordering the World: Essays on Liberalism and Empire (Princeton University Press, 2016). 727 See, esp L Hobhouse, Liberalism (H Holt, 1911); id, Social Evolution and Political Theory (Columbia University Press, 1922); and in Various Writers, Property: Its Duties and Rights (Macmillan & Co, 1913) ch 13.

Part 2: Passing Greatness 1875–1950 111 His appearance was as likely in the thinking of the right as of the left: immense in his denunciation of liberal capitalism, Thomas Carlyle had been equally intense in his admiration of leaders of Hegelian stature, such as Cromwell and Frederick the Great.728 Legal scholars, who remained faithful to the philosophic roots of Benthamism, nevertheless drew from them markedly anti-populist conclusions. Maine despaired of democracy as a cloak for petty corruption and party manipulation; it led, if not to repressive autocracy, then to intervention in ways which stultified the original, progressive ideas of the creative few.729 This was an argument for entrusting government to an enlightened oligarchy. Fitzjames Stephen, equally from a utilitarian foundation, glorified the enlightenment of a great imperial power such as Britain and saw in its influence alone the hope of improving the condition of the native peoples over whom sovereignty was so largely asserted.730 Dicey deplored the collectivist consequences of expanding the electorate; and he became an obsessed campaigner against Irish Home Rule, in his eyes a semi-independence which would muddy the responsibilities of sovereign power.731 There remained, however, a polar distance between such casts of mind, which conceived the wise to know both the limits and necessities of government, and that of the Fabians (or at least the more consistent of them), intent on using the power of government for social betterment. The Webbs, for example, saw the need for democratic participation, but wanted it conditioned: expert central planning under the general authority of Parliament was appropriate for national needs; local decision-making should be by units of area large enough to provide all the necessary services, spread the burden of rates and avoid petty dogfights and self-aggrandisement. It was not enough to adopt Hobhouse’s optimism over the democratic expression of the general will; there must be careful calculation – expressed in legislation – of the relation between centre and localities, and between elected representatives and salaried bureaucrats.732 There was, however, a novel and quite separate dimension to arguments about the future of democracy. Collectivities distinct from political institutions and their franchises had arisen to advance mutual interests in myriad ways: institutes and committees of agricultural, industrial and financial interests, chambers of commerce, cartels, professional bodies, trade unions, friendly societies, building societies, religious, charitable, cultural and learned bodies – all these lobbied constantly for or against legislation and the activities of executive government, and negotiated with opposed interests and with consumers (so far as they had any coherent voice). A world of cohesions seemed to be arriving in which the individual’s

728 See BE Lippincott, Victorian Critics of Democracy: Carlyle, Ruskin, Arnold, Maine, Stephen, Lecky (University of Minnesota Press, 1938). 729 H Maine, Popular Government (J Murray, 1885); G Feaver, From Status to Contract: A Biography of Sir Henry Maine, 1822–1888 (Longmans, 1969) 227–42; R Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge University Press, 1988); A Diamond (ed), The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (Cambridge University Press, 1991). 730 For Stephen, see KJM Smith, James Fitzjames Stephen, Portrait of a Victorian Rationalist (Cambridge U niversity Press, 1988); and for the connection between idealism and imperialism, E Stokes, The Political Ideas of English Imperialism (Oxford University Press, 1960). The prime critic in the period was JA Hobson, Imperialism (George Allen & Unwin, 1902). 731 See RA Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (University of North Carolina Press, 1981) chs 6, 7 and 10. 732 Their most extensive proposals (with strong pluralist leanings) were in S Webb and B Webb, A Constitution for the Socialist Commonwealth of Great Britain (Longmans, Green & Co, 1920).

112 Institutions and Ideas real hopes for personal security and satisfaction lay in his membership of the mutual interest groups to which he was most naturally affiliated. From various points of the political spectrum there was accordingly interest in pluralist theories that would accurately and helpfully express this new complexity. In Britain they would not, however, receive the extensive treatment that was to be found among French writers such as the jurist, Duguit, the sociologist, Durkheim, or the political theorist, Sorel. Juristic interest flourished particularly in FW Maitland’s subtle historical investigations of mutual association and his interest in legal recognition for collectivities as they arose.733 For a time Harold Laski was engaged against the idealist buttressing of the state as an over-competent sovereign; he sought a balance that would decentralise power in the interests of both groups and individuals.734 At the level of political activism, union leaders after 1910 were turned by Tom Mann and Ben Tillett towards notions of syndicalist organisation in which workers were chiefly represented through their unions in political as well as economic matters, and the institutions of democracy became proportionately less significant.735 In place of political lobbying there would be collective bargaining, in place of legislation the adhesion contract. On the continent of Europe, the thrust of such thinking would have immense consequences in the inter-war period. States which abjured the centrist socialism of the Russian example were turned by Fascist leaders towards forms of mass organisation which replaced democratic politics with the solidarities of workplace and militaristic groups. In Britain, the experience of representative government proved sufficiently robust for its institutions to survive as vital organs of the state.736 The shop stewards movement, which during WWI marked an advance for the syndicalist cause, lost way as the unions sensed the chance of a Labour party victory at the polls. The minority Labour governments of 1924 and 1929 were achievements scarcely conceivable before the War. At the same time, the electoral course of the period showed that the working class was by no means a solid rank behind the workers’ party and was unlikely to become so in the foreseeable future. The Labour Party’s leaders and theorists stood a considerable distance from root-and-branch rejection of capitalist, market organisation. Under Ramsay MacDonald, the Party’s manifestos proclaimed a new society in which the chances of benefit would be more evenly distributed, an achievement to be sought by experimentation and through democratically elected institutions.737 The party looked for intellectual guidance to such men as the English Weberian, RH Tawney, who drew inspiration both from the Christian socialism of FD Maurice and Canon Scott Holland and from the anti-materialism of Ruskin and JA Hobson. He taught the need for moral redirection

733 See Maitland’s Introduction to O Von Gierke, Political Theories of the Middle Ages (Cambridge University Press, 1900) and HAL Fisher (ed), FW Maitland, Collected Papers (Cambridge University Press, 1911) vol 3, 210–404. 734 H Laski, Studies in the Problems of Sovereignty (Yale University Press, 1917). 735 B Holton, British Syndicalism 1900–1914: Myths and Realities (Pluto Press, 1976). 736 A Thorpe (ed), The Failure of Political Extremism in Inter-War Britain (Liverpool University Press, 1989); M Cronin (ed), The Failure of British Fascism: The Far Right and the Fight for Political Recognition (Macmillan, 1996). 737 For MacDonald’s thought, see R Barker, ‘Socialism and Progressivism in the Political Thought of Ramsay MacDonald’ in AJA Morris (ed), Edwardian Radicalism 1900–1914: Some Aspects of British Radicalism (Routledge & Kegan Paul, 1974). And see the Labour Party documents, Labour and the Social Order (1918 – mainly by Sidney Webb) and Labour and the Nation (1928 – mainly by MacDonald); Barry (n 474) 203–05 and 280–84.

Part 2: Passing Greatness 1875–1950 113 away from selfish acquisition and socially irresponsible use of wealth. This redirection must come from an internal cooperation, democratically expressed. There could be no quick solution through the medium of central state socialism; Tawney saw greater hope in the pluralist notion of professional and guild associations as guardians of enlightened standards and conduct.738 In counter-balance, Harold Laski had moved on from his examination of pluralist political theory to assert that, while groups had an important role to play, they could not be left as ultimate repositories of power. The democratic state must be the consumers’ arbiter of the claims of producer organisations.739 Already during the second Labour Government, there were signs that, in the competition among political theories, those favouring elite direction over democratic choice were in the ascendant. Herbert Morrison, as Minister of Transport, created for the metropolis a London Passenger Transport Board.740 It was a significant precursor of post-1945 events – the nationalisation of industries under boards and councils, the introduction of extensive social security arrangements under a new ministry, the creation of a national health service in which the experts – doctors, dentists, pharmacists – would gain a significant place in decision-making.741 Political organisation was for many an adjunct to more fundamental plans – social policies which would secure to all a ‘national minimum of support’, economic policies by which government would adjust and direct the course of events and private enterprise would be subjected to a very different wave motion from the crests and troughs of free market capitalism. In these fields, the moulders of opinion who came to consolidate leading positions in the 1930s were the social planner, William Beveridge, and the economist, John Maynard Keynes. During WWII, as the Labour party under Attlee not only joined in coalition government but planned for electoral victory once peace was restored, it drew heavily on the proposals of these two men, for all their old associations with Liberal legislation and policy.742 Beveridge’s celebrated report of 1942 laid the foundations for a universalist system of basic social security;743 Keynes not only promised the public, but was beginning to persuade the Treasury, that government intervention in the economy could secure full employment as the basic guarantee of a novel prosperity for the mass of people.744

738 See esp RH Tawney, The Sickness of an Acquisitive Society (Allen & Unwin, 1921) and Equality (Allen & Unwin, 1931); discussed in L Goldman, The Life of RH Tawney: Socialism and History (Bloomsbury, 2013); T Rogan, The Moral Economists: RH Tawney, Karl Polanyi, EP Thompson, and the Critique of Capitalism (Princeton University Press, 2017). 739 H Laski, A Grammar of Politics (Allen & Unwin, 1925); id, Parliamentary Government in England (Allen & Unwin, 1938); discussed in B Zylstra, From Pluralism to Collectivism: The Development of Harold Laski’s Political Thought (Van Gorcum & Co, 1968); M Fielden, Liberalism Divided: A Study in British Political Thought, 1914–1939 (Oxford University Press, 1986) ch 8. 740 The model was the Conservatives’ Central Electricity Board of 1926: Barry (n 474) 290–94. 741 See pp 444–45. 742 M Francis, Ideas and Policies under Labour, 1945–51: Building a New Britain (Manchester University Press, 1997). 743 See pp 439–41. See also J Hills et al (eds), Beveridge and Social Security: An International Retrospective (Clarendon Press, 1994); N Whiteside, ‘The Beveridge Report and Its Implementation: A Revolutionary Project?’ (2014) 24 Histoire@Politique 24; G Boyer, The Winding Road to the Welfare State: Economic Insecurity and Social Welfare Policy in Britain (Princeton University Press, 2019) ch 8. 744 R Skidelsky, ‘Keynes and the Treasury View 1920–1939’ in W Mommsen (ed), The Emergence of the Welfare State in Britain and Germany (Croom Helm, 1981); GC Peden, Keynes and His Critics: Treasury Responses to the Keynesian Revolution, 1925–1946 (Oxford University Press, 2004).

114 Institutions and Ideas A weary but victorious Britain was ready in 1945 to trust the party which more evidently planned to use the powers of the state to intervene on a quite new scale in stimulating growth and protecting those in need. Despite the memories of inter-war depression, it was commonly assumed that Britain would emerge as one of the richest, most productive, most advanced nations, supported in her position by a large empire, which would resolve into a commonwealth of associated nations. Equally it was supposed that the private enterprise centre of the economy would remain intact. Accordingly, the old need for a legal system which protected private property and gave certainty to transactions and transfers that concerned property would continue unabated. But there would be points at which the old enthusiasms for leaving individuals to operate these legal safeguards to their personal advantage would be made to yield to overriding regulation in aid of the weak, the oppressed, the ignorant. Legislation – the great formal instrument of intervention – would mould, constrain and encourage as never before. It would give bureaucracies wide powers of intervention and discretionary judgment. For optimists and radicals this was a moment of immense opportunity, a chance to harness the resources of the state towards a true collectivity. For pessimists and conservatives, the task of rebuilding was intrinsically hard, and made harder by the new determination to constrain the capitalist economy by ideas of social responsibility. Ground positions were being laid for great ideological conflicts of modern Britain.745

745 On post-war development of the welfare state, see J Stevenson, ‘The Jerusalem that Failed? The Rebuilding of Postwar Britain’ in T Gourvish and A O’Day (eds), British History since 1945 (Palgrave Macmillan, 1991); C Barnett, The Lost Victory: British Dreams, British Realities, 1945–1950 (Macmillan, 1995); N Timmins, The Five Giants: A Biography of the Welfare State (Harper Collins, 1995); CR Lowe, The Welfare State in Britain Since 1945, 3rd edition (Palgrave Macmillan, 2005).

2 Land Rights in land were as central to the social structure of the eighteenth century as the obligations of feudal tenure were to the social structure of the early Middle Ages. The two worlds were separated by a long process of social evolution that prepared England for early industrialisation. Under the feudal system, the vassal typically provided military service or agricultural produce in return for the lord’s physical and political protection. With the advent of a more ordered society under pervasive central government, these units of labour acquired a quantifiable value. It became possible to buy off the obligations not only of freemen but also of villeins, and in the process land became a marketable commodity. Depopulation in the wake of the Black Death was followed by soaring demand for wool and the first phase of enclosure. During the Reformation, the Church lost estates to the Crown, which granted them to an expanding class of gentrified landowners. These developments left many marks on the law, including: (i) The types of land-holding came to include not only the freehold tenure first granted to the freemen, but also the copyhold tenure of those emancipated in a manor and the miscellaneous leasehold tenures. As the feudal obligations attached to the sub-divisions of freehold were lifted, this form of tenure drew as close as theory would permit to complete ownership of land. Freehold estates were still held of the Crown, but the state, deprived of feudal dues, maintained itself instead by taxation. This came to include a land tax, which reached substantial levels in the war years of the eighteenth century. (ii) Rights in land tended to the individual rather than the familial: by the thirteenth century the common law allowed alienation of freehold estates to any stranger and any member of the next generation of the family during the holder’s lifetime without the consent of his heir. It took longer for the freedom to transmit freehold tenure by will upon death to become established, but this was acknowledged by the Wills Act 1540. From the thirteenth century a freeholder’s wife also had an inalienable right of dower during her life in one-third of the freehold, a right that was eventually transmuted into the jointure arrangements of marriage settlements. (iii) There was a strong tendency to pass freehold by right of male primogeniture.1 That the eldest surviving legitimate son should be sole heir was the first of the common law’s rules of inheritance. Until it became possible to dispose of land by will this would be the automatic consequence of leaving land unalienated at death; thereafter it became the first rule of descent only if there was an intestacy. The same principle did not establish itself so potently for the lesser tenures of copyhold and leasehold. Descent of the former would depend on the custom of the manor; the latter was treated as personal 1 Other traditions survived, eg divided inheritance by all the sons (Kentish gavelkind) and ultimogeniture (the Borough English of a few towns and manors).

116 Land rather than real property by the common law and therefore passed with the deceased’s chattels on an intestacy in a partible succession. (iv) Lawyers experimented with devices to separate managerial responsibility for land from its beneficial enjoyment. The most important outcome in the early modern period was the invention of the trust. This would come to acquire a vital function in the strict settlement of land, allowing an elaborate balancing of familial against individual interests.2 At much the same time the mortgage was converted by the Chancery courts into a flexible instrument for deploying land as security for borrowing.3 Historians have used evidence from estate surveys, enclosure awards and land tax returns to distinguish formations of landownership and plot their frequency. One measure of distinction is between the characteristics of hamlets in pastoral areas and of villages and townships in arable districts; a cross-measure is the distinction between open communities, where smallholdings and large population densities predominated, and closed communities, compact and small, where large holdings in one or two hands provided a strong manorial tradition, whether or not there was a resident lord. Open communities predominated in pastoral territory, while there was a mixture of open and closed communities in arable districts. However, one must beware of ‘reducing everything to the underlying geography of soil types and climate’, as Martin Daunton has written, for apparently similar regions differed as a result of legal and institutional factors. Forest regulations broke down in some areas but were enforced in others; farmers in some areas were able to gain the backing of the courts for customary tenure, which gave them more rights than their counterparts who were reduced to holding their land on short lets at the will of the landlord.

Thus, farming systems ‘were shaped by an interplay between topography and climate on the one hand, and laws and institutions on the other, which in turn influenced the response to market forces.’4 By 1750, this largely rural world had already started to come under pressure from the forces by which it would be transformed over the next 200 years: population growth, industrialisation, urban growth, and migration from the country to the towns.5 One result was that the country found it harder to feed itself, and it seemed possible that disaster would ensue as agricultural output failed to keep pace with the population, as predicted by Thomas Malthus in his Essay on the Principle of Population, published in 1798. Unlike Ireland in the 1840s, however, England never experienced serious famine. Food imports played their part in this, accounting for about 17 per cent of all food consumption in 1800, rising to 22 per cent in 1841, and 28.5 per cent in 1851 (after abolition of the Corn Laws),6 but domestic output accounted for the rest. Historians once attributed this to a surge in agricultural productivity in the second half of the eighteenth century, which they attributed to the enclosure movement. But it is now thought that there was an earlier increase in productivity in the sixteenth and seventeenth centuries, that the eighteenth century was a period of relative stagnation, and that a second period of growth did not take place until 2 See pp 120–24. 3 See pp 128–30. 4 MJ Daunton, Progress and Poverty: An Economic and Social History of Britain 1700–1850 (Oxford University Press, 1995) 29. 5 See pp 1–2. 6 NFR Crafts, British Economic Growth During the Industrial Revolution (Clarendon Press, 1985) 126–27.

Part 1: Agricultural Exploitation 1750–1850 117 the first half of the nineteenth century.7 The causes of this ‘second revolution’ are debated, but they probably include a continued increase in farm size, which produced economies of scale in the use of labour, a continued increase in the amount of land under cultivation (from 10 to 15 million acres between 1770 and 1850), the deployment of new technology ( drainage techniques, fertilisers), growing market specialisation, and better transport links (roads, railways) which enabled farmers to move produce into the towns and cities more cheaply and quickly. Historians also calculate that by 1750 England was achieving much higher levels of agricultural productivity than the rest of Europe, and many attribute this to its distinctive agrarian social structure: unlike other European countries where subsistence-orientated family farming was still carried on by owner-occupiers, most of the land in England was owned by large estate owners and rented to tenant farmers who worked it for profit with hired labour.8 Many historians have argued that the high productivity achieved through this structure explains why England could industrialise sooner than elsewhere, because it could support a larger urban population.9 Our concern in this chapter is with the legal structures and transactions that affected the land and its use. In Part 1 we examine legal developments that were stimulated by, and enabled, the pursuit of greater agricultural productivity. In Parts 2 and 3, our attention shifts to the towns and cities, where workshops and factories proliferated and where there was immense investment in building to house the ever-growing urban populations. This could not, however, keep pace with demand, and the results were a deterioration in the urban environment and housing shortages that became a major source of tension in the evolving democracy. Radical and socialist campaigners on the Land Question in the latter half of the nineteenth century did not achieve many of their objectives, but their campaigns did create the conditions for major changes in landownership and the imposition of public controls over the private housing rental market after WWI. These developments are discussed in Part 4.

Part 1: Agricultural Exploitation 1750–1850 Under the system of capitalist farming which existed by the late eighteenth century, the owners of estates (which were typically held on strict settlement) rented land to tenant farmers, who provided and organised the necessary labour and supplied the working capital, 7 JV Beckett and ME Turner, ‘Agricultural Productivity in England, 1700–1914’ in M Olsson and P Svensson (eds), Growth and Stagnation in European Historical Agriculture (Brepols, 2011). 8 cf J Burnett, ‘Agriculture, 1700–1870’ in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: 1700–1870 (Cambridge University Press, 2014) who attributes the nineteenthcentury growth in agricultural productivity to investment in livestock, soil improvement, and innovation in crops and rotations, who accepts that the transition from family to capitalist farming contributed to this, but who considers that this was not a necessary condition. 9 eg Crafts (1985) (n 6) 115–40; RC Allen, ‘Agriculture During the Industrial Revolution, 1700–1850’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation, 1700–1860 (Cambridge University Press, 2004); EA Wrigley, The Path to Sustained Growth: England’s Transition from an Organic Economy to an Industrial Revolution (Cambridge University Press, 2016) ch 4. But note B A’Hearn ‘The British Industrial Revolution in a European Mirror’ in Floud, Humphries and Johnson (n 8) 21: Germany was no better than an average agricultural performer in 1800, and yet it enjoyed impressive economic growth during the nineteenth century, suggesting that agricultural productivity was not a clear predictor of industrial development.

118 Land in the form of stock or seed. The proliferation of such arrangements during the seventeenth and eighteenth centuries had been accompanied by an increase in the size of farms, to which the early enclosure of land had contributed, along with the estate management practices of landowners who had bought, sold and exchanged property to increase the compactness of their estates and transferred farms from less to more efficient tenants.10 As a result only one third of the land was farmed by owner-occupiers with freehold tenure by the late 1700s – and this fell to one tenth by the late 1800s, a decline hastened by the agricultural depression at the end of the century.11 The rest was farmed by leaseholders and copyholders.12 Leasehold and copyhold together had provided a legal structure for England’s break from feudal regimes of unfree labour service, and for the shift from family farming to capitalist farming. Most scholars now agree that this took place between 1500 and 1800, but there is no consensus about a more exact date. One reason is the absence of data: studies have identified demographic and economic factors that led to the consolidation of landholdings at different times in different places, but there is no body of data that covers the whole country over a long period. Another reason is that scholars have not defined their terms consistently: Leigh Shaw-Taylor notes that ‘one obstacle to understanding the evolution of large farms over the long run is that historians of succeeding centuries have mostly adopted definitions of farm size distributions in the period they have studied’, so that ‘large farms are always in the minority’ and ‘the dominance of the large farm is constantly vanishing over the horizon.’13 Hence he proposes that a more reliable way to measure the onset of agrarian capitalism is to ask whether a holding was farmed mainly with family labour or hired labour. Applying this test, he has shown that labour-employing farms were dominant in southern and eastern England by the early 1700s, that family farms were more important in much of northern England after this, but that by 1850 labour-employing farms were more important there as well. Why did agrarian capitalism develop sooner in England than elsewhere? In a bold but contested account that drew on earlier work by RH Tawney,14 Robert Brenner argued that the key change occurred between the late 1400s and early 1600s, when peasant farmers who held their land on customary tenure were expropriated by manorial lords, who excluded them from the land by charging high entry fines and rented it for fixed terms to leaseholders; competition between leaseholders then led to the winners becoming capitalist farmers and the losers becoming unlanded agricultural workers.15 Brenner linked the failure of peasant farmers to gain freehold rights in the land, or to preserve their customary rights, with the political formation of the English state, contrasting France, where the Crown relied on 10 eg JR Wordie, ‘Social Change on the Leveson-Gower Estates, 1714–1832’ (1974) 27 Econ HR 593, 595–605; J Broad, Transforming English Rural Society: The Verneys and the Claydons, 1600–1820 (Cambridge University Press, 2004) 146–47, 267–68. Landowning and estate management are generally treated as though they were exclusively male activities, but a central role was played by the women of some families: B McDonagh, Elite Women and the Agricultural Landscape, 1700–1830 (Routledge, 2018). 11 GE Mingay, The Gentry: The Rise and Fall of a Ruling Class (Longman, 1976) 59. 12 Although some qualification is needed to this statement owing to the widespread practice of sub-letting: J Rhodes, ‘Subletting in Eighteenth-century England: A New Methodological Approach’ (2018) 66 Ag HR 67. 13 L Shaw-Taylor, ‘The Rise of Agrarian Capitalism and the Decline of Family Farming in England’ (2012) 65 Econ HR 26, 30. 14 RH Tawney, The Agrarian Problem in the Sixteenth Century (Longmans & Co, 1912). 15 R Brenner, ‘Agrarian Class Structure and Economic Development in Pre-Industrial Europe’ (1976) 70 P&P 30; id, ‘The Agrarian Roots of European Capitalism’ (1982) 97 P&P 16.

Part 1: Agricultural Exploitation 1750–1850 119 taxes paid by peasant farmers and thus had an interest in protecting them against landlords’ demands, and England, where the Crown relied on taxes paid by landlords with whom it allied to destroy peasant proprietorship. Brenner’s thesis was advanced in reply to historians whose accounts of economic and social change were tightly focused on demographic shifts and who downplayed the significance of class agency and the transformation of socio-political relations.16 Later scholars have denied the premise of both schools, that social and economic change had a single predominant cause. They have preferred to view property relations, class interests, market relations and demographic change as interrelated causal factors, arguing, for example, that varying population levels affected demand for agricultural produce, which determined prices and created market pressure in times of growth, in response to which farmers sought economies of scale by creating larger farming units, a process supported by the creation of new legal structures for landownership.17 Scholars have also challenged the details of Brenner’s account, among other reasons because he underestimated the security given to farmers by customary tenure; because landlords did not generally try to convert customary tenures into leaseholds before the late sixteenth century, when farming became more profitable and they were incentivized by the hope of extracting larger rents; because landlords who sought to break free of customary constraints often failed to do so and were forced to raise funds in other ways, eg by selling confirmation of the custom, or the freehold, to their copyholders; and because many holdings were consolidated not by landlords but by tenants, and it was not until the eighteenth century that the ‘“kulak” route of rich peasants buying up their neighbours stopped, and consolidation of landownership became more a topdown process of purchases by great owners’.18 Indeed, turning Brenner’s thesis on its head, it has been argued that the purchase of land by great estate owners in the eighteenth and nineteenth centuries was facilitated by the comparative weakness of landlords in preceding centuries, who had to sell their freeholds to customary tenants and thereby increased the marketability of landholdings.19 Purchases by estate owners in the later period were also supported by the development of the mortgage of land as a security device,20 and by a rise in land values and a fall in interest rates in the early 1700s which together gave estate owners a competitive edge in the land market.

A. Strict Settlement of Landed Estates Throughout the eighteenth and nineteenth centuries, the ownership of a landed estate and familial connection to title brought wealth, access to Parliament, patronage, and the rewards of office. These advantages accrued only to a small number of people: in 1830, around 300 English peers owned six million acres, or one-fifth of the land, and dominated the 16 MM Postan, The Medieval Economy and Society: An Economic History of Britain in the Middle Ages (Weidenfeld and Nicolson, 1972); J Day (trans), E Le Roy Ladurie, The Peasants of Languedoc (University of Illinois Press, 1974). 17 eg HR French and RW Hoyle, The Character of English Rural Society: Earls Colne, 1550–1750 (Manchester University Press, 2007) ch 1. 18 Daunton (1995) (n 4) 75. 19 ibid 72. 20 See pp 128–32.

120 Land patronage networks which allocated seats in the House of Commons; another quarter of the land was owned by gentry families.21 For these groups, keeping the family estate together by tying it up in strict settlements mattered as much for the preservation of their social status and political influence as it did for their financial security. The device was widely used: in 1764 Sir John Dalrymple thought that almost half the land in England was settled,22 similar estimates have been offered for the nineteenth century,23 and many estates were still settled at the start of the twentieth.24

i. How Did Strict Settlements Work? The technical answer one can give to this question, explaining the legal forms and rules on which strict settlements were premised, and the way in which they were intended to function, differs from how they played out in real life. For this turned on how well the participants performed the roles assigned to them – and in practice, rows and bad feeling could ensue when the heads of families ran up debts and reneged on their responsibilities.25 Furthermore, the practical significance of the rights created by settlements can be grasped only if we understand the social pressures that made some of these unnecessary (because estate owners would anyway have done the right thing by their relations) or unenforceable (because the courts would not help those whose behaviour placed them beyond the social pale).26 a. The Common Law With those caveats in mind, we would start a legal answer by observing that the strict settlement used as its primary building blocks the three estates which the common law recognised in freehold land: the estate for life; the estate in fee tail; and the estate in fee simple.27 All three had medieval origins and centuries of experimentation had settled the ways in which they could be posited one after another. A dialectic process had been at work, often described as a tussle between those with dynastic ambitions, who sought to tie up their estates within the family for succeeding generations, and those who feared the consequences of allowing this to happen.

21 GE Mingay, English Landed Society in the Eighteenth Century (Routledge and Kegan Paul, 1963) 26. 22 Sir J Dalrymple, Considerations upon the Policy of Entails in Great Britain (Kincaid and Bell, 1764) 57. 23 FML Thompson, English Landed Society in the Nineteenth Century (Routledge & Kegan Paul, 1963) 67–68. Radical opponents of settlements in the latter half of the century put the proportion as high as three-quarters: GC Brodrick, English Land and English Landlords (Cassell & Co, 1881) ch 3; but in 1889, an experienced firm of estate agents put it as low as a quarter: Thompson (ibid) 68. 24 JV Beckett, The Aristocracy in England 1660–1914 (Basil Blackwell, 1986) 59. 25 eg P Roebuck, Yorkshire Baronets, 1640–1760: Families, Estates and Fortunes (Oxford University Press, 1980) 328–30: payment of portions to Beaumont kin was ‘via loans or by instalments’ and ‘the receipt of many was temporarily postponed or deferred indefinitely’. For a sample of the litigation which could be brought in such situations, see West v Erisey (1727) 1 Bro PC 225; Earl of Inchiquin v Fitzmaurice (1785) 5 Bro PC 166; Montgomery v Reilly (1827) 1 Dow & Cl 62. 26 A Pottage, ‘Proprietary Strategies: The Legal Fabric of Aristocratic Settlements’ (1998) 61 MLR 162, noting cases where husbands failed to recover their wives’ portions where they had married without parental consent. 27 Life estates and future interests can no longer be created at common law, but only in equity behind a trust: Law of Property Act 1925, s 1(1)–(3).

Part 1: Agricultural Exploitation 1750–1850 121 The basic premise of strict settlement was legitimate male primogeniture. In a typical case the head of a family might bring his lands into settlement as part of the arrangements for his eldest son’s marriage, though a settlement might also be prompted by his son’s attainment of majority. His object would be to divide up his fee simple estate in ways that would limit the successive interests of himself, his eldest son and the first grandson of the son’s marriage. He could not go further down the generations because the rule against perpetuities prevented him. This gave effect to the ideas that the dead hand of settlors should not lie too heavily on their descendants and that land should not be made permanently inalienable because this would damage market liquidity and impede the land’s exploitation. The perpetuities rule provided that a settlement which created contingent interests in land was void unless it was certain from the outset that those interests would become vested within a specified period.28 A ‘contingent’ interest was one which depended on the happening of a future event, and it would ‘vest’ when it took effect. So, for example, if property were devised ‘to A for life, remainder to A’s first son to attain the age of 21’, A’s first son to reach this age would then take a vested interest in the property. In the case of strict settlements of land, the period within which contingent interests under the settlement had to vest was (eventually) held to be 21 years after the death of the settlor,29 a period chosen because it was the longest time that could elapse after a settlor’s death before his son could bar the entail on the attainment of his majority.30 Depending on the timing of births and deaths, however, this still meant that the ownership of settled estates could be tied up for many decades. The settlement would give the settlor a life estate, and confer estates in remainder on the son for life and the grandson in fee tail male. Against predictable hazards, such as the son failing to produce any grandson who lived to maturity, there would be alternative provisions creating similar interests in the son’s second and subsequent sons (and in each case their heirs), then the father’s second and subsequent sons, and providing, if need be, for descent through the female line or a collateral branch of the family. The ultimate part of the father’s original estate would be left as a remainder in fee simple to himself and ‘his own right heirs’. Those who had life estates under such a dispensation enjoyed the land and its profits during the continuance of their lives but that was all, and in principle this was the only interest which they could alienate.31 Before the eighteenth century, however, it was unclear how firmly this held. A prime concern for the devisers of the strict settlement had been to find a means that would deprive the life tenant of the ability to dispose of the entire fee simple. It was equity which produced the solution and we shall come to it in a moment. Those who held an estate in fee tail had an interest which notionally would endure as long as the original estate-holder had descendant heirs (as distinct from collateral heirs); if the entail was male, then only male descendants would count. This however was only one half of the conception. An estate tail could in some circumstances be ‘barred’ by its holder, ie converted into a full fee simple so as to make it a freely disposable asset. What the fee tail had come to achieve was a temporary constraint on the ability to treat it as 28 Duke of Norfolk’s Case (1683) 3 Ch Cas 1, 2 Swan 454. 29 Cadell v Palmer (1833) 1 Cl & Fin 372. See too Jee v Audley (1787) 1 Cox Eq Cas 324. 30 Long v Blackall (1797) 7 TR 100, 102. 31 Permanent values in the land such as minerals and timber presented a difficulty, since their commercial exploitation had a ‘once-and-for-all’ quality. The life tenant who realised them was entitled only to the income from their value unless declared to be ‘without impeachment for waste’: Waldo v Waldo (1841) 12 Sim 107; WS Holdsworth, A History of English Law, vol 7 (Methuen, 1925) 275–81.

122 Land such an asset. A tenant in tail could not bar the entail until his majority. Moreover, if there were a preceding life tenant still in possession, the barring would be fully effective only if the life tenant joined in the disentailing deed.32 This was the factor relied on to secure the continuance of the settlement, while allowing it to be modified to meet the circumstances of the next generation. On his majority or marriage, the grandson would be induced to join his father first in a disentailing and then in a resettlement, the main feature of which would be that, instead of a fee tail, he would acquire a life interest on his father’s death, and his own first son (great-grandson of the original settlor) would become remainderman in fee tail male. The prime inducements offered him were usually an immediate income until his life interest fell into possession, provision for his wife, and/or preference for his daughters over his younger brothers and their sons. The constraint on free alienation was accordingly re-imposed for another generation, after which the family circumstances would be reviewed once again. b. Trustees and the Role of Equity The concept of the trust, by which the Court of Chancery required the owner of property at law to hold it for beneficiaries in equity, reached something approaching its modern form at much the time when the strict settlement came to maturity. Some settlors indeed used the trust as the central organising frame of their settlement. This form of strict settlement was particularly useful if the immediate beneficiary was an infant, or mentally unstable, or a spendthrift; or if indebtedness had reached crisis levels, requiring the intervention of trustees who would enforce more efficient management and economy measures. But a trust of this type would make the trustee party to managerial decision-making to an extent that most heads of family would resent for themselves and would not impose on their heirs. Nor was it easy to find trustees to assume active managerial duties; they were mostly sought among friends or relations of similar social status, while the estate steward or family man of business was employed to do the administrative work.33 He was often an attorney or solicitor, although by the late eighteenth century ‘land stewardship was in the course of becoming a recognized profession with its own distinct body of knowledge and skills’ and some lawyers were superseded by specialist surveyors and agents in whom the management of trust affairs was confided.34 Professional men expected to be paid, but if they were appointed as trustees they could not charge for work done in this capacity because trustees were legally required to work for free.35 However, they could charge for work done in a different capacity (eg conveyancing work) and during the nineteenth century, charging clauses in trust deeds came to be permitted, under which professional trustees could be paid; as a result over 80 per cent of large estates were in the hands of paid solicitor-trustees by 1900.36 32 The technique that proved most efficient was to suffer a ‘common recovery’, a fictitious action of great antiquity and complexity: CD Spinosa, ‘The Legal Reasoning Behind the Common, Collusive Recovery: Taltarum’s Case’ (1992) 36 AJLH 70. This action was much simplified in the first procedural reforms at common law: Real Property Commissioners, First Report, PP 1829 (263) IV 20–38; Fines and Recoveries Act 1833. 33 eg V Belcher, Boodle, Hatfield & Co: The History of a London Law Firm in Three Centuries (Boodle, Hatfield & Co, 1985) 22–23. 34 GE Mingay, ‘The Eighteenth Century Land Steward’ in EL Jones and GE Mingay (eds), Land, Labour and Population in the Industrial Revolution (Edward Arnold, 1967) 8. 35 eg Ayliffe v Murray (1740) 2 Atk 58. 36 PD vol 148, series 4, col 687 (30 June 1905). See too C Stebbings, The Private Trustee in Victorian England (Cambridge University Press, 2002) 34–42.

Part 1: Agricultural Exploitation 1750–1850 123 In the classical strict settlement, trustees were given a strategic, but secondary emplacement, ‘something like the constitutional safeguards of a complex political system’.37 Their function was twofold. First, there was the need to prevent the incumbent life tenant from disposing of the entire estate (or losing it through forfeiture – a real hazard for Royalist property-owners after the Civil War38). In common law doctrine, this could occur so long as the fee tail given to the first grandson was a contingent remainder – ie before his birth gave him an identity that would make his remainder vested. The cunning invention of the conveyancers was to give trustees an interest during the life of the life tenant, ‘to preserve contingent remainders’.39 The device would work only if the trustees’ interest, which came after that of the life tenant, could be classed as a vested remainder interest; and as it only took effect on attempted alienation by (or deprivation of) the life tenant, this was unclear. By the late 1600s, however, the Chancery courts were willing to assume that it was vested in cases where they refused to compel trustees to join in sales of settled estates although there was little probability of the life tenant having issue,40 and by the same date the common law courts had also held this to be the case.41 By then, too, the use of trusts to preserve contingent remainders had become standard conveyancing practice,42 and in the early 1700s the Chancery courts also held that trustees who allowed the life tenant to sell the freehold estate would be liable for breach of trust to contingent remaindermen although they were unborn at the time of the sale; and if the estate were sold to a purchaser with notice of the trustees’ breach of duty, it could be recovered from him.43 The second use of the trust was to secure limited shares in the estate, or a part of it, by way of jointure for the widow of the life tenant; and by way of portion for his younger brothers and the sisters. The jointure was normally an annual income and was given in place of the widow’s dower – her old common law right during widowhood to a one-third interest in the land. By the early 1700s, portions typically were lump sums payable to younger sons to buy them a place or commission or to launch them on some other career; and to a daughter as a dowry on marriage. The sums were often raised by mortgage on the estate, thus spreading the burden over time or, where the estate was over-committed, adding to a well-nigh-irremovable burden. As mortgages became cheaper in the seventeenth century, the allocation of capital sums to younger sons became the norm, departing from the earlier practice of providing for them with grants of land; provision for daughters predominantly took the form of money from the outset. c. Putting the Pieces Together Putting all the pieces together, one had a series of successive estates in land, a simplified summary of which is provided in the following table. This portrays only the core conceptual structure, and does not also represent the fall-back provisions that were typically included to guard against the failure of male heirs to marry and reproduce.

37 Sir F Pollock, The Land Laws (Macmillan & Co, 1883) 112. 38 Parliamentary sequestration committees generally upheld settlements, declaring the life interest forfeit or subject to punitive fines, but leaving the entail unaffected. 39 L Bonfield, Marriage Settlements 1601–1740 (Cambridge University Press, 1983) ch 4. 40 eg Davies v Weld (1683) 1 Vern 181. 41 Duncomb v Duncomb (1701) 3 Lev 437; Parkhurst v Smith (1740) 6 Bro PC 351; Garth v Cotton (1750) 1 Ves Sen 546. 42 eg B English, Great Landowners of East Yorkshire 1530–1910 (Harvester Wheatsheaf, 1990) 86–87 and 91, Table 4.1: after 1660 the device was used by almost all great landowners of the East Riding. 43 Mansell v Mansell (1732) 2 P Wms 678; Savage v Taylor (1736) Cas Temp Talbot 234, 239.

124 Land Common law interests

Equitable interests

1. Estate for life to settlor 2. Remainder interest to trustees to preserve contingent remainders, taking effect on any attempted alienation by, or deprivation of, life tenant 3. Remainder interest to trustees to raise jointure for life tenant’s widow and portions for his daughters and younger sons 4. Remainder interest to life tenant’s eldest son for period of eldest son’s life 5. Remainder interest to life tenant’s eldest son’s eldest son in fee tail male 6. Remainder interest in fee simple to life tenant ‘and his own right heirs’

ii. The Uses of Strict Settlement Why were strict settlements created? A common answer is that they were first contrived to avoid land forfeiture during the interregnum and to further dynastic ambition by keeping family estates in the hands of each new legitimate male heir, but that they came to serve a more distributive function, as a mechanism for family provision that reconciled the primogenitive accumulation of land with the transfer of wealth to younger siblings and wives.44 On this reading, resettlements fostered the whole pattern of familial expectation in the aristocracy and gentry. In particular, the fixing of portions for younger sons as interests ranking ahead of that of the eldest helped to make primogeniture acceptable to the group most likely to feel its inequity. Reconciling younger sons was feasible only in an economy that could offer other sources of income for which their portion could buy an entitlement. The army and the church, and to some degree the navy and the bar, provided opportunities in professions; the branches of civil government bred a swarm of positions (with more or less substantial duties attached to them). Likewise, a dowry set a value on a daughter in a market eager for rewarding alliances. The eighteenth century preferred to fix its amount in advance, rather than leave the matter to negotiation. Its concomitant was the jointure by which the estate would provide for the endowed bride if she were widowed; the usual rate was an annuity of one-tenth her dowry. A different view of strict settlements was taken by Eileen Spring.45 She accepted that their purpose was to keep the estate intact in the hands of the eldest son, but argued that their primary objective was not to prevent him from alienating the property, but to exclude

44 eg J Habakkuk, Marriage, Debt, and the Estates System: English Landownership 1650–1950 (Clarendon Press, 1994) 11–18 and 51–65. For the expectations and anxieties generated by this system among older and younger sons, see H French and M Rothery, Man’s Estate: Landed Gentry Masculinities, 1660–1900 (Oxford University Press, 2012); id, ‘Male Anxiety Among Younger Sons of the English Landed Gentry, 1700–1900’ (2019) 62 HJ (forthcoming). 45 E Spring, ‘The Strict Settlement: Its Role in Family History (1988) 41 Econ HR 454; E Spring, Law, Land, and Family: Aristocratic Inheritance in England, 1300–1800 (University of North Carolina Press, 1993).

Part 1: Agricultural Exploitation 1750–1850 125 female relations from the estate and disinherit women who would otherwise have succeeded in favour of male collateral relations where there were no surviving male children. Had the common law of intestacy rather than the strict settlement regime governed the transfer of estates on death, Spring argued, women would have inherited land three times more often than actually occurred. Critics have countered that this fails to explain how so much land came onto the market through heiresses in the eighteenth century; also, that strict settlements provided a better rather than a worse deal for daughters who received an interest charged on the estate, the amount of which could not be reduced by their fathers (and who were indeed often empowered to increase their daughters’ portions).46 The latter point reduces to a question about which generalisation can only take us so far: would a father providing for living daughters be more or less generous than a grandfather providing for granddaughters as yet unborn? It also leads into an associated debate about strict settlements, concerning their interpretation as evidence of changing family relations. Some have argued that family relations underwent a change during the eighteenth century, which comprised a diminution of paternal authority and an increase in marriage for love and equality between family members, and that one reason for this was that wives, daughters and younger sons had secure interests under strict settlements which enabled them to compel performance of the life tenant’s ‘contract-like’ duties even if he disagreed with their life choices.47 Against this, it has been said that life tenants were commonly empowered to exercise – and did in fact exercise – authority over their children, eg by withholding payments that were conditional on the life tenants’ consent to their marriages or by allocating portion-money between them unequally;48 it has also been said that the freedom afforded to women through ‘contract-like’ arrangements was illusory because these were interpreted by the courts according to traditional social standards.49 A subsidiary role played by strict settlement – in theory at least – was to determine the level of debt which the estate would carry forward as a drain upon its income. Although it was not so labelled, settlement was in reality a regime designed to limit capacity and therefore liability. Without it, the current head of a family would have been able to mortgage or sell any part of the land to raise funds for any purpose, and in addition his ordinary creditors could have had half the land sold in execution of debts pursued to judgment. As a life tenant, however, his ability to use the land as mortgage security should have arisen only by power expressly conferred, which might well have been confined to the raising of portions. For his personal debts, the creditor would have had redress only against the life tenant’s income from the estate for the time being (in respect of which he might have to suffer the indignity of a receivership) and property which he owned outright. Hence the moment of disentailing 46 L

Bonfield ‘The Strict Settlement: A Differing View’ (1988) 41 Econ HR 461, 463–65.

47 eg L Stone, The Family, Sex and Marriage in England 1500–1800 (Weidenfeld & Nicolson, 1977) 89 and 243–44;

L Bonfield, ‘Affective Families, Open Elites and Strict Family Settlements in Early Modern England’ (1986) 39 Econ HR 341. On this topic generally, see p 343. 48 eg E Spring, ‘ The Family, Strict Settlements and Historians’ in G Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984); S Staves, ‘Resentment or Resignation? Dividing the Spoils Among Daughters and Younger Sons’ in J Brewer and S Staves (eds), Early Modern Conceptions of Property (Routledge, 1995); A Hofri-Winogradow, ‘Parents, Children and Property in Late 18th-Century Chancery’ (2012) 32 OJLS 741. 49 S Staves, Married Women’s Separate Property in England, 1660–1833 (Harvard University Press, 1990) ch 5: rules were developed as the result of a conscious choice about spousal relationships, rather than as a matter of legal logic, eg a wife who received a fund ‘for such purposes as she shall direct or appoint’ could not mortgage or alienate the capital; arrears on pin-money could not be claimed against a husband beyond a year; etc.

126 Land could well have provided a life tenant and his son with their one chance (before the resettlement) to sell off or mortgage parts of the estate as a means of eliminating or reducing the personal debts of either or both, or the debts binding the estate. Having said this, however, we may doubt that the hands of life tenants were so tightly bound: in Sir John Habakkuk’s assessment, ‘some of the tide of debt seeped through’,50 and John Beckett has argued that ‘the extent of lending to landowners by insurance companies indicates an ease of borrowing inconsistent with the strict practice of settlement’.51 Powers to mortgage for unspecified purposes but up to a fixed amount were not uncommon,52 but it is difficult to tell the extent to which life tenants used these and other devices to raise funds for their personal use, and in Beckett’s words, ‘perhaps ultimately we simply cannot know how much credit the landowners were enjoying. Perhaps neither did they’.53 Note, finally, that the regime of strict settlement also served the professional interests of the conveyancers whose intricate machine, with its mesh of precautionary and subsidiary clauses, needed re-assembly once a generation. Drafting and interpreting settlements required considerable degreees of technical knowledge and skill, and access to a library of precedents and legal texts.54 Local lawyers were often not up to the job, and estate-owners would pay well for the best work. So there grew up an enclave of Chancery solicitors, who knew the inner workings of the great families, and managed this crucial aspect of their affairs in consultation with specialist counsel and conveyancers at the bar. Equally, those attorneys who were becoming the property organisers of the lesser gentry and tradespeople found settlement business to be an appreciable part of their practice in conveyancing. Some part of the work, especially for the largest estates, might be in drafting a private Bill and cossetting it through Parliament; or a dispute in the family might become so intractable as to provoke a Chancery action. But for the most part, settlement transactions could be kept private, understood in full, perhaps, only by the discreet men who organised them. Landowners relied on them for advice ‘not only about the technical forms most appropriate to give effect to their intentions but about the wisdom of the intentions themselves’55 – and the advice which they usually gave was to keep strict settlements on foot for another generation.

iii. The Rise of Great Estates What contribution was made by the strict settlement to the rise of great estates of the eighteenth and nineteenth centuries? In his early work, Sir John Habakkuk placed

50 Habakkuk (1994) (n 44) 277. 51 JV Beckett, ‘Landownership and Estate Management’ in GE Mingay (ed) The Agrarian History of England and Wales, vol 6 (Cambridge University Press, 1989) 551. 52 JS Anderson ‘Land Transactions: Settlements and Sales’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010) 81, n 5 and text. 53 JV Beckett, ‘Family Matters’ (1996) 38 HJ 249, 252. 54 Estimated at 674 volumes in 1826: B English and J Saville, Strict Settlement: A Guide for Historians (University of Hull Press, 1983) 18, noting that clarity and concision of drafting were not incentivized by the practice of paying solicitors by the word (1s for every 72 words in 1862); this continued until the Conveyancing Act 1881. 55 E Spring, ‘Landowners, Lawyers and Land Law Reform in Nineteenth Century England’ (1977) 21 AJLH 40, 56–59.

Part 1: Agricultural Exploitation 1750–1850 127 settlement, together with the flexible-term mortgage, at the centre of causation.56 He detected a tendency among the gentry in the earlier seventeenth century, before perfection of the two devices, to leave their landed property divided among their children rather than primarily to the eldest son. In this depiction, trusts to preserve contingent remainders made primogeniture dynastically safe, keeping the estate in the family yet providing an acceptable measure of support for its principal members. The result was an accumulation of land large and secure enough to be uniquely capable of new growth – by marriage, by the use of surplus income to buy new or consolidate existing holdings, and to invest in new crops, improved beasts and better production methods. However, this simple causal picture was greeted with scepticism, and it does not feature in Habakkuk’s later work.57 Land retained its price and shortage value because of the prestige of landownership, even through a long period before 1750 when agricultural prices were far from buoyant.58 But when eventually they rose, the value of land did not accelerate dramatically and there were always factors bringing it onto the market. When the new rich – merchants, industrialists, and businessmen – sought to buy land for the same reasons that the old rich sought to keep it (and buy more of it), there was enough to meet their demands, suggesting that settled estates were not held together as tightly as nineteenth century critics of the ‘land monopoly’ claimed;59 perhaps also that the new rich could acquire gentrified status by means other than land purchase (eg marriage into landed families) and that when buying estates they were content with something less than a major holding. A significant demographic factor also curtailed the restraining potential of settlement in the earlier eighteenth century. For the peerage and upper gentry this was an age of considerable dynastic uncertainty. Marriages might produce no children or children relatively late; fathers might die before eldest sons married.60 These were events which could make the settlement terminable without strings. What stands out in the history of some estates is not that settlement worked to pass title down a line of first-borns, but that when the estate passed to a tenant who could bar the entail without having to submit to terms, he would do so for himself but would then create a new settlement at his death. The freedom which had been his by chance he would not allow to his successors; the code of his caste dictated otherwise. Birth and survival rates had improved by the end of the century and this must have increased the likelihood of regular resettlement. But by then the process by which great estates were consolidated was far advanced.61 There could also be a rewriting of settlement terms in the periods between resettlement by resort to a private Act of Parliament, if the beneficiaries could all agree on a scheme. Around 20–30 Acts were obtained each year during the eighteenth and early 56 HJ Habakkuk, ‘English Landownership, 1680–1740’ (1940) 10 Econ HR 2; id, ‘Marriage Settlements in the Eighteenth Century’ (1950) 32 TRHS (4th series) 15; id, ‘The English Land Market in the Eighteenth Century’ in JS Bromley and E Kossman (eds), Britain and the Netherlands, vol 1 (Chatto & Windus, 1960). 57 Habakkuk (1994) (n 44). 58 FML Thompson ‘Land and Politics in England in the Nineteenth Century’ (1964) 47 TRHS (4th series) 23; C Clay, ‘The Price of Freehold Land in the Later Seventeenth and Eighteenth Centuries” (1974) 27 Econ HR 178; JV Beckett, ‘The Pattern of Landownership in England and Wales, 1660–1880’ (1984) 37 Econ HR 1. 59 See pp 168–73. 60 The passing of an estate to an indirect relation could lead to its sale if he was not prepared to service the existing level of debt or was otherwise inconvenienced. 61 Beckett (1986) (n 24) 53–54: ‘most of the great estates in the 1870s were already substantial before 1700.’

128 Land nineteenth centuries.62 The bills were referred by the House of Lords to two judges for a report on the general propriety of what was proposed, and any family in its senses used this predictable procedure,63 costly and tedious though it was, in preference to a suit in Chancery, whose ruinous toils stood as an awful warning to those who could not compound their differences. The motives of those who sought an Act were various. Some sought to exploit mineral resources or opportunities for town development or to finance estate improvements or land purchases;64 others wished to sell off land to pay debts.65 Habakkuk’s initial account of the effects of strict settlement is consistent with the picture painted by liberal critics of the landed system in the later 1800s.66 They saw it as the great barrier to ‘free trade in land’. But when Sir Frederick Pollock compared the severity of settlement to ‘the customs of an oriental despotism’, with the settlors themselves as ‘powerless as the great kings of old to alter their decrees’, the exaggeration of the image is clear.67 Even in 1880 the device was a flexible tool that the landed could adapt at least once a generation to meet their family case. Such ‘strictness’ as there was by then should not be read back into the age when as a class they were assembling the basis of their prestige and wealth. For in the end, the strict settlement was only as strict as the law would allow, and it did not simply give dynastically minded landowners whatever they wanted to bolster their family’s hegemony. In Michael Chesterman’s words, ‘if patriarchal landowners during the eighteenth century really did want to create long-term dynastic settlements of their landed estates and if they effectively controlled the course of the land law, why was any legal inhibition placed in their way?’68 Entails were not, as in Scotland, unbreakable;69 and contingent remainders were confined to the first generation as yet unborn at the date of settlement. The compromises thus defined were hard to secure because counter-pressures were also in play: the courts would not permit the dead hand of settlors to lie on their descendants indefinitely, nor would they allow the land to become permanently inalienable.

B. Mortgages In the seventeenth century, the mortgage of land was transmuted into a form of security which gave mortgagees a high level of protection, but exposed mortgagors to a greatly reduced level of risk that they would lose their land through default. This development was the work of Chancery judges. It contributed to the acquisition and retention of great estates because it enabled owners to borrow for the purposes of buying more land, avoiding the sale 62 F Clifford, A History of Private Bill Legislation (Butterworths, 1885–7) vol 2, 734–45. 63 ‘Only one application of a policy filter is known, the House of Commons’ consistent rejection of Sir Thomas Maryon Wilson’s bills seeking power to grant building leases on his Hampstead estate, for fear that it would reduce the amenity value of the heath’: Anderson, ‘Land Transactions’ (n 52) 84. 64 D Bogart and D Richardson, ‘Making Property Productive: Reorganizing Rights to Real and Equitable Estates in Britain, 1660–1830’ (2009) 13 European Review of Economic History 3, emphasising the role which the Acts played in facilitating the reallocation of land to higher value uses opened up by industrialisation and urban growth. 65 M McCahill, ‘Estate Acts of Parliament, 1740–1800’ (2013) 32 Parl Hist 148. 66 See pp 170–72. 67 Pollock (n 37) 113. 68 M Chesterman, ‘Family Settlements on Trust: Landowners and the Rising Bourgeoisie’ in Rubin and S ugarman (n 48) 142. 69 Scots settlements were brought into line with the English by the Entail Amendment (Scotland) Act 1848.

Part 1: Agricultural Exploitation 1750–1850 129 of land they already owned, and improving their estates’ productivity. The emergence of the mortgage of land as a security device that suited both lenders and borrowers also played an important role in unlocking small-scale loan capital and thereby facilitating urban development – a point to which we shall return.70

i. Common Law Mortgages and the Equity of Redemption Although its economic function was to provide lenders with security for the repayment of loans, the mortgage of land did not take the form of a charge before 1925.71 Instead the desired effect was achieved by manipulating common law estates in the property. One device that was commonly used in the seventeenth century was for mortgagors to lease their estates to mortgagees, subject to a proviso that the lease would be defeated when the debt was paid.72 However, from the late 1600s until 1925, the mortgage of land most commonly took another form: the mortgagor would convey his freehold estate to the mortgagee, subject to a covenant for reconveyance when the debt was paid on the due date; otherwise the estate would be forfeit. At the time when the usury laws forbade lending money at interest, one advantage of these and other arrangements which let the mortgagee into possession of the land was that he could make a profit by taking the income of the land without charging interest on the loan.73 However, the usury laws were relaxed from the mid-sixteenth century onwards, to allow interest on loans up to a maximum statutory rate.74 This prompted some rethinking of the function of mortgages, and led the Chancery judges to hold in the seventeenth century that a possessory mortgagee should account for a full rent to the mortgagor, to stop him from taking a larger profit than the maximum amount of interest permitted by the legislation.75 This deprived mortgagees of the financial advantages associated with possession, and so they became more open to the idea that mortgagors might be allowed to keep it. This suited mortgagors who wished to occupy their land and control its use, and created no real problem for mortgagees who were secured by ownership of the freehold estate. When the mortgagor defaulted, however, the common law courts allowed the mortgagee to evict him at will, and they construed mortgage transactions strictly, so that land would be forfeit even in the case of minor defaults (eg late payment by a day76) and even if its value far exceeded the amount of the debt. The unfairness of this also attracted Chancery’s attention. From the fifteenth century on, the Chancellor relieved mortgagors from forfeiture, initially in extreme cases of unfair conduct, afterwards in every case, by giving them time to repay after the date set by the mortgage deed. Out of this jurisdiction there evolved a doctrine that the mortgagor had an equitable proprietary interest in the land – an ‘equity of r edemption’.

70 See pp 148–49; and see also pp 151–52. 71 It only became possible to create a ‘charge by way of legal mortgage’ under the Law of Property Act 1925, s 87. 72 I Ward, ‘Settlements, Mortgages and Aristocratic Estates 1649–1660’ (1991) 12 JLH 20, 28–31. 73 RH Tawney (ed), Wilson’s Discourse upon Usury (G Bell & Sons, 1925) 31–42. 74 Set at 10% in Tudor times: Usury Act 1545 and Usury Act 1571; reduced to 8% by the Usury Act 1623; and to 5% by the Usury Act 1714. The usury laws were eventually repealed in a series of measures between 1833 and 1854 culminating in Usury Laws Repeal Act 1854. 75 Holman v Vaux (1616) Tot 133; Pell v Blewet (1630) Tot 133. See too Fulthrope v Foster (1687) 1 Vern 476. 76 Wade’s Case (1600) 5 Co Rep 114a.

130 Land Recognition of this interest is often ascribed to Emmanuel College v Evans,77 but that case concerned other matters,78 and the origins of the equity of redemption must be found elsewhere, though probably not at a much later date. By 1667, Hale CB could say that the mortgagor has ‘an equitable right inherent in the land’,79 a few years later Lord Nottingham said that the mortgagor’s equity of redemption was ‘an interest fixed on the land’,80 and in 1738 Lord Hardwicke declared that the equity ‘has always been considered as an estate in the land, for it will descend, may be granted, devised, [and] entailed’.81 By then it was also established that the mortgagee should not ‘clog’ the equity, either by confining the right of redemption to a certain period82 or certain people (such as the mortgagor or his heirs83) or by providing that the land should belong absolutely to the mortgagee on the happening of certain events.84 There were limits to the mortgagor’s equitable right to redeem, of course, or the mortgage would have lost all of its function as security: after the legal date for redemption, the mortgagee could obtain a decree of foreclosure, declaring that unless the mortgagor paid by a fixed date, the equity of redemption would come to an end, leaving the mortgagee with clear legal title.85 However if the land were more valuable than the debt, the court would only order a sale, from the proceeds of which the mortgagee would receive no more than what was due. Once the mortgagor’s equitable right to redeem had become established, the date fixed for repayment of the loan by the mortgage deed became unimportant, since everyone knew that the mortgagor could still recover the fee simple by paying the debt after the legal redemption date had passed. It therefore became usual for a mortgage deed to provide that the secured debt should be repaid soon after the date of the mortgage – six months or a year later. The mortgagee could then call in his loan at any time after that, and bring foreclosure proceedings, but the mortgagor would be protected by his equity of redemption. The upshot was that legal rights created by the deed meant less than appeared on the face of the document, and in practice many properties remained mortgaged for decades, because the mortgagor could not, or would not, redeem the mortgage by repaying his debt, and the mortgagee would not foreclose because he was happy to treat the mortgage as an investment which yielded a steady income.

ii. The Eighteenth-Century Mortgage Market As a result of these changes, the mortgage of land became a much used instrument for longterm borrowing in the seventeenth and eighteenth centuries. It appealed to lenders for its low risk and flexible duration and it attracted borrowers by the correspondingly moderate rates of interest on offer. Mortgage transactions were, moreover, sensitive to movements in the market interest rate: mortgagors would redeem (or threaten to redeem) if the contract rate were not 77 (1626) Rep Ch 18. 78 DP Waddilove, ‘Emmanuel College v Evans (1626) and the History of Mortgages’ (2014) 73 CLJ 142. 79 Pawlett v Attorney-General (1667) Hardres 465, 469. 80 DEC Yale (ed), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge University Press, 1965) 239 [= Prolegomena (1674) c 12, s 12]. See too Burgh v Francis (1673) Rep t Finch 28, 29. 81 Casborne v Scarfe (1737) 1 Atk 603, 605. 82 Newcomb v Bonham (1681) 1 Vern 7; Spurgeon v Collier (1758) 1 Eden 55. 83 Howard v Harris (1683) 1 Vern 190. 84 Toomes v Conset (1745) 3 Atk 261. Rights of first refusal if the mortgagor chose to sell were not objectionable in themselves: Orby v Trigg (1722) 9 Mod 2. 85 How v Vigures (1629) 1 Ch Rep 32.

Part 1: Agricultural Exploitation 1750–1850 131 adjusted to reflect downward movements, and mortgagees would foreclose (or threaten to foreclose) if the contract rate were not adjusted to reflect upward movements.86 Large owners obtained more favourable rates than smaller owners and this gave them a competitive edge in the land market in which they were also incentivised to make further purchases by rising land values after 1710: ‘they could borrow larger sums [than smaller owners] on the security of appreciating assets and could service the debt more easily’.87 Rising land prices also gave smaller owners a reason to sell, releasing capital which they could invest in trade, or use to increase their farming activities or stock levels on rented farms.88 Estate owners also used money lent on mortgage to meet personal expenses and to pay portions and jointures. Some historians have ascribed such practices to fecklessness,89 but Robert Allen has countered that ‘appreciations in land values were a major return to landownership’, that the only way to realise this return, other than sale, was to borrow against the security of the land, and hence that ‘rising mortgage debt as such should not be seen as a sign of improvidence or a threat to the financial viability of the landed classes’: in fact, ‘mortgaging for consumption purposes was an indispensable tool of prudent estate management’.90 In the eighteenth century much lending was done against the security of mortgages by individuals with spare cash – landowners, merchants, retired officers, spinsters and widows.91 Until the early nineteenth century, capital markets were local rather than national, and were often managed by money-scrivening attorneys, who matched up their clients’ borrowing and lending needs, and who might also put out their own money.92 Private bankers also arranged such matters for clients,93 but did not usually lend on mortgage themselves, as they believed such investments to be insufficiently liquid.94 In the late eighteenth century, however, life assurance companies began to invest their money in mortgages and they would do this on an increasingly large scale over the next 100 years,95 although individual lenders remained the predominant suppliers of money lent on mortgage until WWI.96 86 LS Pressnell, ‘The Rate of Interest in the Eighteenth Century’ in LS Pressnell (ed), Studies in the Industrial Revolution (Athlone Press, 1960) 187–90. 87 Daunton (1995) (n 4) 76. 88 ibid 76 and 243–44. 89 eg McCahill (n 65) 168: ‘self-indulgent and unproductive expenditure’. 90 RC Allen, ‘The Price of Freehold Land and the Interest Rate in the Seventeenth and Eighteenth Centuries’ (1988) 41 Econ HR 33, 49. On the extent to which overspending was a general feature of the period, note M Rothery and J Stobart, ‘Inheritance Events and Spending Patterns in the English Country House: The Leigh Family of Stoneleigh Abbey, 1738–1806’ (2012) 27 C&C 379, 381: ‘aristocratic spending was often more moderate and well managed than is usually portrayed.’ 91 BA Holderness, ‘Elizabeth Parkin and Her Investments, 1733–66: Some Aspects of the Sheffield Money Market in the Mid-Eighteenth Century’ (1973) 10 Transactions of the Hunter Archaeological Society 81; P Lane, ‘Women, Property and Inheritance: Wealth Creation and Income Generation in Small English Towns, 1750–1835’ in J Stobart and A Owens (eds), Urban Fortunes: Property and Inheritance in the Town, 1700–1900 (Ashgate, 2000). 92 BL Anderson, ‘The Attorney and the Early Capital Market in Lancashire’ in F Crouzet (ed), Capital Formation in the Industrial Revolution (Methuen, 1972); M Miles, ‘The Money Market in the Early Industrial Revolution: The Evidence from West Riding Attorneys c 1750–1800’ (1981) 23 BH 127; P Mathias, ‘The Lawyer as Businessman in Eighteenth-Century England’ in DC Coleman and P Mathias (eds) Enterprise and History: Essays in Honour of Charles Wilson (Cambridge University Press, 1984) 151–56; Belcher (n 33) 59. 93 DM Joslin, ‘London Private Bankers, 1720–1785’ (1954) 7 Econ HR 167, 175–80. 94 L Pressnell, Country Banking in the Industrial Revolution (Oxford University Press, 1956) 304. 95 AH John, ‘Insurance Investment and the London Money Market of the 18th Century’ (1953) 20 Economica 137, 155–57; RW Spittal, ‘A Review of the Mortgage Lending of Life Offices’ (1962–64) 28 Transactions of the Faculty of Actuaries 113, 113–15. 96 In 1914, private mortgagees held around 85% of the total value of mortgages lent on house and business property, the rest being held (in roughly equal shares) by insurance companies and building societies: A Offer, Property and Politics 1870–1914: Landownership, Law, Ideology and Urban Development in England (Cambridge University Press, 1981) 142–44.

132 Land

iii. Mortgages in the Nineteenth Century In the late eighteenth century, two further developments took place that would shape mortgage practice for the next 125 years. One was the judicial finding that a deposit of title deeds with the lender as security could create an equitable mortgage even in the absence of writing.97 This flouted the Statute of Frauds 1677 and enabled the parties to evade stamp duty.98 Nevertheless, such ‘bankers’ mortgages’ were widely used by the 1830s, both when bankers were called on to step in at short notice to prevent a customer’s imminent financial collapse, and more routinely as a cheap method of securing short-term loans to farmers. The second innovation was the mortgage with a power of sale. This gave the mortgagee the power to sell the land to a third party clear of the mortgagor’s equity of redemption, without having to suffer the trouble and delay of foreclosure proceedings. Approving such arrangements was a bold step for the courts to take, and although it seems to have been taken with little judicial agonising,99 efforts were needed afterwards to work out the conceptual basis of the mortgagee’s power and the technical rules governing its exercise. By the 1840s, however, it had become the usual form, another product of the demand for safe and cheaply enforceable security. Historians have debated the levels of debt by which aristocratic estates were generally burdened during the nineteenth century, and the associated question whether rising indebtedness should be interpreted as a measure of increasing adversity or growing prosperity, as a sign of rash overspending or of the prudent use of capital assets. Variation in the circumstances of individual families makes it unwise to generalise too far on these topics. In David Cannadine’s words, ‘at almost any time in the [nineteenth] century some [families] were getting into debt and others getting out, some bearing fluctuating debt, some servicing unchanging levels of encumbrances.’100 He concludes his survey of the question with the observation that ‘debt, but not ruinous debt, was a common feature of life for many landed families’; but he also argues that an important shift in the reasons for incurring debt took place around 1880. Until then, money was borrowed:101 because building houses, buying and improving land, and investing in non-agricultural ventures required large sums of money which could rarely be found out of current income. But in the seventy years which came after, declining revenue and eroded confidence brought almost all such ventures to an end. Old debts were harder to bear, and new ones were rarely incurred voluntarily. Incurred they were, nonetheless, as money had to be found for the newest and most reluctant form of patrician expenditure: death duties. Encumbrances, hitherto internally generated by a relatively buoyant, confident, expansive and optimistic landowning class, were superseded by burdens externally imposed by a predatory state on a landed interest increasingly on the decline and defensive.

97 Russel v Russel (1783) 1 Bro CC 269; Featherstone v Fenwick (1784) 1 Bro CC 270n; Hurford v Carpenter (1785) 1 Bro CC 270n. 98 Hence Lord Eldon’s objection to the new rule in ex parte Mountfort (1808) 14 Ves Jun 606. 99 Clay v Sharpe (1802) 18 Ves Jun 346n; Corder v Morgan (1811) 18 Ves Jun 344. 100 D Cannadine, Aspects of Aristocracy: Grandeur and Decline in Modern Britain (Yale University Press, 1994) 53. 101 ibid 53–54. On the introduction of death duties, see pp 82 and 172–73, and on the imposition of land taxes, see pp 84–86.

Part 1: Agricultural Exploitation 1750–1850 133

C. Copyhold and Leasehold i. Origins As the economic and social crises of the fourteenth and fifteenth centuries led the serf to seek emancipation, the land he worked came to be held of his lord on customary terms that could be enforced in the manorial court, provided that the jury found such a custom to exist:102 the court rolls served as the ‘copy’ that, as the proprietary character of the right became more pronounced, constituted title. The incidents of copyhold thus varied quite widely from manor to manor,103 although the central courts were to intervene in support of the copyholder, insisting upon the permanence of his interest and subjecting local variations to tests of ‘reasonableness’ at common law. Their interference, particularly in the sixteenth century, was highly significant – it reflected a determination above all else to secure stability at a crucial level of the agricultural hierarchy; and the effect of their intervention was to confirm the existence of a new form of property right – copyholders, in essence, were tenants of manorial lords who remained owners of the freehold and who were paid a fee on their copyholder’s entry onto the estate (usually called a ‘fine’) and a small annual rent; copyholders also typically owed their lords some small customary obligations. As a distinct concept, the idea of letting seems first to have evolved to enable the working of the manor home farm, and the lease for a money rent had an early association with land as security for a loan. In the later middle ages, leases of various kinds developed and by the Tudor period were frequent enough for the common law courts to expound an elaborate set of rules for the cases before them. By the eighteenth century, leasehold was a forwardlooking arrangement adaptable to the needs of market agriculture. It was a flexible concept admitting many variations which could meet changes in farming practice and adjustments in rent payable to the landowner. Copyhold, by contrast, was weighted in favour of traditional practices, giving in some of its manifestations an ownership close to freehold and in others a value-sharing relationship close to some types of lease, which was nonetheless erratic and difficult to adjust.

ii. Copyhold and Leasehold Tenure Compared Since leasehold and copyhold both came to admit many varieties, any comparison between them as types can only be approximate. It is best begun with the two most crucial characteristics of land-holding, the duration of the estate and the return expected for it by the grantor, be it a payment in kind, a money rent or a more spasmodic payment (generally called a fine). A typical characteristic of leasehold was that both duration and rent were set by the terms of the letting itself, supplemented by general rule to some extent when terms were 102 Juries were the principal means of resolving disputes in the manorial courts from the start of the fourteenth century. 103 On occasion juries may have effectively created customary rights by ‘discovering’ them to exist: L Bonfield, ‘What Did English Villagers Mean by “Customary Law?”’ in Z Razi and R Smith (eds), Medieval Society and the Manor Court (Clarendon Press, 1996) 115; D Ibbetson, ‘Custom in Medieval Law’ in A Perreau-Saussine and JB Murphy (eds), The Nature of Customary Law (Cambridge University Press, 2007) 167–71.

134 Land left unspecific. The lowliest tenancies – for instance the cottage plots of labourers – might be held at will or on sufferance, or at most from week to week; they were accordingly terminable at once or on a week’s notice. Farms were often let from year to year, which meant that notice to quit had to coincide with the ending of any year of the letting. The more substantial leases were for a specified term – seven years or even 21 for agriculture, longer if the purpose was mining or house-building; and in some places the lease for a life, or three lives, survived into the eighteenth century. Rents for the shorter, indeterminate terms were periodic – weekly, monthly, quarterly, annual. Non-money rents, consisting for instance of a portion of the crop, were still known and so gave a measure of profit-sharing – with the risk, however, that large harvests would bring low prices. Leases for a term of years might be based upon a fine rather than a regular rent, and there was a ‘temptation for financially embarrassed (or just greedy) landowners to grant long leases on low rents with high entry fines, as they could spend the fines money and ignore future problems.’104 Overall the movement during the eighteenth century was towards ‘rack-renting’ – the charging of a regular rent at whatever rate the market would bear and, so far as the law was concerned, adjustable only if the lease itself provided an express arrangement.105 The most that Chancery did was to allow time to pay overdue rent despite the landlord’s suit for forfeiture and ejectment;106 it did not alter rents with changes in market prices. Copyhold, by contrast, was often tied to older ideas. At least in its traditional form, sometimes termed ‘copyhold of inheritance’, it was a property right of indefinite duration, being capable of alienation during the holder’s life and on his death, save to the extent that the manor’s custom dictated otherwise.107 Commonly, if it remained his until his death, his widow enjoyed free-bench in a half or a third of it so long as she did not remarry. Copyhold could end only upon escheat to the lord (for instance when the copyholder died intestate and without heirs) or upon agreement between lord and copyholder to convert the interest into freehold or to substitute a lease. Rights of the copyholder often stretched across the manor, giving pasturage, turving and other profits from commons and other land. Upon the entry of a new copyholder, the lord often had the right to take a heriot (the most valuable beast or chattel) and to require a fine. If the fine had been specified long before, it could be nominal in value, and the state of the holding would be close to freehold. If the fine was ‘arbitrary’ the law insisted that the lord only demand a reasonable amount, which was normally (though not always) set at two years’ value of the land as improved.108 This brought the interest closer to a long-term lease subject to fine.

104 English (n 42) 164. 105 ME Turner, JV Beckett and B Afton, Agricultural Rent in England, 1690–1914 (Cambridge University Press, 1997) ch 1. 106 As in eg Taylor v Knight (1725) 4 Vin Abr 406, pl 312; Eq Cas Abr 161. 107 Copyhold of inheritance was prevalent in eastern England, Lancashire and Yorkshire. Western England knew a different form: ‘copyhold for lives’, tenants held for the lives of named individuals (often three in succession), after which the tenancy determined. Sitting tenants could buy additional lives to extend their families’ interest, although the landlord could also sell the reversionary interest to a stranger, and in practice tenements could remain in the same family for several generations. For legal analysis of these different forms of copyhold, see CI Elton and HJH Mackay, A Treatise on the Law of Copyholds, 2nd edn (Wildy & Son, 1893) ch 2. 108 Jackman v Hoddesdon (1593) Cro Eliz 351; Hobart v Hammond (1600) 4 Co Rep 27; Popham v Lancaster (1637) Rep Ch 96; Morgan v Scudamore (1677) 2 Ch Rep 134; Grant v Astle (1781) 2 Doug KB 722, 724n.

Part 1: Agricultural Exploitation 1750–1850 135

iii. Copyhold in the Nineteenth Century Copyholds of inheritance had become unprofitable for landlords by the end of the sixteenth century. By then the fixed rents had become uneconomic and the opportunity had been created for the copyholders to make a profit by subletting at a market rent. Thereafter many estate owners sought to extract heavy entry fines and to bully or bribe their copyholders into changing their customary tenure into leasehold so that they could charge a rack rent. They enjoyed only limited success. In 1830, according to the Real Property Commissioners, ‘a considerable proportion of the land’ was still in copyhold.109 As reform-minded lawyers, the Commissioners found copyhold anachronistic: it inhibited economic growth by its rules on arbitrary fines (which amounted to a tax on improvements made by the copyholder) and by the frequent custom that lord and copyholder had to agree upon the cutting of timber and the exploitation of minerals; it provoked aggression (from lords) and fraud (from holders) in the matter of h eriots;110 it was ill-run by manorial stewards who were labelled ‘ignorant and 111 negligent’; and it was the most prominent example of law fashioned out of local custom, some of it preserved only in oral tradition, much of it uncertain and so provocative of litigation. The Commissioners would have liked to eradicate copyhold by compulsion, but they drew back, seeing in the process of valuing the lord’s interests complexities that would be too costly to unravel, and they only recommended improvements in the machinery for voluntary enfranchisement. Parliamentary opinion was with them: legislation followed in 1841 and a decade later this was made to encompass enfranchisement at the request of either party,112 a process managed by the new Copyhold Commissioners, who would confirm the parties’ arrangements and draw up a schedule of apportionment once a valuation had been agreed.113 Through these and other methods (eg the running out of copyholds for lives), customary tenures were steadily eliminated, and in 1925 the last vestiges of copyhold were disposed of by compulsory machinery.114

iv. Agricultural Leases in the Nineteenth Century The writers on agricultural improvement of the late eighteenth century considered that leasing practice had a vital bearing upon increased production. Arthur Young recommended leases for terms of 21 years, renewable at the tenant’s option, as a means of securing investments by the tenant in buildings and fencing, manuring and other measures that were boosting the agricultural revolution.115 The leaders of the new agriculture used their 109 Third Report, PP 1831–1832 (484) XXIII 14–20. 110 These were exacerbated as the passing of time created a disjuncture between the financial value of beasts or chattels and the amounts for which custom decreed that the obligation to hand them over could be compounded. See eg Croome v Guise (1837) 4 Bing NC 148. 111 For instance, they would allow subdivision of lots, but not their merger, because fees on enrolment of conveyances went by the piece. 112 Enfranchisement of Copyholds Act 1841; Copyhold Act 1843; Copyhold Lands Act 1844; Copyhold Act 1852. 113 C Stebbings, Legal Foundations of Tribunals in Nineteenth-Century England (Cambridge University Press, 2006) 162–63 and 169. 114 Law of Property Act 1925, Sch 12. 115 A Young, Political Arithmetic. Containing observations on the present state of Great Britain; and the principles of her policy in the encouragement of Agriculture (Nicoll, 1774) 15; a view adopted by many agricultural improvers.

136 Land leases to prescribe regimes for their tenants: on the Coke estates in Norfolk, for instance, a four-year, and then a six-year, cycle for arable land was required, as well as sufficient manuring and grass-sowing.116 However, it is unclear how often husbandry clauses were included in leases, requiring eg crop-rotations or the use of manure, and when they were, how often they were enforced in practice.117 If they were breached, then in principle the landlord could determine the lease and sue for damages or bring an action for ejectment to recover possession.118 The Chancery courts would not specifically enforce a clause requiring positive acts by the tenant, eg to maintain hedges and fences,119 but they would enjoin the tenant from deleterious acts, eg sowing more than two grain crops in four years.120 In the early 1800s short-term leases and tenancies at will were used with increasing frequency, as landlords and tenants all wished to adapt rent more regularly to changing market conditions. The admission of the £50 leaseholder to the Parliamentary franchise in 1832 provided a further stimulus, since the periodic lease (say) from year to year provided the landlord with a recurrent chance to set a bad tenant loose and, until the secret electoral ballot of 1872, this could include a test of the tenant’s political loyalty. In bad times, when the tenant could not meet his rent, the landlord’s discretion increased: he could waive what was owing, or take payment in kind. And in fact landlords often did this for tenants whom they wished to keep on, so that their annual tenancies effectively enjoyed as great a measure of security as tenancies for a longer period. Alongside the notice to quit, the landlord had at his disposal the old self-help remedy of distress with which to recover rent – a remedy which had grown both in significance and efficacy with the prevalence of rack-renting. The landlord was entitled to seize any personal property, including tools, stock and produce, that he could find on the leased premises.121 If the tenant did not retrieve them by payment, the landlord could sell them in satisfaction of the rent due. No ordinary creditor enjoyed so wide-ranging and summary a right, but it would not be until the late 1800s that the movement for land reform would begin to trim away at excesses. Although there was a relationship of mutual dependency between landlord and tenant, therefore, power lay with the landlord, and if their relationship broke down, he could choose not to carry his tenant through hard times, and instead to enforce his legal rights. The courts’ interpretative approach to leases did not always work in the landlord’s favour.122 In the absence of an express term, tenants were not liable for non-repair and 116 RAC Parker, Coke of Norfolk: A Financial and Agricultural Study, 1707–1842 (Clarendon Press, 1975) 55–57, 100–05 and 138–52. 117 For leases with husbandry clauses see R Stanes, ‘Landlord and Tenant and Husbandry Covenants in Eighteenth-Century Devon’ in W Minchinton (ed), Agricultural Improvement: Medieval and Modern (University of Exeter, 1981). But cf English (n 42) 164 (in the East Riding covenants were not usually prescriptive before the nineteenth century); SW Martins and T Williamson, ‘The Development of the Lease and its Role in the Agricultural Improvement in East Anglia, 1660–1870’ (1998) 46 Ag HR 127 (in East Anglia husbandry clauses only became standard in the nineteenth century). 118 Equitable relief from forfeiture was not available where the tenant was ejected for breach of a husbandry covenant: Wadman v Calcraft (1809) 2 Ves Jun Supp 204. 119 Rayner v Stone (1762) 2 Eden 128. cf Flint v Brandon (1803) 8 Ves Jun 159 (covenant to refill a gravel pit not specifically enforceable). 120 Fleming v Snook (1842) 5 Beav 250. 121 The property did not have to be the tenant’s but might belong eg to a sub-tenant, lodger or customer of the tenant; no notion of contractual privity prevailed here. 122 Pownall v Moores (1822) 5 B & Ald 416 (term requiring muck-spreading construed in tenant’s favour); Beer v Santer (1861) 10 CB (NS) 435 (term requiring drainage construed in tenant’s favour).

Part 1: Agricultural Exploitation 1750–1850 137 the courts refused to resort to earlier notions of ‘permissive waste’ to fill the gap, although some obscurity haunted this question throughout the nineteenth century.123 Again, in the absence of an express term to the contrary,124 leases would impliedly import the ‘custom of the country’,125 ie the good practice of the locality, tested by reference to witnesses and juries, and this could work to the tenant’s advantage just as it could to the benefit of the landlord.126 In other cases, however, the courts declined to add implied terms to express obligations that would have helped the tenant: in the 1840s there was held to be no implied covenant that, irrespective of the landlord’s fault, buildings should be habitable or that the land should be usable for the tenant’s purpose;127 and somewhat earlier Lord Ellenborough refused to imply a term in an agricultural lease that the tenant might remove his fixtures at the end of the lease, although it was well-settled that the opposite applied to a trade tenant: the baker might take out his ovens, the dyer his vats.128 The latter decision reflected the assumption that it was the landlord who should be responsible for capital investment, but the case was criticised by contemporary writers on the grounds of both policy and precedent, and reversed by statute in 1851.129 The legislation did not apply, though, to additions that retained no discrete identity after they were attached to the land, such as drainage works, or expensive artificial fertilisers which farmers expected (and often were obliged) to use, and the costs of which they could not recoup if the landlord did not renew their tenancy. Political escalation of this issue following the bad harvests of the late 1870s led to legislation in 1883, recasting an earlier unsuccessful effort in 1875; this extended the customary practice of tenant-right that already existed in some places, by giving tenants a statutory right to compensation for their unexhausted expenditure.130

D. Enclosure i. Common Rights Under the medieval open-field system of agriculture, arable land was divided into strips and cultivated by farmers who typically held several scattered strips. After harvest, the open fields were used for grazing by those with common pasturage rights.131 Villagers also had 123 Herne v Bembow (1813) 4 Taunt 764; cf Jones v Hill (1817) 7 Taunt 392. 124 As in eg Duke of St Albans v Ellis (1812) 16 East 352 (tenant not to plough sheep-walk or rabbit warren); Greenslade v Tapscott (1834) 1 Cr M & R 55 (tenant not to let third parties raise a potato crop on the land). 125 Powley v Walker (1793) 5 TR 373; Legh v Hewitt (1803) 4 East 154. 126 As in eg Dalby v Hirst (1819) 1 Brod & Bing 224 (compensation for tenant’s improvements payable by landlord); Hutton v Warren (1836) 1 M & W 466 (ditto); Tucker v Linger (1883) 8 App Cas 508 (tenant entitled to flints turned up by ploughing despite term reserving ‘all mines and minerals’ to landlord). 127 Sutton v Temple (1843) 12 M & W 52 (manure heap poisoned without landlord’s knowledge); Hart v Windsor (1843) 12 M & W 68 (bug-infested house); in effect reversing earlier cases: Edwards v Etherington (1825) Ry & M 268; Collins v Barrow (1831) 1 M & Rob 112. The one exception was that a furnished letting bore the implication that it would be habitable – not infested by bugs or structurally unsafe: Smith v Marrable (1843) 11 M & W 5. 128 Elwes v Maw (1802) 3 East 38; and see p 169, n 320 and text, and p 172, nn 334 and 335 and text. 129 Landlord and Tenant Act 1851, s 3. Anderson, ‘Land Transactions’ (n 52) 117–18 notes contemporary criticism of Ellenborough’s decision in A Amos and J Ferard, A Treatise on the Law of Fixtures (J Butterworth & Son, 1827) 46–60 and JW Smith, A Selection of Leading Cases on Various Branches of the Law (W Maxwell, 1838), ii, 116–17. 130 Agricultural Holdings (Scotland) Act 1883, recasting the Agricultural Holdings (England) Act 1875. 131 There were many regional variations on this basic model, described in ARH Baker and RA Butlin (eds), Studies of Field Systems in the British Isles (Cambridge University Press, 1973).

138 Land common rights of pasturage, timber and fuel over common meadow and wastes. Common rights were restricted (at least in lowland areas) to those who owned land in the open fields or those with common-right cottages, the permitted number of grazing animals being fixed by a ‘stint’ per acre or cottage. Common rights were usually not transferable and ‘agistment’ (taking in another person’s stock for grazing) was usually forbidden. Open-field husbandry required communal decision-making, much of it done by jurors in the manorial courts through a system of bye-laws. Many of these survived into the eighteenth century, but by then manorial courts were in decline, decisions were more generally taken in parish meetings, and much of the land had been enclosed and had passed into the control of individual owners. Under such manorial systems, the landless often had no common rights. But this did not necessarily mean that they were excluded from the land and its resources. The Poor Relief Act 1601 required parishes to provide for the poor, and one way in which some parishes discharged this duty was by giving the landless poor access to common meadows and wastes, eg to collect fuel. Also, some landowners created charitable trusts of land for the benefit of the poor in their parishes, motivated by altruism and/or the desire to reduce their obligation to pay parish rates. Some trusts provided that the land should be let and the proceeds used to pay doles of food, fuel, or cash; others gave the poor direct access to the land so that, again, they effectively acquired use-rights which mimicked manorial common rights, although these two types of ‘right’ derived from different sources and were legally distinct.132

ii. Non-Parliamentary Enclosure Enclosure meant the building of hedges, fences or ditches to demarcate enclosed land over which the owner had exclusive rights. This was not a uniform process and its timing varied according to the nature of farming in a locality. Enclosure of open-field arable land often began piecemeal, as owners gradually withdrew from communal husbandry. This was most difficult ‘in nucleated villages with a fully developed common-field system’ and ‘most likely where irregular field systems and dispersed settlement removed the necessity for agreement by the entire farming community, particularly in pastoral districts which required fewer communal controls than arable farming with its complex rotation systems and scattered strips.’133 More general rearrangement of holdings in the interests of efficiency often came only at an advanced stage in the process, sometimes by agreement, sometimes to confirm existing title rather than to initiate change. In contrast, enclosure of common waste was frequently aimed at reclamation rather than property consolidation, and was done only when food prices, better transport links and improved technology made it worthwhile. In some areas, common wastes were also enclosed to protect smallholders from illegal encroachments by larger landowners, squatters and drovers. Some measure of enclosure had begun by the fourteenth century. The profitability of wool-farming was an early incentive to enclose arable land and convert it to pasture.

132 S Birtles, ‘Common Land, Poor Relief and Enclosure: The Use of Manorial Resources in Fulfilling Parish Obligations 1601–1834’ (1999) 165 P&P 74. 133 Daunton (1995) (n 4) 100–01.

Part 1: Agricultural Exploitation 1750–1850 139 Indeed, the Tudors and Stuarts, in their most ambitious piece of agricultural planning, had restrained such measures out of a fear for the food supply. Early enclosure involved much commandeering on the part of the powerful – rough injustice and gross pressuring which could provoke violent reaction, but which could also be met by more subtle appeals to custom in ideological struggles for control of a ‘usable past’ that would legitimate claims to property rights and resources.134 Afterwards, the process began to acquire a more seemly aspect of negotiation and real bargaining could take place between estate owners and their tenants. The resulting agreement was often enshrined in a decree entered on the Chancery court record following a collusive action for specific performance, a process assisted by the court ‘for the common good’.135 Indeed the court would go further, and treat long acquiescence as implied consent sufficient to bind those who were not parties to the agreement,136 though it would not normally treat as bound those who had never expressly consented.137 It would also grant an injunction or specific performance in cases where a party had actually reneged on his promise, eg by refusing to enclose his plot or by breaking another party’s hedges across his strips.138

iii. Parliamentary Enclosure The Parliamentary process, for which occasional precedents begin in the seventeenth century, forms a contrast to both simple annexation and to Chancery enrolment, importing a new degree of formality, partly legislative and partly bureaucratic. By the mid-eighteenth century it had become the predominant technique for enclosure, although by then most of the productive arable land had already been enclosed, and the Parliamentary process would ultimately account for no more than a quarter of all enclosed land, perhaps less, depending on the extent to which enclosure by agreement continued into the nineteenth century.139 The Parliamentary process was used to overcome opposition, and also where there were legal problems that Chancery could not solve, eg lack of an enforceable agreement owing to a disability affecting an owner.140 As access to Parliament became easier, and as Chancery procedures calcified, the Parliamentary route also came to seem quicker, more certain, and more effectual, although it was also more expensive (and would become still more so). Between 1750 and 1850, around 5,000 private Acts were passed, mostly in two 20-year bursts from 1760 to 1780 and from 1793 to 1815; about 3,000 of these enclosed 4.5 million

134 A Wood, The Politics of Social Conflict: The Peak Country, 1520–1770 (Cambridge University Press, 1999) chs 6 and 7; A Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge University Press, 2013) ch 3. 135 Freake v Loveden (1615) Tot 110. 136 Piggott v Kniverton (1607) Tot 109; Lumley v Sands (1639) Tot 111. 137 Ingram v Wells (1627) Tot 111; Constable v Davenport (1666) 1 Ch Rep 259. 138 eg Fox v Shrewsbury (1638) Tot 111; Edgerley v Price (1673) Rep temp Finch 18. 139 JR Wordie, ‘The Chronology of English Enclosures’ (1983) 36 Econ HR 36; M Overton, Agricultural Revolution in England: The Transformation of the Agrarian Economy 1500–1850 (Cambridge University Press, 1996) 149–51. Data for the whole country are not available; for a local study showing that enclosure by agreement continued in the nineteenth century, see J Chapman and S Seeliger, ‘Formal Agreements and the Enclosure Process: The Evidence from Hampshire’ (1995) 43 Ag HR 35. 140 Such as those affecting the Church and other institutions, and trustees for minors, all of whom might lack the power to alienate land.

140 Land acres of open fields and about 2,000 enclosed 2.3 million acres of common land and waste.141 The impetus behind this legislation frequently came from great estate owners, but they were not the only people who supported enclosure bills, and sometimes their interest lay in opposing them: depending on circumstances, the supporters and opponents of enclosure could include both large and small landowners. The Parliamentary process began with a petition, naming the petitioners and describing the land. By Commons Standing Orders in 1774 no petition could be presented before a notice of it had been posted in the parish church for three Sundays in August or September. Surprise may have been one of the advantages of the private Act in its earliest years, but even before 1774 public notice was often given,142 and such public meetings as were held were real enough.143 Before 1727 petitions were always presented to the House of Lords; it then became possible to present petitions to the Commons, and after 1774 this was invariably done. Unless the petition was rejected (unlikely), a friendly member would then present the bill, which, after second reading in the Commons, would be examined by a committee and reported on; then the Lords would deal with it (perfunctorily) before it became law. The failure rates for enclosure bills and other bills between 1760 and 1800 were almost identical (about one quarter), suggesting that there was no systematic opposition to enclosure bills as such.144 Committee members often had local interests, but there is little evidence of gerrymandering;145 the tendency of committees to favour enclosure stemmed from the fact that Parliament was largely constituted of landowners whose views of public policy coincided with their own economic interests. Their most delicate role was to judge whether opposition could safely be ignored. This they were usually prepared to do if the objectors amounted to no more than a fifth or a quarter of the landowners by value (not number),146 even when these made up a majority of local owners, unless they had the will and resources to present a counter-petition which even then might be rejected.147 Smallholders were at least consulted, and their claims recognised by allotments,148 although many sold up afterwards either because they could not afford the costs of the process, or because their allotments were not economically viable. The landless were excluded from the process entirely, although where common land had previously been used for parochial poor relief, or held on charitable trust for the poor, the enclosure award

141 ME Turner, English Parliamentary Enclosure: Its Historical Geography and Economic History (Dawson, 1980) ch 3; GE Mingay, Parliamentary Enclosure in England: An Introduction to Its Causes, Incidence and Impact 1750–1850 (Longman, 1997) 63 and 112. 142 F Sharman, ‘An Introduction to the Enclosure Acts’ (1989) 10 JLH 45, 50. 143 ibid 50, citing R Russell, Enclosure of Market Rasen and Wrawby-cum-Brigg (Market Rasen WEA, 1969) 34–35; id, Enclosure of Holten-le-Clay and Tetney (Waltham WEA, 1972) 19–20. 144 J Hoppit, ‘The Landed Interest and the National Interest, 1660–1800’ in J Hoppit (ed), Parliament, Nations and Identities in Britain and Ireland, 1660–1850 (Manchester University Press, 2003) 89. 145 WE Tate, ‘Members of Parliament and the Proceedings Upon Enclosure Bills’ (1942) 12 Econ HR 68. 146 Significantly, no precise proportion was laid down, nor was it specified how the valuation was to be calculated (by acreage, annual value, land tax assessment, or poor rate liability). 147 In 1764 the bill for Wiston Magna in Leicestershire passed in two months, though it was opposed by 75% of landowners who owned 16% of the land: WG Hoskins, The Midland Peasant: The Economic and Social History of a Leicestershire Village (Macmillan & Co, 1957) 247–49. 148 Some Acts provided that copyholders who were receiving allotments should be enfranchised and become freeholders, on payment of compensation to the lord; others preserved their copyhold tenancies.

Part 1: Agricultural Exploitation 1750–1850 141 would typically prolong such arrangements, by allotting part of the land to trustees to hold it for their benefit.149

iv. Enclosure Commissioners The legislature insisted on keeping the public inquiry stage to itself, and rejected all efforts, even when the need to increase food supplies became acute in the French wars, to give it to others.150 The most it would allow was the Inclosure Consolidation Act 1801, which set out some 40 provisions that could be incorporated by reference. An early instance of an important technique, the Act was frequently adopted, in whole or in part, and did a certain amount to reduce detail, length and thus expense. Standard clauses were needed since, typically, the Act was more about procedures to be followed than about entitlements. For the administrative stage, commissioners would be named who would investigate claims and prescribe in detail the terms of a fair redistribution of the lands to be enclosed. After 1774, the proportions to be given to the lord of the manor and tithe-owner had to be specified in the Act, but lesser proprietors had to submit their claims to the commissioners by a given date. The commissioners’ discretion was wide, for there were rarely precise norms about measuring existing interests or assessing the terrain for distribution in order to take account of variations in productivity and workability.151 It was also a prime object of many Acts to preclude review of their decisions by certiorari or other process which could have deflected the whole scheme into the courts. An appeal Quarter Sessions was often the sole right allowed, though according to Lord Thurlow, sessions did not have the time necessary to consider such cases.152 Another technique was to require disputes to be referred to arbitrators, when much would depend upon who was appointed to act. The Parliamentary enclosure commissions – some 5,000 in all – make up a significant experience in the breeding of experts. In the early eighteenth century, influence and ‘friendship’ could play an evident part – the commission might well consist of a dozen men, giving honorific service after the manner of a grand jury. But there soon emerged, as more or less regular commissioners, men drawn from the class of land managers – attorneys, stewards and other agents. In part they conceived the work as an office of profit for which charges were either prescribed in the Act or left to their own discretion.153 A few became rich men, their fees contributing to enclosure costs, which in some cases became enormous. At the same time, they were representatives of interests. It became common practice to appoint 149 The land might be let and the proceeds distributed as doles, or the poor might be allowed the direct use of it. Where the land was common waste on which the poor were permitted to collect fuel it was often overused and for this reason legislation in 1832 authorised parishes to let fuel allotments as garden allotments: Allotments Act 1832. See also Birtles (n 132) 93–97; DC Barnett, ‘Allotments and the Problem of Rural Poverty, 1780–1840’ in EL Jones and GE Mingay (eds), Land, Labour and Population in the Industrial Revolution (Edward Arnold, 1967). 150 This despite pressure from the semi-private Board of Agriculture (which was involved in four previous bills) and the existence of such legislation for Scotland (since 1695). There were other reasons: the interest of the private bill promoters; and the church’s interest in insisting on its tithe case by case. 151 During the course of their survey and deliberations, the Commissioners often had power to direct the course of husbandry; this became a part of their expertise. 152 JL and B Hammond, The Village Labourer, 1760–1832: A Study in the Government of England Before the Reform Bill (Longmans, 1927) 35. 153 The Commons Standing Orders of 1774 sought for the first time to limit the most outrageous claims.

142 Land three commissioners, one to represent the lord of the manor, one the owner of the tithe and one the remaining proprietors. The ‘regular’ commissioners would act repeatedly for one or other of these interests and doubtless built their reputation upon their representative skill. But from the process was generated a larger expertise. Each new commission could refer to precedents and accepted standards and an element of objectivity could be brought to the resolution of what were property issues of high sensitivity. Eventually, in 1836 and 1845, Parliament went further. The 1836 Act allowed a two-thirds majority of landowners by value to appoint commissioners without resort to Parliament and a seven-eighths majority to proceed without even a commission, the award being enrolled at Quarter Sessions with the clerk of the peace.154 In 1845 came a permanent bureaucracy, in the form of a three-man Enclosure Commission, working with assistants and drawn from the professional experts who by now knew the business well.155 As a body with power to distribute new interests by the measure of old entitlements, the Enclosure Commission had a function peculiarly on the border between the judicial and the administrative.156 Exceptionally, the duty of supervising it was retained by the legislature, since each year’s proposals became operative only upon the enactment of a statute covering them all.157 Under this dispensation, the new Commission – which ranks as one of the earliest administrative tribunals – saw to the enclosure of a further 600,000 acres over a quarter-century. It never rejected a scheme entirely and kept the process out of the public eye. Only when the enclosure of commons became an urban issue – rousing those who fought for open spaces in the towns and cities against the house-builders’ encroachments – did the matter return to Parliament; further checks were then instituted.158

v. Effects In the first generation of historians to study Parliamentary enclosure in detail, the Hammonds depicted its impact on village communities as devastating.159 They also assembled instances which suggested that this outcome was the product of callous manipulation: the promoters of a bill would rely on ‘friendship’ to push it through against any opposition and then upon a nice legalism to deprive all but substantial property owners of their expectations. EP Thompson’s assessment was similarly negative: ‘a plain enough case of class robbery’160 which destroyed the communal values that inhered in customary property rights and created an impoverished rural proletariat dependent on wage-labour.

154 Inclosure Act 1836, ss 2 and 40. 155 Inclosure Act 1845. It was preceded by a Select Committee, chaired by Lord Worsley (PP 1844 (583) V), before which the radical case for better community provisions – roads, drains, village greens – had been well-canvassed. 156 Stebbings (2006) (n 113) 163–64 and 169–70. 157 Enclosures of open fields were only made subject to this in the substantial amendments of the Inclosure Act 1852 (an Act, typically, which the Commissioners themselves had much to do with). 158 On this campaign, led by the Commons Preservation Society, and the ensuing legislation (Metropolitan Commons Act 1866; Commons Act 1876; and other special local acts), see J Ranlett, ‘“Checking Nature’s Desecration”: Late Victorian Environmental Organization’ (1983) 26 VS 197; HL Malchow, ‘Public Gardens and Social Action in Late Victorian London’ (1985) 29 VS 97; and for a study of working-class reaction against encroachments on common land, see R Allen, ‘The Battle for the Common: Politics and Populism in Mid-Victorian Kentish London’ (1997) 22 SH 61. 159 Hammonds (n 152) chs 2 and 3. 160 EP Thompson, The Making of the English Working Class (Victor Gollancz, 1963) 218.

Part 1: Agricultural Exploitation 1750–1850 143 Jeanette Neeson has painted a similar picture,161 and Jane Humphries has made the further point that enclosure produced a shift in the relative contributions made to household budgets by male wage-labourers and their wives and children, who could no longer keep cows or gather fuel on common land, or glean wheat, barley and beans after harvest.162 These rights were valuable and were not surrendered without a struggle: well into the nineteenth century, women regularly entered enclosed fields for gleaning, despite a Common Pleas ruling that they had no right to do so,163 successfully relying on the reluctance of magistrates and jurors to convict them of trespass or theft.164 There were also more destructive forms of opposition: fences and gates torn down,165 and, less often, outright rioting and violence, as at Otmoor in Oxfordshire in 1830.166 However these never went beyond the stage of local protest, for enclosure ‘took place at village, not regional levels’ and ‘this factor, reinforced by the insular structure of rural England, militated against the development of a cohesive movement.’167 The foregoing narrative has not gone unchallenged. Leigh Shaw-Taylor has observed that in other parts of the country than Northamptonshire (which formed the basis of Neeson’s study) manorial authority had collapsed by the 1700s and stockowners were grazing the commons bare; in such places, enclosure was a defensive measure which was supported by those with common grazing rights.168 More generally, David Chambers and Gordon Mingay have defended enclosers as progressives whose belief that enclosure would lead to more effective use of the land was borne out by the increase in rents that often followed; they have also argued that by 1750 few unlanded workers had rights of common, so that enclosure could not have made them any more dependent on wage-labour than they were already.169 Whether Parliamentary enclosure increased agricultural production is another matter. Contemporary supporters of enclosure believed that it would do so, and the standard view of historians before WWII was that a revolution in agricultural productivity occurred in the later eighteenth century, and that Parliamentary enclosure was the main reason for this.170 But the modern consensus is that enclosure in the late eighteenth century produced only a minor advance in productivity over seventeenth-century levels (although it may have shifted profits from tenant to landlord171), and that a further increase only took 161 JM Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge University Press, 1993). 162 J Humphries, ‘Enclosure, Common Rights and Women: The Proletarianization of Families in the Late Eighteenth and Early Nineteenth Centuries’ (1990) 50 JEH 26. 163 Steel v Houghton (1788) 1 H Bl 51. 164 DH Morgan, Harvesters and Harvesting 1840–1900: A Study of the Rural Proletariat (Croom Helm, 1982) 151–61; P King, ‘Gleaners, Farmers and the Failure of Legal Sanctions in England 1750–1850’ (1989) 125 P&P 116. 165 Neeson (1993) (n 161) ch 9. 166 Hammonds (n 152) 63–72; D Eastwood, ‘Communities, Protest and Police in Early Nineteenth-Century Oxfordshire: The Enclosure of Otmoor Reconsidered’ (1996) 44 Ag HR 3. 167 R Wells, ‘The Development of the English Rural Proletariat and Social Protest, 1700–1850’ in M Reed and R Wells (eds), Class, Conflict and Protest in the English Countryside, 1700–1880 (Frank Cass, 1990) 34. 168 L Shaw-Taylor, ‘The Management of Common Lands in the Lowlands of Southern England c 1500 to c 1850’, in M De Moor, L Shaw-Taylor and P Warde (eds), The Management of Common Land in North West Europe, c 1500–1850 (Brepols, 2002) 78–81. 169 JD Chambers and GE Mingay, The Agricultural Revolution 1750–1880 (BT Batsford, 1966). See too L Shaw-Taylor, ‘Parliamentary Enclosure and the Emergence of an English Agricultural Proletariat’ (2001) 61 JEH 640; G Clark and A Clark, ‘Common Rights to Land in England, 1475–1839’ (2001) 61 JEH 1009. 170 eg RE Prothero [Lord Ernle], English Farming: Past and Present (Longman, Green & Co, 1912). 171 RC Allen, ‘The Efficiency and Distributional Consequences of Eighteenth-Century Enclosures’ (1982) 92 Economic Journal 937; RC Allen, Enclosure and the Yeoman (Clarendon Press, 1992).

144 Land place in the first half of the nineteenth century.172 It may be, however, that a contributing factor in this ‘second revolution’ was the enclosure of common waste, the farming of which became economically viable after technological advances and the development of transport infrastructure.173

E. Tithe i. Origins and Development One object of many Enclosure Acts was to free landowners from the obligation to pay tithes. These were originally payments in kind of agricultural produce by parishioners to support the church, clergy and poor of the parish. In medieval times, each parish was identified with a benefice, the holder of which owed spiritual duties and was entitled to revenues that commonly derived from tithes and from glebe land with which the benefice was endowed. When the incumbent was entitled to be paid tithes, the benefice was called a ‘rectory’ and the incumbent a ‘rector’. Many rectories were impropriated to monasteries, bishoprics and cathedral offices, to provide them with an income. They would use part of their tithe revenues to pay for a clergyman to perform their spiritual duties vicariously – a ‘vicar’. Often, though not always, the rector would take the ‘great tithes’ (on corn, hay and wood) and the vicar the ‘small tithes’ (on other produce). When the monasteries were dissolved during the Reformation their rectorial tithes were seized by the Crown and either granted to new cathedral and collegial foundations or sold to laymen, who then became ‘lay rectors’ or ‘lay impropriators’. In such cases the vicar usually continued to have spiritual oversight of the parish and to be paid the vicarial tithes. The process by which the right to be paid tithes became a right attached to the land involved a significant shift in thinking about private and public property, their nature and the line between them.174 By the eighteenth century, rectorial tithes had passed to a lay impropriator in about a third of parishes; in the rest they were paid either to parish clergy whose tithes had not been impropriated or to Church officials and institutions. Lay impropriators might be local squires, but they might also be great estate owners with little connection to the parish.175 They might collect the tithe themselves or through agents, or they might grant a lease of it to a local man for whom collection was a less burdensome task, an arrangement often made by Church bodies and colleges. The business of assessing what was due on which products and of collecting the portion was a regular source of argument despite

172 ME Turner, JV Beckett and B Afton, Farm Production in England 1700–1914 (Oxford University Press, 2001) esp ch 7. 173 BA Holderness, ‘Agriculture, 1770–1860’ in CH Feinstein and S Pollard (eds), Studies in Capital Formation in the United Kingdom, 1750–1920 (Oxford University Press, 1988) 25; ADM Phillips, The Underdrainage of Farmland in England During the Nineteenth Century (Cambridge University Press, 1989); R Scola, Feeding the Victorian City: The Food Supply of Manchester, 1770–1870 (Manchester University Press, 1992) esp chs 3–5. 174 Explored in L Brace, The Idea of Property in Seventeenth-Century England: Tithes and the Individual (Manchester University Press, 1998) esp ch 4. 175 H Grove, Alienated Tithes (Tithe Redemption Trust, 1896) 2: in 1836, the tithes of 4,662 parishes were wholly or partly alienated; lay individuals held 2,552 of these, bishops 355, and the rest were owned by various corporations including colleges and hospitals.

Part 1: Agricultural Exploitation 1750–1850 145 the recording of parish practice in ‘glebe terriers’. Litigation proliferated and elaborate law accumulated on the subject.176 These problems created a pressure to transmute tithe in kind into a fixed money payment, which, if it became legally binding by custom, was known as a ‘modus’. It might apply, for instance, to a parish or to a particular product, notably if it were something such as milk which had otherwise to be constantly reckoned. Such payments in lieu were likely to spread in periods of stable prices and to be challenged in times of inflation. If it came to proof, the common law rules had to be satisfied: these required that there was no reason why the tithe should not have existed since 1189 and that the memory of living man did not run to the contrary.177

ii. Discontent With the upswing of agricultural prices in the late eighteenth century and the accompanying drive towards capital improvement in farming, tithe ceased to be a source of sporadic bickering and became a focus of serious discontent. The rising prices stimulated clergy and lay impropriators alike. The governing establishment of the Anglican Church became an active instigator of change, prompting incumbents to insist on their full rights, especially when taking office. In particular, alleged moduses were challenged by demands once more to exact the tithe in kind,178 and tithe owners also sought to establish rights to tithe on new crops such as potatoes and turnips and new practices such as agistment.179 With this came a new grievance, because tithe was an entitlement to a tenth of the gross produce, without any allowance for what it cost to enhance production. Tithe-payers and agricultural improvers alike were quick to point the lesson: that tithe acted as a disincentive to capital investment and experimentation. ‘Tythes,’ wrote Arthur Young, ‘are so powerful an obstacle to all spirited husbandry that it can never arise under the extreme burden of their being taken in kind.’180 One answer was to buy off the tithe-owners in the course of enclosing the land, either by allotting them land in exchange for the abolition of tithe, or by replacing the tithe with a right either to a fixed money payment or to a payment which varied with the price of corn (a ‘corn rent’). But in the late eighteenth century tithe-owners began to drive harder bargains, taking a ninth, an eighth or even a fifth of the land or its money value in exchange for the loss of rights to one-tenth of its yield.181 Their rapacity did little to soften the farmers’ feelings, and in this hostile climate, litigation spread in earnest. Issues over proportions due and collection

176 For legal texts and collections of cases, see EJ Evans, The Contentious Tithe: The Tithe Problem and English Agriculture 1750–1850 (Routledge & Kegan Paul, 1976) 175–77. 177 Townley v Colegate (1828) 2 Sim 297; Wilson v Lord Kensington (1831) 1 Cl & F 1, 17. 178 As in eg Full v Hutchings (1782) 7 Bro PC 78; Prevost v Benett (1815) 1 Price 236; Lonsdale v Heaton (1830) Younge 58. 179 Bernard v Garnons (1797) 7 Brown 105, 118; Leyson v Parsons (1811) 18 Ves Jun 173; Williams v Price (1817) 4 Price 156; Williamson v Lord Lonsdale (1818) Dan 49. Some of these concerned disputes between the owners of rectorial and vicarial tithes, as to which of them had the better entitlement. 180 Annals of Agriculture (R Phillips, 1784) I, 73; and see E Channan (ed), Adam Smith, An Enquiry into the Nature and Causes of the Wealth of Nations (1776) (University of Chicago Press, 1976) vol II 836–40. 181 EJ Evans, ‘Tithes’ in J Thirsk (ed), The Agrarian History of England and Wales, vol 5: 1640–1750 (Cambridge University Press, 1985) 405; R Lee, Rural Society and the Anglican Clergy, 1815–1914: Encountering and Managing the Poor (Boydell Press, 2006) 122–23. See too R v Inhabitants of Wistow (1836) 5 Ad & El 250.

146 Land were still tried in the ecclesiastical courts,182 but questions of title, including the question whether a modus had replaced entitlement in kind, had been taken over by the central courts. The existence of the custom might be put to juries (common or special) whose tithe-payer sympathies made them anathema to tithe-owners. But even if the verdict of a common law jury was sought, the process would most likely be begun in an equitable jurisdiction (the Court of Chancery or – even more likely – the Court of Exchequer) in search of injunctive relief. The consequences could be extraordinary. A dispute at Kendal lasted for 19 years, cost some £20,000 and had to be ended by private Act. It was not uncommon for a tithe action to cost £3,000-£4,000 and to last 10 years. Many people learned bitterly the costs and hazards of major litigation – in particular that those who won were often those with economic power and social position.183 A substantial rector might well force smaller farmers into an expensive compromise; but an ordinary incumbent who dared to take on a great landlord might find himself exhausted by interminable stratagems of procedure devised by the best counsel and solicitors. The experience must rank (like nuisance actions and workmen’s compensation later on) as one of the truly striking lessons in the exacerbative potential of litigation.

iii. Commutation The Church of England itself came to see that insistence on tithe in its original form could not survive into an age of more intensive farming and a money economy. As long as Parliamentary reform could be forestalled, it did not need to act; but in the great political battles over Disestablishment in the 1830s, tithe in kind was offered as a hostage to fortune.184 In 1836, the Whigs pushed through an Act creating compulsory machinery for the commutation of tithes into annual rentcharges on land, calculated on the average over the previous seven years (taking account of collection costs) and adjustable for subsequent shifts in agricultural prices in accordance with a set formula.185 Three central commissioners and a staff of assistants (following the model of the Poor Law Commission) were to work across the country settling the amounts due under this novel form of Church rate. They were first to seek arrangements by agreement (the sole procedure that the Church and Tories would have admitted) and this they managed in nearly 60 per cent of parishes. In the other cases disputed rights had to be adjudicated and the decisions settled many questions of modus and exemption through enclosure which had waited for years to be resolved in the courts. A right of appeal lay to courts of equity; it seems however not to have been greatly used.186 It was clear that commutation had brought to an end the Church’s hope of raising its tithe revenues by the large multiples that it had 182 Under the Recovery of Small Tithes Act 1695, the justices in petty sessions were given a default jurisdiction (with distress as a sanction) for tithe due, to the value of £2 (increased to £10 by the Ecclesiastical Courts Act 1813, s 4). The church courts also heard other tithe disputes through the eighteenth century: Evans (n 181) 44–45. 183 EJ Evans ‘A Nineteenth Century Tithe Dispute and its Significance: The Case of Kendal’ (1974) 74 Transactions of the Cumberland and Westmorland Antiquarian & Archaeological Society 159. 184 See generally GFA Best, Temporal Pillars. Queen Anne’s Bounty, the Ecclesiastical Commissioners, and the Church of England (Cambridge University Press, 1964) 465–79; WR Ward, Religion and Society in England 1790–1850 (Schocken Books, 1973) 111–24; EJ Evans and AG Crosby, Tithes: Maps, Apportionments and the 1836 Act: A Guide for Local Historians (British Association for Local History, 1997) chs 1 and 2. 185 Tithe Commutation Act 1836. 186 A number of disputes about their powers also found their way to Queen’s Bench by prerogative writ: see Tithe Act 1837, s 3 and eg Re Ystradgunlais Tithe Commutation (1844) 8 QB 32; Re Dent Tithe Commutation (1845) 8 QB 43; Re Appledore Tithe Commutation (1845) 8 QB 139.

Part 2: Urban Conditions and Land Values 1750–1850 147 looked for and sometimes achieved in the preceding half-century. The Commissioners and their assistants, many of whom were experienced as administrators of enclosure, brought an expertise that was trusted by the main protagonists. Moreover, they opened a prospect of permanent solution rather than a temporary truce. The great bulk of their work was completed by the early 1850s. It rescued the Church from a wave of rural antagonism which might otherwise have swamped the tithe entitlement completely.187 It was a signal victory for bureaucratic directness over judicial supererogation. Introduced at a time when the principal combatants were wearying of conflict, the Commission was allowed to perform an adjudicative function as a very distinct administrative tribunal. Its success certainly led to the creation of the Enclosure Commission with its similar functions.188

Part 2: Urban Conditions and Land Values 1750–1850 In the late 1700s the industrial towns began their rapid sprawl, filling fields and absorbing villages, many of which were already the work centres of a proto-industrial world.189 An accumulation of factories and workshops, businesses and shops were interspersed with housing. The desire to live apart from the workplace began to spread through the middle classes and with the development of transport arteries they moved out from busy, polluted town centres into suburbs, making one typical form of development a series of concentric rings around an over-developed old nucleus.190 Many towns grew to meet the labour demands of employers – factory- and mine-owners, shipbuilders, railway companies – but only a few paternal masters treated the provision of housing near their works as a co-ordinate part of their enterprise.191 Elsewhere housing was left to independent investment and the lure of its regular profitability. The techniques of land law required some adaptation to meet these new circumstances, but the essential flexibility of concept, the large scope left for individuation by contract, meant that owners and entrepreneurs could achieve their goals without serious legal impediment.

A. Urban Leases Speculative building in eighteenth- and nineteenth-century towns was carried on in various ways. Some estate owners made substantial investments in enclaves of villas or whole 187 Despite the dragging effects of agricultural depression, the rentcharge survived until 1936, when its exoneration was settled over a period of 60 years. The massive inflation that later intervened pushed up administrative costs until the fixed tithe redemption annuities payable under the 1936 legislation were no longer worth collecting; remaining liabilities were cancelled by the Finance Act 1977: GA Lee, ‘The Tithe Rentcharge: A Pioneer in Income Indexation’ (1996) 6 Accounting, Business and Finance History 301. 188 Into which, in 1851, the Tithe Commissioners were absorbed. General discussion in Stebbings (2006) (n 113) 159–62 and 165–69. 189 Rural manufacturing took many forms according to local cultures and circumstances, surveyed in P Hudson, ‘Industrial Organization and Structure’ in Floud and Johnson (n 9) 29–34. See also pp 277–78 of the present volume. 190 eg in London the population of the central area boroughs peaked in 1861 and then started to decline while the rest of the city continued to grow, particularly in an ‘outer ring’ beyond the Administrative County which in the last three decades of the nineteenth century recorded population increases of 50%, 50.1% and 45.5%: GE Cherry, The Evolution of British Town Planning (Wiley, 1974) 9. 191 Well-known instances included Sir Titus Salt at Saltaire, and later Lever at Port Sunlight and the Cadburys at Bourneville.

148 Land resorts, but more often they left the work of development to others: lawyers or tradesman or builders who worked on the site themselves or employed others to do so. The owners of capital at every level were drawn to invest in housing they could afford, sometimes for their own occupation, more often as a source of income. Developers, either singly or in consortium,192 might acquire a long lease of the land from the ground owner (as in London, Liverpool, Birmingham and Sheffield193) or they might acquire the freehold (as in Bradford and Leeds194). Buyers preferred freehold if they could get it, but this depended on the extent to which landowners controlled the market, something that was ‘most likely to be the case early in urban development’.195 Under the building leases system, the landlord would typically grant a lease of the land to a developer for 99 years, at a ground rent that was a fraction of the land’s rack rental value once it had been developed.196 By this means, the landlord could obtain a higher rent for the land than could be realised by letting it for agricultural purposes,197 and gain the advantage that the houses would revert to his ownership once the ground lease expired.198 Usually, no one person was wealthy enough to take the whole risk of building a square of large houses … but by making the land available in lots, several builders could share the capital risk of development, while the landlord’s only risk if the development collapsed and the ground failed to increase was the loss of a few year’s agricultural rent.199

His interest lay in increasing the capital value of his estate; the developers’ interest lay in building cheaply for immediate profit. Clauses were accordingly written into leases about

192 In which case they might use a building trust as the legal mechanism through which they operated their joint venture: RS Neale, ‘An Equitable Trust in the Building Industry in 1794’ (1965) 7 BH 94. 193 D Spring, ‘The English Landed Estate in the Age of Coal and Iron: 1830–1880’ (1951) 11 JEH 3, 8–9; G Power, ‘Entail in Two Cities: A Comparative Study of Long Term Leases in Birmingham, England and Baltimore, Maryland 1700–1900’ (1992) 9 Journal of Architectural and Planning Research 315; S George, Liverpool Park Estates: Their Legal Basis, Creation and Early Management (Liverpool University Press, 2000) 13–18. 194 MJ Mortimore, ‘Landownership and Urban Growth in Bradford and Its Environs in the West Riding Conurbation, 1850–1950’ (1969) 46 TIBG 105, 115–16; C Treen, ‘The Process of Suburban Development in North Leeds 1870–1914’ in FML Thompson (ed), The Rise of Suburbia (Leicester University Press, 1982). 195 JA Yelling, ‘Land, Property and Planning’ in MJ Daunton (ed), The Cambridge Urban History of Britain vol III: 1840–1950 (Cambridge University Press, 2001) 475. For eighteenth-century patterns of urban tenure see CW Chalkin, ‘Urban Housing Estates in the Eighteenth Century’ (1968) 5 Urban Studies 67 and CW Chalkin, The Provincial Towns of Georgian England (Edward Arnold, 1974); and see Land Enquiry Committee, The Land (1914) II 348–53, for a description of the land then exploited on the basis of freehold and leasehold. 196 H Cubitt, Building in London (Constable & Co, 1911) chs 20 and 21. Around half the houses on the Duke of Bedford’s estate in London in the 1840s were let on such terms: D Spring, ‘English Landowners and NineteenthCentury Industrialism’ in JT Ward and RG Wilson (eds), Land and Industry: The Landed Estate and the Industrial Revolution (David and Charles, 1971) 40–41. The Earl of Dartmouth’s estate near West Bromwich was held on strict settlement and the entail did not permit the land to be let on building leases for more than 60 years; on these terms, no one would take it and only after the entail was relaxed in 1853 to permit longer leases did development get under way: RW Sturgess, ‘Landowners, Mining and Urban Development in Nineteenth-Century Staffordshire’ in Ward and Wilson (ibid) 175–76 and 188. 197 Following development, Lord Grosvenor’s ground rents from his Mayfair estate rose from £2,000 in 1722 to £12,000 in 1802: S Jenkins, Landlords to London: The Story of a Capital and Its Growth (Constable, 1975) 62; Lord Calthorpe’s income from his Edgbaston estate in Birmingham rose from £5,233 in 1810 to £11,673 in 1845: D Cannadine, Lords and Landlords: The Aristocracy and the Towns, 1774–1967 (Leicester University Press, 1980) 95. 198 At this point he might raise some cash by charging a fine for renewal, and this could bring the further advantage of incentivising the tenant to improve and take care of the property: Belcher (n 33) 71–72. 199 George (n 193) 11, adding that ‘many builders went bankrupt … but few landowners suffered’.

Part 2: Urban Conditions and Land Values 1750–1850 149 building standards, and the size and appearance of houses, but these were not always complied with.200 The developer took on the financial risks of construction, but did not need to buy the freehold, and could raise capital by borrowing secured by a mortgage on the lease, from local tradesmen or craftsmen with spare cash, potential occupiers, the ground landlord,201 or a commercial investor such as a life insurance company.202 When the building was done, the houses were let or sold with the remainder of the lease to tenants or purchasers who would occupy them or sub-let them to obtain an income. Houses in the better developments were occupied by single family units; the poorer sank into sub-division and overcrowding. The continuing obligations of landlords, tenants and their successors in title were various, and determined not by default rules of the common law but by contractual provision. However, covenants were invariably inserted, requiring tenants to repair ordinary dilapidations during their tenure,203 and, conversely, the Chancery judges abandoned their older practice of restraining landlords from proceeding at law to recover the rent in cases where the premises had become uninhabitable, eg after a fire. The proliferation of express terms in leases had made it harder for the judges to imply terms into the parties’ contract requiring premises to be kept in a habitable condition.204 No effort was made by government to regulate the level of rents, which remained a private affair until WWI.205 Competition between landlords was supposed to protect tenants from the imposition of extortionate rents, but in practice the rental market did not operate freely, and was rather characterised by ‘inequalities, frictions and lagging adjustments in which the lower income groups in the big cities were provided with substandard housing at a relatively high cost, in defiance of legally prescribed standards of sanitation and safety.’206 Besides suing for the rent, landlords could employ two other enforcement mechanisms: distress and ejectment. The first was a self-help remedy: the landlord (or, more likely, a bailiff acting for him) could enter the premises, seize and sell any goods which he found there, and apply the sale proceeds to the rent. Tenants could sue their landlord in trover, trespass or replevin where a distress was defective,207 but for members of the working classes this

200 See eg Nokes v Gibbon (1856) 3 Drew 681; Bennett v Herring (1857) 3 CB (NS) 370; Powell v Hemsley [1909] 2 Ch 252. For the same reasons, conditions were inserted regarding the use to which buildings could be put, as in eg Tod-Heatly v Benham (1888) 40 Ch D 80 (hospital an annoyance to neighbours). An unfortunate constraint on the design of many houses was the window tax, first introduced in 1696 and not repealed until 1851. 201 Typically, the ground landlord’s attorney would not only draw up the necessary legal documents but would also coordinate the lending and borrowing of capital; he might additionally engage in development on his own account: see eg Belcher (n 33) 7–11, 31–32. 202 N Morecroft, The Origins of Asset Management from 1700 to 1960: Towering Investors (Palgrave, 2017) 38–40. 203 JS Anderson, ‘Leases, Mortgages, and Servitudes’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010) 116, citing JW Smith, The Law of Landlord and Tenant (1855) 196. 204 ibid 116–17, citing Hare v Groves (1795) 3 Anst 687; Holtzapffel v Baker (1811) 18 Ves Jun 115; Leeds v Cheetham (1827) 1 Sim 146. cf Moore v Clark (1813) 5 Taunt 90, 96; Makin v Watkinson (1870) LR 6 Ex 25 (landlord’s covenant to keep main walls and roofs in repair was subject to implied term that obligation arose only when landlord had notice of disrepair). 205 See pp 179–87. 206 D Englander, ‘Urban House Tenure and Litigation in Nineteenth-Century Britain’ in W Steinmetz (ed), Private Law and Social Inequality in the Industrial Age (Oxford University Press, 2000) 337. 207 Anderson, ‘Leases’ (n 203) 121–22.

150 Land was rarely practicable. Conversely, however, many of them had too few possessions to make distress a remunerative exercise, a problem for landlords which grew more pressing as domestic lettings in the cities increased. In 1838, the year when summary arrest of debtors was abolished, landlords gained a new advantage: the magistrates were empowered to order the eviction of defaulting tenants who had not complied with a notice to quit, where the tenancy was for less than £20 per annum.208

B. Trusts for Sale Leaseholds and freeholds bought for investment purposes might be vested in the trustees of a trust for sale, along with other real and personal property such as mortgages, stock and chattels.209 Under such arrangements, which were often made by will but which might also be made during the settlor’s lifetime, eg as part of a marriage settlement, the trustees were typically directed to sell the property immediately and distribute the proceeds to the beneficiaries, but were given a power to postpone sale. The exercise of this power would then leave them free to manage the fund on an ongoing basis through the exercise of further powers to buy and sell assets in response to market shifts, to collect rents and dividends and pay these to the life tenant in the form of income, and ultimately to distribute the capital to the next generation of beneficiaries. To overcome the problem that control of the property was vested in the trustees rather than the life tenant, the exercise of the trustees’ powers was typically made subject to the life tenant’s request or veto.210 Trusts for sale came increasingly to be used by the middle class, whose wealth consisted not in land but in money and goods accumulated through work, and the sharing of these assets among family members typically proceeded on a different basis from the priorities of the strict settlement.211 Middle class settlors often did not conceive of their wealth as a family asset to be continued in a line of male primogeniture, but chose to divide it equally between their children. When their sons married, they did not know what fortune they might ultimately accumulate, and so their position differed from that of a landowner negotiating the transfer of an interest in a landed estate on marriage; they also wanted more flexible arrangements for special advancement to meet the crucial expenditures of life – the education and settling of sons in professions, the marrying of daughters. The settlor himself or those he might nominate (often the trustees) could be given a wide variety of powers to determine the beneficiaries’ shares over time, and the granting of such powers could also be used as a protective device to shield trust assets from beneficiaries’ creditors, provided

208 Small Tenements Recovery Act 1838. There were ‘anti-flitting’ provisions, allowing the police to stop and search furniture carts, in the Metropolitan Police Act 1839, s 67. 209 eg Phipps v Williams (1831) 5 Sim 44; Pearce v Gardner (1852) 10 Hare 287. See too A Owens, ‘Inheritance and the Life-Cycle of the Family Firm in the Early Industrial Revolution’ (2002) 44 BH 21, 35. 210 JS Anderson, ‘Trusts and Trustees’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010) 234, citing C Davidson, Davidson’s Precedents and Forms in Conveyancing, vol 3, 2nd edn (1861) 546, 560, 584–86, 623 and 636–37. 211 JM Lightwood, ‘Trusts for Sale’ (1927) 3 CLJ 59, 63. cf H Barker, Family and Business during the Industrial Revolution (Oxford University Press, 2017) esp chs 1–2. For strict settlements see pp 119–28; and for the laws of inheritance more generally, see pp 350–51.

Part 2: Urban Conditions and Land Values 1750–1850 151 that the trustees or other power-holders had real control over the property including the power to withhold income from the beneficiaries as it became due.212 So by the middle of the nineteenth century there emerged the first discretionary trusts, a form of settlement that would come to be much used in the following century. The courts filled out the implications of these and the powers by which they operated, where the deeds were ambiguous, contradictory or incomplete. They applied the limits of the perpetuities and accumulations rules to them and refused to let them become dodges for outwitting creditors; otherwise they subjected them to no constraints in the name of public policy.213

C. Building Societies A significant contribution was made to urban, and particularly suburban, housing development by the building societies.214 These first emerged in the late eighteenth century in a ‘terminating’ form, one of the typical clubs by which the lower tradesmen and skilled workers joined together for protection or advancement. The aim of a building society was to provide sufficient capital for one member to buy land and build premises, which would be mortgaged to the society; his repayments, together perhaps with further subscriptions, would allow other members to buy and build in turn, until all were done and any surplus could be returned to the members. Because the societies were small and community-based, their members could effectively monitor one another and impose social as well as economic sanctions against default. However, as argued in Arthur Scratchley’s influential Treatise on Benefit Building Societies (1846), terminating societies had drawbacks: there was usually a significant time lag between the building of the first and last house, it was hard for members to withdraw, and hard to admit new members; nor did they meet the needs of those who wished merely to invest their savings in mortgages. Scratchley therefore proposed a different, ‘permanent’ form, under which there was a formal separation of investing and borrowing members to whom different rates of return would be offered, new members could be admitted at any time, and borrowing members could redeem their mortgages at any time. These proposals met with instant success. Many permanent societies were created in the second half of the nineteenth century, and by the end of the 1930s they had become the dominant form. As the number and size of building societies increased, and their operations became more complex, they came under the direction of middle-class professionals who brought expertise in accounting and actuarial science to bear on tasks such as calculating

212 Twopeny v Peyton (1840) 10 Sim 487; Page v Way (1840) 3 Beav 20. If no such power were conferred, the court might treat the beneficiary as equitable owner of the property and disregard the rest as mere machinery: Graves v Dolphin (1826) 1 Sim 66; Snowdon v Dales (1834) 6 Sim 524; Younghusband v Gisborne (1846) 15 LJ Ch 355. Discussion in Anderson, ‘Trusts and Trustees’ (n 210) 250–51. 213 The perpetuity rules governing settlements of personalty – unlike those affecting land – did not permit settlors to tie up the succession beyond the next generation: Earl of Chatham v Tothill (1771) 7 Bro PC 453 (words creating an estate tail in land passed an absolute interest in personal estate). On other legal and practical differences between trusts of personalty and strict settlements of land, see Chesterman (n 68) 145–64. 214 For their origins and evolution, see EJ Cleary, The Building Society Movement (Elek Books, 1965); A Samy, The Building Society Promise: Access, Risk, and Efficiency 1880–1939 (Oxford University Press, 2016) ch 1.

152 Land and collecting dues and repayments, organising investments and distributing surpluses. However, they remained predominantly working class in their membership until WWI.215 Early building societies came under some of the political suspicion that attached to friendly societies in general; and in 1836 legislation regulating the latter was extended to building societies, which were placed under the supervision of their own registrar.216 The first holder of the office, Tidd Pratt, brought an energy typical of the new central supervisor to his task, encouraging the standardisation of rules and the regularisation of financial and other practice. The recurrence of fraud and predation by administrators provided one motive for a desire to supervise. Because the institution was so evidently valuable to the ‘industrious classes’ a certain measure of external direction by law was felt to be in order. One consequence was that the 1836 legislation, and the registrar’s operations under it, were constantly tested by litigation. There was, to take one instance, the question whether a society could increase its resources by borrowing? Or was this contrary to the Act or the judges’ ideas of public policy? Ultimately rules were held valid which allowed a society to borrow up to two-thirds of the amounts secured to it by mortgages.217 Gradually the societies worked their way towards more precise legislation and fuller powers of management.218 After 1874, special machinery involving incorporation was made available to existing societies and was made compulsory for new ones.219 Collapses and scandals continued,220 but building societies took their place in the panoply of leading financial institutions, and in 1883, Sir Frederick Pollock saw them as a bulwark against land nationalisation, which had ensured that ‘the artisans of the north country are already in great part … full owners of the homes they dwell in.’221

D. Restrictive Covenants The value of land turns not only on the uses to which it can be put: what can and cannot be done upon adjacent plots can affect market price and enjoyment quite as much. In rural conditions landowners and occupiers had come to rely on the tort of nuisance and property rights classified as easements and profits a prendre as ways of securing these external values. A nuisance action could terminate interferences of many kinds across boundaries – from plants, smoke, water, noise – imposing its discipline on all occupiers for the benefit of their

215 Samy (n 214) ch 2. In the interwar years, some became less accessible to working class borrowers as they grew in size and geographical reach, with the result that it became harder for their managers to assess the creditworthiness of poorer applicants for membership: Samy (ibid) chs 3 and 4. 216 Building Societies (Benefit) Act 1836; for its passage and consequences, see Cleary (n 214) ch 2. On friendly societies, see pp 284–85 and 304 of the present work. 217 See esp Laing v Reed (1869) 39 LJ Ch 1; cf Re National Building Soc (1869) LR 5 Ch App 309 (necessity for an express rule); Re Victoria Building Soc (1870) 39 LJ Ch 628 (unlimited borrowing power ultra vires). 218 See Cleary (n 214) chs 5 and 7. 219 Building Societies Act 1874, following the Report of a Royal Commission (PP 1872 [C 514] XXVI) which noted the growth of middle-class institutions out of working-class roots and refused to place the societies under the general companies legislation. 220 The spectacular collapse of the Liberator Building Society in 1892 and of the Birkbeck in 1911 (with its popular banking business that turned out to be ultra vires) certainly impeded the overall growth of the movement. Even so, assets in 1920 were three and a half times those of 1870: Cleary (n 214) chs 8, 9, and 11. 221 Pollock (n 37) 185.

Part 2: Urban Conditions and Land Values 1750–1850 153 neighbours. By contrast, easements and profits had to be created (either by grant or by some form of long usage) as limitations on one piece of land for the benefit of another.222 Rights of way and rights to bring water were typical easements; profits, such as rights to cut turf or to graze animals, were an intimate part of the division of land yields that was traditional in many places. Only two negative easements were recognised, both germane to the close conditions of village or town: the right to have a building supported by adjacent land; and the right against obstruction to the light through particular windows. However, the common law, wary of long-term inhibitions on the full potential of the burdened land, refused to extend these further, for instance, so as to give an easement to a view. Indeed, in the nineteenth century, some judges would have drawn back from the right to light, had it not become so well accepted.223 When it came to urban development, the desire to maintain general standards of amenity was very strong. The owner of ‘good’ property had one great fear: that it would lose value because the neighbourhood declined, the houses being subdivided, partly given over perhaps to business, the yards filled with washing. For his purposes the law of easements was of little service. If a housing development was offered as leasehold, extensive undertakings not to build, divide or disfigure could be covenanted; and thanks to the long-settled notion of ‘privity of estate’, assignees of the lease and sub-lessees were bound to observe the conditions. The obligations were owed to the landlord, and his successors in title who retained an interest in the very land, and not to the owners of adjacent properties. Even so this was machinery enough to make leasehold the preferred technique for such development. Yet potential occupiers of respectable garden squares and villa-filled streets might want freehold and here there were impediments of legal doctrine. If covenants between vendor and purchaser were to be judged by notions of contract, with the concept of privity confining obligations to the initial parties, they would be of little avail once plots changed hands. By common law, the benefit of a covenant was enforceable by those who claimed title from the covenantee (the vendor); but there was little authority for the view that the burden would likewise pass to the successors of the covenantor (the purchaser). In 1834, in Keppell v Bailey,224 Lord Brougham refused to accept that the burden would ‘run’ at common law, and thought that equity should maintain the like position: notice of a covenant was insufficient to bind a successor in title, and the balance of utility did not favour permitting landowners to impose whatever idiosyncratic constraints they might choose on all subsequent owners. It became clear that this was seriously unsettling to standard conveyancing practice for the best sort of urban development.225 By 1848, Lord Cottenham had decisively altered equity’s course, by holding in Tulk v Moxhay226 that a successor of the covenantor

222 Interference with an easement or profit was redressed through an action for nuisance. Much of the detailed law was not worked out until after Gale CJ’s pioneering treatise on easements had appeared in 1839. 223 Eventually, the House of Lords settled that the interference must be serious enough to constitute a nuisance: Colls v Home and Colonial Stores Ltd [1904] AC 179. 224 (1834) 2 My & K 517, where Lord Brougham refused to enforce a covenant requiring the covenantor’s supply of limestone to be obtained from a particular quarry; earlier cases concerning covenants between lessors and lessees were distinguished. 225 cf cases enforcing by injunction covenants not to build breweries on residential plots: Whatman v Gibson (1838) 9 Sim 196; Mann v Stephens (1846) 15 Sim 377. 226 (1848) 2 Ph 774. George (n 193) 35–40 identifies several earlier cases to the same effect but writes that ‘perhaps on the common principle that an event concerning London outweighs several similar ones in the provinces, it was Tulk v Moxhay … which became famous.’

154 Land who had notice of the covenant was thereby bound in conscience to honour it. One reading of this case places it beside others of the time which sought to prevent deliberate third-party interference with contractual relations.227 Inevitably, though, the new rule was extended in ways that seriously compromised the essence of contractual privity.228 Covenants could impose trading restrictions on the premises, including, for instance, undertakings to sell only one brand of a product (such as beer); covenants could bind even if they involved the positive expenditure of money; the covenantee or some successor did not have to retain land that benefited from the covenant in order to enforce it against any assignee of the original covenantor.229 Here indeed was evidence of the dangers envisaged by Lord Brougham, and in time the judges came to impose limits. They did this by reconceptualising Tulk as a decision the rationale for which was not that the covenantee’s personal right against the covenantor was protected against successors in title with notice of the promise, but that the promise generated an ‘equity attached to the property’ which could be asserted against successors in title unless they were bona fide purchasers for value without notice.230 One result was that Lord Brougham’s stance on notice was ultimately vindicated as the courts came to hold that notice of personal rights was not enough in itself to bind third parties.231 Another result was that the courts were freed to develop limits on the new property right they had invented: the court would not enforce a covenant if it could not superintend its order’s execution; covenants had to touch and concern the land (and not merely trading upon it); and only a covenantee who retained land to be benefited could sue an assignee of the covenantor.232 Even within such a circumscribed framework, the long-term inconvenience of rights which bound all takers came to be felt. Fluctuations in land prices and shifts in fashion destroyed exclusiveness in a way that restrictive covenants could not withstand. The social pretensions of one generation became a mere impediment to economic potential in the next. By the end of the century the judges were sufficiently restive to suggest that, where the character of an estate had changed, a restrictive covenant should no longer be enforced.233 It would, however, need the profound alterations of the period before and after WWI – and in particular the housing shortage to which the war contributed – before statute would furnish the courts with power to lift covenants once they were judged to have lost their

227 At common law, cases such as Lumley v Wagner (1852) 1 De GM & G 604; Lumley v Gye (1853) 2 El & Bl 216; in equity, cases like De Mattos v Gibson (1849) 4 De G & J 276 where Knight Bruce LJ said that a successor in title who receives with knowledge of a contract affecting the property would be prevented from acting inconsistently with its terms. 228 For which see pp 202–03. 229 Covenant to benefit trader rather than landowner: Catt v Tourle (1869) LR 4 Ch App 654; Luker v Dennis (1877) 7 Ch D 227; covenant to spend money: Morland v Cook (1868) LR 6 Eq 252 (maintaining sea-wall); Cooke v Chilcott (1876) 3 Ch D 694 (supplying water). 230 B McFarlane, ‘Tulk v Moxhay (1848)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012) 220–4. The clearest example of the re-analysis is in London & South Western Railway Co v Gomm (1882) 20 Ch D 562, 583, where Jessel MR held that Tulk was an equitable extension either of common law rules as to leasehold covenants, or of common law rules as to negative easements. 231 Gomm (n 230); Barker v Stickney [1919] 1 KB 121; Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146; Swiss Bank Corp v Lloyds Bank Ltd [1979] 1 Ch 548, 570–71. 232 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 Ch D 403 (covenant to build houses etc not enforceable against assignee); Gomm (n 230) (covenant to reconvey not enforceable against assignee); London CC v Allen [1914] 3 KB 642 (covenant not to build not enforceable by local authority which held no local land). 233 German v Chapman (1877) 7 Ch D 271, 279; Knight v Simmonds [1896] 2 Ch 294, 298.

Part 3: Land as an Industrial Resource 1750–1900 155 usefulness.234 In the same year, restrictive covenants were recognised by statute as interests in land that should be protected by registration.235

Part 3: Land as an Industrial Resource 1750–1900 The demands on land imposed by industry, transport and urban development caused legal problems ranging far beyond those we have already considered. The first was the need to secure powers of compulsory purchase for setting new ventures in motion – most notably the building of roads, canals and railways. Secondly, the damage, inconvenience and personal danger that stemmed from many activities came in forms so varied that it would test the resources of the general law, particularly the law of nuisance, and would call forth a long succession of statutes concerned with public health and environmental pollution. These formed prime material for mid-Victorian experiments in statehood. Amid high controversy, a balance would be struck between central and local government, and between the nominally executive and the nominally judicial, in the execution of policies that directly compromised the autonomy of private property.

A. Compulsory Purchase Douglass North and Barry Weingast have argued that England industrialised sooner than elsewhere because the means of production and infrastructure were owned by entrepreneurs whose property rights were well defined, whose business activities were only lightly regulated and who could accumulate and invest the necessary capital without fear of state expropriation.236 The constitutional settlement of 1688 played a key role in these developments, by restraining the Crown from defaulting on its debts to its bond-holders (as happened in France), imposing high levels of taxation on the rich, or seizing their property. At least to the extent that it concerns rights in land, however, the argument that property owners were better protected in the eighteenth century than in earlier times is not borne out by the evidence.237 On the contrary, expropriatory legislation affecting landowners increased during this period as Parliament ‘met annually, exercised greater sovereign power than earlier monarchs and legislated prolifically regarding property’.238 Among other confiscatory

234 Law of Property Act 1925, s 84(l). 235 Land Charges Act 1925, s 10 (Class D). 236 eg DC North and BR Weingast, ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England’ (1989) 49 JEH 803; DC North, Institutions, Institutional Change and Economic Performance (Cambridge University Press, 1990); BR Weingast, ‘The Political Foundations of Democracy and the Rule of Law’ (1997) 91 American Political Science Review 245. For general comments on new institutional economics and eighteenth- and nineteenth-century English legal history, see pp 6–10. 237 The claim that property rights in the means of production were well defined in C18 England is also contradicted by the history of the law governing water rights: J Getzler, A History of Water Rights at Common Law (Oxford University Press, 2004). 238 J Hoppit, ‘Compulsion, Compensation and Property Rights in Britain, 1688–1833’ (2011) 210 P&P 93, 93.

156 Land measures,239 land was compulsorily transferred to the promoters of road, canal, and railway schemes, which themselves contributed significantly to commercial and industrial growth.240 So rights in land became less secure during the eighteenth and nineteenth centuries, the state was implicated in the reallocation of property rights between different owners of capital in the name of the public interest, and the frequency with which this was done played its own part in fostering the acceptance of utilitarian ideas of property after 1820. The eighteenth century saw the institution of turnpike trusts to take over sections of highway and maintain them out of tolls. In a movement away from control by the justices and compulsory labour by the whole community, property owners in country and town became trustees, and schemes were put to local ratepayers as a means of shifting financial burdens onto road-users.241 The powers of compulsory purchase were mostly secondary, being for widenings and diversions to bring the road to the estate of some major promoter. In the case of canals, new routes dictated by the lie of the land made acquisition a more central issue, and when schemes to promote their construction were pushed forward through the statutory incorporation of joint stock companies formed for the purpose, these companies were typically vested with powers of compulsory purchase. In the Duke of Bridgewater’s first schemes, compulsion met with great opposition and this led him and other promoters to lower the profile of their bills as they came through Parliament, using private rather than public bill procedure, portraying their schemes as the continuation of existing river navigation schemes, or disguising the full course to be taken by their canals.242 By the time of the 1790s canal mania, the scale of the promoters’ ambitions had increased – and with them the costs of their schemes.243 Winning the consent of local landowners was essential, and while the companies ‘did their best to emphasize the public benefits of their enterprises … bribes often proved more effective’, in the form of share allocations and a seat on the board for affected landowners.244 In the case of the railways, the blow to landowners was softened by sums that totalled some 14 per cent of the companies’ capital, a factor which helped to put their cost well beyond those of France, Germany and the United States. A burden of high freights was imposed that by the end of the century would bear hard on British exporters. Many landowners realised the great enhancement that a railway would bring to the value of their remaining land and they were often among active promoters of extensions and branch lines. Even so, they drove a hard bargain when they were forced to sell, demanding much higher 239 Consider also the expropriation of slave owners and lighthouse owners, respectively discussed in N Draper, The Price of Emancipation: Slave-Ownership, Compensation and British Society at the End of Slavery (Cambridge University Press, 2013); and J Taylor, ‘Private Property, Public Interest, and the Role of the State in NineteenthCentury Britain: The Case of the Lighthouses’ (2001) 44 HJ 749 and E Lindberg, ‘From Private to Public Provision of Public Goods: English Lighthouses Between the Seventeenth and Nineteenth Centuries’ (2013) 25 Journal of Policy History 538. 240 R Stoszak, The Role of Transportation in the Industrial Revolution: A Comparison of England and France (McGill – Queen’s University Press, 1991); S Ville, ‘Transport’ in Floud and Johnson (n 9). 241 Statutory labour was eventually abolished by the Highway Rates Act 1839. 242 H Malet, The Canal Duke: A Biography of Francis, 3rd Duke of Bridgewater (David & Charles, 1961) 47–49 and 121–9. 243 JR Ward, The Finance of Canal Building in Eighteenth Century England (Clarendon Press, 1974) 18–78. 244 M Freeman, R Pearson and J Taylor, Shareholder Democracies? Corporate Governance in Britain and Ireland before 1850 (University of Chicago Press, 2012) 48–49. See too 76: the problems facing the companies were political; ‘all had to secure the support of local investors, and all had to don the clothing of “public” interest, for … the public good was the justification for most kinds of joint-stock endeavour.’

Part 3: Land as an Industrial Resource 1750–1900 157 prices than the agricultural value of their land.245 In the early days, companies were willing to pay these rates, but during the railway mania of the 1840s, growing risk and competition led them to resist the owners’ demands. Each group accused the other of extortion, and in a contentious atmosphere, Parliament enacted legislation designed to establish some middle ground. The Land Clauses Consolidation Act 1845 was decried by landowners for the unchallengeable powers of compulsory purchase it gave railway companies,246 but it allowed for the land to be valued not by juries, but by judges or assessors, who were likelier to accede to the landowners’ ideas of their property’s worth. In the last quarter of the century landowners’ rights were further compromised by social programmes aimed at slum clearance and the provision of working-class housing. The heaviest demands of slum landlords led to curbs upon their compensation claims, but it would take until 1919, when the aura of landownership had noticeably dimmed, for basic principles and machinery to be open to review. Private arbitrators and juries were replaced by a panel of official arbitrators, forerunners of the present-day Lands Tribunal and a significant addition to the collection of administrative courts. A set of limiting principles was imposed, designed to keep down the size of compensatory awards.247 Perhaps most importantly, the rule of 1845 which gave the landowner his costs if he got more than had been offered, and even then did not oblige him to pay the acquirer’s own costs, was replaced by the normal indemnity rule of litigation.248

B. Public Health and Amenity: The Common Law Industrial and urban growth created environmental problems on an unprecedented scale, as cities poured out rubbish and sewage that were hard to dispose of and new techniques of production outstripped the methods of suppressing their unhealthy side-effects: smoke, fumes, noise and fouled water.249 It would ultimately fall to legislation and government regulation to produce a solution to these problems, accompanied by tax-funded state expenditure that was undertaken only after years of resistance by rate-payers and town councillors, who were themselves more often than not the owners of polluting factories and workshops. Early on, a significant role was therefore played by the common law of nuisance, which supplied both criminal sanctions and civil remedies against polluters. The importance of these has been downplayed by the historians Joel Brenner, who argued that the common law rules were covertly shaped by judges to favour industrialists,250 and John 245 R Kostal, Law and English Railway Capitalism, 1825–1875 (Clarendon Press, 1994) ch 4, who considers that the prices charged by landowners were unjustifiably inflated. cf S Jack and A Jack, ‘Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases’ (2003) 24 JLH 59, 72–3, arguing that the companies had no better claim than the landowners to the development gains accruing from railway construction. 246 See FA Sharman, ‘The History of the Lands Clauses Consolidation Act 1845’ (1986) 7 Statute Law Review 13. Other general Acts, as well as many private Acts, would rely upon its content, eg Railway Clauses Consolidation Act 1845: OC Williams, The Historical Development of Private Bill Procedure and Standing Orders in the House of Commons (HMSO, 1949) I 107. 247 Acquisition of Land (Assessment of Compensation) Act 1919, s 2. 248 1845 Act, s 34; 1919 Act, s 5. 249 On the fiercely contested question whether the early stages of modern capitalism in England led to an improvement or a decline in workers’ overall living standards, see H-J Voth, ‘Living Standards and the Urban Environment’ in Floud and Johnson (n 9). 250 JF Brenner, ‘Nuisance Law and the Industrial Revolution’ (1973) 3 JLS 403.

158 Land McLaren, who argued that tort litigation could not solve the problems of pollution because it depended too heavily on the willingness of well-resourced individuals to sue on their property rights.251 But Ben Pontin has offered a more positive assessment of the common law’s contribution, arguing that the weakness of nuisance law has been exaggerated; that the courts ‘got tough’ on polluters by allowing claims for amenity loss and enforcing common law rights without taking account of overlapping statutory rules; and that the award of injunctions placed landowners in a strong position to force infringers to spend money on developing cleaner technologies.252 ‘Every man should so use his own as not to damnify another’ was the simple prescription taken by William Blackstone as the premise of the common law of nuisance.253 Under this rubric the conservers of local conditions – the constables, justices, juries and Sewer Commissions – might seek the draining of water, the disposal of rubbish, the upkeep of highways, rivers and bridges and the restriction of polluting trades.254 If a nuisance affected the general public (and not merely private individuals), and if individuals could be identified as responsible, they could be indicted for public nuisance and required to abate it.255 Alternatively, the Attorney-General might seek an injunction from equity on the public’s behalf. Further, if a public nuisance caused harm to a plaintiff that differed in kind from the harm suffered by the general public, he could recover damages in private law proceedings for the special damage he had suffered.256 A plaintiff ’s property rights might also be infringed in a case where no harm was caused to the general public. He could then bring an action on the case for (private) nuisance, the point of which might either be to recover damages, or to establish that a wrong had been committed, as a necessary preliminary step to winning a final injunction from the Chancery court. During their Lord Chancellorships, Thurlow and Eldon each made it plain that interim injunctions were not to be had before the question whether there was a nuisance had been settled by a jury in a common law trial.257 Cheap and rapid relief remained unlikely for the first half of the nineteenth century. But the mid-century procedural rapprochements of common law and equity meant that slowness of process ceased to be such a barrier to practical relief.258 Moreover, the final injunction became more readily available to plaintiffs in the very decades when the heavy toll of industrialisation became inescapably evident. As a counterweight, courts were empowered in their discretion to award damages ‘in lieu of, or in addition to, an injunction’, and so they were, if they chose, in a position to license (at a

251 JPS Maclaren, ‘Nuisance Law and the Industrial Revolution: Some Lessons from Social History’ (1983) 3 OJLS 155. 252 B Pontin, ‘Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence’ (2012) 75 MLR 101. 253 Commentaries vol 3, 217. 254 S Webb and B Webb, English Local Government from the Revolution to the Municipal Corporations Act, vol 1: The Parish and the County (Longman, Green & Co, 1906) 446–79. 255 R v Lloyd (1802) 4 Esp 200. 256 Rose v Miles (1815) 4 M & S 101 (obstructed waterway); Fritz v Hobson (1880) 14 Ch D 542 (obstructed highway). 257 Weller v Smeaton (1784) 1 Cox Eq Cas 103; Att-Gen v Cleaver (1811) 18 Ves Jun 211; cf the exceptional Crowder v Tinkler (1816) 19 Ves Jun 617 (construction of gunpowder factory). 258 The Chancery Procedure Act 1852, s 58, allowed interlocutory injunctions upon common law rights to be granted on the basis of affidavit evidence.

Part 3: Land as an Industrial Resource 1750–1900 159 price) the continuance of a nuisance.259 They could also suspend orders pending action by defendants to abate the relevant problem – an example is Attorney-General v Birmingham Corporation,260 where the court’s order was held in suspension for 37 years, during which the defendant was forced to spend half a million pounds on purifying the effluent which it discharged into the River Tame.261 Beside questions of procedure stood issues of substantive rule. Traditionally juries had been instructed to ask themselves whether the victim was suffering enough interference with the enjoyment and use of his land to amount to a nuisance. The courts toyed with the possibility of abandoning this categorical approach, in favour of a balancing exercise in which the plaintiff ’s inconvenience would be set against the benefits of the activity – not only to the defendant, but also to his workforce and to trade in the neighbourhood. But the bulk of the judges could not contemplate the variable verdicts, and the likely undermining of property rights, that would follow from charging juries with this exercise. In rejecting the notion, Baron Bramwell said that ‘unless the defendant’s profits be enough to compensate [the loss to the plaintiff] I deny that it is for the public benefit he should do what he has done; if they are he should compensate.’262 Nevertheless a compromise was found that typified both the techniques of the common law and prevailing currents of public opinion. It can be misleading to generalise about the development of tort doctrine in this period, for as the forms of action withered away, and the use of juries declined, the judges took different views, and indeed viewed themselves as participants in an ongoing debate, about the standards which applied in different cases. But it is broadly true that in the law of private nuisance a line was drawn between physical damage to property and direct interference with prescriptive rights (eg to light or clean water), on the one hand, and damage to the amenity value of property, on the other. Where a nuisance caused damage of the first sort, the courts tended to hold the defendant strictly liable without undertaking a balancing exercise between the rival interests of the parties. An example is Rylands v Fletcher,263 which was later treated as establishing its own category of liability. Fletcher’s coal mine was flooded by water escaping from Ryland’s new reservoir down unknown shafts, so that no blame could attach to his engineers. The bulk of the judges held that, since the water had been artificially accumulated, liability was as strict as for private nuisances that were continuous and cumulative. In cases of the second sort, a balancing exercise was undertaken, and landowners were expected to put up with ‘that amount of discomfort which may be necessary for the 259 Chancery Amendment Act 1858, s 2. (This statute is also known as Lord Cairns’s Act.). 260 (1858) 4 K & J 528. This set a precedent for similar actions, eg Spokes v Banbury Local Board of Health (1865) 35 LJ Ch 105; Goldschmid v Tunbridge Wells Improvement Commissioners (1866) 35 LJ Ch 382; Att-Gen v Mayor of Leeds (1870) 39 LJ Ch 254; cf Lilywhite v Trimmer (1867) 36 LJ Ch 525, where an injunction was refused because the relatively slight level of the nuisance had to be balanced against concern for ‘the drainage of a not inconsiderable town’ (Alton). 261 B Luckin, ‘Pollution in the City’ in M Daunton (ed), The Cambridge Urban History of Britain, vol III: 1840–1950 (Cambridge University Press, 2001) 217: installation of a sedimentation plant in the 1850s was followed by experiments with lime precipitation in the 1860s and 70s; as the volume of sewage continued to rise the council was advised to buy land for agricultural irrigation, and by the 1890s had been pressured by continued litigation into buying 1500 acres for this purpose. 262 Bamford v Turnley (1862) 3 B & S 66, 85, overruling Hole v Barlow (1858) 4 CB (NS) 334; cf R v Ward (1836) 4 Ad & El 384, 404–05, disapproving R v Russell (1827) 6 B & C 566. 263 (1866) LR 1 Ex 265, (1868) LR 3 HL 330.

160 Land legitimate and free exercise of the trade of their neighbours’. So held Lord Westbury in St Helen’s Smelting Co v Tipping,264 where the issue was whether Tipping, who owned a 13,000 acre estate in St Helens, could recover damages for the air pollution from a neighbouring copper-smelting works. For the physical damage to his land, which had been rendered useless for agriculture, he was entitled to a remedy: damages and, indeed, an injunction. But no damages were awarded for the harm to the amenity value of his land, represented by the personal discomfort he had suffered. When deciding whether a nuisance had been committed in cases of amenity damage, both the degree of discomfort and the general nature of the neighbourhood were relevant matters.265 However, the distinction drawn in the St Helens case between physical and amenity damage was disastrous for the inhabitants of industrial Lancashire. A decade on, the Royal Commission on Noxious Vapours was to find that ‘persons whose houses are rendered almost uninhabitable by the stench of sulphuretted hydrogen from Widnes or St. Helens waste heaps appear to be practically without any remedy whatever.’266 Nor was the problem just that of the substantive rule. Even farmers who lost crops had great difficulty in pinpointing a culprit – an old problem, which arose equally with river pollution267 – and they were met with procedural feints, such as removal from county to superior courts, which were too much for them. Two instances show a different aspect of the judicial process in mid-century. First was the question whether compensation was payable to a trader such as a shopkeeper or publican who lost clientele during the course of building works, because access became more cumbrous, but who suffered no permanent physical damage to his property. By the early 1860s most of the judges favoured such claims,268 but the House of Lords insisted on cutting back the rule: compensation required some exceptional hurt such as physical injury, not purely economic loss which resulted from a disturbance that was no greater to the plaintiff than to other members of the public.269 There was a level below which there was no need to respect the interests of others, propertied or personal, and as the railways drove their ‘ventilating shafts’ into London and the other great cities, there were many below the reach of compensation who were discomforted without ceremony or even displaced.270 The great mass of weekly tenants had no right which survived the ‘notice to treat’ initiating a compulsory purchase. Even when Parliament began to insist that a company provide alternative housing, it would find no difficulty in buying off the tenants with a sovereign or two or remission of some back rent.271 264 (1865) 11 HLC 642 at 650. For the injunction granted to protect the plaintiff ’s property, see (1865) LR 1 Ch 66. 265 Thesiger LJ’s well-known remark, ‘What would be a nuisance in Belgrave Square would not necessarily be one in Bermondsey’ (Sturges v Bridgman (1879) 11 Ch D 852, 865) echoes earlier notions of ‘zoning’ the decent residential from the polluted industrial: R v Jordan (1681?), cited in R v Pierce (1683) 2 Show KB 327. A related rule, that a person could not complain if he ‘came to’ an existing nuisance, was abandoned in the 1830s: Elliotson v Feetham (1835) 2 Bing NC 134; Bliss v Hall (1838) 4 Bing NC 183; and cf London, Brighton and South Coast Railway Co v Truman (1885) 11 App Cas 45, 52 (Lord Halsbury LC): an ‘old notion … long since exploded’. 266 Royal Commission on Noxious Vapours, PP 1878 [C 2159] XLIV 14. 267 Juries were not to convict unless satisfied that the defendant was perpetrating a nuisance, not merely contributing to it: see eg R v Medley (1834) 6 C & P 292. 268 Cameron v Charing Cross Railway Co (1864) 16 CB (NS) 430; Ricket v Metropolitan Railway Co (1864) 5 B & S 149; (1867) LR 2 HL 175 (but here a majority of the Exchequer Chamber disagreed). 269 Ricket (n 268). 270 JR Kellett, The Impact of Railways on Victorian Cities (Routledge, 2007) 108–09. 271 See HJ Dyos, ‘Railways and Housing in Victorian London’ (1955) 2 Journal of Transport History 11 and 90; HJ Dyos, ‘Some Social Costs of Railway Building in London’ (1957) 3 Journal of Transport History 23. However,

Part 3: Land as an Industrial Resource 1750–1900 161 Second came the question whether a person who suffered a nuisance from the noise and dirt of a railway running by his premises had a claim to compensation: a question of obvious significance to the costs of railway operations. In 1869, a clear majority of the judges told the House of Lords that they favoured liability, but the Lords insisted that individuals must suffer for the greater good of all, since they could find nothing in the compensation provisions of the railway’s Act which covered this category of sufferers.272

C. Control of Land Use: Statutory Authorities i. Nuisance Removal Acts Nuisance proceedings, whether private or public, operated in a world of individual responsibilities, imposed mainly on landowners and occupiers. They were, moreover, a form of negative reaction to intolerable conditions. The first central authority to concern itself with public health problems, the Poor Law Commissioners, started off down much the same track: they looked to ways in which the jumble of local authorities concerned with this or that aspect of the overall problem – borough corporations, improvement commissioners, highway trustees, commissioners of sewers – could be incited to go into battle against those responsible for particular offences. Ammunition was supplied by a report written by three doctors, Thomas Southwood Smith, James Kay-Shuttleworth and Neil Arnott, whom Edwin Chadwick had set in motion after the London typhus epidemic in 1838. Their report was concerned primarily with the accumulation of rubbish, slops and sewage in individual dwellings of the city tenement areas. Scientific explanations of the relationship between such filth and disease were speculative and controversial, for without a germ theory it was unknown whether physical contact, or air, or water, was the chief means by which diseases passed. But the evidence pointed towards a correlation and it was plain that the dangers were increasing.273 One result of this, and of all the agitation which would follow, was a series of Nuisance Removal Acts. Their purpose was to give to local authorities the power to inspect houses for the cause of reeking smells, and to obtain an order from the justices in petty sessions that the source be removed by the householder; or if he would not act, by the local authority, with recourse for the cost against him. The first Nuisance Removal Act completed the variegate web of local authorities responsible for public health in this rather limited sense: where there was no corporation or commission responsible, in countryside as well as town, the guardians of the poor became the authority.274 However, the legislation required proof that the harmful activity be ‘injurious to health’, and this the courts treated restrictively,

the companies had to run cheap trains into the cities ‘to allow those displaced by demolition to stay within affordable travelling range of their workplaces’: S Bradley, The Railways: Nation, Network and People (Profile, 2015) 75. 272 Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171; contrast Duke of Buccleugh v Metropolitan Board of Works (1872) LR 5 HL 418, where the plaintiff was compensated for noise because he also had land appropriated (part of Montagu House taken for the Thames Embankment). 273 Poor Law Commissioners, Fourth Report, PP 1837–38 [147] XXVII App A; SE Finer, The Life and Times of Sir Edwin Chadwick (Methuen & Co, 1952) 156ff; RA Lewis, Edwin Chadwick and the Public Health Movement, 1832–1854 (Longmans, Green & Co, 1952) 34–38. 274 Nuisances Removal Act 1846, ss 1–2. See also Nuisances Removal Acts 1848, 1855 and 1860; and Nuisances Removal (Amendment) Act 1863.

162 Land requiring, as with common law nuisance, a definite disease, and not mere discomfort, to be the outcome.275 The nuisances against which action might be taken would also come to be defined in more comprehensive fashion: ‘black smoke’, for instance, would be specifically regulated by an Act of 1853.276 However, it was one thing for Parliament to legislate and another for local authorities to enforce, and regulatory efforts to limit emissions had little success, as ‘laissez-faire arguments – that any attempt to enforce anti-smoke legislation on to the manufacturing districts would be accompanied by the closing down of factories – neutralized reformist agendas.’277

ii. The Chadwick Report The doctors’ report to the Poor Law Commission advocated the introduction of building regulations which would require new houses to have at least a modicum of sanitation. Here was direct, though still regulatory, intervention in the private business of cheap housing and there was soon an outcry from those who put it up and those who ran it. It would take until the last quarter of the century for much to be done on this front.278 Even so, this was a limited vision compared with the panoramic plan which Chadwick then evolved in his Report on the Sanitary Condition of the Labouring Classes of Great Britain in 1842.279 He argued that the removal of festering rubbish and waste from towns had to be carried out on a scale that could not be left to those responsible for individual dwellings. He seized on an idea for which there was little precedent and no sure technique – an arterial drainage in which a fast-running, continuous water supply would flush sewage and slops right away from conurbations. While it was not impossible that complete drainage schemes of this order might be created by private enterprise, Chadwick’s first discussion of it, and much of the ensuing debate, assumed the issue to be about affirmative intervention by public bodies imposed by legislation and paid for by local rates. It was the most uncompromising proposal of the mid-century years for collective governmental action funded by taxation, and it attracted correspondingly great opposition. It also propounded an idea of public health intervention which was narrowly focused on the provision of water-based sewerage systems as the key mechanism by which disease could be prevented, and ignored other measures that could also have been deployed against the health problems caused by destitution, such as the increased provision of hospitals, pharmaceuticals and improved nutrition.280 However, it may be doubted that the mid-century politicians and electorate would have felt any more enthusiasm for expenditure in these other directions.281 275 See the Report of the Royal Commission on Noxious Vapours PP 1878 [C 2159] XLIV 26–7. 276 Smoke Abatement, London Act 1853. See also Metropolis Management Act 1855; Smoke Abatement, London Act 1856. 277 Luckin (n 261) 211. 278 See pp 179–83. 279 Published by the Poor Law Commission, but under Chadwick’s own name and not as a Blue Book; its author saw to its extensive promulgation. 280 For this reason Chadwick is denounced as an apologist for industrial capitalism in Christopher Hamlin’s iconoclastic Public Health and Social Justice in the Age of Chadwick: Britain 1800–1854 (Cambridge University Press, 1998). 281 cf P Mandler, Aristocratic Government in the Age of Reform: Whigs and Liberals, 1830–1852 (Oxford University Press, 1990) 281: ‘Interpretations of the “revolution in government” which rely on the smooth translation of outdoor pressure and “public opinion” into legislation ignore the strong ideological hostility to social reform to be found all along the high political spectrum, among middle-class Radicals, liberals in the Whig party, and Conservatives.’

Part 3: Land as an Industrial Resource 1750–1900 163 In Chadwick’s Report of 1842 the place of central authority was left in shadow. But as the case developed – through the two Reports of the ensuing Royal Commission282 and the activities of the well-supported Health in Towns Association – a central office or commission emerged as a crucial source of energy in the design. In a handful of the largest industrial cities – Liverpool, Manchester, Leeds, Newcastle – leading figures on the corporations and other bodies set sewerage and related schemes in motion by securing local Acts.283 Their problems were already too serious to await the emergence of any national planning; indeed the implementation of their arterial drainage schemes would be the first practical demonstration of Chadwick’s vision. He and his associates saw a central body as crucial not only to stimulate the second-order cities and towns into action, but even more to tackle the largest problem of all, the drainage and cleansing of London, with its splay of 250 parish vestries, six Commissions of Sewers, and (ultimate bastion) the Commission for the City proper.284

iii. The General Board of Health The General Board of Health came into being in 1848 for an initial term carefully limited to five years.285 It could intervene in a locality only upon a petition of one-tenth of the ratepayers or if the death rate per annum rose above 23 per thousand. Once brought in, the Board had considerable powers to require action (with the support of the rates) by establishing a local board of health. In boroughs this was the town council, in other areas a separate body elected by property owners and ratepayers. Many towns did seek the assistance of the Board in organising a sewerage and water system and it was almost always able to act by suggestion rather than compulsion. Despite this the Board would by 1851 have lost so much ground as to be fighting for its existence against virtually all the interest groups with any stake in public health questions: private water companies and cemetery companies (which saw their profitability endangered) and the plethora of local authorities, manufacturers, and professional groups of doctors, engineers and lawyers (the last in the guise of Parliamentary agents who undertook the legislative business of the private interest). The story of the Board’s failure is complex. It was made so partly by Chadwick’s inability to secure that the Board’s ordinary powers extended to the London metropolis. This led him to a series of proxy measures towards the same end – a Royal Commission on Metropolitan Sewering, and attempts to take over the water supply and the burial of corpses as distinct interventions – all of which brought nothing but extreme bitterness. In addition the re-emergence of epidemic cholera in 1848–1849 had a distracting effect on the Board, since it then acquired separate emergency powers of intervention, extending even to the London vestries and serving to screw their suspicions to a new pitch. Much of the failure had to do with personalities – above all, that of Chadwick, strong in self-belief and ready to war openly with the ignorance and self-interest which he detected on all sides, not always justifiably. Two lessons stood out. First, in the light of the Poor Law Commissioners’ experience, the form adopted for the new Board invited trouble.286 The three Commissioners of the 282 State of Towns Commission, PP 1844 [572] XVII; 1845 [602] VXIII. 283 Obtaining such local Acts was facilitated by the Town Improvements Clauses Act 1847. 284 For the difficulties encountered by these bodies, see D Sunderland, ‘“A Monument to Defective Administration?” The London Commissions of Sewers in the Early Nineteenth Century’ (1999) 26 Urban History 349; JG Hanley, ‘The Metropolitan Commissioners of Sewers and the Law, 1812–1847’ (2006) 33 Urban History 350. 285 Public Health Act 1848. 286 See pp 406–08.

164 Land Board consisted of a cabinet minister and two civil servants, Chadwick and Ashley;287 but the minister was given neither decisive authority nor ultimate responsibility. Once the first Cabinet member, Lord Morpeth, had been succeeded (in 1850) by the much less sympathetic Lord Seymour, it became plain that so highly contentious a subject must become both the responsibility and the charge of a Cabinet minister, if there was to be central direction at all; and that at the same time relations with the Treasury must be more clearly defined. Secondly, a Royal Commission, appointed by the Crown and not under Act of Parliament, ought not to become a device for decision-making. Such commissions had in the past been used to investigate problems and to adjudicate upon proposed solutions; some had been decidedly partisan in their recommendations and their membership. But the London Sewer Commission of 1847 was set up for the very purpose of planning an entire sewage system. As well as having a predominance of Chadwick’s nominees, it also contained Morpeth, Ashley, Southwood Smith and Chadwick himself, who were soon to constitute the General Board of Health. Morpeth felt it was a necessary sop to local democracy that there should be four representatives of the London vestries. They were able to make such trouble for the Commission partly because of the antagonism that could be whipped up to its very constitution. Toulmin Smith, a barrister with a roseate attachment to England’s local institutions, was able to represent the true liberty of the subject as under uncompromising attack.288 In 1854, Seymour engineered the removal of Ashley and Chadwick as members of the Board (against the judgment of Palmerston and Russell); its control passed largely to one of their opponents, Sir Benjamin Hall. Under him, it continued to work with cooperative localities, but the tide of feeling swept it away at the end of its second term in 1858. Even so, what happened was to a degree cosmetic. The Board’s officers were largely moved into a Local Government Act Office, which (significantly) was a branch of the Home Office.289 They continued with much of the work that they had been doing. The Medical Officership, however, was attached to the Privy Council in pursuit of its work against epidemic diseases, and grew notably in significance.290

iv. Sir John Simon and Public Health Legislation The Medical Officer appointed in 1855, Sir John Simon, was the second commanding figure of the public health movement, combining as he did a Chadwickian vision with an unacerbic temperament and great organisational flair. Simon brought the bulk of local authorities to trust and, even more, to rely on the central services of his own Medical Department and of the Local Government Act Office.291 This confidence enabled him to press for legislation which in the end would shape the whole range and administration of public health measures until 1936. In 1865 there was an Act on sewage utilisation which added the rural vestries to the labyrinth of sewerage authorities;292 in the next year a Sanitary Act extended 287 The latter at least sat in the Commons until his elevation to the Earldom of Shaftesbury in 1851. 288 See esp J Toulmin Smith, Centralisation or Representation? (S Sweet, 1848). 289 Local Government Act 1858. For the first time, by s 34, local authorities generally were empowered to stop the building of ‘back-to-backs’. 290 Public Health Act 1858; the Act was very nearly not made permanent in 1859. 291 Thanks to Simon’s influence, the former absorbed the latter in 1870. 292 Sewage Utilisation Act 1865.

Part 3: Land as an Industrial Resource 1750–1900 165 nuisance removal to the overcrowding of houses, insanitary places of work and industrial smoke. Then came an influential Royal Commission, mainly concerned with the structure of authorities, whose recommendations were crucial to the administrative reorganisations of the 1870s.293 In 1871, the Liberals at last brought poor law and public health administrations together in a single government department, the Local Government Board, with a President who was a Cabinet minister.294 To this they annexed a reorganisation of relations between central and local health authorities, doing a good deal to eliminate overlaps and mutual restrictions among the latter.295 It was under the Conservatives that the substantive powers were consolidated, rationalised and to some extent made more extensive.296 At last public health had come to be seen as too embracing and too complex a question to be left to the vagaries of the market. The opportunities were too substantial for monopolising what was profitable (such as water supply) and ignoring what was not (such as rubbish removal). Equally, in a political frame where public health was to be paid for in the main by the landowners and occupiers out of the rates for their immediate locality, it was for the local authorities to establish the main programme of action. But given the rapid advance of technical knowledge in most aspects of the subject, it was vital that central government should act as promulgator and point of reference for the most advanced information. To these prevailing conditions, Simon had adapted the new bureaucracy.

v. Judicial Control of Administrative Action The tensions of public health could not, however, be dispelled by the enlightenment of Simon’s Reports. The owners and occupiers who would have to pay were by no means converted to the intrusive and costly ideas of the second wave of bureaucrats. So the planning of any health authority had to start from the premise that against it stood a range of legal protections which the courts could be expected to uphold unless power to interfere had been granted by Parliament in unambiguous terms. In the classic test of the priority of rights, the Metropolitan Asylum District, acting under statutory power,297 erected a smallpox hospital in the pastoral suburb of Hampstead. The House of Lords granted an injunction against receiving such patients because the danger of infection amounted to a nuisance of which surrounding occupiers could complain; and a mere statutory power (as distinct from a duty to act) did not license an invasion of the common law rights of others.298 At the very least, provisions to compensate for the ‘injurious affection’ would have been included, if Parliament had intended otherwise.299 Nonetheless the authorities were acquiring numerous powers and duties to act in ways which did indeed break in upon private rights. The general run of public health 293 Sanitary Commission, Second Report, PP 1871 [C 281] XXXV. 294 Local Government Board Act 1871. 295 C Bellamy, Administering Central-Local Relations, 1871–1919: The Local Government Board in its Fiscal and Cultural Context (Manchester University Press, 1986). 296 Public Health Act 1875. One consequence of the amalgamation was that the Poor Law officials (headed by John Lambert) became dominant; this led to Simon’s resignation in 1876. 297 Metropolitan Poor Law Act 1867. 298 Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193. 299 As in Hammersmith Railway (n 272).

166 Land a dministration involved a mixture of fact-finding and evaluation that would in the end affect individuals and so resemble much of the decision-making in courts. Issues were beginning to arise out of which an administrative law must needs evolve, however much common lawyers would seek to sap it of any independence meriting the name. Thus there were important questions of the proper procedures to be followed in reaching administrative decisions and of the extent to which the ordinary courts would supervise the process. London sewerage authorities, for instance, had been given power, if a builder did not give them due notice in advance before starting to build, to pull down what had been built. The Court of Common Pleas, shocked by the extent to which private property might thus be invaded, held that, no matter how defiant or devious a particular builder might have been, the authority must give him the opportunity to be heard before ordering the demolition. Common law requirements of ‘natural justice’ applied to the authority’s decision, which was characterised as ‘judicial’. Failure to comply made the authority liable in trespass.300 The new machinery of government was bound at least to observe procedural ‘due process’ in much of what it did. Private interest became all the more powerful when it acquired a majority on a local authority and ensured a policy of masterly inactivity. Thus there carried over from Chadwick the ultimate question of how far central authority might force local action. While the legal powers of intervention given in 1848 had mostly been removed with the winding up of the General Board of Health a decade later, it was part of Simon’s achievement gradually to revive the possibility. Nothing could be done as long as the local authorities were only given power to act and not placed under any duty. But a few duties, such as that of clearing streets of rubbish, had survived from 1848 and these were added to, for instance, in the Sanitary Act 1866, which imposed a duty regularly to inspect for nuisances and to take action against them.301 To enforce such obligations, Simon himself looked to high judicial authority, turning to the traditional method of mandamus from Queen’s Bench. The Government, however, had sought to make the issue a local one; the justices of the peace were to have power to order that default in the provision of drainage, sewerage and water supply should be made good at a charge recoverable from the defaulting authority. But this so displeased local interests, that in the end any attempt at judicial interposition was abandoned and the power was conferred without demur on the Home Secretary.302 For all the protests of the last 20 years, the executive had acquired a new power in the complex business of seeing interventionist policies through to results.

vi. Bye-Laws and Inspectorates By 1870, it was plain to all that public health control was a matter far beyond the resources of traditional judicial procedures,303 and that it needed administration by doctors, architects,

300 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180. 301 Sanitary Act 1866, Pt II. 302 Sanitary Act 1866, ss 16 and 49. 303 As illustrated in the series of investigations into river pollution (PP 1867 [3835, 3850] XIX; PP 1870 [C 7, 37, and 181] XL; PP 1874 [C 951 and 112] XXXII).

Part 3: Land as an Industrial Resource 1750–1900 167 chemists, engineers and other new experts.304 As we have seen, the courts, left to themselves, would interfere only when a nuisance was truly serious; but they might then create an extremely difficult impasse. Administration, by contrast, might avoid this by stimulating preventive action.305 Sewerage systems, for instance, had become a crucial safeguard in making urban housing less unhealthy.306 Under the Public Health Act 1875, local authorities would acquire new powers to impose minimum standards upon building and street lay-outs, aiming particularly to ensure some sufficiency of light and air.307 From this point began the ‘bye-law era’ of housing regulation which would leave so many British towns with long streets of uniform, single-fronted dwellings. Monotonous they mostly were, but a necessary improvement on much that had gone before. In other spheres it was sometimes possible to make rapid progress by the introduction of new techniques. By the time that the acid rain of west Lancashire had become a subject of litigation in the St Helens case,308 action had already been taken by Parliament.309 Under an Act of 1863, a central inspectorate of alkali works, headed by the sanitary chemist, RA Smith, had begun work.310 They were able to insist on installation of a condensation process which liquefied the discharge of hydrochloric acid. Moreover, what had until then been treated as a waste product in the production of sodium carbonate was found to have its own industrial uses. This surprising dispersion of a grave problem set in train an administrative system of careful collaboration between producers and inspectors, with the latter acting as engineering consultants rather than officious persecutors. Prosecutions were rare, and remained so even as the Inspectorate turned its attention to the many other, less tractable problems of air pollution. Much the same attitude would be engendered in the rivers inspectorate established in 1876.311 It was a tradition which required reasonable expenditure when improved techniques evolved, but responded readily to arguments that the only practicable means of reducing a danger would jeopardise the profitability of a business and hence the jobs of its workforce. In working out this process of compromise, the inspectorates generated a mass of detailed rules (eg on maximum permitted levels of polluting discharge) but mostly administered them in an accommodating spirit that provoked few appeals against undue imposition.

304 On the doctors, see C Hamlin, ‘State Medicine in Great Britain’ in D Porter (ed), The History of Public Health and the Modern State (Editions Ropi BV, 1994); C Hamlin, ‘Public Sphere to Public Health: The Transformation of “Nuisance”’ in S Sturdy (ed), Medicine, Health and the Public Sphere in Britain, 1600–2000 (Routledge, 2002). 305 C Hamlin, ‘Nuisances and Community in Mid-Victorian England: The Attractions of Inspection’ (2013) 38 SH 346. 306 T Crook, ‘Sanitary Inspection and the Public Sphere in Late Victorian and Edwardian Britain: A Case Study in Liberal Governance’ (2007) 32 SH 369. 307 Public Health Act 1875, ss 149–63. In the hope of persuading local authorities to act, the LGB published a first set of model bye-laws in 1877. The legislation was itself strengthened in 1890. 308 St Helens Smelting (n 264). 309 The Lords’ Select Committee on the subject (PP 1862 (486) XIV) was the creature of northern landowners. 310 Alkali Act 1863; on which see RM Macleod, ‘The Alkali Acts Administration, 1863–84: The Emergence of a Civil Scientist’ (1965) 9 VS 85; C Garwood, ‘Green Crusaders or Captives of Industry? The British Alkali Inspectorate and the Ethics of Environmental Decision-Making, 1864–95’ (2004) 61 Annals of Science 99. 311 Under the Rivers Pollution Prevention Act 1876, on which see M Lobban, ‘Tort Law, Regulation and River Pollution’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2013).

168 Land

Part 4: A Gradual Transformation 1870–1950 A. The Attack on Strict Settlements i. The Land Question The amount of land held in strict settlement has never been accurately known, let alone the degree of strictness that different settlements imposed, but it seems likely that during the nineteenth century at least half of the agricultural land in England was settled, and on any reckoning the settlement system was central enough to the power of the landed class for it to be a prime object in attacks on their position. After 1867, the ‘Land Question’ became the subject of deep political feeling. It never acquired the vehemence which it attracted in Ireland, for its social roots were different. It was not the cause of a downtrodden tenantry resisting subjugation to absentee landlords and their grasping agents. It was a political challenge from a boisterously successful middle class – increasingly from radicals who were intellectual and professional by background. Support from those most immediately affected – the tenant farmers – was hard to secure at any time before the agricultural depression of the late 1870s, and even afterwards was not easy to sustain. A good measure of the attack consisted simply of denunciation of the landed interest, but it achieved its clearest focus in plans for change, and these largely took the form of demands for more or less realistic law reform.

ii. Adam Smith and the Benthamites Adam Smith had attacked entails for the political preferment which they helped to sustain and for the lack of economic incentive given to the life tenant to improve his estate; Smith’s preference was for the yeoman with his 40s freehold.312 Even more basic was the prominence given by David Ricardo to the notion of economic rent, the surplus profit which the large estate owner could extract from his monopoly over the ultimate resource for the sustenance of life. Yet Ricardo shared with Jeremy Bentham and other utilitarians a preference for large estates because of their efficiency. It was therefore difficult to find any thoroughgoing solution to the settlement problem, and the philosophic radicals occupied themselves instead with the adjectival (conveyancing) or the purely symbolic (primogeniture). The Benthamite conveyancer, James Humphreys, published an insider’s critique in 1826 that aroused great controversy.313 From it Brougham derived ammunition for his famous marathon speech on law reform in 1828, and it engaged the attention of the Real Property Commissioners of 1829–1833. However, while Humphreys was prepared to argue for a substantial increase in the powers of the tenant for life of settled land, not only to grant

312 Wealth of Nations (n 180) Bk 3, chs 2 and 4. 313 Observations of the Actual State of the English Law of Real Property, with the Outlines of a Code (J Murray, 1826); see also John Miller’s Inquiry into the Present State of the Civil Law of England (J Murray, 1825) and Jeremy Bentham’s ‘Commentary on Humphreys’ Real Property Code’, published in the Westminster Review, October 1826. Sir Edward Sugden, later Lord St Leonards, leading expert in matters of property law and flinty defender of the status quo for the next forty years, responded in his Letter to James Humphreys (J & WT Clarke, 1826) 14: ‘the strict settlement is free from all objection … whoever complained of the complex movements in a well finished watch?’

Part 4: A Gradual Transformation 1870–1950 169 leases binding his successors but also to sell, exchange or partition the estate and use the proceeds to pay off encumbrances, the Commissioners remained much closer to the orthodoxies of the day. The land law, except in a few comparatively unimportant particulars, appeared to them to come as near to perfection as can be expected in human institutions.314 The powers of settlement and testamentary disposition, when read with the rule against perpetuities, were compared favourably with the legal shackles imposed in some countries of European continent: ‘while capricious limitations are restrained, property is allowed to be moulded according to the circumstances and wants of every family.’315 The Commissioners contented themselves with criticisms of conveyancing procedures, which many considered to be outrageously cumbrous and defective.

iii. Mid-Century Attacks Between the Reform Acts of 1832 and 1867, the radicals in Parliament introduced a succession of bills to abolish primogeniture.316 They did so without expecting this to achieve anything of direct importance, since primogeniture, as a legal principle, operated only on the intestacy of the owner of freehold land, and such a last resort was rarely needed. Their demand was a purely political symbol. Each bill signalled a joust between attackers and defenders of the landed system – between those who saw ‘feudal prejudice and error’ as ‘much of what was monstrous in the social and political condition of the country’317 and those to whom any concession was ‘incompatible with the existence of a landed gentry,’ something tending to ‘republicanism’.318 At most the abandonment of primogeniture was to its proponents the thin end of a wedge that might eventually force out entails as contrary to public policy. The Anti-Corn Law enthusiasts who had massed popular support for an attack on landed privilege secured their object in 1846 with disarming ease. The thorough-minded amongst them tried to sustain the drive by turning it against the land law. Middle-class liberals took up the reform of over-strict settlements, the laws of succession, lack of security or compensation for tenants, the game laws and conveyancing. A little was achieved: their pressure, for example, contributed to enactments increasing the power of the life tenant under a settlement; mortgaged land became the prime source from which money due was to be repaid by those administering a debtor’s assets;319 and agricultural tenants were given the right to remove their ‘trade’ farming fixtures.320 This new campaign, with ‘free trade in land’ as its battle-cry, became entwined with the aspirations of the working-class freehold land societies (which sought to buy suburban plots for building purposes),321 and with Cobden’s plans for creeping democracy – the county electorate to be transformed by multiplying

314 First Report, PP 1829 (263) X 6. 315 ibid 7. 316 L Bonfield, ‘Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship’ (2018) 58 AJLH 479. 317 William Ewart, in debating the first Primogeniture Bill in 1836, PD XXXVII 739. 318 Palmerston during the primogeniture debate of 1859, PD CLII 1154–55. 319 Real Estate Charges Act 1854; and see Real Estate Charges Act 1867. 320 Landlord and Tenant Act 1851, s 3. 321 M Chase, ‘Out of Radicalism: The Mid-Victorian Freehold Land Movement’ (1991) 106 EHR 319.

170 Land 40s freeholds.322 But the freehold land movement gained ground only very slowly and tended to install voters who regressed. Land reform lost its way in the mid-century years of Palmerston’s administration, as did the whole movement for further political concession. There was also a working-class interest in a return to ‘peasant’ farming, centred for a time in Feargus O’Connor’s Chartist Land Company. But after the founding of a few ‘colonies’ this ended in financial collapse.323 On the other remaining flank of Chartism, Bronterre O’Brien developed ideas at a long remove from such re-adjustments of individual proprietorship: his plan for land nationalisation marked the birth of state-directed socialism in the British political spectrum.324 Moreover, his plans were thorough-going enough to open a debate about means that fomented dissension among reformers in all that followed. O’Brien himself wanted dominion in all land to be vested in the state, which would determine the size of farms, the proportion of tillage to pasturage and so forth; land would be let at auction to the highest bidder, thus allowing increased values to be reflected in rents.

iv. After the Second Reform Act In the world re-ordered by the Second Reform Act, the Land and Labour League preserved the O’Brienite inheritance, being among the first to appreciate its place in a Marxian analysis of capitalism. Somewhat uneasily by its side, the more middle-class Land Tenure Reform Association formed an alliance, concerned with the case either for land nationalisation or for taxation of the ‘unearned-increment’ in the capital value of land.325 By contrast, the mainstream of middle-class radicalism preserved a preference for private property, redistributed through the mechanism of the market – the Cobdenite demand for ‘free trade in land’.326 The case was systematically organised: detailed proof was offered of the inefficiencies of an agricultural regime of landlords and tenant farmers, in contrast with the vigour and productiveness of the ‘peasant’ ownership found on the continent. For this the protagonists tended to blame differences of law, rather than differences in attitude and economic opportunity. Social customs could be denounced, but law could be reformed. So they continued the old grievances over conveyancing costs and lack of security for tenants, and they proclaimed the virtues of compulsory partition of property upon death amongst all the children or remoter issue. But more than anything, they demanded the abolition of the strict settlement, which rendered the death of any one life tenant of no significance to the passage of an estate down the line of first-born males. The evil of settlements was indeed the one cause upon which land reformers of every hue could agree.

322 GR Searle, Entrepreneurial Politics in Mid-Victorian Britain (Oxford University Press, 1993) 212–13. 323 AM Hadfield, The Chartist Land Company (Square Edge Books, 2000); M Chase, ‘“Wholesome Object Lessons”: The Chartist Land Plan in Retrospect’ (2003) 118 EHR 59. 324 JE Barry, Nationalisation in British Politics: The Historical Background (Jonathan Cape, 1965) 28–41. 325 JS Mill, Charles Dilke and Henry Fawcett were leading members of the latter. In 1881 the Land Nationalisation Society was formed, and in 1883 the Land Reform Union: MC Finn, After Chartism: Class and Nation in English Radical Politics, 1848–1874 (Cambridge University Press, 1993) 265ff. 326 JW Probyn (ed), Systems of Land Tenure (Cassell & Co, 1870, 1881); Sir J Caird, The Landed Interest and the Supply of Food (Cassell & Co, 1878); J Kay, Free Trade in Land (Cassell & Co, 1879); Sir R Arnold, Free Land (Kegan Paul & Co, 1880); Sir GO Morgan, Land Law Reform in England (Chapman & Hall, 1880); G Shaw Lefevre, English and Irish Land Questions (Cassell & Co, 1881); Sir F Pollock, The Land Laws (Macmillan & Co, 1883).

Part 4: A Gradual Transformation 1870–1950 171 An impending climax built up in the 1880s, compounded by the British appearances of the American ‘single taxer’, Henry George, in 1881–82.327 He restated ideas about the re-appropriation of economic rent in uncompromising terms, demanding a capital tax on land that would remove the kernel and leave only the shell of landownership. At the same time, Joseph Chamberlain and his lieutenant, Jesse Collings, pushed the individualist cause to an extreme in the ‘Unauthorised Programme’ for the 1885 election: they planned to compel the repopulation of each three acres (plus cow) with peasants drawn from the best working-class stock of the teeming towns.328 But Irish Home Rule, which really sparked the politics of these years, also burnt out the fuel for land reform. The issue was postponed, and its counterpart – the confrontation between Lords and Commons – smouldered on for a generation.

v. The Settled Land Act 1882 Meanwhile the best advisers of the landed interest had already secured the one substantial amendment to the settlement system that was to be achieved: the Settled Land Act 1882. This gave the incumbent tenant-for-life statutory powers to sell, mortgage, lease and improve the land which could not be excluded by the terms of the settlement and which he could not surrender by agreement with his father or anyone else. He could sell or mortgage the whole or any part of the estate, the consent of the court or the trustees of the settlement being needed only in the case of those ultimate symbols, the mansion house and the heirlooms. He could grant building leases up to 99 years, mining leases up to 60 years and other leases up to 21 years. The interest of the other beneficiaries was translated from one in the land itself into one in the land or its proceeds. The tenant for life was required to pay to the trustees (or the court) the price of any sale for reinvestment in land or other suitable securities. This ‘overreaching’ gave the power of decision very largely to the current head of the family, rather than to his trustees, who ‘would naturally take a languid and platonic view of the situation.’329 To some the 1882 Act was ‘revolutionary’, but its drafters’ intention was to deflect more serious attacks. The land reformer, Arthur Arnold, tried to persuade his fellow Liberals that it was a life tenants’ (ie a House of Lords’) measure incompatible with their pledge for genuine reform of the land law. The Act wrote into all settlements the sort of power that (in one form or another) had already been incorporated into well-drawn settlements where the family was not thought to need special protection from the heir apparent. Thus, the Conservative Law Lord, Macnaghten, summarised the point of the legislation thus: A period of agricultural depression, which shewed no sign of abatement, had given rise to a popular outcry against settlements. The problem was how to relieve settled land from the mischief which strict settlements undoubtedly did in some cases produce, without doing away altogether with the power of bringing land into settlement.330 327 His Progress and Poverty had a British edition (Kegan Paul & Co, 1881). 328 HJ Perkin, ‘Land Reform and Class Conflict in Victorian Britain’ in J Butt and IF Clark, The Victorians and Social Protest (David and Charles, 1973); P Readman, ‘Jesse Collings and Land Reform, 1886–1914’ (2008) 81 HR 292. 329 A Underhill, ‘Changes in the Law of Real Property’ in A Century of Law Reform: Twelve Lectures on the Changes in the Law of England during the Nineteenth Century (Macmillan & Co, 1901) 292. 330 Lord Henry Bruce (An Infant) v Marquess of Ailesbury [1892] AC 356, 364–65.

172 Land Nonetheless the Act came at a time when it appeared to have distinct consequences. By 1890 there were enough owners of large estates seeking to escape the effects of depression by selling out for the market to be glutted, at least with estates being offered as a piece. By 1910 Lloyd George’s threatening People’s Budget then set off the movement for selling estates in parts, mainly to existing tenants. If the 1882 Act never produced the social revolution demanded by the land reformers, it did provide the power to make many of the land sales which occurred before and after WWI.

vi. Gladstonian Liberals Reform of the settlement system did not stand by itself. There came at the same time a clutch of alterations to conveyancing practice331 and to the law of agricultural landlord and tenant. In Ireland, landlordism fired an inextinguishable rage and Gladstone, at least, saw concession as the only hope. He pushed through two reform acts, in 1870 and 1881, which provided a first measure of protection to tenants: to begin with, compensation for improvements; and then the truly substantial departures from ‘free contract’ – fair rents, free sale and fixed tenures.332 In England, too, pressure from the farmers led to reform of agricultural tenancies.333 To an earlier enactment allowing tenants to remove ‘trade’ fixtures in certain circumstances, there was added a right to compensation for improvements, notably drainage and manuring, which remained beneficial to the land after the termination of the tenancy. When first conceded in 1875, landlords were allowed to ‘contract out’ and many did so.334 Gladstone’s second Government removed this possibility.335 The landlord also lost his power to reserve the sporting rights exclusively to himself,336 and the law of distress was curtailed to put the landlord more in the position of the farmer’s other creditors, such as the seed merchant.337 The radical and urban elements in the Liberal party were able to carry the argument that these new, pre-emptive laws were not constraints upon freedom of contract. They were to be seen as part of the underpinning provided by the state in enforcing contracts through its legal machinery. As such, the adjustments were necessary in order to enhance the economic freedom of the tenant to make the most of his opportunity. In an age of novel uncertainty over the future of domestic agriculture, the tenant was coming to be an object of real political concern.

vii. The End of the Land Question In the end, though, the Land Question was never answered. In Michael Thompson’s words, ‘the intensity of political and intellectual passions in attacking or defending 331 See pp 173–79. 332 ED Steele, Irish Land and British Politics: Tenant-right and Nationality, 1865–1870 (Cambridge U niversity Press, 1974); WE Vaughan, Landlords and Tenants in Mid-Victorian Ireland (Clarendon Press, 1994); TW Guinnane and RI Miller, ‘The Limits to Land Reform: The Land Acts in Ireland 1870–1909’ (1997) 45 Economic Development and Cultural Change 591. 333 JR McQuiston, ‘Tenant Right: Farmer Against Landlord in Victorian England 1847–1883’ (1973) 47 Ag HR 95; JR Fisher, ‘The Farmers’ Alliance: An Agricultural Protest Movement of the 1880s’ (1978) 26 Ag HR 15. 334 Agricultural Holdings (England) Act 1875, esp s 54. 335 Agricultural Holdings (England) Act 1883, esp s 55. 336 Ground Game Act 1880 (esp s 2), an Act made inevitable by evidence of the havoc to crops that rabbits and other game could wreak if the tenant was allowed no control. 337 Agricultural Holdings (England) Act 1883, Pt II.

Part 4: A Gradual Transformation 1870–1950 173 [the peculiarities of the British land-holding system] collapsed, almost overnight, with the First World War’.338 After that, the great landowners shifted much of their wealth away from their estates; their tenants and others came in as full owners of the land and took on the risk of farming it.339 Sales were prompted by the need to pay death duties (raised to 40 per cent in 1919) and by the desire of the landed rich to diversify their investments. In Thompson’s words, these sales produced ‘a considerable redistribution of land … without any help from the land reformers’ pet schemes’; their effect was also to realise in a completely unexpected way the old radical aim of reviving the yeomen farmers, except that the new commercial farmers bore little resemblance to the idealized prototype and had the disobliging habit of being conservative and protectionist in their policies.340

B. The Art of Conveyancing i. Overview Any system of private property in land generates formal procedures for establishing title and interests. In England the art of conveyancing became peculiarly recondite, partly through the very sophistication which had been brought to dividing up interests and partly through the lack of any systematic public record of rights. As far the latter was concerned, copyholds and dealings in them were required to be entered in the manorial rolls. But for freehold and leasehold, the only surviving equivalents had been established in Middlesex and Yorkshire, both commercially buoyant and relatively democratic counties, where registration of the deeds embodying land transactions was required.341 But these registers failed to become a model for other local initiatives, and as a series of official investigations were to deplore, the state of many titles was most difficult to ascertain. At different times, leading lawyers espoused the case for public registration in one form or another, but progress in this direction was to prove highly elusive. Avner Offer and Stuart Anderson have debated the reasons for this.342 Offer has argued that the compulsory public registration of deeds or transfers would have significantly reduced costs and delay, but that such a measure was cynically resisted by the solicitors 338 FML Thompson, ‘Changing Perceptions of Land Tenures in Britain, 1750–1914’ in D Winch and P O’Brien (eds), The Political Economy of the British Historical Experience, 1688–1914 (Oxford University Press, 2002) 120. 339 How much of the land passed to new owner-occupiers in the decade following WWI is disputed; Thompson puts it as high as one-quarter: J Beckett and M Turner, ‘End of the Old Order? FML Thompson, the Land Question, and the Burden of Ownership in England, c 1880–1925’ (2007) 55 Ag HR 269; FML Thompson, ‘The Land Market, 1880–1925: A Reappraisal Reappraised’ (2007) 55 Ag HR 289. 340 FML Thompson, ‘The Strange Death of the English Land Question’ in M Cragoe and P Readman (eds), The Land Question in Britain, 1750–1950 (Palgrave Macmillan, 2010) 263. 341 Yorkshire (West Riding) Land Registry Act 1703; Middlesex Land Registry Act 1708; Yorkshire (North Riding) Land Registry Act 1735. The Court of Chancery held that a conveyance of land in either county would bind a later purchaser who had notice of it: Le Neve v Le Neve (1747) Amb 436. 342 A Offer, Property and Politics 1870–1914: Landownership, Law, Ideology and Urban Development in England (Cambridge University Press, 1981); JS Anderson, Lawyers and the Making of English Land Law: 1832–1940 (Oxford University Press, 1992); A Offer, ‘Lawyers and Land Law Revisited’ (1994) 14 OJLS 268; JS Anderson, ‘Property Rights in Land: Reforming the Heritage’, ‘Land Transactions: Settlements and Sales’, and ‘Changing the Nature of Real Property Law’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010) esp 64–71, 94–109 and 179–231. On the same topic, see also J Howell, ‘Deeds Registration in England: A Complete Failure?’ (1999) 58 CLJ 366.

174 Land to preserve their conveyancing monopoly. Anderson has countered that the conveyancing system was cheaper than is usually thought and better adapted to the needs of clients. He has also noted that from the early 1800s special clauses were inserted into contracts for the sale of land whose effect was to shift the risk of defective titles from seller to buyer, that their effect was to reduce time and money spent on title checks, and that their widespread use by the 1870s influenced the content of the simplifications which were enacted in the Vendor and Purchaser Act 1874. In Anderson’s view, the forms of registration proposed by reformers could not have coped with the transactions of the time, and even if solicitors were motivated to oppose public registration and bureaucratic centralisation by selfish considerations, that did not mean that their objections were essentially wrong in principle.

ii. The Conveyancing System The steps involved in transferring a freehold were intricate and costly.343 If there were a sale of the interest, the parties first had to identify the property and the price, and the contract would then be recorded in the form of memorandum required by the Statute of Frauds 1677. The vendor had then to establish his title by showing that there was no one still within the time limit for ejecting him (a negative proof typical of common law method). Failure to do this had limited consequences owing to the rule in Flureau v Thornhill,344 which held that the buyer could recover his deposit but could not recover expectation damages for loss of bargain (or reliance damages for anticipatory expenditure); this rule survived the development of a general rule for the recovery of expectation damages for breach of contract,345 the judges taking the view that the business of land transfer had its own special usages.346 Furthermore, a buyer who accepted a conveyance of a title that turned out to be inadequate could not sue for breach of the contract of sale: objections to the title had to be taken between contract and conveyance.347 In theory at least, thanks to the survival of the medieval ‘real’ actions, the relevant periods of limitation were long indeed, and required conveyancers to look for documents of title going back 60 years, or even 100 – although in practice, conveyancers in the second half of the century came to regard a title going back for 40 or even 20 years as commercially good. Some titles needed a private estate Act to clarify them. The vendor had to list the various transactions – settlements, mortgages, leases, rentcharges and so on – affecting the land since the title on which he relied. Against the danger that an intervening right would be overlooked or suppressed, conveyancers had constructed a cumbersome and by no means efficient shield: long leases were granted to trustees for the sole purpose of satisfying some future purchaser that he need not have regard to transactions made subsequently to the lease. These ‘attendant terms’ had themselves to be investigated and they were not proof against all conflicting rights. Eventually, if these hurdles were surmounted the transaction would be rounded off with a conveyance that required further elaborate documentation involving

343 See generally, Real Property Commissioners, Second Report, PP 1830 (575) XX. 344 (1776) 2 W Bl 1078. 345 In Hadley v Baxendale (1854) 9 Ex 341. See p 206. 346 Sikes v Wild (1861) 1 B & S 587; Bain v Fothergill (1874) LR 7 HL 158. 347 Bree v Holbech (1781) 2 Doug KB 654; Johnson v Johnson (1802) 3 Bos & P 162; reaffirmed in Soper v Arnold (1889) 14 App Cas 429.

Part 4: A Gradual Transformation 1870–1950 175 the grant of a lease to the purchaser and then a release of the vendor’s reversion under that lease as well as the appointment and assignment needed to deal with the ‘attendant terms’.

iii. Reform All of this struck the Real Property Commissioners as ‘exceedingly defective’. They proposed a register of conveyances, drawing on the Yorkshire and Middlesex precedents. Campbell, the chairman, and Brougham, the instigator of the Commission, were persistent presenters of bills to implement the recommendation. The fate of the Bill of December 1831 illustrates why progress was difficult. Provincial solicitors – in an age before easy mails – feared that a register would place all the conveyancing business in the hands of their metropolitan brethren. They fomented criticism by suggesting to landowners that the registry proposal was a plot: it would provide the record on which to base a new land tax. Counter-petitions flooded the Commons and drowned the Bill.348 Instead, legislation was enacted to facilitate land transfers by implementing technical recommendations of the Real Property Commissioners on a smaller scale: the Real Property Limitations Act 1833 barred certain claims that would have shown the seller’s title to be bad,349 and other difficulties in establishing a title, such as those raised by possible rights of dower,350 were overcome; the conveyance of freehold was rid of its plethora of documents by abolishing ‘lease and release’ and the ‘attendant terms’ in favour of a single deed of grant;351 the process of barring an entail was much simplified by dispensing with its fictitious actions;352 wills of real and personal property were made subject to the same formalities and all realty owned at death was covered by a will made earlier;353 and the rules of inheritance of freehold on an intestacy were simplified in the interests of making title and transfer easier.354 Brougham and others were also responsible for an Act which aimed to eliminate much formal verbiage from conveyances by enacting short forms that would have the same effect,355 but this legislation was quietly ignored by conveyancers whose bills were calculated ‘by the yard’. A new Royal Commission (1847–1850), which collected much evidence about foreign systems of registration, returned to the virtues of a register of deeds.356 But Lord Campbell’s attempt at implementation drew great hostility: the Incorporated Law Society claimed – against the reformers’ case – that the register would increase the cost of conveying small properties, and – drawing on more established sympathy – that there would be a dangerous disclosure of family arrangements and settlements.357 A Select Committee on a subsequent 348 See Royal Commission on Registration and Conveyancing, PP 1850 [1261] XXXII. See too AR Buck, ‘Property Aristocracy and the Reform of the Land Law in Early Nineteenth Century England’ (1995) 16 Legal History 63. 349 This legislation also abolished most of the old ‘real’ actions. 350 Dower Act 1833. 351 Law of Real Property Amendment Act 1845 and Satisfied Terms Act 1845. Until this legislation corporations had been obliged to convey by the medieval form of livery of seisin. The need of trustees to preserve contingent remainders in settlements was removed by the Transfer of Property Act 1844 (repealed in the Law of Real Property Amendment Act 1845, s 8). 352 Fines and Recoveries Act 1833. 353 Wills Act 1837. 354 Inheritance Act 1833; and see Law of Property Amendment Act 1859, ss 19 and 20. 355 Conveyance of Real Property Act 1845. Attorneys’ conveyancing bills were subjected to taxation by the courts: Solicitors Act 1843, s 37. 356 PP 1850 [1261] XXXII; and see the preceding Select Committee (HL), PP 1846 (411) VI viii. 357 The Society was at this point under considerable pressure from provincial attorneys. It was also conducting an inconclusive campaign against the certified conveyancers and conveyancing barristers.

176 Land bill for the first time distinguished the concept of a titles register – ie a register which not merely recorded transactions so that anyone interested could make what they could of them, but one which stated and guaranteed the title and interests in the specified land.358 Yet another Royal Commission (1854–1857) favoured the adoption of such a system, with a tri-partite register for fee simples, leases and charges (mortgages and other encumbrances); equitable interests would be protectable only by caution or notice.359 After attempts at implementation by both Cranworth and Cairns, Westbury succeeded with the Land Registry Act 1862.360 Just as the highly successful Torrens title registries were beginning to be set up in the Australian colonies,361 the case for public regulation in the mother country seemed also to have been won. The Law Society Council appears if anything to have favoured the new Land Titles Registry, sensing perhaps that, however much the Act might admit a principle, its terms precluded much damage in practice because it only permitted the registration of a title which was sounder than was usually required in conveyancing practice, and which would therefore make for expense and the rousing of sleeping defects. Westbury had, moreover, been obliged to drop compulsion to register.362 At all events, it was soon obvious that solicitors and clients between them had no interest in this means of removing the actual or possible defects in titles which supposedly rendered them so expensive or difficult to deal with.363 Certainly the reaction of solicitors (particularly in the provinces) was very different once this failure was investigated and first Selborne and then Cairns attempted to make registration compulsory upon the first change of ownership. All Cairns managed was a new Act making registration possible without proof of an evidently indefeasible title and reducing limited interests, such as estates for life and in fee tail and short leases, to entitlements capable of protection by caveat.364 But these amendments were irrelevant; even fewer titles were registered365 and so the continuing failure of the scheme became an important strand in the Land Question of the eighties. Just as the Settled Land Act 1882 was passed before the ‘free trade’ campaign reached its zenith, so there came one change in unregistered conveyancing practice that had for so long eluded the reformers. The practice of paying for documents according to length was finally eliminated, but at the price of a scale of fees for conveyancing which were proportionate to

358 PP 1852–53 (889) XXXVI. 359 PP 1857 (ii) [2215] XXI. The fee simple owner would have an option of registering an indefeasible title guaranteed by the state. 360 This was linked with the Chancery Regulation Act 1862, which gave the Court of Chancery power to make declarations of title; these thereupon became registrable indefeasibly. And there followed further improvements to unregistered conveyancing: eg Law of Property Amendment Act 1859 (also called Lord St Leonards’s Act) (powers of appointment, trustees’ powers) and Trustees’ Powers Act 1860 (also called Lord Cranworth’s Act) (trustees’ and mortgagees’ powers). 361 The first was South Australia in 1858, where anti-lawyer feeling ran so high that the conveyancing monopoly was also extended to land agents. The system devised by Robert Torrens for that colony differed from the registration of title system that was to develop in England, above all in having a truly public register: Select Committee, PP 1878–1879 (244) XI vii and Evidence, 1752–1949. 362 H Kirk, Portrait of a Profession: A History of the Solicitor’s Profession, 1100 to the Present Day (Oyez Publishing, 1976) 139. 363 In the period 1862–1868, original registrations totalled 416. A further Royal Commission explained this lack of use by pointing to defects in the structure of the 1862 Act: PP 1870 [C 20] XVIII xiv–xv and App 75–76. 364 Land Registration Act 1875. 365 In the first three years only 48 titles were registered: PP 1878–1879 (244) XI iv.

Part 4: A Gradual Transformation 1870–1950 177 the value of the transaction.366 This solution had been actively promoted by the Law Society from 1870 onwards. It became, indeed, ‘the guarantee of the profession’s prosperity until 1972’.367 The Settled Land Act 1882 and the Conveyancing Acts 1881–82 also made the forms which had developed as best conveyancing practice the default option in ‘open contracts’ for the sale of land, allowing conveyancers to omit much of the documentation which had previously been used to confer powers or to create covenants which could now be taken for granted.368 These economies in unregistered conveyancing slackened the pressure for a compulsory titles register, although the latter system stayed in operation. In FortescueBrickdale, Chief Land Registrar from 1900 to 1923, it acquired a determined champion. The introduction of scale fees for private conveyancing, if anything, served to sharpen the battle of the systems. The Registry ‘announced’ that a purchaser of registered land acting for himself would pay an official fee that was between one-fifth and one-quarter of a solicitor’s scale charge for unregistered land.369 The solicitors, moreover, did not help their case by pressing for the private scales to be increased. Part of the argument turned on the continuing need to carry out complex investigations during the course of conveyancing. Yet the Settled Land Act, with its technique of ‘overreaching’, implied that a purchaser from the life tenant under a settlement might ignore the interests of later beneficiaries. No great ingenuity was needed to devise means of putting other part interests ‘behind the curtain’. As early as 1862, the conveyancer Wolstenholme, an opponent of any form of registration, had suggested the reduction of all legal estates in land to two – fee simple and leasehold – as a basis for securing that in conveyancing only a limited range of prior interests would need investigation. The future prospects of the Register also depended upon revamping the substantive law, as each investigation of its failure to attract much business made plain. But the registration system could be advanced by compulsion first, simplification later; while simplification must come first if private conveyancing was to remain in the competition. This was the fulcrum around which all the manoeuvring was to turn. The Registry was in the fief of the Lord Chancellor and when occupying that office Lord Herschell and Lord Halsbury both tried their hand at achieving compulsory registration.370 As the latter drew close to success, the Law Society adeptly secured, in his Land Transfer Act 1897,371 the so-called ‘County veto’. Compulsion was to be applied experimentally (following the legislative fashion of the day)372 and only with the approval of the county 366 Solicitors’ Remuneration Act 1881 (and Order thereunder of 1883, prescribing the scales set by a committee under the aegis of the Lord Chancellor). See also B Abel Smith and RB Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750–1965 (Heinemann, 1967) 198 ff; Offer (1981) (n 342) 36–40. 367 Kirk (n 362) 145. The Conveyancing Act 1881 prescribed short forms for standard clauses, such as covenants of title and covenants to produce deeds; others would be read into a conveyance unless explicitly excluded or varied. Once prolixity had no particular purpose, these short cuts could be adopted without regret. 368 Anderson, ‘Changing the Nature’ (n 342) 209–10. 369 Hostility from the solicitors forced the withdrawal of the notes to users which the Registry had issued in 1889: Kirk (n 362) 140. 370 For their Bills and the background opposition by solicitors: Kirk (n 362) 140–41; Offer (1981) (n 342) 40–48. 371 The Act provided the modern solution to difficulties over making good title: it allowed registration of titles as ‘absolute,’ ‘qualified’ or ‘possessory,’ the defects in the last two being curable by the passing of time. Even so, the courts compromised one of the basic guarantees of registration by allowing an unregistered transaction to be effective: Capital and Counties Bank Ltd v Rhodes [1903] 1 Ch 631. This was corrected: Land Registration Act 1925, s 123(1). 372 cf the Workmen’s Compensation Act of the same year: see pp 498ff.

178 Land councils; through them the provincial solicitors could hope to exercise a less public sway. In the upshot, the County, and then the City, of London became the only district in which there had to be registration upon the first change of ownership. Solicitors kept up a barrage of criticism against a ‘land bureaucracy,’ with the intent of containing the spread of the new regime.373 The renewed attack on the landed interest, under Lloyd George’s captaincy, brought conveyancing reform once more into prominence. Fortescue-Brickdale did not hesitate to seek support in the radical camp, asking for first registration to be made gratis in an extension of the compulsory areas, the expense to be met out of the proposed land increment tax.374 This tax in its turn would be dependent on an accurate record of land-holding and land values, and for this the Register was the obvious basis. A Royal Commission under Lord St Aldwyn listened with some sympathy to the case for extending registration, but ended inconclusively by accepting the need first to reform the substantive law.375 The Liberals might have been expected to press on regardless. But Haldane, who moved to the Woolsack in 1912, emerged as the friend of a reformed system of private conveyancing.376 Leading conveyancers began drafting the necessary legislation,377 but the final solution was postponed by the war and it was delayed long enough afterwards for the forces of conservatism and professional interest to claim a resounding victory. What Birkenhead, as Lord Chancellor, took up enthusiastically as a simplification of the substantive law, coupled with rapid extension of registration, was whittled down to the old experimental approach. The Law Society held back support until it had procured continuation of the ‘county veto’ on compulsory registration – with the addition that, for the first 10 years of the new scheme, central government would not even put up proposals to councils for their approval.378 The solicitors consolidated their achievement by securing a rise in the unregistered scales of one-third and in the registered scales of varying amounts, some in proportion very much greater.379 Conveyancing procedures were the crux of the matter. Once their future had been settled by compromise, the substantive law could be purged of archaisms and complexities.380

373 The anathemas of JS Rubinstein, a solicitor with building society connections and a borough councillor, contrasted with the urbane negotiating of the Law Society council: Kirk (n 362) 143; A Offer, ‘The Origins of the Law of Property Acts 1910–25’ (1977) 40 MLR 505, 506 ff; Offer (1981) (n 342) 70–74. 374 See his evidence to the St Aldwyn Commission (below n 375): First Report, Q 1454; Offer (1977) (n 373) 506–08. 375 Royal Commission on the Land Transfer Acts, First Report, PP 1909 [Cd 4509] XXVII; Second Report, PP 1911 [Cd 5483] XXX. 376 See Offer (1977) (n 373), who notes both Haldane’s rivalry with Loreburn (an advocate of registration) and his Chancery background (although this had not told with a Lord Chancellor like Cairns). 377 Chief amongst them was Sir Benjamin Cherry, who drafted both Haldane’s unsuccessful Bills of 1913, and the eventual legislation for Birkenhead. Underhill also wrote influentially: his pamphlet, The Line of Least Resistance, was republished by the Scott Committee on Land Requisition and Valuation for Public Purposes (Ministry of Reconstruction), Fourth Report, PP 1919 [Cmd 424] XXXIX App I. See Offer (1977) (n 373) 511–13. 378 Offer (1977) (n 373) 517–19. 379 ibid 520–21. 380 The ancient forms of tenure were standardised, an elaborate plan for the compulsory enfranchisement of copyhold tenure into freehold at last replacing the machinery that allowed this by agreement. The Statute of Uses 1536 and the Rule in Shelley’s case – two sturdy obstacles to simplification with prominent places in the history of land law doctrine – were done away with. In place of the traditional, quite unreal form of mortgage at law more straightforward methods of mortgaging land were introduced, together with a more complete statutory code of the powers of the mortgagee to recover his debt out of the land.

Part 4: A Gradual Transformation 1870–1950 179 This was done in a bill whose political neutrality was carefully affirmed on all sides.381 Its basic plan had long been foreshadowed in discussions of reform: the number of legal estates was reduced to two – fee simple freeholds and leaseholds – in order that more limited interests and complex joint interests could be placed behind an equitable curtain; these were no longer of concern in conveying a legal interest because they were subject to the ‘overreaching’ principle that (in somewhat different form) had been deployed in the Settled Land Act 1882.382 Some interests in the land short of a legal estate did retain a binding effect on a purchaser,383 but to acquire this quality many of these interests had now to be placed upon a register of charges. In the case of registered land, this was already part of the whole scheme; but for unregistered land, a Land Charges Register had to be specially created. On it, the most important transactions to be recorded were mortgages and other charges, estate contracts and restrictive covenants. At the same time, the transmission of property upon death was at last brought under a single regime. Marvellous as it would have seemed two generations before,384 the heir-at-law lost his place as the direct inheritor of realty: primogeniture now stoppered an empty cask and could be removed without offence. Upon an intestacy, the modern rules were laid down by which all property is divided amongst the surviving spouse and/or children or certain remoter issue. What ordinary people might expect to happen to their property became the governing consideration in dealing with the various contingencies. Order of birth ceased to be of significance, and likewise sex. Important to the simplification of conveyancing were the standardised procedures for administering deceaseds’ estates: realty as well as personalty had now to be dealt with by executors acting under a grant of probate or administrators upon letters of administration. But in all this nothing was done to interfere with freedom of testation, any more than with the power of gift during life. Only in 1938 was a measure of compulsion introduced, bringing to heel the testator who tried to cut his dependent family out of his estate completely.385

C. Housing i. The Housing Question, 1850–1914 Public health touched no cognate issue more intimately than housing: the supply of water, the disposal of rubbish and excrement, the building of rooms over privies, the provision of light and air, the number of inhabitants per house or room – all these became focal points in the campaigns of the experts and the fears of the populace at large, and it was the housing 381 Drafted by Cherry, the Law of Property Bill 1922 was the longest on record. Sir Leslie Scott, the SolicitorGeneral, introduced it as ‘not a party Bill. It does not interfere between landlord and tenants. It leaves untouched the relations between the State and private owners’: HC Deb CLIV 89 (1922). Together with an amending Act of 1924, the 1922 Act and earlier legislation were codified in 1925 in a series of more manageable statutes: the Settled Land Act, Trustee Act, Law of Property Act, Land Registration Act, Land Charges Act and Administration of Estates Act. For the writing in explication, see JS Anderson, ‘Land Law Texts and the Explanation of 1925’ (1984) 37 CLP 63. 382 See p 171. 383 eg legal easements and any rights manifested by actual occupation of the premises. 384 See pp 169–70. 385 Inheritance (Family Provision) Act 1938.

180 Land of the labouring poor that posed the severest threat, above all in the sprawl of city slums. Traditionally in the countryside the lowest strata had provided their own roof, throwing up hovels out of whatever stone, mud, timber, slate or thatch lay to hand. But in the towns and cities house-building was done by building professionals, and was predominantly financed by investors who looked for rent as their return.386 A speculative element was unavoidable: every new builder hoped for the best sector of the market that his capital would run to, and his fears were of neglectful, obstreperous tenants who would lose the neighbourhood its respectability, leading to a downward spiral in which rents could be kept up only by dividing houses, floors or even rooms.387 There was probably always a shortfall of housing, which remained at something like a constant figure; with the rise both in population and provision it became proportionately smaller but it did not disappear.388 What such statistics cannot show is the decline of the shoddily built, ill-maintained, ageing parts of the housing stock into degrading, tight-packed, disease-ridden slums.389 The housing question – as distinct from minimum building requirements, dictated by public health considerations390 – was whether the state, at the central or local level, should take responsibility for providing housing or at least for demolishing slums so that others might rebuild to a more acceptable standard. Throughout Victoria’s reign and beyond, very few people would give a positive answer to this question. Among them were the Earl of Shaftesbury, who in 1851 steered through an Act which gave local authorities the power, by rate or borrowing, to build or convert lodging houses and provide them at a rent neither too high for the labouring classes nor so low as to amount to poor relief.391 It was scarcely taken up anywhere, the exceptional case being Huddersfield, which quickly saw its new lodging houses swamped by the poor and homeless from the whole district around.392 The ‘scandal’ of insanitary, overcrowded dwellings was a visible outwork of the entire system of urban production, in which unskilled labour abounded and wages were low and often intermittent. The successful and influential were beguiled by the belief that economic growth would bring its own solution to the problems of the poorest; they had only to be given a sense of their own moral capacity for work and thrift. A deterrent policy of poor relief was pursued with the aim of eliminating any element of subsidy to wages; indeed its yardstick of ‘less eligibility’ had to take as one measure the housing conditions of the world outside the workhouses.393 There was little chance that municipal corporations and vestries would perceive any gap to be filled between the cheapest private rents and subsidised relief. It was at just this level of government that economic interest and political conviction coalesced into the strictest adherence to notions of non-interference. For all the efforts of 386 See p 147–49. 387 J Burnett, A Social History of Housing, 1815–1985 (Methuen, 1986) ch 2; EE Gauldie, Cruel Habitations: A History of Working-Class Housing, 1780–1918 (Allen and Unwin, 1974) chs 1, 3, and 4. 388 Gauldie (ibid) 90–91 and 145 ff. 389 Gauldie (ibid) chs 5 and 6; G Stedman Jones, Outcast London: A Study in the Relationship Between Classes in Victorian Society (Clarendon Press, 1971) ch 8; AS Wohl, The Eternal Slum: Housing and Social Policy in Victorian London (Edward Arnold, 1977) ch 1; SM Gaskell (ed), Slums (Leicester University Press, 1990). 390 See pp 164–65. 391 Labouring Classes Lodging Houses Act 1851. 392 Gauldie (n 387) ch 21, showing that the contemporaneous Common Lodging Houses Act 1851 and Common Lodging Houses (Amendment) Act 1853 gave the police powers of inspection, soon resented as intrusions onto private property. 393 See p 404.

Part 4: A Gradual Transformation 1870–1950 181 Shaftesbury, and of the band of social reformers who kept the problem before the National Society for the Promotion of the Social Sciences (NAPSS) in the 1860s, housing was not generally recognised as a problem for which there could be any remedy through law and state action, beyond regulation in the name of public health.394 The main test arose out of a scheme of the NAPSS and the Society of Medical Officers of Health that was put to Parliament in 1866 by their spokesman, McCullagh Torrens. It was a measure that put the issue squarely: not only were the vestries to be given powers to demolish insanitary buildings, purchase land and build dwellings for the labouring classes; the Home Secretary could demand that premises be inspected by medical officers and if necessary that demolition and rebuilding take place. The recipe of central direction without financial obligation had by this time a substantial, if chequered, history in social reform; it is no surprise to find Edwin Chadwick among the members of the NAPSS committee who supported it here. This and two later bills suffered long and alarmed revision in committee until in 1868, Torrens finally secured legislation, the merest wraith of a robust original.395 Vestries were left with power, on the report of a medical officer, to demolish or improve individual insanitary houses, but not whole streets. They had no power of compulsory purchase, and were confined financially to a 2d rate in the pound and such borrowing as they were prepared to shoulder.396 Here then was a template for legislation that would reflect dominant attitudes down to 1918. Enacted one year after the Second Reform Act, it acknowledged the problems posed by the worst housing and the consequent degradation of the whole environment; but its solution envisaged little beyond some minor stimulants to the private market. Its design was open to limited adjustment, at least under Conservative Government. In 1875, Disraeli’s Home Secretary, Richard Cross, urged on by the Charity Organisation Society (COS), secured a second Act which allowed local authorities to clear whole areas of slums, if necessary by compulsory purchase.397 Octavia Hill of the COS was the active proponent of what was unkindly labelled ‘five-per-cent philanthropy’: a programme in which local authorities would acquire and clear slum sites, for selling or leasing to charities which would rebuild and let at five per cent on investment. It belonged in turn to a larger vision of progress: the middle and affluent working classes were to move out of town centres into new suburbs; their place would be filled by the least well-off, whose slums would be freed for replacement. One of the conditions of the Cross Act, accordingly, was an obligation on authorities who instituted clearance schemes to secure the rehousing of those displaced, either through model dwelling trusts or, in the last resort and with central government approval, by rebuilding themselves.398 Both the Torrens and the Cross Acts, which through 394 On the latter score, both the 1850s and 1860s provided a stream of legislation. There were notable d evelopments in London which affected housing, particularly the creation of the Metropolitan Board of Works to supervise building and the requirement that each metropolitan vestry appoint a medical officer of health: Metropolis Management Act 1855. 395 Artizans’ and Labourers’ Dwellings Act 1868; Gauldie (n 387) 268–72; Wohl (n 389) 84–97. To be distinguished from the Labouring Classes Dwelling Houses Act 1866, a little-used statute permitting local authorities to borrow from the Public Works Loan Commissioners for housing: Gauldie (n 387) 259–61. 396 Gauldie (n 387) 265–72. 397 JA Yelling, Slums and Slum Clearance in Victorian London (Allen & Unwin, 1986), chs 2–4. 398 Artizans’ and Labourers’ Dwellings Improvement Act 1875. The Law Times thought the Cross Act and the Public Health Act 1875 marked ‘an abandonment of the let alone policy and a return to the paternal system of government.’ See Gauldie (n 397) 274–81; Wohl (n 389) 97–105.

182 Land their different procedures created alternative routes to slum clearance, were amended in 1879 in the hope of improving their use and eliminating their abuse.399 It was evident even in the 1870s that the slum problem was finding no solution either in the private market or through the first timid steps in legislative tinkering. In the following decades, concern began to intensify. This found its most official expression before a Select Committee in 1881–1882; and, once the Marquis of Salisbury took it up as a proper cause for Tory concern, before a prestigious Royal Commission.400 The law was amended in 1882 and then twice consolidated, with some extensions to take account of recommendations from the Commission and other pressures.401 Nor were these gradual alterations unimportant. The initial Acts were not merely hopes rendered pious by lack of interest, or positive antagonism, in the vestries. They were undeniable examples of legislative intervention which made matters worse. The statutory procedures, after concessions to the demands of property, were so complex that long delays occurred in the implementation of schemes, and the arrangements for compensation under the Cross Act, which made use of arbitration by government nominees, followed the usual pattern of generosity and rapidly led ‘house-knackers’ to stuff the worst properties with tenants in order to increase their ‘value’. This practice at least began to be curbed by amendment in 1879, but ultimately too little was done to drive down the high market values of central area properties by invoking the concept of the house ‘unfit for human habitation’.402 Furthermore, the intractable problem of rehousing loomed over everything. Medical officers of health, whose reports were the first step that would set the machinery of either Act in motion, were often reluctant to take action, not because they were ignorant or had been suborned, but because they saw all too plainly that a programme of clearance and the inevitable delays before rebuilding would most likely lead to worse crowding in adjacent areas.403 According to the Royal Commission, it was not legislation that was lacking but the political will to carry it out.404 The verdict was comforting. Certainly the record of activity under the Torrens and Cross Acts was derisory. Only Birmingham, led with skill and determination by Joseph Chamberlain, had adopted any large plan for the removal of slums and had done so by moving both workers and workplaces out into new suburbs. The smallworkshop character of much employment there had made this possible and Chamberlain had secured special exemption from the statutory requirements to rehouse on site, a success which led to changes in the legislation itself.405 Liverpool, long a leader in public health administration, had also used its local Acts to clear slums and build large estates of good quality, which were let at low rents.406

399 By the Artizans’ Dwelling Act (1868) Amendment Act 1879 and the Artizans’ and Labourers’ Dwellings Improvement Act 1879; see also the Artizans’ Dwellings Act 1882. 400 Select Committee Reports, PP 1881 (358) VII; 1882 (235) VII; Royal Commission on the Housing of the Working Classes, First Report, PP 1884–1885 [C 4402] XXX. 401 Housing of the Working Classes Acts 1885 and 1890, Public Health Act 1890. 402 Yelling (1986) (n 397) chs 5 and 6. 403 Yelling (1986) (n 397) chs 7 and 8. 404 Report (n 400) 27–29. 405 The LGB had power to waive the re-housing clause under the Cross Act. By the Housing of the Working Classes Act 1890 (following the Royal Commission), London boroughs had still to rehouse half of those displaced, but not authorities in the provinces: Gauldie (n 387) 279–80 and 293–94. 406 Gauldie (n 387) 299–300.

Part 4: A Gradual Transformation 1870–1950 183 To turn these exceptions into norms, however, was not only a matter of local will. Central leadership might have attempted more, applying the stick of compulsion or the carrot of grants-in-aid, both of which would have needed new legislation. But it was just such invasions of the private market that even those concerned with the housing question – Tory philanthropists and ‘municipal socialists’ – shied away from. Even so well-meaning a body as the Royal Commission was left merely to ruminate upon the stoicism and moral rectitude of the great bulk of slum dwellers.407 Twenty years later, the reforming Liberal Government only moved tentatively on housing. John Burns, who by the time he presided over the Local Government Board had lost most of his early fire for the cause of the working man,408 pushed through a Housing and Town Planning Act in 1909, which was grander in title than in achievement. It did increase the rate of slum clearance, but on the housing front it did no more than to abolish the requirement on local authorities to sell off what they built and to increase the Board’s powers to stimulate local activity.409 The hostility, the delaying tactics, the defeating amendments which were the regular lot of legislative proposals of even this kind manifested an unchanging attitude in Parliament. It was at the local level that significant signs of modification occurred, as the propertied classes began to reconcile themselves both to democracy and to the limits of economic progress. One structural change was as significant as anything else. The creation of the county and county borough councils in 1888 gave the main public health and housing powers of local government to bodies elected on a wide franchise.410 In some places this soon produced a substantial representation of labour. Cities such as Manchester, Sheffield and Bradford were drawn into the housing debate, their consciences stimulated by local pressure groups. Argument began to shift to the type of housing that should be provided – flats (the usual Tory view) or cottages (Liberal/Labour). In the years 1890–1914, 179 authorities had loans sanctioned for house-building; in 1909–1914, 112 of them were drawing actively upon their entitlement. Even so, by 1914, philanthropy and municipal endeavour was supplying less than one per cent of the housing stock.411

ii. Interwar Developments: Overview Various events swelled this trickle into a regular stream of local authority housing supported by state grant. This was partly the consequence of WWI, which put paid to regular housebuilding and contributed to a shortage of over 600,000 houses in the ‘land fit for heroes’.412 407 ‘While the evidence reveals an undoubtedly bad state of things, … the standard of morality among the inhabitants of these crowded quarters is higher than might have been expected looking at the surroundings amid which their lives are passed’: Report (n 400) 13. One recommendation of the Royal Commission led to the Housing of the Working Classes Act 1885, s 12, which subjected cheap housing on short leases to an automatic guarantee that it be fit for human habitation at the outset and be kept in repair. Repeated in 1890 and 1909, the provision was held on a tight rein by the judges: JI Reynolds, ‘Statutory Covenants of Fitness and Repair: Social Legislation and the Judges’ (1974) 37 MLR 377. 408 But for the view that Burns was held in check by the conservatism of his civil servants, see A Sutcliffe, ‘Britain’s First Town Planning Act: A Review of the 1909 Achievement’ (1988) 59 Town Planning Review 289. 409 Sections 4, 10 and 11. 410 Local Government Act 1888, ss 17–19, provided for the appointment by county councils of medical officers of health and for execution of their reports. 411 MJ Daunton, House and Home in the Victorian City: Working-Class Housing 1850–1914 (Edward Arnold, 1983) 192–94. 412 M Bowley, Housing and the State 1919–1944 (Allen & Unwin, 1945) 10–14 and Statistical Appendix.

184 Land But the condition of the private sector over a longer term was equally significant and several factors contributed to this. First, the late Victorian boom in house-building was exhausted by 1906, and was followed by a decade-long decline in the building sector, which depressed land values and recovery from which was delayed by the war.413 Second, the cost of social programmes hurt property-owners because these programmes were mainly paid for out of rates. Landlords felt rate increases particularly because of the widespread practice of collecting rates from them, rather than their tenant-occupiers under the compounding system (at a discount which local authorities kept trying to squeeze down).414 Third, when the market improved and landlords demanded rent increases, the Government introduced rent controls in 1915. The result was that private landlords were disincentivised from building new houses after the war and this contributed to an acute shortage in housing stock during the 1920s. When the provision of state building subsidies failed to solve the problem, town and city councils began their own building programmes, which would account for about 30 per cent of all the homes built in the interwar period.415 Conservative governments allowed this to continue as a means of overcoming the housing shortage, but at the same time they sought to promote owner-occupation, and the majority of building that took place during the 1930s boom was the result of private sector activity supported not by property speculators building for the rental market but by middle-class owner-occupiers. They collectively built more than 1.5 million houses with the help of mortgage finance supplied by building societies which greatly increased in size and turnover during this period.416 So the country began its transformation into a land of homeowners:417 in 1914 about 10 per cent of town-dwellers lived in their own houses, with the rest in rented accommodation; by 1939 this figure had risen to 35 per cent.418

iii. Rent Control, 1915–1939 All participants in the house-letting business had become familiar with collective action: societies of tenants, of landlords, and of financiers such as the building societies, were wellknown interest groups who on occasion attacked or negotiated with one another or with

413 SP Saul, ‘House-Building in England 1890–1914 (1962) 15 Econ HR 119; JP Lewis, Building Cycles and Britain’s Growth (Macmillan, 1965) esp 129–39; Offer (1981) (n 342) chs 17 and 18; Daunton (1983) (n 411) 201–33. 414 Ironically, compounding remained common because its casual abolition in 1867, by s 7 of the Second Reform Act, had provoked such increasing of rents that it had to be restored by the Poor Rate Assessment and Collection Act 1869. Discussion in D Englander, Landlord and Tenant in Urban Britain: The Politics of Housing Reform, 1838–1918 (Clarendon Press, 1983) ch 5; and for subsequent effects, ch 6. 415 P Scott, The Making of the Modern British Home: The Suburban Semi and Family Life between the Wars (Oxford University Press, 2013) 43. In eg Birmingham, ‘by the end of the 1930s vast municipal estates ringed the city periphery in the north-east and south, no less than fifteen individual estates each having more than 1,000 houses’: G Cherry, Birmingham: A Study in Geography, History and Planning (John Wiley, 1994) 144. 416 HW Richardson and DH Aldcroft, Building in the British Economy Between the Wars (Allen & Unwin, 1968) 195–96; Burnett (n 387) 246; MJ Daunton, A Property-Owning Democracy? (Faber & Faber, 1987) 72–74; Samy (n 214) ch 3. 417 JC Smith, ‘The Dynamics of Landlord-Tenant Law and Residential Finance: The Comparative Economics of Home Ownership’ (1993) 44 Washington University Journal of Urban and Contemporary Law 3. 418 M Swennarton and S Taylor, ‘The Scale and Nature of the Growth of Owner-Occupation in Britain Between the Wars’ (1985) 38 Econ HR 373.

Part 4: A Gradual Transformation 1870–1950 185 individuals.419 Owners could adopt the methods of the cartel by, for instance, agreeing to keep ‘empties’ off the market, building societies could fix rates and conditions collectively. Solidarity would last until individuals succumbed to the temptation to steal a march. Tenants could do little save by breach of contract: usually by refusing to pay rent, sometimes by resisting distress or eviction. The language of industrial action was already used: rent strikes by groups of tenants had occurred but had disintegrated in the face of legal action, harassment or deception by landlords. The upturn of 1913, with its spate of rent increases, brought a renewal of such resistance. It was not at the slum end of the market but among the respectable working class that the sense of outrage found effective organisation: in Wolverhampton, Birmingham, Leeds and Bradford, as in Glasgow, refusals to pay the increases were coupled with public meetings denouncing the behaviour of landlords.420 By the outbreak of war, rent strikes could no longer be dismissed as passing tests of landlords’ resolve. The rapid movement of workers as well as servicemen soon added major opportunities for profiteering by landlords in the centres of war production. The courts were given extended powers to order the payment of overdue rent by instalments.421 Agitation was already too advanced for tinkering of this order to suffice. Trade unionists, the Parliamentary Labour Party (and behind it the Workers National Committee), the Ministry of Munitions, all in differing ways were pressing for more. There was discussion of Fair Rent Courts, even by the Workers’ National Committee. But suspicion of justices of the peace, and to some degree of county court judges, as the natural associates of landlords, put paid to this arbitral idea (it would find no place until 1946).422 The Government were pushed – against every inclination – to a freezing of rents. The precipitating event developed in November 1915 from a rent strike in Glasgow: a massive demonstration of workers, and even more their wives, caused the Sheriff to adjourn the hearing of a set of eviction cases against non-payers.423 The first of many Rent Acts, which was at once pushed through, froze the rents of unfurnished ‘dwelling houses’ at their level at the declaration of war where the rateable value was below £35 in London, £26 in other parts of England and (significantly) £30 in Scotland.424 It gave the tenant a statutory right to continue personally425 in occupation after termination of the contractual tenancy unless the landlord obtained a possession order on one of a limited number of grounds;426 and it protected landlords by limiting the extent to which their mortgagees could alter the rate of interest on variable mortgages.427

419 See Englander (1983) (n 414) ch 4 and Part 2; Cleary (n 214) chs 9 and 10. 420 Englander (1983) (n 414) chs 7, 8 and 10. 421 Courts (Emergency Powers) Act 1914. Distress for rent was also made subject to a court order, a provision that was to be continued for rent-restricted property by the Rent Act 1920, s 6. 422 This form of control was used when furnished lettings were subjected to regulation for the first time by the Furnished Houses (Rent Control) Act 1946. 423 Englander (1983) (n 414) 205–33; J Melling (ed), Housing, Social Policy and the State (Croom Helm, 1980) 91–101 and 149–52; N Gray (ed), Rent and its Discontents: A Century of Housing Struggle (Rowman & Littlefield, 2018) part I. 424 Rent (War Restrictions) Act 1915, ss l and 2(2). It was a criminal offence to extract a premium. For the legal evolution of rent restriction, see RE Megarry, The Rent Acts, 10th edn (Stevens & Sons, 1967) 1–2. 425 Extended by the 1920 Act, s 12(1), to include a surviving widow and occasionally other relatives, if they were living there on the tenant’s death. 426 These were: breach by the tenant; offer of alternative suitable accommodation; landlord’s need of the premises for himself or defined relatives; any other reason deemed satisfactory by the court: s 1(3). 427 Sections 1(1) and (4); for the effect on the market for mortgages, see Daunton (1983) (n 411) 299–301.

186 Land It was an emergency measure, due to expire six months after the war’s end. Laconic in character, it left the courts to determine such important issues as what constituted a ‘dwelling house’ and whether overpayments of rent could be claimed back or withheld from future rent.428 It adjusted the positions of landlord and tenant in a radical way and organisations such as Dan Rider’s War Rents League were besieged with requests for advice and legal aid. It could not resolve all tensions: against a determined landlord the tenant would need a court’s protection; and a general mistrust of the law, the known prejudice of some magistrates against tenants in arrears, and the absence of any penalty against landlords who sought repossession without cause, meant that some rents still went up and unjustifiable evictions still occurred.429 The Government found itself obliged to limit the grounds for legitimate repossession even further, first for munitions workers, then more generally.430 By the end of the war, it was clear that the housing shortage was grave and the building industry ill-equipped to supply the deficiencies. The Government was receiving advice from influential quarters, including a Ministry of Reconstruction Committee,431 to extend the duration of rent restriction for a limited period. The rent strike became a tenants’ tactic which was turned as much against government departments and local authorities as against private landlords. As housing provider and rent-setter, government could not afford to pursue an entirely selfish line, though it saw that rents would have to rise since building costs were running at a quite new level. Nor could it withdraw its wartime intervention in the rent market for working-class housing as a whole. By 1919 it had settled for a compromise that would prove irreversible. Rent restriction would carry over until that future point (predicted with fervent optimism) when supply would again meet demand and market conditions could again prevail. Towards that end, and only as an intermediate stepping-stone, central government would subsidise house-building. On the Rent Acts side of the equation, the extensions were set initially to 1921, then 1923.432 But they involved increases in the levels of rent protected – the 1915 limitations were doubled and then trebled by 1920; at the same time new scope for increasing them (up to 40 per cent) was provided, mainly in the name of securing repairs and improvements. By 1923, the Conservative Government found that to propose decontrol was enough to lose by-elections in its own safe seats.433 Neville Chamberlain, who became Minister of Health, was obliged to continue control, though he made ‘creeping decontrol’ possible: whenever a landlord recovered possession legitimately he could set whatever rent he liked 428 The Court of Appeal refused to allow the recovery of amounts overpaid from the commencement of the Act, since there was no express provision to permit it (as there was for premiums): Sharp Brothers & Knight v Chant [1917] 1 KB 771. This strict insistence upon the need to find out one’s rights before meeting a demand had to be altered hastily by the Courts (Emergency Powers) Act 1917. For the background, see Englander (1983) (n 414) 257–59. 429 Englander (1983) (n 414) 256–57. 430 Englander (1983) (n 414) 242–51 and 259–63; Defence of the Realm Regulations Consolidated 1915, Reg 2A; Rent (Amendment) Act 1918. 431 PP 1918 [Cd 9235] XIII. Also influential was the Royal Commission on the Housing of the Industrial Population in Scotland, 1917–1918 [Cd 8731] XIV. 432 Rent Acts 1919, 1920, the latter following upon the Report of the Salisbury Departmental Committee, PP 1920 [Cmd 658] XVIII. Thereafter the two-year extensions continued until 1927, when they became annual until 1933. 433 One indication of the importance of protection to middle-class, as well as working-class, tenants: see FW Paish, ‘UK: The Economics of Rent Restriction’ in Verdict on Rent Control: Essays on the Economic Consequences of Political Action to Restrict Rents in Five Countries (Institute for Economic Affairs, 1972).

Part 4: A Gradual Transformation 1870–1950 187 upon reletting.434 By 1931 an eighth of all tenancies controlled in 1920 had been decontrolled.435 Not until 1933 was the top bracket of housing – rateable values about £45 in London and Scotland and £35 elsewhere – taken out of the system; at the same time ‘creeping decontrol’ was stopped in the bottom bracket – rateable values below £20 in London, £26.5s in Scotland and £13 elsewhere.436 Complete deregulation remained the desideratum, at least among Conservatives. In 1938 another block was released – houses rated above £35 (London and Scotland) and £20, the rest being made subject to full control.437 Dismantling might soon have been completed but for the renewal of war. This time it was at once clear that the cycle of shortages, rent increases and refusals to pay would have to be forestalled, the levels of rent restriction were put up to £100 and £75.438

iv. Building Subsidies, 1919–1939 As for housing subsidisation, the once-and-for-all drive to provide the ‘homes fit for heroes’ took both a public and a private course. On the public side, for the first time local authorities were placed under a legal duty to plan their housing provision and to execute their proposals once they had been approved by the Ministry of Health (successor to the LGB); and the expense of doing so was to fall upon them only to the extent of a penny rate – all further cost would come from the Treasury.439 This financial formula was highly encouraging to local authorities but the scheme was pregnant with difficulties of application. So eager was the Government to get ahead that it gave up its attempt to tie the councils to rents bringing in a specified return: they had only to procure the best rent ‘reasonably obtainable’.440 On the private side, builders of working-class housing which met Ministry specifications became entitled to a lump-sum subsidy working out at £150–160 per house (£15 million being made available in total).441 Much of this building was to altogether novel standards for

434 Rent Act 1923; Report of the Onslow Departmental Committee, PP 1923 [Cmd 1803] XII (Pt 2). The temptation to landlords to get tenants out by threats, insidious pressure or trickery increased in consequence, as did the number of eviction proceedings. In Glasgow they became once more remarkably high: Englander (1983) (n 414) 307–10. 435 The Marley Inter-Departmental Committee on the Rent Restriction Acts (PP 1930–31 [Cmd 3911] XVII) found that controlled rents had on average risen 50%, above their pre-war level, decontrolled rents some 85–90% – in the worst cases, much more. Some housing had thus become exorbitantly expensive – the more so since progress in slum clearance had been little more than token. 436 Rent Act 1933. 437 Rent Act 1938. Housing built since 1913 was not covered at any stage. 438 Rent Act 1939, applying for the first time to post-1913 housing. The effect was to put 90%, or more of all tenanted housing under control. For the subsequent history, see MJ Barnett, The Politics of Legislation: The Rent Act 1957 (LSE, 1969); P Beirne, Fair Rent and Legal Fiction: Housing Rent Legislation in a Capitalist Society (Macmillan, 1977). 439 Housing and Town Planning Act 1919, esp ss l, 7. For a summary of the housing legislation, see SJ Merrett, State Housing in Britain (Routledge and Kegan Paul, 1979) App 1. 440 Local Authorities (Assisted Housing Schemes) Regulations 1919, Sch B. This still contained the formula which the Government had wished to make mandatory: that by March 1927 councils should charge an economic rent calculated as if the house had been completed by that date – it was taken as the point by which costs and supply would have returned to ‘normal’. For earlier Ministry Memoranda on this formula, see Englander (1983) (n 414) 295. 441 Housing (Additional Powers) Act 1919 – the two Acts were together the ‘Addison Acts,’ after the President of the LGB/Minister of Health who was chiefly responsible.

188 Land working-class housing.442 A Departmental Committee was soon to recommend that, as well as a host of administrative improvements in the scheme, local authorities should lose the protection of their financial ceiling and bear a proportionate part of the total cost.443 Some 170,000 houses were sanctioned for local authority building, and over 40,000 for the private subsidy, before the economic collapse of 1921. ‘Geddes’s Axe’ then ensured that the programme was wound down abruptly. Yet the housing shortage and the pressure on rents remained acute, even when the cost of building began to fall.444 Chamberlain was obliged to act on this front as well. His ‘once-for-all’ device adopted the opposite tack to the Addison scheme. It placed the ceiling on the Treasury contribution: £6 per annum was payable for 20 years on houses built by private builders or local authorities to specified standards;445 but local authorities were to build only when they satisfied the Ministry that they would do it better than private enterprise. The houses had moreover to be completed within two years (by October 1925).446 The implication – that housing was once more about to become a market commodity – was averted by the arrival of the first, minority Labour Government. Instead a highly significant intervention by the state was confirmed in post. Wheatley, the Health Minister, extended the Chamberlain subsidy for 15 years (to 1939) and introduced a higher rate (£9 per annum for 40 years447) for housing that was to be let.448 Local authorities no longer had to seek the imprimatur of the Ministry before they built for themselves.449 Yet beyond this basic step were wide areas for political division. In one direction lay the prospect of government provision of most working-class housing – a general takeover from the private builder and landlord. In another, state intervention would be a severely limited means of dealing with the abjectly poor who could never hope to pay a market price for endurable housing. The Conservatives, who soon replaced Labour, found the continuing post-war shortage still so pressing that they could move no further along the latter road than to reduce the subsidies in line with the falling costs of building.450 The Labour Government of 1929, by contrast, returned to the subject of slum clearance, so sadly neglected in the years of shortage.451 Since the main beneficiaries of central intervention had so far been the better-off working class, Arthur Greenwood, the Health Minister, applied the notion of central subsidy to slum clearance with a view to broadening the flow of assistance.452 But economic and political turmoil intervened before the policy of increased spread had 442 This development drew upon the pre-war discussions of the form of local authority housing and the inspiration provided by the garden city movement. They were brought into focus by the Tudor Walters Report on Building Construction, PP 1918 [Cd 9191] VII. See M Swenarton, Homes Fit for Heroes: The Politics and Architecture of Early State Housing in Britain (Heinemann Educational, 1981); Burnett (n 387) 218–21; and generally MJ Daunton (ed), Councillors and Tenants: Local Authority Housing in English Cities, 1919–1939 (Leicester University Press, 1984). 443 Report on the High Cost of Building Working Class Dwellings PP 1921 [Cmd 1447] XIII. 444 The fall was considerable: building costs which had been over £1 per square foot in 1920 were down to under 10s by 1922 and were to fall somewhat further: MJ Elsas, Housing Before the War and After (PS King & Staples, 1942) 17. 445 The amounts could be compounded into a lump sum, which came to £75–100 per house. 446 Housing Act 1923, s l. 447 In rural areas, £12 10s. 448 He was able to secure a celebrated ‘gentlemen’s agreement’ with the building unions: manpower was built up in return for the guaranteed period of subsidy: Bowley (n 412) 35. 449 Housing (Financial Provisions) Act 1924, ss l and 2. 450 Bowley (n 412) 45. 451 JA Yelling, Slums and Redevelopment: Policy and Practice in England 1918–45 (UCL Press, 1992) ch 4. 452 Housing Act 1930.

Part 4: A Gradual Transformation 1870–1950 189 gone far. The National Government soon adapted it: the new (Greenwood) attack on the most dilapidated, overcrowded housing was bolstered, but the old (Wheatley) subsidy for working-class house-building in general was cut away.453 Fostering the private building sector and encouraging owner-occupation of freehold houses became the main objectives. Had peacetime Conservative Government continued, as with rent restriction the free market would have been progressively restored. Instead, the havoc brought by WWII made government support for massive housing programmes a necessary fact of post-war life. The interwar period became a source of immediate experience that was to condition the nature and direction of modern developments.

v. Interwar Developments: Assessment The shifts of housing policy between the two world wars are too complex to admit a single explanation.454 Some of its initiation, and much of its maintenance in the face of reaction, found its source in that progressive liberalism which was to be taken over by the Labour party during its first experiences of government. Middle-class idealism and working-class self-interest had drawn from all the fervent discussion of a ‘land policy’455 an interventionary approach to the provision of working-class housing. The state was to play a growing role in the refurbishing of housing stock and the raising of living standards which depended so greatly upon it. At the same time a much larger block of property-owning opinion was driven to accept some at least of these measures; they were a necessary concession if the essential characteristics of the old economic system were to be restored and maintained in an uneasy peacetime. The sense of outrage amongst tenants, expressed through their associations, their rent strikes and other threatening behaviour, was a vital part of the changes. The ferment was seized on by revolutionary activists and others with wide-ranging radical sympathies. Lloyd George was able to play up a fear of revolution to get Addison’s Bills through Cabinet. But the great bulk of the support came from working-class people who saw rents and landlords as causes unto themselves. The women who played so prominent a part in the most successful protests showed little of the same fervour even for their own suffrage. This begins to explain how politicians could muddle through by a series of hasty and reactive moves. Those moves nonetheless encompass a considerable shift in the uses of law. A world in which terms of contract prevailed and landlords could look to the legal system in extracting their rents and forcing out bad tenants was, in the more ‘difficult’ sectors, replaced by two mechanisms. The Rent Restriction Acts were crude curbs on rent increases and eviction in a relationship which was otherwise governed by private contract. Since the Acts were a response to shortage the price of housing just outside their limits shot up. The law demarcating their extent was accordingly a matter of acute controversy and was soon pitted with nice, not always consistent, interpretation.456 They were an expedient which could not provide a permanent solution in the interwar form. 453 Housing (Financial Provisions) Act 1933. 454 M Daunton, ‘Housing’ in FML Thompson (ed), The Cambridge Social History of Britain 1750–1950, vol 2 (Cambridge University Press, 1990) 234–38. 455 See pp 168–73. 456 For a comparative survey of developments in the period, JW Willis, ‘A Short History of Rent Control Laws’ (1950) 36 Cornell Law Review 54.

190 Land The Housing Acts, however, with their base in social provision, demanded a wholly different structure. Planning and decision-making was undertaken at many levels by politicians and officers of central and local government. Once the broad lines of policy had been blocked in by legislation, rules and decisions were required to settle the types, numbers and location of houses. They would require allocation and the setting of rents which tenants could pay. Every stage of the process was potentially controversial, for the difficulties of the private sector were not dissipated by a socialised system – inadequate supply of what tenants wanted, unduly high rents, reluctance to take on large families or tenants with bad rent records. But the combination of politics and legally-framed bureaucracy could prevent dissatisfaction from coming too closely into focus. The interwar experience taught much about how this could be achieved. What was to be carried forward afterwards was an amalgam of policy and practice which left the new professionals of the business, the planners and architects, and those who did the actual building (most often private contractors), with wide powers of decision that were insulated from effective monitoring or criticism. The courts, it is true, showed a distinct mistrust of interventionist programmes.457 Slum landlords might not be the most attractive class of property-owners, but clearance schemes would oblige them to surrender their land on compensation terms which had come to be strictly limited. Lord Hewart CJ, soon after producing The New Despotism, gave a guarded reading to clearance powers in the Housing Act 1925, Part II, which required that notice be given at the outset of the particular scheme of re-use of the cleared land; otherwise, the local authority would simply get an opportunity to resell or lease at the highest price.458 But the House of Lords soon took a less critical attitude in a similar case where the authority was undoubtedly intending to rehouse with the land reclaimed.459 The malaise was not at this period long-lasting and it was confined to an insistence on procedural rectitude. Certainly, WWI and its aftermath confirmed the general readiness to leave bureaucrats to the administration of statutory schemes unmolested by common law standards of due process, let alone common law notions of reasonableness. This too would contribute to a post-war world where the constraints on experts were remote.

vi. A Planned Environment? A final factor would lead in the same direction. Visions of a world transformed by some form of land exploitation in the name of the community had held a wide appeal from 457 WI Jennings, ‘Courts and Administrative Law: The Experience of English Housing Legislation’ (1936) 49 Harvard Law Review 426 traced the extent to which they showed a hostility to expropriation of private property: the record is patchy. 458 R v Minister of Health, ex p Davis [1929] 1 KB 619 (a test case affecting most other improvement schemes: Jennings (ibid) 447). In dealing with the first case under the Housing Act 1930, where the court’s powers of review were specially limited, Swift J went out of his way (while deciding in favour of the particular local authority) to reiterate the rule of strict construction applying to statutes that expropriated private property: Re Bowman [1932] 2 KB 621. Sir Carleton Allen supported him in articles published as Bureaucracy Triumphant (Oxford University Press, 1931). 459 R v Minister of Health, ex p Yaffe [1931] AC 494; the Court of Appeal had been less accommodating: [1930] 2 KB 98. The case raised the effectiveness of the relatively novel device for excluding judicial review of vires – a provision stating that a minister’s order should have effect ‘as if enacted in this Act’. This ‘Star Chamber clause’ (Housing Act 1925, s 40(5)) had been specially condemned by Lord Hewart (The New Despotism (Ernest Benn, 1929) 246; see p 95). Both the Court of Appeal and the House of Lords held it ineffective to preclude their jurisdiction to review. The Housing Act 1930, s 11, had already changed the law before the appeal was completed.

Part 4: A Gradual Transformation 1870–1950 191 the late nineteenth century onwards. From them had evolved a new social responsibility upon wealth in general expressed through increasing taxation. Large land-owning had been stripped of its certain profitability. The largest transference of land into the custody of communities had been through the programmes for working-class housing, and this had remained essentially piecemeal. The land that remained in private ownership had come to be subjected to a minimum level of responsibilities, such as the standards on new building in the name of public health and the various restrictions on the terms of leases in the name of tenants. The idea of an overall plan for the deployment of land remained ephemeral. Despite some passing good intentions the interwar period provided little hard experience of such a regime in action. Even before WWI, the prospects of a decently planned urban environment had grown from private middle-class developments to the idea of garden suburbs and cities.460 The impress of this upon some of the more ambitious local authority projects had even led to a short section in Burns’ 1909 Act which permitted a local authority (with LGB approval) to make a town planning scheme for land being developed so as to secure ‘proper sanitary conditions, amenity and convenience’.461 There was a procedure for consultation of interested parties. But progress was hindered by the lack of qualified and experienced town planners to prepare the schemes,462 and the slight use to which this section was put is a good measure of the limited progress of intervention in housing before 1914. A somewhat more adventurous provision in the 1919 Act introduced the prospect of eventual compulsion, but this was put off.463 It was not until 1932 that the arrangements were extended to land in general, whether urban or rural and whether under development or not.464 By the outbreak of war only three per cent of the country had become subject to operative schemes. However, a resolution by a local authority to adopt a plan had the effect of imposing ‘interim development control’ and by 1937 about half the land was placed under this shadowy constraint. The bulk of builders felt no need to obtain the interim permission provided for in the Act before embarking on their schemes. Planning blight was still a rare disease.465 The distortion of market values that restrictions on land use must produce had long been debated. Ideas of taxing the betterment conferred on those artificially advantaged had been a regular feature of radical programmes. Accordingly, there were provisions in the first planning legislation for a levy by the local authority on those given planning permission: 50 per cent of the increased value, according to the 1909 Act, 72 per cent in the 1932 Act.466 But the immense difficulties of assessment inherent in such schemes left them stillborn.467

460 Swenarton (n 442) ch 1; D Hardy, From Garden Cities to New Towns: Campaigning for Town and Country Planning 1899–1946 (E & FN Spon, 1990) ch 1. 461 Housing and Town Planning Act 1909, s 54(l) and (4) and generally Part II. See W Ashworth, The Genesis of Modern British Town Planning: A Study in Economic and Social History of the Nineteenth and Twentieth Centuries (Routledge & Kegan Paul, 1954) ch 1; Sutcliffe (1988) (n 408). 462 Sutcliffe (1988) (n 408) 298. 463 The Housing and Town Planning Act 1919, Pt II imposed a duty on local authorities for populations of over 20,000 to prepare plans by 1926 (s 46). This was extended to 1929 by the Housing Act 1923, s 19. 464 Town and Country Planning Act 1932. This Act dropped the compulsion to plan under the 1919 Act (see n 99). 465 Ashworth (n 461) 212–13. 466 ibid 107–09. 467 ibid 107–09.

192 Land These foreshadows of modern planning law were cast by an expanding expertise. The architects who in the early decades of the century had concentrated on the efficiency and comfort of houses for the masses, and had sought to bring a countrified grace to town estates, were coming to realise in the interwar years that conditions for living depended on the organisation of the whole environment. There must be adequate road and rail connections,468 shops, schools and colleges, power supply, and facilities for leisure and culture. Above all else, industry and offices must be developed in proportion to the accommodation being built. And this in turn demanded analysis of natural resources, food supply, transport systems and economic demands of many kinds. There were a few demonstrations of what might be achieved, such as the satellite towns of Welwyn Garden City (north of London) and Wythenshawe (outside Manchester);469 and much urban sprawl, like the depressing estates which the London County Council was strewing across south Essex and other parts of the growing metropolis.470 With the bad so predominant and the good so occasional, the campaigners for a planned environment could attract increasing attention. In the Report of the Barlow Commission on the Distribution of the Industrial Population, they received mild support.471 Then, as in other areas of collective endeavour, the catastrophic dislocations of renewed war were to have their peculiar catalytic effect: the devastation of the cities by bombing presented opportunities on a massive scale. The primacy of the task led, even in 1943, to the creation of a Ministry of Town and Country Planning, which in the following year saw through an interim Act to encourage positive replanning of blitzed and blighted town areas and two years later took charge of the development of new towns.472 In 1947, the general responsibility for planning was placed on authorities at the county and county borough level. They were required to adopt a Development Plan for their entire area, which would designate the permitted use of each piece of land – for agriculture, industry, housing, education, open space, and so on.473 The plan would be subject to five-yearly review. Moreover, most development of land within the designated use required permission from the local authority.474 And the authority was to have greatly increased power over much else: slum clearance, the preservation of historic and meritorious buildings, the maintenance of waste lands, the retention of woodlands, the control of hoardings and the prevention of ribbon development.475 468 The interwar period saw a huge increase in road traffic: the number of vehicles licensed in Great Britain rose from 650,000 in 1920 to around 3.1 million in 1939: Cherry (1974) (n 190) 81, adding that: ‘Roundabouts for traffic circulation [first appeared in London] from the middle of the 1920s… [traffic lights first appeared in Wolverhampton in 1927, and a] programme of road improvements brought tunnels, arterial roads and by-passes, but financial considerations kept these to a minimum. The traffic problem [in urban areas] established itself as a national issue’, but little was done to deal with this problem systematically. 469 T Hunt, Building Jerusalem (Weidenfeld & Nicolson, 2004) 308–34. 470 See generally, Ashworth (n 461) ch 8; A Sutcliffe, Towards the Planned City: Germany, Britain, the United States and France 1780–1914 (Basil Blackwell, 1981) ch 3. 471 PP 1939–1940 [Cmd 6153] IV; GM Young (ed), Country and Town. A Summary of the Scott and Uthwatt Reports (Penguin Books, 1943). 472 Minister of Town and Country Planning Act 1943; Town and Country Planning (Interim Development) Act 1943; Town and Country Planning Act 1944; New Towns Act 1946; note also the Distribution of Industry Act 1945, controlling the siting of new industrial developments. 473 Town and Country Planning Act 1947, Part II; considered in FJC Amos, ‘The Town and Country Planning Act 1947’ (1987) 30 Planning Outlook 12. 474 1947 Act, ss 12–25. 475 Sections 26–33. Between the wars, the stretching of housing out along the main roads, from towns was thought a sufficient problem for first restrictions to be imposed by an Act of 1932.

Part 4: A Gradual Transformation 1870–1950 193 The object was a deployment of the land to the benefit of the whole community in a world which, so it was hoped, would be less fissured by the antagonism and inequalities of class. It did not adopt as its major premise the nationalisation of the land, which had enjoyed an active political platform since the days of Bronterre O’Brien. Nor was the Government intent on full-scale levy upon increments in the capital value of land in general, which the land taxers had long advocated, and which had been proposed during the War by the Uthwatt Committee.476 Instead there was to be a development charge on the increased value which accrued when a developer was accorded planning permission – a tax which, as past efforts had already shown, would prove difficult to assess and unpopular to impose.477 Nonetheless, the programme was the most ambitious part of the whole social plan of the Attlee Government, striving as it did to balance the needs to restore and develop the economy against claims to a decent living environment for the mass of ordinary people. The architects and planners, the economic and social analysts, were to supply the skills for informed choice. An exhausted country, eager for some new accommodation between the propertied and the labouring classes, was prepared to invest them with considerable power to get on with the job. The courts, reflecting this mood, refused to interfere when the Minister, Lewis Silkin, insisted upon putting through an order designating Stevenage as the first new town, despite the local objections put to an inquiry conducted on his behalf. Since the Minister was not under even a ‘quasi-judicial’ duty, but was engaged in a political choice, he was only obliged to order the inquiry and consider the report; and he had done so.478 This gave a fair wind to the new directors of land policy: central and local politicians with their planning bureaucrats, private developers with their contractors and professional advisers, could advance their views of social interest against the objections both of private property owners and of those who had environmental and other concerns in resisting development.479 In the result, the fire and idealism of wartime aspirations for reconstruction would swiftly founder on the harsh realities of economic shortage,480 and the new planning system would become the focus of considerable tension and constant adaptation. But in the comparative innocence of the 1940s there were few to foresee it.

476 Expert Committee on Compensation and Betterment; Young (n 471). 477 Accordingly, it would be largely abandoned in 1954. By way of counterbalance, those who lost because the plan for their land imposed a fetter on its use were to be compensated: a government fund of £300 million was established for the purpose, the Government acquiring on payment the potential development value that might arise from a future change of use. But this too was highly complex and came to nothing. 478 Franklin v Minister of Town and Country Planning [1948] AC 87. Even before the New Towns Act had passed, the Minister had committed himself strongly to Stevenage as the first site; but this indiscretion was not enough to upset his subsequent ‘decision’. 479 PJ Larkham and KD Lilley, Planning the ‘City of Tomorrow’: British Reconstruction Planning, 1939–1952: An Annotated Bibliography (Inch’s Books, 2001). 480 J Hasegawa, Replanning the Blitzed City Centre: A Comparative Study of Bristol, Coventry and Southampton 1941–50 (Open University Press, 1992); N Bullock, ‘Ideas, Priorities and Harsh Realities: Reconstruction and the LCC, 1945–51’ (1994) 9 Planning Perspectives 87.

3 Commerce and Industry As we noted in chapter one, the British economy underwent a gradual but profound structural change between 1700 and 1850.1 The country was already an advanced commercial economy by 1700, with less than half the male workforce employed in agriculture; as a result of population growth, commercial expansion and industrial development over the next 150 years, its levels of employment, productive efficiency and outputs in mining, industry and manufacturing outstripped those of any other state in 1850, and it was the world’s leading exporter of industrial products and manufactured goods between the 1850s and 1870s. As we also discussed in chapter one, the question whether legal developments were a significant cause of these economic developments is debated.2 In this chapter, we consider the main events between 1700 and 1850 to which this debate relates, and also discuss some of the legal consequences of the economic decline through which the country passed between the late 1800s and mid 1900s. In Part 1 we begin with the articulation of general principles of contract law, a phenomenon of the industrial period marked by ideological tensions that recur elsewhere in the chapter; we also consider the extent to which the development of these principles supplied business needs. We then move on to the sanctions that businessmen demanded of the legal system in the hope of ensuring that their transactions would progress towards successful execution. At the forefront, in our period, stands the enforcement of debts, for credit is a central factor in the insistent demand for capital. This leads to questions about the insolvency of debtors, distributing their assets fairly among those creditors who rank equally and organising preferential treatment by way of security. These matters are considered in Part 2. Their obverse is the question of how far, if at all, debtors should be allowed to limit their liabilities in advance. The raising of capital and limitation of liability are key features of the dominant form of business organisation under mature capitalism, the limited liability company, the development of which is discussed in Part 3. This in turn enabled the growth of business structures that were large enough to dominate markets and suppress competition within them. So the chapter ends with questions about market domination: how far abuses of monopoly should be controlled by law, an issue considered in Part 4; and how far developmental policies should be pursued by the conferment of monopolies, taking as the prime instance, patents for inventions, a question examined in Part 5.

Part 1: Contract By the middle of the eighteenth century, contract was one of the great organising categories of liberal thought. The idiom of the social contract, descended from Thomas Hobbes and

1 See 2 See

pp 6–7. pp 7–10.

Part 1: Contract 195 John Locke, provided a natural frame for William Blackstone’s Commentaries, published in the 1760s.3 By his day, civilian countries, where the academic exposition of law was well embedded, had received general accounts of contract law. A high point in this tradition was the appearance in 1761–64 of Robert Pothier’s Traité des Obligations, a work that came to have considerable influence even on the common law world.4 However Blackstone’s version of contract law was unlike the set of principles with which modern lawyers are familiar. He acknowledged the increasing importance of contract as a form of property, placing it among his Rights of Things. He outlined the need for consideration to support an enforceable promise, and defined the circumstances in which a promisee must perform his side of the bargain before suing. He described the basic terms of various contracts (notably those concerning the passing of risk and property in contracts for the sale of goods5) and the standard forms of action for enforcing contract: the writ of covenant for promises under seal in deeds and the form of action on the case known as assumpsit for informal promises of all kinds.6 But assumpsit was still a rough heading under which to group more specific claims, many following the formulae of the ‘common counts’; its condition thus resembled the modern law of torts. Only after Blackstone would a succession of writers, from William Paley and Joseph Powell to Frederick Pollock and William Anson,7 articulate a set of principles which might be thought to make up a general law of contract and which came to form the conceptual framework for judicial analysis of problems thrown up by the case law. This project demanded a bold measure of induction – one or two equivocal cases were often made to stand for hard-edged general rules8 – and to systematise their accounts of the law, writers drew on the Will Theory developed by Pothier and other jurists, which held that contractual rights and obligations were generated by the parties’ assent manifested through a mutual exchange of promises. As David Ibbetson has said, the merit of this approach was ‘that it had a measure of intellectual coherence that the traditional common law wholly lacked’, but ‘it was imposed on the common law from the outside rather than generated from within’ and so there were difficulties of fit.9 Elements of earlier doctrine, such as the rules on consideration and privity of contract, were not easily accommodated within the new scheme and judges of the nineteenth and twentieth centuries were to spend many years marginalising these and explaining them away.

3 W Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765–69); see PS Atiyah, The Rise and Fall of Freedom of Contract (Oxford University Press, 1979) 39–80. 4 Especially after its translation into English as WD Evans (trans), RJ Pothier, A Treatise on the Law of Obligations or Contracts (J Butterworth, 1806). Its influence is very marked in eg HT Colebrooke, A Treatise on Obligations and Contracts (Printed for the Author, 1818). 5 Blackstone (n 3) vol 2, ch 30. 6 Blackstone (n 3) vol 3, ch 9. ‘Assumpsit’ means ‘he promised’, words which had to be pleaded by the plaintiff. 7 W Paley, Principles of Moral and Political Philosophy (R Faulder, 1785) Book II; JJ Powell, Essay upon the Law of Contracts and Agreements (J Johnson, 1790); F Pollock, Principles of Contract (Stevens & Sons, 1876); W Anson Principles of the English Law of Contract (Stevens & Sons, 1879). 8 For this process at work, see G Gilmore, The Death of Contract (Ohio State University Press, 1974) chs 1 and 2. 9 D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) 221. See too AWB Simpson, ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 LQR 247; J Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford University Press, 1991) 175–80; but cf M Lobban, ‘Contract’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010) 300–13.

196 Commerce and Industry Despite these problems, the outburst of contract law theorising in the nineteenth century responded to deep-felt needs. The judges sought general principle in a rapidly expanding area of their business, and their small number constrained their own ability to generate precedent. In the past, much in the resolution of contract disputes had been left to juries, but cases were becoming more complex, and juries could be prejudiced or cranky. Judges wanted rules by which to curb jury power and control the outcome of cases, and they achieved this by identifying and reserving to themselves a growing number of issues of law. Where contract disputes had once been decided by asking juries whether the parties had made an agreement, they came instead to turn on questions decided by judges: had there been an offer and an acceptance; had one of the parties made an actionable mistake; how should the contract be interpreted; and so on. This process was under way by the mid-1700s and far progressed by the mid-1800s.10 Lawyers and litigants, too, wanted rules by which disputes could be settled without going to court,11 and in the later 1800s, the introduction of systematic teaching and examination for entry into the professions, and even for university degrees, added to the appeal of categorical doctrine.12 As a result of all this, the nineteenth century witnessed ‘the first working out of the English law of contract in detail’,13 albeit one that was founded on a substantial body of earlier precedent. It has been said that this process formed part of a larger ideological reorientation that accompanied the growth of industrial capitalism. This claim was made by Morton Horwitz, who wrote primarily of the US in the years after independence and who characterised that period as one when contract (and other legal) doctrine was ‘transformed’ into a capitalist tool.14 Similarly, Patrick Atiyah discovered a classical age of English contract law in the century running from 1770 to 1870.15 Both identified key shifts in the new formulation: first, an older idea of contracts, which understood liability to be based on relationships generated by reliance or receipt of benefit, and the justification for which lay in the fairness of the parties’ exchange, gave way to a new idea, which took executory promises to be irrevocable once the parties had given their mutual assent; second, the courts began to secure the profits of such agreements to the party who had bargained for them by awarding damages for expectation loss in cases of breach, and no longer merely restored benefits transferred by the innocent party; and third, the courts abandoned their former willingness to rectify elements of unfairness in bargains and insisted on enforcing whatever terms the parties had agreed. According to Atiyah, this reworked version of contract law, and the laissez-faire ideology which underpinned it, prevailed in England until the late 1800s, when the democratisation of contracting caused by an increase in average incomes and resulting emergence of a consumer society prompted a return to collectivism and state intervention to protect the weak and disadvantaged.

10 W Swain, The Law of Contract, 1670–1870 (Cambridge University Press, 2015) chs 8–9. 11 On this theme, see Atiyah (1979) (n 3) 345–58 and 388–97. 12 One purpose of Pollock’s and Anson’s books was to show that the common law was based upon principles and so worthy of the study in a university curriculum: FH Lawson, The Oxford Law School (Clarendon Press, 1968) 37–41. 13 JH Baker, ‘Review of The Rise and Fall of Freedom of Contract by PS Atiyah’ (1980) 43 MLR 467, 469. 14 M Horwitz, The Transformation of American Law, 1780–1860 (Harvard University Press, 1977) ch 6. 15 Atiyah (1979) (n 3) Pt II.

Part 1: Contract 197 These hypotheses, and the ‘proofs’ offered in their support, have not been generally accepted by English legal historians. In 1700 England was already an advanced commercial economy, contrary to Horwitz’s and Atiyah’s premise of a simple, agrarian eighteenth century suspicious of entrepreneurial aggression and ready to stamp out its oppressive manifestations. Their assumption of a benignly paternal governance neglected evidence of domineering and selfish behaviour as a standard social pattern, and in assuming the power of the jury to do broad justice, they took a romantic view of its ideal qualities, about which evidence is simply lacking.16 In linking the resolution of ‘bread-and-butter issues of contract law’ with mid-century debates about political economy, they also made assumptions about the influence of extra-legal ideas on judicial thinking, hard evidence for which, again, is hard to find: in Lobban’s words, writers on political economy had a variety of opinions, the economic policy of governments tended towards pragmatism rather than ideology, and ‘if governments were not directly under the sway of economic theorists, there is no reason to believe that judges should have been, particularly if (like Eldon and Ellenborough), they were of a High Tory persuasion.’17 Another objection to the Horwitz/Atiyah thesis is that the elements of the ‘capitalistic’ contract law which supposedly developed after 1770 were already in place at a much earlier date.18 It was in the Tudor and early Stuart period, as assumpsit began to replace earlier forms of action, that mutual, executory promises became actionable and damages were used to make good profits lost through breach.19 Furthermore, the idea of a sustained evolution, from medieval beginnings, of a law which underwrote the fairness of bargains misrepresents a system which was for the most part crudely severe to those who did not do exactly as they had promised, routinely using the threat of imprisonment as a weapon.20 In truth, there was greater continuity between the law of the 1700s and 1800s than Horwitz and Atiyah allowed, and the law’s interests in the promotion of contractual certainty and the prevention of unconscionable behaviour waxed and waned over long time spans. In the rest of this part we shall discuss how these ideas played out in contract cases decided by the superior courts of common law and equity prior to 1876, and in the fused court system created by the Judicature Acts 1873–75.21 We shall then consider how well the superior courts served business needs, postponing to the next part discussion of the enforcement of small commercial debts by the courts of requests and county courts.22 We have divided the material in this way because the superior courts of common law and equity had accumulated their own bodies of precedent by the mid-1700s and these continued to develop separately for the next hundred years. Michael Lobban has written of the doctrinal 16 Compare Atiyah (1979) (n 3) 147 and 169 with AWB Simpson, ‘The Horwitz Thesis and the History of Contracts’ (1979) 46 University of Chicago Law Review 533, 574–75. 17 M Lobban, ‘Contractual Fraud in Law and Equity, c 1750–c 1850’ (1997) 17 OJLS 441, 442. See too Lobban (2010) (n 9) 298–300. 18 Simpson (1979) (n 16); Baker (1980) (n 13) 468–69. 19 D Ibbetson, ‘The Assessment of Contractual Damages at Common Law in the Late Sixteenth Century’ in M Dyson and D Ibbetson (eds), Law and Legal Process: Substantive Law and Procedure in English Legal History (Cambridge University Press, 2013). 20 W Swain, ‘Reshaping Contractual Unfairness in England 1670–1900’ (2014) 35 JLH 120. 21 Before 1876 the most important common law courts were Common Pleas, Exchequer and King’s (or Queen’s) Bench; on the equity side were Chancery but also Exchequer, which had an equity jurisdiction until this was transferred to Chancery in 1841. 22 See pp 222–25.

198 Commerce and Industry differences which resulted that these were sourced in differences of court structure and procedure: the two systems dealt with distinct problems, and used different procedures, the one being more adversarial, the other more inquisitorial … [Equity’s] inquisitorial procedure allowed it to consider questions often closed to the common law: and this made equity necessarily seem the fairer court.23

Common law litigation concerned the recovery of damages and the parties had to comply with strict pleading rules which were designed to refine the dispute to a single issue to be decided by a jury. Rules of evidence excluded the testimony of the parties24 and evidence of pre-contractual statements where a contract was written down.25 This made it hard for juries to investigate pre-contractual misunderstandings. In contrast the courts of equity did not award damages and resolved disputes by rescinding or rectifying contracts or granting injunctions or specific performance. Pleading rules in equity were less strict – new matter could be introduced into the plaintiff ’s bill as proceedings progressed – and the courts could obtain information closed to the common law courts because a defendant had to answer a plaintiff ’s interrogatories unless he demurred or pleaded to the plaintiff ’s bill.26 The courts of equity were therefore better positioned than the courts of common law to discover the parties’ intentions and they were less apt to hold contracting parties to the strict terms of their agreement. So there evolved a distinct equity ‘culture’ or ‘mentality’ – a set of attitudes and justifications for decision-making which differed from those espoused by the common law judges.

A. Common Law Before 1876 i. Forming a Contract: Promise, Offer and Acceptance, Consideration The action in assumpsit, as it evolved in the sixteenth century, called for a statement of the promise being sued upon, together with the ‘consideration’ which would support it, ie the ‘cause’ or reason which sufficed to make it actionable. At the end of the 1700s, the courts began to discuss the requirements for contract formation in terms of offer and acceptance.27 Hitherto most contract disputes in the higher courts had concerned sales of property, which were usually written down, as required by the Statute of Frauds 1677, ss 4 and 17. In such cases, the contract terms were found in the documents, and there was no need to ask when the parties’ minds had met. However, this became a live issue in nineteenth-century cases where parties had contracted at long distance by post,28 and later on, when the use of mass 23 Lobban (1997) (n 17) 443–44, adding at 444 n 13 that by the early nineteenth century ‘the major complaints against the Court of Chancery were therefore not against its doctrines, but against the workings of [its] procedures, which could be excruciatingly slow.’ For general discussion, see also Lobban (2010) (n 9) 313–22. 24 Parties did not become entitled to give evidence on their own behalf until the enactment of the Evidence Act 1851, s 2. See C Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997) 96–98, 100–10. 25 Save in cases of ‘latent ambiguity’: Smith v Jeffryes (1846) 15 M &W 561. 26 M Macnair, The Law of Proof in Early Modern Equity (Duncker & Humblot, 1999) 54–60. 27 Payne v Cave (1789) 3 TR 148; Cooke v Oxley (1790) 3 TR 653. See Ibbetson (1999) (n 9) 221–23; Lobban (2010) (n 9) 329–48; Swain (2015) (n 10) 180–86. 28 By Adams v Lindsell (1818) 1 B & Ald 681, the objective notion had crept in that an offeror should be presumed to have continued intending his offer during its course in the post, unless a withdrawal was received before acceptance. See Lobban (2010) (n 9) 334–48.

Part 1: Contract 199 advertising made it necessary to consider the operation of unilateral contracts, ie contracts where one party’s performance brought another party’s obligation into existence, eg by acting in response to a public announcement.29 These changes did not represent the adoption of a radically new perspective, however: despite the emergence of new ideas about consensus ad idem, the institutional constraints to which the courts were subject still made it necessary most of the time to judge the parties’ intentions by objective appearance. The ‘ticket cases’ illustrate the point.30 In the 1700s, the courts had come to impose strict liability on the carriers of goods to deliver them according to their undertaking,31 a treatment that owed something to the public status of the ‘common carrier’.32 By 1784, however, Lord Mansfield could explain that there was no need to create wide exceptions to this basic liability in the interests of fairness, because it was open to carriers to accept goods on terms which limited their liability for loss or damage.33 Evidently this had become standard practice, carriers using advertisements in newspapers, displays at their premises, invoices and receipts for the purpose. Typically they would limit liability to a value of (say) £5 unless the goods’ owner notified a higher value and paid an extra premium,34 but by the early nineteenth century, terms excluding liability entirely began to make an appearance in the cases.35 Initially this was too much for the judges, who insisted that the excluding term be ‘brought home’ to the goods owner, using to this end the new language of offer and acceptance.36 Lord Tenterden went so far as to hold that written notice to a person who could not read would not suffice.37 But that was soon regarded as too scrupulous, and it was said to be enough for the term to be included on a receipt given when the goods were handed in, whether or not it had been read and understood.38 Thus the courts arrived at a ‘meeting of minds’ which allowed businesses to establish an operable system (from their point of view) for the incorporation of ‘small print’ limitations and exclusions.39

29 The cases were inconsistent: eg Denton v Great Northern Railway Co (1856) 5 E & B 860; Warlow v Harrison (1859) 1 E & E 309; Harris v Nickerson (1873) LR 8 QB 286; Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. See Lobban (2010) (n 9) 348–57. 30 So named for the ‘ticket for carriage’ issued by a carrier of goods to the consignor. 31 On the evolution of this duty from less severe seventeenth-century rules, notably in Admiralty law for the carriage of goods by sea, see EGM Fletcher, The Carrier’s Liability (Stevens & Sons, 1932) 152–74; JN Adams, ‘The Carrier in Legal History’ in EW Ives and AH Manchester (eds), Law, Litigants and the Legal Profession (Royal Historical Society, 1983). 32 In Coggs v Bernard (1703) 2 Ld Raym 909, Holt CJ had imposed a high standard on all bailees in public employment, but this idea would survive only in relation to common carriers and innkeepers. 33 Barclay v Cuculla y Gana (1784) 3 Doug KB 389, 390. He recognised the need for exceptions in extreme cases (acts of God and the King’s enemies). 34 First noticed in Gibbon v Paynton (1769) 4 Burr 2298, it was treated as standard practice in such cases as Kirkman v Shawcross (1794) 6 TR 14, 18, and Nicholson v Willan (1804) 5 East 507, 513. See Fletcher (n 31) 175–96. 35 Maving v Todd (1815) 1 Stark 72, 73; Leeson v Holt (1816) 1 Stark 186. The courts did require that notice of complete exclusion be specifically pleaded: eg Latham v Rutley (1823) 2 B & C 20. 36 Leeson v Holt (1816) 1 Stark 186: notice in paper inadequate without proof that the plaintiff took the paper. 37 Davis v Willan (1817) 2 Stark 279. 38 cf Kerr v Willan (1817) 2 Stark 53; Rowley v Horne (1825) 3 Bing 2. In 1830, land carriers won statutory protection against loss or damage to valuables unless they were expressly notified by the sender, or a servant was guilty of felony or the carrier was guilty of personal neglect or misconduct: Carriers Act 1830; Fletcher (n 31) 201–06. 39 By the mid-century, railway passengers were expected to have read the conditions on timetables: Hurst v Great Western Railway Co (1865) 19 CB (NS) 310; and other notices to which they were referred by receipts or tickets: Watkins v Rymill (1883) 10 QBD 178; Parker v South Eastern Railway Co (1877) 2 CPD 416.

200 Commerce and Industry Mid-century judges then insisted that such clauses should be interpreted as they stood,40 and did little to soften their effect either directly on grounds of public policy,41 or indirectly by readings contra proferentem.42 This attitude persisted well into the 1930s,43 and it was not until the 1950s and 1960s that courts began to take the consumer’s part.44 In other respects, the objective view of contract formation served to concentrate attention on the terms of offer and acceptance. As we shall see later, misrepresentations made in the course of negotiations might be made with impunity if they were not expressly turned into warranties.45 Yet caveat venditor, caveat emptor never became the one categorical imperative. Mainly by the technique of implying warranties the judges managed to give some place to the assumptions common to the bulk of sales, even where these were not made explicit. In sales of goods by traders, the courts would not always imply a warranty of title, but they would do so where the seller gave the buyer to understand that he was the owner.46 And although the courts would not imply a general quality obligation,47 they would imply warranties that goods were of merchantable quality in various cases:48 where they were manufactured;49 where the buyer could not inspect them for himself;50 and where their description contained an implied undertaking that they were merchantable.51 Where goods were bought for a disclosed purpose, also, the courts would imply a warranty that they were fit for this purpose.52 Sir Mackenzie Chalmers, in his codification which became the Sale of Goods Act 1893, was able to distill from this case law implied conditions concerning title, quiet possession, sale by description and sale by sample; and, where a seller traded in goods, implied conditions of fitness for purpose and merchantable quality.53 These survived into modern times by a process of evolution through interpretation. Thus the 40 See eg Carr v Lancashire and Yorkshire Railway Co (1852) 7 Ex 707; Peek v North Staffordshire Railway Co (1863) 10 HLC 473; McCawley v Furness Railway Co (1872) LR 8 QB 57. Note also the Railway and Canal Traffic Act 1854, s 7, requiring exemption clauses to be ‘just and reasonable,’ which found little liking among the judges: see Manchester, Sheffield and Lincolnshire Railway Co v Brown (1883) 8 App Cas 703; JH Baker, ‘The Freedom to Contract without Liability’ (1971) 24 CLP 53, 73–76. 41 Carriers of goods were still considered unable to exempt themselves from their own gross negligence in the 1820s: eg Batson v Donovan (1820) 4 B & Ald 21. But by Austin v Manchester, Sheffield, and Lincolnshire Railway Co (1850) 10 CB 454, it was plain that nothing of this remained. Exemptions from liability for personal injury were, however, thought to be ineffective for another decade or so: see p 486; and, even afterwards, the courts tended to be strict over what was sufficient notice: eg Henderson v Stevenson (1875) LR 2 HL Sc App 470; Richardson Spence & Co v Rowntree [1894] AC 217. 42 Carr (n 40) 505 (Parke B): ‘It is not for us to fritter away the true sense and meaning of these contracts, merely with a view to make men careful.’ 43 Furnishing the severe decisions in Thompson v London Midland & Scottish Railway Co [1930] 1 KB 41 and L’Estrange v F Graucob Ltd [1934] 2 KB 394. 44 The cases, in which Lord Denning MR played a catalytic role, would lead to the Unfair Contract Terms Act 1977. 45 See pp 202–03 and 212. 46 Eichholz v Bannister (1864) 17 CB (NS) 708. cf the narrower rule in Early v Garrett (1829) 9 B & C 928. 47 Parkinson v Lee (1802) 2 East 314; Bluett v Osbourne (1816) 1 Stark 384. 48 SJ Stoljar, ‘Conditions, Warranties and Descriptions of Quality in Sale of Goods’ (1952) 15 MLR 425 and (1953) 16 MLR 174; P Mitchell, ‘The Development of Quality Obligations in Sale of Goods’ (2001) 117 LQR 645. 49 Jones v Bright (1829) 5 Bing 533. 50 Gardiner v Gray (1815) 4 Camp 144; Jones v Just (1868) LR 3 QB 197. 51 Randall v Newson (1877) 2 QBD 102. See too Wieler v Schilizzi (1856) 17 CB 619; Josling v Kingsford (1863) 13 CB (NS) 447. 52 Gray v Cox (1825) 4 B & C 108; Brown v Edgington (1841) 2 M & G 279; Bigge v Parkinson (1862) 7 H & N 955. 53 See Sale of Goods Act 1893, ss 12–15. These terms could be expressly excluded and often were by standard exemption clauses. On the right to reject for short delivery contained in s 30, see S Thomas, ‘The Development of the Implied Terms on Quantity in the Law of Sale of Goods’ (2014) 35 JLH 281.

Part 1: Contract 201 implied term stands as the common law’s chief device for a cautious alignment of individual contracts with general expectations, and in England at least there is no real evidence for the argument made by Atiyah and Horwitz that the implied warranty had, in the eighteenth century, been erected into an insurance of the buyer’s ‘sound price’, only to be dismantled by the advance of capitalistic ideals.54 The same is true of their associated claim that consideration – the essential requirement beside promise in assumpsit – was used to insist upon a just price for a thing of sound value.55 However, that does not end the fascination of consideration, for its abstract character made it a useful device for identifying which promises should be enforceable.56 By the mid-1800s, earlier expansive notions had been rejected, and consideration contributed vitally to the idea of contract as a reciprocal bargain that only affected the parties to it: a promisee alleging an enforceable promise had to show a countervailing benefit to the promisor or a detriment ‘moving from’ himself in return. This ‘benefit-or-detriment’ consideration had been recognised as a sufficient ground for enforcing a promise from the emergence of assumpsit onwards. But other possibilities had been advanced, notably by Lord Mansfield in findings that commercial promises might be enforced simply because they were in writing,57 and that promises to pay for benefits already received might be enforced if the recipient owed a moral duty to pay for them although he was not legally liable to do so.58 The first of these ideas was repudiated by Mansfield’s fellow judges.59 The second was taken up and extended by later courts so that any moral duty might serve as consideration.60 However, doubts then crept in and the idea was rejected in 1840 by Lord Denman. He held that ‘such a doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it’; the enforcement of such promises might be attended with mischievous consequences to society; one of which would be the frequent preference of voluntary undertakings to claims for just debts. Suits would thereby be multiplied, and voluntary undertakings would also be multiplied, to the prejudice of real creditors.61

The latter point went to the acceptability of arrangements for limiting liability and thus touched a fundamental issue for law under capitalism – and one to which we shall return.62 The desire of traders to protect their assets from creditors is as old as trade itself and some of their crude shifts had long been deemed legally ineffectual. Elizabethan legislation had condemned the transfer of a person’s assets to some relation or friend on (say) the eve of his insolvency: this was conveyance to defraud creditors who were entitled to recover the things

54 Atiyah (1979) (n 3) 178–80. See too 464–79 where he admits that there was only ‘a brief flirtation’ with caveat emptor in the nineteenth century. In the US attraction was rather more substantial; but compare Horwitz (n 14) 167 and 180 with Simpson (1979) (n 16) 580–85. 55 Again, compare Horwitz (n 14) 165–67 with Simpson (1979) (n 16) 573–80; and note also Atiyah (1979) (n 3) 167–77, mainly concerned with equity rather than common law. 56 Discussion in Ibbetson (1999) (n 9) 236–44; Lobban (2010) (n 9) 358–99; Swain (2015) (n 10) 111–14, 140–6, 186–90 and 217–28. 57 Pillans v Van Mierop (1765) 3 Burr 1663, 1669. 58 Hawkes v Saunders (1782) 1 Cowp 289, 290. 59 Rann v Hughes (1778) 4 Bro PC 27. 60 Lee v Muggeridge (1813) 5 Taunt 36; Wells v Horton (1826) 2 C & P 383, 386. See too J Chitty, A Practical Treatise on the Law of Contracts Not Under Seal (S Sweet, 1826) 11. 61 Eastwood v Kenyon (1840) 11 Ad & El 438, 450–51. 62 See esp pp 248–52.

202 Commerce and Industry or money back for the purpose of satisfying their claims.63 But a conveyance at some earlier stage might lack any intent to defraud and so be allowed to stand. What, then, of promises to make gifts to family members for whom the promisor felt morally obliged to provide? If these were enforceable, the law against fraudulent conveyances and preferences would have to bear a heavy weight. Yet it was just in this direction that the idea of ‘moral consideration’ pressed: by the 1830s there were constant complaints that family members competed in the distribution of assets in bankruptcy proceedings, asserting promises of many sorts which trade creditors viewed with deep suspicion but found it hard to upset.64 Lord Denman’s findings did not put paid to these difficulties, since family promises were unchallengeable if they were made under seal or supported by a nominal money consideration; but such arrangements at least required organising in advance.65 It is clear from all this that the courts’ views of consideration took into account matters that went beyond the simple question of whether a promisor had manifested a sufficient intention to be bound by his promise. This became equally clear of other aspects of the doctrine, to which we shall come.66 Here we should mention a general resonance of the proposition that a person must provide consideration for a promise in order to be able to sue upon it: that a third party could neither receive rights nor be subject to liability under it.67 That this idea of privity should be applied as much to benefits as to burdens for third parties marks it as a categorical expression of a liberal ideal: a wariness of private treaty creating rights and duties for others beside its parties. Yet it was not only a rule for commercial dealing: its classic expression was reached in the context of marriage. If the fathers of the bride and groom agreed to settle property on the couple, the groom gained no right to sue his father-in-law on the latter’s promise.68 The cases where bilateral transactions could affect the rest of the world were confined to conditions that were defined as property rights. Common law might recognise new instances of ‘property’, but this was always a gradual process.69 If privity of contract were compromised, private individuals would have the power to blur the distinction between rights in personam and in rem, and this could not be allowed. Some inroads were made into the privity principle by extending the tort of deceit to cases where a misstatement induced another person to contract with a third: in Pasley v Freeman,70 Lord Kenyon held that a defendant who incorrectly told a plaintiff that a third party’s credit was good was liable for the plaintiff ’s loss if the misstatement caused the plaintiff to enter a damaging contract with the third party.71 However, the court imposed 63 Fraudulent Conveyances Act 1571; see WS Holdsworth, A History of English Law, vol 4 (Methuen, 1924) 480–82. 64 E Welbourne, ‘Bankruptcy Before the Era of Victorian Reform’ (1932) 4 Cambridge Historical Journal 51, 57–58 and 60–61. 65 cf Simpson (1975) (n 9) 262–63. 66 See pp 204 and 208–09. 67 Lobban (2010) (n 9) 388–94. 68 Tweddle v Atkinson (1861) 1 B & S 393; for earlier cases see VV Palmer, The Paths to Privity: The History of Third–Party Beneficiary Contracts at English Law (Austin and Winfield, 1992) chs 3 and 4; DJ Ibbetson and W Swain, ‘Third Party Beneficiaries in English Law: From Dutton v Poole to Tweddle v Atkinson’ in EJH Schrage (ed), Ius Quaesitum Tertio (Dunckler & Humblot, 2008). 69 Consider eg the development of freehold covenants, discussed at pp 153–55. 70 (1789) 3 TR 51. 71 Pasley was criticised for enabling ‘a man to do that indirectly, which the Statute of Frauds expressly forbids to be done in direct terms, to guarantee the debt of another’: Hutchinson v Bell (1809) 1 Taunt 558, 564. So legislation was passed to prevent plaintiffs from suing on misrepresentations of another party’s creditworthiness unless these had been made in writing: Statute of Frauds Amendment Act 1828, s 6.

Part 1: Contract 203 an important limitation on this rule: the defendant must have lied deliberately and a negligent mistake was not enough. Thus liability for misrepresentations was broadly confined to cases of dishonesty or warranty and a rule was established that would constrict other developments of tort liability for economic injury.72 The balance thus struck required protection from the ‘evidential’ principle of estoppel – the rule which debarred assertions in litigation that were contrary to apparent truth. As trials began to turn on questions of evidence, this rule was extended to say that a person should not lead another to act on a given supposition and then turn round and deny it.73 This idea became important in the commercial world where bills of exchange and documents of title to goods in transit had to be taken at face value.74 By 1837, any representation, by words or conduct, was potentially capable of giving rise to an estoppel.75 But no sooner was this idea given general form than modifications were introduced that stopped it destroying the balance struck in Pasley: estoppels could be raised only in defence to claims by those who sought to go behind their earlier representations,76 and they could relate only to representations of fact and not to statements of future intention that were akin to promises.77 Both limitations would later be qualified, but their joint thrust was to prevent civil liability arising where there was no bargain supported by legally recognized consideration.78

ii. Justifications for Non-Enforcement: Mistake and Improper Pressure It had long been recognised that certain categories of people should be protected from the full rigours of contractual liability. The best-established case was that of infants – those under 21, the gentlemanly age of majority – who might avoid legal liability during infancy, save for the receipt of necessaries.79 There were also rules protecting lunatics and drunkards, but here the courts’ emphasis on the objective assessment of contractual intention produced a severe limitation: a contract could be avoided only if the other side knew that the lunatic or drunkard was incapable of forming an intention to contract at the relevant time.80 Apart from this, adults were treated as responsible for the consequences of entering any contract that was not illegal. Unlike the courts of equity, the common law courts had no power to rectify contracts or rescind them on terms, and had little access to information about the parties’ actual intentions. As a result, ‘questions about mistake of subject-matter 72 Attempts to expand the tort of enticing away servants into a tort of inducing breach of contract in other situations took hold only gradually, and in the end out of a determination to deal with industrial action by labour: see pp 317–19. 73 Lord Mansfield’s decision in Montefiori v Montefiori (1762) 1 W B1 363 marked an important advance. 74 On bills of exchange and bills of lading, see M Lobban, ‘Negotiable Instruments’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010) 731–54 and 758–64. 75 Pickard v Sears (1837) 6 Ad & E 469, 474. 76 The emergence of this ‘shield not sword’ limitation was gradual, but it was clearly spelled out by Bowen LJ in Low v Bouverie [1891] 3 Ch 82, 105; see generally DC Jackson, ‘Estoppel as a Sword’ (1965) 81 LQR 84 and 223. 77 Jorden v Money (1854) 5 HLC 185. 78 But note the discussion below at pp 212–13. 79 The tendency of shopkeeper juries to find against infants by deciding that what was supplied to them were necessaries created a minor scandal in the 1870s. The judges responded by holding that it was a question of law whether something was capable of being a necessary: Ryder v Wombwell (1868) LR 4 Ex 32. Parliament then enacted the (confusingly drafted) Infants Relief Act 1874. 80 See eg Molton v Camroux (1848) 2 Ex 487, 503.

204 Commerce and Industry or quality were … generally translated into disputes about whether there was a contract and what had been contracted for.’81 Very occasionally, some fundamental mistake which altered the whole basis of the contract sufficed to render an agreement void:82 sales of non-existent goods, or of things that already belonged to the buyer, became established instances.83 The same result might also be expressed in terms of an implied condition precedent: life assurance, for instance, was taken subject to the precondition that the ‘life’ assured was not already dead.84 In addition, implied terms in sale and similar contracts wrote in ‘standard’ terms of guarantee.85 But beyond these instances, there was a steady refusal to take any account of mistakes about the quality of goods or services, however much these may have been overpriced or undervalued in consequence.86 As for improper pressure, it was said that the common law would avoid a contract for ‘duress’ only if there had been a threat to life, liberty or personal freedom. No matter that, according to eighteenth-century courts, money paid under ‘duress of goods’ could be recovered.87 If instead there had been a new contract after an unjustified threat to seize or retain goods, it was binding; a man of ordinary firmness ought to have resisted the threat instead of submitting to the new agreement.88 Contract was of a higher order than a mere payment. This was a rigidly severe view and one which needed to be qualified, particularly where threats were made to pursue unfounded claims or to break existing obligations. Rather than modifying their concept of ‘duress’, however, the judges resorted to the law of consideration. To be without consideration, and so unenforceable, the compromise of a disputed claim must have been procured in bad faith, ie with knowledge that the claim was unfounded.89 Where a threatened breach of contract was compromised, there was no consideration where the person threatening breach merely promised the same person to perform after all, but if he undertook to do something more, or to do something for someone else, there would be a new, binding contract.90 The general thrust even of these rules was to oblige people to act with firmness: those who decided not to fight a claim or a threatened breach, but to compromise, were usually stuck with the consequences.

iii. Execution of the Contract: ‘Frustration’, Breach and Damages Equally rigid was the view taken of changes in circumstances between the making of a contract and its performance. The courts’ starting point was to require strict adherence to 81 Lobban (2010) (n 9) 445. See also C MacMillan, Mistakes in Contract Law (Hart, 2010) chs 4 and 7. 82 The theory of contract formation – in terms of objectively corresponding offer and acceptance – was used to eliminate most opportunities for arguing that one or even both parties actually thought the agreement was about something else: the most notable instance was Smith v Hughes (1871) LR 6 QB 597. 83 Drawing on Couturier v Hastie (1856) 5 HLC 673 and Cooper v Phibbs (1867) LR 2 HL 149 (a case in equity). 84 Strickland v Turner (1852) 7 Ex 208. 85 See p 200. 86 See further p 214. 87 The classic authority was Astley v Reynolds (1731) 2 Strange 915. 88 See Parke B in Atlee v Backhouse (1838) 3 M & W 633 and Denman CJ in Skeate v Beale (1841) 11 Ad & E 983. 89 Marriot v Hampton (1797) 7 TR 269; Wade v Simeon (1846) 2 CB 548; Cook v Wright (1861) 1 B & S 559; Callisher v Bischoffsheim (1870) LR 5 QB 449. 90 A rule concocted by the treatise writers out of Stilk v Myrick (1809) 2 Camp 317 and Hartley v Ponsonby (1857) 7 E & B 872. A fortiori, compromises to meet a debt only in part could not logically form consideration, and so the HL held, reiterating an old rule, in Foakes v Beer (1884) 9 App Cas 605; this cast doubt on earlier decisions such as Sibree v Tripp (1846) 15 M & W 23 which had found ways of side-stepping that result.

Part 1: Contract 205 obligation.91 Even accident or inevitable necessity made no difference, unless an explicit term turned these into an escape route.92 Only after the mid-1800s was this stance qualified by the implied term device – used in cases of accidental destruction of the subject matter – and the slightly broader notion of ‘frustration of venture’ – limiting the scope of charter-parties and other maritime contracts where untoward impediments supervened.93 Here were the threads from which the doctrine of frustration of contract would come to be woven, but its emergence was gradual, its place at the very edges.94 Enmeshed in the reluctance to excuse for ‘frustration’ was a disapproval of contracting parties who did not make explicit provision for the event, through insurance or express condition. Where, on the other hand, terms were built into the contract in the hope of securing correct, prompt performance without having to resort to litigation, they were generally supported by the judges. So the idea that one party might make his performance conditional on performance by the other found expression in cases where pre-conditions were read, unless clearly expressed to the contrary, as being ‘indivisible’.95 The builder who left a house half built could claim nothing for the work done, unless payment by instalments had been agreed.96 Likewise, in commercial transactions a seller was obliged to provide exactly what he had promised – any deviation in quality, quantity, time of delivery or method of shipment absolved the buyer from paying, whether or not he was prejudiced.97 These rules came to seem unduly burdensome, for the rule that liability for breach was strict made no allowances for the circumstances in which contracts could be broken. Hence the rule for indivisible contracts came to be qualified by statute98 and eventually by the rule that ‘substantial’ performance would restrict the other party to a claim in damages;99 and some terms came to be classified as warranties, breach of which generated a right to damages but not a right to terminate the contract and refuse counter-performance.100 The law of breach evolved as the nineteenth century progressed. It became settled that for breach of a condition, the innocent party could terminate even before the date when performance fell due, and claim damages for his costs or expectations.101 Where there was 91 A rule sourced in Paradine v Jane (1647) Aleyn 26, 27. 92 eg Brecknock and Abergavenny Canal Navigation Co v Pritchard (1796) 6 TR 750; Marquis of Bute v Thompson (1844) 13 M & W 487. 93 eg Freeman v Taylor (1831) 8 Bing 124; Taylor v Caldwell (1863) 3 B & S 826. 94 Jackson v Union Marine Insurance Co (1873) LR 8 CP 572, (1874) LR 10 CP 125; Krell v Henry [1903] 2 KB 740. General discussion in Simpson (1975) (n 9) 269–73; JD Wladis, ‘Common Law and Uncommon Events: The Development of the Doctrine of Impossibility of Performance in English Contract Law’ (1987) 75 Georgetown Law Journal 1575; C MacMillan, ‘Taylor v Caldwell (1863)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Contract (Hart, 2008); Lobban (2010) (n 9) 508–21. 95 A doctrine distilled from Cutter v Powell (1795) 6 TR 320, in which, however, a sailor contracted to perform a voyage for four times the going rate on the condition that he would be paid only on completion: clearly a special assumption of risk. 96 Appleby v Myers (1867) LR 2 CP 651. 97 Bowes v Shand (1877) 2 App Cas 455. 98 Notably, the Apportionment Act 1870. 99 Not till H Dakin & Co v Lee [1916] 1 KB 566 was this made explicit, but there were much earlier precursors – eg Boone v Eyre (1779) 1 H B1 273n; Broom v Davis (1794) 7 East 480n. Before this rule was established the other party could simply have refused to pay the price. 100 The distinction between such ‘warranties’ and ‘conditions’, breach of which gave a right to terminate, emerged in the mid-nineteenth century, and found its way into the Sale of Goods Act 1893: Lobban (2010) (n 9) 485–90. See White v Beeton (1861) 7 H & N 42; Behn v Burness (1863) 3 B & S 751; Bettini v Gye (1876) 1 QBD 183; Mersey Steel & Iron Co Ltd v Naylor, Benzon & Co (1884) 9 App Cas 434. 101 Cort v Ambergate, Nottingham and Boston and Eastern Junction Railway Co (1851) 17 QB 127; Hochster v De la Tour (1853) 2 El & B 678. See too P Mitchell, ‘Hochster v De la Tour (1853)’ in Mitchell and Mitchell (n 94); Lobban (2010) (n 9) 494–508; Qiao Liu, Anticipatory Breach (Hart, 2011) ch 1.

206 Commerce and Industry failure to perform, or misperformance, the innocent party was expected to take reasonable steps to mitigate his loss.102 These rules were important in defining the innocent party’s choices in advance, factors whose significance might otherwise have had to await a jury’s determination. Again, once statute had committed the common law courts to striking down penalty clauses in cases of debt on bond, but had left them free to enforce agreed damages clauses,103 and once it was settled that the proper construction of a clause was a question of law,104 matters were taken out of the hands of juries, who were left with no option but to award the sums stipulated in an agreed damages clause.105 The best-known limit on jury discretion, however, was the rule restricting the award of damages to expectations that were reasonably foreseeable by the parties at the time of contracting. This principle was adopted in Hadley v Baxendale.106 A carrier’s delay in transporting the engine shaft for a flour mill caused the mill to stand idle for a long period. Despite the carrier’s clerk having been told things which suggested that delay would mean the loss of operating profits, the court held that the jury should have been told to award nothing for such loss.107 The restrictive tenor of the decision laid a foundation for later cases establishing that businesses should not be tied to special risks unless employees who were told of them by customers had authority to accept additional duties, eg by having special terms available.108 But the rule probably introduced no dramatic change over earlier, looser practice, and should not be seen as a retreat from earlier generosity designed to protect emergent industry. It is scarcely to be ranked with the ‘implied contract’ that protected employers from vicarious liability for accidents arising in ‘common employment’.109 Nor did it have the extreme quality of the rule protecting vendors of land who could not show good title: they were liable only for the purchaser’s expenses to completion and not for his consequential losses (a rule which had its point, given the vagaries of eighteenth- and nineteenth-century conveyancing).110

102 Gainsford v Carroll (1824) 2 B & C 624, 625; Boorman v Nash (1829) 9 B & C 145, 152; Barrow v Arnaud (1846) 8 QB 604, 609. See Lobban (2010) (n 9) 534–36. 103 Administration of Justice Act 1696, s 8; Administration of Justice Act 1705, ss 12–13. The distinction was developed by the courts of equity: see pp 209–10. General discussion in CW Francis, ‘Practice, Strategy and Institution: Debt Collection in the English Common Law Courts, 1740–1840’ (1986) 80 Northwestern Law Review 807, esp 853–54. 104 Sainter v Ferguson (1849) 7 CB 716, 727. 105 Astley v Weldon (1801) 2 B & P 346, 354. See too Kemble v Farren (1829) 6 Bing 141, 148: liquidated damages clauses performed a valuable function where breaches were ‘of an uncertain nature and amount’ because they saved ‘the expense and difficulty of bringing witnesses to that point’. 106 (1854) 9 Ex 341. 107 For this crucial aspect of the case at trial and at Westminster, see R Danzig, ‘Hadley v Baxendale: A Study in the Industrialization of the Law’ (1975) 4 JLS 249, esp 261–62; Ibbetson (1999) (n 9) 229–32. 108 British Columbia Saw Mill Co Ltd v Nettleship (1868) LR 3 CP 499; Horne v Midland Railway Co (1873) LR 8 CP 131. Discussion in Lobban (2010) (n 9) 544–48. 109 See pp 469–71. 110 The rule, settled by the House of Lords in Flureau v Thornhill (1776) 2 W Bl 1078, has been claimed as evidence of a general refusal to award expectation damages: Horwitz (n 14) 163; Atiyah (n 3) 200 and 427–28. But it was surely exceptional: Simpson (1979) (n 16) 552–53; Lobban (2010) (n 9) 539–40. It was criticised and limited in various decisions but upheld with regret in Bain v Fothergill (1874) LR 7 HL 158. For assessment of the rule against the background of conveyancing practice, see JS Anderson, ‘Land Transactions: Settlements and Sales’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010) esp 98–100.

Part 1: Contract 207

iv. Assessment In the century before the Judicature Acts, the common law courts’ main concerns were to identify the objective terms of agreements and enforce them. Institutional constraints left them with little scope to go behind the wording of contracts to investigate the parties’ subjective intentions and misunderstandings. Devices such as the implication of terms were used to moderate this approach where this was justified by ordinary business expectation. But a general conspectus of contract law emerged which viewed bargaining as a robust commercial activity: the individual had to watch out for himself and bear the consequences of his unguarded risks. Nor did the courts have much appetite for striking down agreements for immorality or public policy. The Jacobean view of public policy as an ‘unruly horse’ was a telling image for Victorian judges,111 and in Egerton v Earl Brownlow112 the common law judges would have denied themselves the power to create new heads for this form of regulatory intervention.113 The House of Lords refused to take such a categorical stance, but it was clear that public policy had become a weapon to be used only with the nicest discrimination – and the need to use it would diminish as the importance of the legislature grew.114

B. Equity Before 1876 In the seventeenth and eighteenth centuries, courts of equity, besides making a signal contribution to the mesh of property rights in land, lent their support to the exploitation of capital: for example, the mortgage was made a more flexible security device, and the deed of settlement company was created out of a combination of partnership, trust and contract law principles.115 This friendliness towards new deployments of wealth helps to explain Lord Mansfield’s interest in equity as a means of vitalising the common law. By 1750, furthermore, the time when common law and equity were conceived as opposing forces was long past and on their side the courts of equity respected notions of contractual sanctity. The order for specific performance had long stood testament to their commitment to the very idea of contractual obligation, for there could be no more positive way of insisting that a party should have what he bargained for.116 There were pronouncements, too,

111 The phrase was attributed to Hobart CJ in Richardson v Mellish (1824) 2 Bing 229, 242. cf Hibblewhite v M’Morine (1839) 5 M & W 462, 467 (Alderson B): ‘I disclaim deciding on the ground of public policy: the policy of one man is not the policy of another, and such a consideration only tends to introduce uncertainty into the law.’ 112 (1853) 4 HLC 1. The issue was whether the gift of an estate could be made subject to a condition that the donee have a named peerage conferred on him. The Lords ignored the judges’ advice and ruled against the condition. 113 Established categories were the sale of offices (Card v Hope (1824) 2 B & C 661), champerty (Stanley v Jones (1831) 7 Bing 369), and restraint of trade (Mitchel v Reynolds (1711) 1 P Wms 181); wagers were also struck down on this ground prior to invalidation by the Gaming Act 1845. Marriage brokerage contracts had been struck down by the Chancery courts for a long time: R Powell, ‘Marriage Brocage Agreements’ (1953) 6 CLP 254. 114 Changes in judicial attitude between the eighteenth and nineteenth centuries are tracked in Swain (2015) (n 10) ch 10. 115 See pp 129–30 (mortgages) and 243–44 (deed of settlement companies). 116 Simpson (1979) (n 16) 547–49. Specific performance was granted only at the courts’ discretion, the principal limiting factor coming to be that damages at common law should be an inadequate remedy. See generally Sir E Fry, A Treatise on the Specific Performance of Contracts (Butterworths, 1858) Pt I.

208 Commerce and Industry that ‘Chancery mends no man’s bargain’,117 and that ‘contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice’.118 Even so, the courts of equity had more scope than the common law courts to identify unconscionable behaviour and to react to this in decisions by which they were increasingly apt to consider themselves bound in later cases.119

i. Creating Obligation The moral premise which most often sustained equitable intervention was the need to honour trust. This idea was given particular substance by according property rights to the beneficiaries of ‘a trust’. But there could also be equitable rights in other cases where there had been reliance on the word of another, a reposing of confidence, an expectation of good faith. Equity had historically encountered contract in dealings with land and family wealth, rather than with goods and services in trade. In the former context, ideas of good faith flourished in ways that were foreign to the individualistic ethics of commerce. The courts might say that there was ‘no equity to perfect an imperfect gift’,120 but in practice they did enforce promises of gift on some occasions, particularly in the context of marriage settlements. Here, terms such as covenants to settle after-acquired property could be enforced not only by the actual parties – the fathers, trustees and perhaps the husband – but also others ‘within the consideration’ – children of the marriage and even grandchildren if they were named as beneficiaries.121 Promises that lay outside the formal settlement could also be enforced if they were specific representations that were followed by the marriage.122 The same was true of reliance on other promises in a family context: the father who induced his son to build on land by seeking (ineffectively) to transfer it to him by deed poll;123 the niece who kept house for her uncle upon an oral promise that she would have a life interest in property by his will.124 The desire to protect conduct in reliance also reached out beyond family arrangements: a promise to a tenant that he might have a long lease if he built on a piece of land, was, according to Lord Kingsdown, enforceable once the building was complete;125 a landowner’s encouragement to a licensee to build a jetty on its land led to the licence becoming irrevocable.126

117 eg Lowe v Peers (1768) 4 Burr 2225, 2228. The source of this expression was Lord Nottingham’s judgment in Maynard v Moseley (1676) 3 Swans 653, 655; when read in context, however, his words did not mean that equity lacked all power to modify contractual obligations: S Waddams, ‘Good Faith, Good Conscience and the Taking of Unfair Advantage’ in A Dyson et al (eds), Defences in Contract Law (Hart, 2017) 64–65. 118 Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462, 465 (Jessel MR). 119 Following the work done by Lord Nottingham and his successors to regularise equitable principle, on which see DEC Yale, Lord Nottingham’s Chancery Cases (Selden Society, 1954) xxxvii–cxxxiv; C Croft, ‘Lord Hardwicke’s Use of Precedent in Equity’ in T Watkin (ed), Legal Record and Historical Reality (Hambledon Press, 1989). 120 Milroy v Lord (1862) 4 De G F & J 264, 274. 121 The rule was not settled in this form until the 1890s: see eg MacDonald v Scott [1893] AC 642. Occasionally the ambit had been somewhat wider in earlier cases: eg Clarke v Wright (1861) 6 H & N 849. 122 eg Hammersley v De Biel (1845) 12 Cl & F 45. 123 Dillwyn v Llewelyn (1862) 4 De G F & J 517. 124 Loffus v Maw (1862) 3 Giff 592. 125 Ramsden v Dyson (1866) LR 1 HL 129, 170; but he failed to persuade his fellows even with a preliminary written memorandum: Lord Cranworth firmly restricted any interference to mistakes about existing rights, deliberately acquiesced in by the other party. 126 Plimmer v Mayor of Wellington (1884) 9 App Cas 699.

Part 1: Contract 209 The same approach carried through to the execution of contracts: if a purchaser of land gave the vendor more time than the contract allowed in order show good title, he was not entitled to go back to the original date;127 likewise if a landlord led his tenant to suppose that he would not insist strictly on the time limit for carrying out repairs.128 In equity there was no need to show a contract of variation which was supported by common law consideration and which complied with the Statute of Frauds 1677. What equity required for the promise to be made good varied with the facts, but the cases included orders to convey a promised freehold and money judgments for a promised sum or even some other promised benefit. Once this point was reached, equity came close to awarding compensation for a failure to make representations good even in the absence of dishonesty,129 a development which may be contrasted with the common law rule that damages for non-fraudulent misrepresentation were not available.130

ii. Justifying Non-Enforcement Equity also responded to the unfairness of bargains by refusing specific performance of executory obligations and ordering rescission of executed transactions. The harsh realities of bargaining in the medieval and early modern period had been marked by the extensive use of penal bonds as a guarantee of due and exact performance of an undertaking.131 As early as the seventeenth century, the Chancellor had granted relief against penalties, larger amounts or other increased burdens imposed on a person who failed to meet his liability.132 Eighteenth- and nineteenth-century courts distinguished penalty clauses, which could not be enforced,133 from liquidated damages clauses, which could134 – a distinction that turned on whether the clause formed part of ‘the essence of the agreement’ or merely secured the ‘enjoyment of a collateral object’,135 a test which Lord Eldon understandably thought obscure.136 A jurisdiction also evolved to relieve against forfeitures (so that a lessee late with his rent would be given time to pay without suffering termination of the lease),137 and ‘clogs’ 127 A long line of cases was reviewed by Lord Cranworth V-C in Parker v Thorold (1852) 2 Sim NS 1; as a common lawyer sitting in equity he thought that the cases went so far as ‘to have made a new contract for the parties’; but for the basic rule he had the authority of Lord Eldon: Seton v Slade (1802) 7 Ves Jun 265. 128 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439; and see Birmingham and District Land Co v London & North Western Railway Co (No 2) (1888) 40 Ch D 268. These ideas fell into abeyance in the first part of the twentieth century for the reasons described at p 216, but they were revived and generalised by Denning J just at the end of our period, in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. 129 For equity cases after Pasley in which representations were ordered to be made good on the grounds of ‘gross negligence, forgetfulness, failure to know what one ought, and absence of reasonable grounds for belief ’, see LA Sheridan, Fraud in Equity: A Study in English and Irish Law (Pitman, 1957) 29–33. See esp Pulsford v Richards (1853) 17 Beav 87; Jennings v Broughton (1854) 5 De G M & G 126; Slim v Croucher (1860) 1 De G F & J 518; Higgins v Samuels (1862) 2 J & H 460. 130 Pasley v Freeman (1789) 3 TR 51. See pp 202–03. 131 AWB Simpson, ‘The Penal Bond with Conditional Defeasance’ (1966) 82 LQR 392; AWB Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford University Press, 1975) 88–126. 132 WS Holdsworth, A History of English Law, vol 1 (Methuen, 1922) 457–58. 133 Hardy v Martin (1783) 1 Cox Eq Cas 26; Sloman v Walter (1783) 1 Bro CC 418. 134 Fletcher v Dyche (1787) 2 TR 32; Farrant v Olmius (1820) 3 B & Ald 692. 135 Lowe v Peers (1768) 4 Burr 2225, 2228. 136 Astley v Weldon (1801) 2 Bos & Pul 346, 350. 137 Lord Eldon was however responsible for preventing the expansion of this jurisdiction from money payments to other obligations, such as the repair of buildings; he found it difficult in such cases to take account of any consequential disadvantage to the landlord and he showed himself generally uneasy about interfering with plain terms of agreement: Hill v Barclay (1811) 18 Ves Jun 56; cf Sanders v Pope (1806) 12 Ves Jun 282 (Erskine LC).

210 Commerce and Industry on a mortgagor’s equity of redemption (ie clauses which qualified his right to discharge the mortgage by repaying his debt).138 By 1750, the equity courts had an established jurisdiction over cases of ‘fraud’, including ‘actual fraud’ – ie deliberate misrepresentation and concealment of the truth139 – and ‘constructive fraud’ – a wider notion that included various types of unconscionable behaviour.140 These included undue influence which became the main organising concept around which the law was structured in the 1800s.141 If one person could govern the thinking of another so as to leave him no real ability to choose freely whether to make a gift or enter a contract, then equity would rescind it.142 Undue influence came to be presumed where a parent secured a benefit from a child, a solicitor from a client, a doctor from a patient, a mother superior from a nun.143 Equally, the presumption of influence might be raised from proof of particular circumstances, as typically where a domineering companion took over the affairs of an elderly or sick person and extracted a personal advantage. Once the influence was established or presumed, the court would treat with great suspicion any gift or transaction at an undervalue which had not been preceded by fully independent advice.144 It was not enough to show that a fair price was being paid: by 1860, Romilly MR insisted on proof ‘that by no possibility could more be obtained’.145 Equity did not confine its attention to relationships which had built up over time, but also interfered in unconscionable bargains between ‘strangers’. The starting point for such an allegation was an element of undervalue in the deal – generally ‘gross’, rather than ‘mere’, undervalue.146 The jurisdiction was still of uncertain scope in the eighteenth century, although there were clear indications that something more than just a hard bargain must be shown.147 The nineteenth century settled on the proposition that the court would be ‘astute … to infer fraud from inadequacy’,148 particularly if there were some additional element – humble station in life, sickness, youth, old age, poverty, lack of understanding of the transaction or other ‘ignorance’. A regular flow of such cases came before mid-century judges: Romilly MR, Knight Bruce LJ and Page Wood V-C all made important statements about the doctrine.149 The equitable requirement of conscionability was used to attack two kinds of transactions with moneylenders.150 In the post obit bond, the loan was on terms of repayment of a 138 See p 130. 139 Broderick v Broderick (1713) 1 P Wms 239, 240: ‘Either suppressio veri, or suggestio falsi, is a good reason to set aside any release or conveyance.’ For discussion see Lobban (2010) (n 9) 414–17. 140 Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125, 155–57. 141 W Swain, ‘Reshaping Contractual Unfairness in England 1670–1900’ (2014) 35 JLH 120. 142 Bridgeman v Green (1757) Wilm 58; Huguenin v Baseley (1807) 14 Ves Jun 273; Allcard v Skinner (1887) 36 Ch D 145. See generally Sheridan (n 129) ch 5. 143 The judges’ ambivalent attitudes towards the resurgence of organised religious life in nineteenth-century England were typical of their time and were reflected in their views of the influence exerted by religious superiors: C Smith, ‘Allcard v Skinner (1887)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Restitution (Hart, 2006). 144 Harvey v Mount (1845) 8 Beav 439; Rhodes v Bate (1866) LR 1 Ch App 252, 257. 145 Grosvenor v Sherratt (1860) 28 Beav 659, 662. 146 Heathcote v Paignon (1787) 2 Bro CC 167, 175; JL Barton, ‘The Enforcement of Hard Bargains’ (1987) 103 LQR 118, 123–30. 147 Sheridan (n 129) chs 4 and 7; Swain (2015) (n 10) 166–70. 148 Underhill v Horwood (1804) 10 Ves Jun 209, 219; Stilwell v Wilkins (1821) Jac 280, 282. 149 Harrod v Harrod (1854) 1 K & J 4; Clark v Malpas (1862) 4 De G F & J 401; Summers v Griffiths (1866) 35 Beav 27. 150 Sheridan (n 129) ch 8; Barton (n 146) 132–43.

Part 1: Contract 211 larger sum at a future date, typically the date on which the borrower came into an inheritance through the death of a relation, subject to the condition that the borrower was still then alive. If the difference between the two amounts was considerable, Chancery would effectively ignore the added gamble of the borrower’s premature death, and would rescind the original terms on payment of the amount lent plus a moderate interest. Even more significantly, where the heir to an estate, or some other person entitled to an expectancy, sold his interest for less than its value, the transaction would be set aside – a rule motivated as much by the desire to protect the family’s position as by the desire to protect the heir himself.151 Lord Eldon was hostile to the very transaction, but the House of Lords upheld sales of expectancies if a proper price was paid, fearing that they would otherwise become unsaleable.152 Mid-century judges continued to insist on proof that the purchaser had given full market value,153 however, and although the heir’s position was eroded by the Sale of Reversions Act 1867 (which said that bona fide transactions should not ‘be opened or set aside merely on the ground of undervalue’), Lord Selborne LC held that this did not prevent the courts from intervening where there had been ‘unconscientious use of the power arising out of circumstances and conditions’, such as ‘weakness on one side, usury on the other, or extortion, or advantage taken of that weakness’.154 The courts of equity also had a well-established jurisdiction to deal with mistakes relating to the subject matter of contracts.155 Where a document failed to reflect the real agreement between the parties owing to a common mistake the courts would rectify it;156 and where the parties were both mistaken as to the subject matter of their contract the courts would rescind it.157 Defendants to suits for specific performance of contracts for the sale of property could also escape liability by showing that they had not meant to sell the relevant property.158

C. After the Judicature Acts By the late nineteenth century, the jurisdictions of common law and equity had worked in loose tandem for long enough to have few rules that were irreconcilable. So there was little work to be done by the Judicature Act’s directive that priority should be given to the rules of equity in cases of conflict.159 However, there were differences of jurisdictional focus that operated at one remove from simple conflict. Because of these, and because common lawyers outnumbered Chancery lawyers among the ranks of the judges, common law ideas 151 Twisleton v Griffith (1716) 1 P Wms 310, 313; Cole v Gibbons (1734) 3 P Wms 290, 293; Davis v Duke of Marlborough (1819) 2 Swan 108, 140. 152 Earl of Aldeborough v Trye (1840) 7 Cl & F 436. 153 Bromley v Smith (1859) 26 Beav 644; Talbot v Staniforth (1861) 1 J & H 484. 154 Earl of Aylesford v Morris (1873) LR 8 Ch App 484, 491. The case was not within the statute but was influential for a time: see O’Rorke v Bolingbroke (1877) 2 App Cas 814; Fry v Lane (1888) 40 Ch D 312; and generally, C MacMillan, ‘Earl of Aylesford v Morris (1873)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). 155 Lobban (2010) (n 9) 435–45; MacMillan (2010) (n 81) ch 3. 156 eg Murray v Parker (1854) 19 Beav 305. 157 eg Hitchcock v Giddings (1817) 4 Price 135. 158 eg Wood v Scarth (1855) 2 K & J 33; Cooper v Phibbs (1867) LR 2 HL 149. 159 Supreme Court of Judicature Act 1873, s 25, which dealt with a number of conflicts of detail by specific ordinance.

212 Commerce and Industry came to prevail and equitable rules about such matters as privity, mistake and unconscionable bargains came to be marginalised.160 This trend was exacerbated by the treatment of contract formation and enforceability in legal treatises written after 1876.161

i. The Elements of Contract The clearest example of these tendencies came in 1889. In Derry v Peek,162 a House of Lords composed of common lawyers reiterated the stance which had been taken in Pasley v Freeman: misstatements that led others into contracts gave rise to a claim for damages for consequential loss only if there had been deceit. Equitable money awards in cases of negligent misrepresentation were treated as heresy – something which, according to Lord Bramwell, would cause ‘mercantile men … to cry out’.163 The decision was uncompromising. The case concerned misstatements in a company prospectus – a situation which many felt to call for special treatment164 – and in this context, the decision was swiftly reversed by legislation.165 But in other cases of negligent misstatement, equity was henceforth confined to orders for rescission,166 and the House of Lords also reaffirmed the common law rule that representations made in the course of negotiations would not be treated as contractual terms unless they were expressly incorporated.167 Derry v Peek was ill-received by Chancery lawyers,168 and an equity-dominated House of Lords later carved out an exception for cases where there was a ‘special relationship’ between the parties,169 but for another half-century this was thought to be a narrow, uncertain category.170 There was also a steady playing down of equity’s instinct in other circumstances to honour statements and promises relied upon. Equity had been prepared to override the requirements of the Statute of Frauds 1677 where the part performance of a contract provided a basis for informal proof of its terms. But in Britain v Rossiter,171 the doctrine of part performance was confined to contracts for the transfer of interests in land; and in M addison v Alderson,172 it was insisted that the acts of part performance must be

160 An outcome foreseen by Chancery lawyers opposed to the legislation: M Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II’ (2004) 22 L&HR 565, 593–99. 161 SM Waddams, ‘Equity in English Contract Law: The Impact of the Judicature Acts (1873–75)’ (2012) 33 JLH 185. 162 (1889) 14 App Cas 337. For the post-fusion law of misrepresentation see Lobban (2010) (n 9) 425–32. 163 ibid 349; reaffirmed in Low v Bouverie [1891] 3 Ch 82 and Le Lievre v Gould [1893] 1 QB 491. 164 eg Anson (n 7) 142–43. See too M Lobban, ‘Nineteenth Century Frauds in Company Formation: Derry v Peek in Context’ (1996) 112 LQR 287. 165 Directors Liability Act 1890, which made directors liable for misstatements in company prospectuses unless they had reasonable grounds to believe, and did believe, that the statements were true. 166 Damages were not to be awarded in the guise of payments to put a party into his original position: Whittington v Seal-Hayne (1900) 82 LT 49. 167 Heilbut, Symons & Co v Buckleton [1913] AC 30. cf Jorden v Money (1854) 5 HLC 185, 216. 168 As reported by Pollock: see M de W Howe (ed), The Pollock-Holmes Letters (Cambridge University Press, 1942) vol 1, 215. 169 Nocton v Lord Ashburton [1914] AC 932. See also Viscount Haldane’s comments in Robinson v National Bank of Scotland Ltd 1916 SC (HL) 154, 157. 170 The trend was not reversed until Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. 171 (1879) 11 QBD 123. 172 (1883) 8 App Cas 467.

Part 1: Contract 213 unequivocally referable to the type of contract in question and not be capable of some alternative explanation, such as an intended gift. Contract treatises of the period also mark the demotion of other equitable ideas of reliance. Contractual liability was stated to require benefit-or-detriment consideration, as much for the variation of existing rights as for the initiation of new relationships, and definitive reinforcement of this rule was provided by the House of Lords’ insistence in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd that the English law of contract knew no ius quaesitum tertio (rights for the benefit of third parties).173 So a tyre manufacturer could not enforce an agreement procured for its benefit by a wholesaler that a retailer to whom tyres had been sold would not resell them below a certain price. No consideration had moved from the manufacturer to the retailer and there was no privity between them – problems that would not have arisen if the wholesaler had contracted with the retailer as the manufacturer’s disclosed agent, or had expressly declared a trust of the benefit of the retailer’s promise. Indeed, the court could have neutralised the privity problem itself, had it followed earlier equity authorities and implied a trust of the wholesaler’s contractual rights against the retailer for the manufacturer’s benefit.174 But this does not seem to have occurred to the court,175 and treatise writers discounted the possibility after noticing the equity cases but concluding that they were inconsistent with the rule against third party rights established by Tweddle v Atkinson176 – incorrectly, since a rule preventing the creation of legal rights for third parties under a contract should not have affected the creation of a trust of a contracting party’s legal rights for their benefit.177

ii. Relief from Liability One resonance of Derry v Peek sounded against any broad scope of equitable ‘fraud’. The texts now placed equity’s jurisdiction to relieve the poor, aged and ignorant from oppressive bargains under the heading of undue influence.178 Discussion was directed to defining the circumstances in which a finding of influence could be justified, either from a presumption or actual demonstration that one person had so dominated the thinking of another that he could not choose what to do for himself. One underlying animus which had earlier given force to the jurisdiction was the fear of moneylenders. Now changes in the forms of wealth-holding within families, the growth of careers for the children of the wealthy, and the expansion of respectable sources open even to those in desperate need of money were limiting the demands which moneylenders were wont to impose. Equally Parliament was now prepared to curb what it saw as their excesses. In 1882, as we shall see, it curtailed the use of bills of sale as security for personal loans.179 Then in 1900 it passed a Moneylenders Act which divided the bad from the good by distinguishing the moneylender

173 [1915] AC 847; and see p 262. 174 Tomlinson v Gill (1756) Amb 330; Gregory v Williams (1817) 3 Mer 582; Lamb v Vice (1840) 6 M & W 467; Lloyd’s v Harper (1880) 16 Ch D 290; Re Flavell (1883) 25 Ch D 89. 175 Although Viscount Haldane LC noted at 853 that ‘a jus quaesitum tertio … may be conferred by way of property, as, for example, under a trust.’ 176 (1861) 1 B & S 393. 177 On Anson’s and Pollock’s treatment of this topic see Waddams (2012) (n 161) 205–07. 178 See eg Anson (n 7) 156–63. 179 See pp 234–36.

214 Commerce and Industry from, in particular, the banker.180 The former came under an obligation to register; he was obliged to put his transactions in written form and to keep proper records under threat that otherwise the entire loan (not merely the interest) would prove irrecoverable; also, the county courts and High Court were given power to reduce excessive rates of interest.181 The burden of relieving against unfair loans and other money-raising transactions, which had lain entirely in equity’s province since repeal of the Usury Laws in 1854, now seemed to pass primarily to legislation. The rules of equity for sales of reversions, post obit bonds and other oppressive transactions could be relegated to the footnotes of history. As for mistake, the common law remained antagonistic to any undermining of apparent consensus ad idem:182 it would take account of a misunderstanding shared by the parties only if it undermined a ‘foundation essential to the existence of the contract’.183 The fact that equity took a more flexible view of the matter was discounted, in part because ‘it seemed an attractive simplification to apply a single principle (consent)’ both to relief from mistake and to contract formation, with the result that the conscience-based justification for equitable intervention disappeared.184 The broad potential of equity’s power to rescind contracts on this ground was also thought to threaten commercial certainty: in perhaps the last great exposition of contractual sanctity, Lord Atkin concluded that mistakes about quality were no more than risks run: it is of paramount importance that contracts should be observed, and that if parties honestly comply with the essentials of the formation of contracts – i.e. agree in the same terms on the same subject-matter – they are bound, and must rely on the stipulations of the contract for protection from the effect of facts unknown to them.185

iii. Execution of the Contract As we have noted, the strict common law rules which insisted on contractual performance to the letter were modified to some extent by admitting the concept of frustration 180 The cast of public enemies was led by Isaac Gordon of Birmingham, who defended loans at 3,000% interest before a Select Committee on Moneylending (PP 1897 (364) XI; and see 1898 (260) X) and who faced a nakedly hostile Court of Appeal in Gordon v Street [1899] 2 QB 641. 181 This was a generalisation of the established jurisdiction in equity: see PP 1898 (260) X at vi. In 1927 it would be prescribed that a loan at a rate of more than 48% per annum would be presumed harsh and unconscionable: Moneylenders Act 1927, s 10. The latter statute also increased the licence fees introduced in 1900 and the combined effect of these measures was to return thousands of ‘back street lenders’ to the subterranean world of illegal l ending: S O’Connell, Credit and Community: Working-Class Debt in the UK Since 1880 (Oxford University Press, 2009) ch 4; P Fearon, ‘A “Social Evil”: Liverpool Moneylenders 1920s–1940s’ (2015) 42 Urban History 440. 182 But note that a rather muddled doctrine of identity mistake evolved in the later nineteenth and early twentieth centuries out of cases such as Cundy v Lindsay (1878) 3 App Cas 459 and Phillips v Brooks Ltd [1919] 2 KB 243. See ECS Wade, ‘Mistaken Identity in the Law of Contract’ (1922) 38 LQR 201; Lobban (2010) (n 9) 452–70; MacMillan (n 81) ch 8. 183 See esp Bell v Lever Bros Ltd [1932] AC 161. This extremely limited basis for interfering with contracts was used to define the scope of frustration; and at one stage, Blackburn J had sought to make it the test even of misrepresentation: Kennedy v Panama, New Zealand and Australia Royal Mail Co (1867) LR 2 QB 580. 184 Waddams (2012) (n 161) 194, adding that this reconceptualisation created several problems: it disabled the courts from considering whether the risk of the mistake had been allocated to the mistaken party; it was potentially too wide because every disadvantageous bargain involves a mistake of some sort, and to avoid this danger the courts then swung to the opposite extreme of a very narrow test; and by holding contracts to be void (rather than voidable) for mistake it deprived the courts of the remedial flexibility they had previously enjoyed in equity. 185 Bell (n 183) 224. For general discussion see also MacMillan (2010) (n 81) ch 9.

Part 1: Contract 215 and by deploying such rules as that concerning substantial performance of an indivisible contract.186 In the opposite direction, common law, having absorbed equity’s refusal to give effect to a penal stipulation, continued to ensure that there was no undue inhibition of the power to build ‘genuine pre-estimates of damage’ into the contract. In the culminating case, the House of Lords allowed a clause to stand which laid down a standard payment for each failure to respect a minimum resale price, even though the actual injury might vary from instance to instance.187 In similar vein, equity’s old protectiveness towards mortgagors and against mortgagees had implanted the rule that, after the initial date for repayment, the borrower’s equitable right to recover the secured land upon repayment of the sum borrowed and prescribed interest must not be impeded by any other ‘clogging’ obligation. The origins of the rule probably lay with the particular form of the mortgage transaction; but over time it developed partly in order to prevent the Usury Laws from being side-stepped by dressing up extra interest as capital premiums. Once those laws were repealed,188 the rule against clogs had once more to be seen as part of equity’s refusal to support unconscionable bargains; and that meant overriding the parties’ agreement on too large a scale for common lawyers such as Lord Bramwell, who thought it would have been better ‘to have held people to their bargains, and taught them by experience not to make unwise ones, rather than relieve them when they had done so.’189 In the event, however, it was two Chancery lawyers – Lord Lindley and Lord Parker – who remoulded the equity so as to strike only against clogs that were not reasonable commercial bargains.190 The late 1800s also saw an expansion of the circumstances in which orders of specific performance were made to enforce contracts for the sale of goods, to take in contracts for specific or ascertained goods even if these were not of unique or sentimental value to the buyer.191 Otherwise, the situations in which the remedy might be awarded were not enlarged and the courts kept up earlier rules that withheld the remedy where damages were an ‘adequate’ remedy because alternative performance could be bought from a third party,192 and where an order for specific performance would require the court’s continuing supervision. The latter rule was said to be the reason why orders were not granted to enforce

186 See pp 204–05. 187 Dunlop Pneumatic Tyres Co Ltd v New Garage & Motor Co Ltd [1915] AC 79. For resale price maintenance arrangements see p 257; and note D Ibbetson, ‘English Law: Twentieth Century’ in J Hallebeek and H Dondorp (eds), Contracts for a Third-Party Beneficiary: A Historical and Comparative Account (Martinus Nijhoff, 2008): the parties-only rule reaffirmed in Dunlop v Selfridge (n 173) prevented manufacturers from enforcing terms against retailers (via wholesalers), but they were able to circumvent this problem by using penalty clauses in their contracts and strengthening the disciplinary powers of their trade associations. 188 Usury Laws Repeal Act 1854. See pp 221–22. 189 Salt v Marquess of Northampton [1892] AC 1 at 18–19. 190 Lindley’s attack (Santley v Wilde [1899] 2 Ch 474) at first provoked defence (Noakes & Co Ltd v Rice [1902] AC 24; Bradley v Carritt [1903] AC 253); Parker largely carried the day in Kreglinger v New Patagonia Meat and Cold Storage Co [1914] AC 25, but the dividing line has never been clearly delineated. Discussion in JS Anderson, ‘Leases, Mortgages and Servitudes’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010) 150–58. 191 For the cases leading up to the Sale of Goods Act 1893, s 52, see Lobban (2010) (n 9) 554–56. 192 Obligations to sell land were the obvious exception, both because of its unique character and because expectation damages were not available under the rule in Flureau v Thornhill (1776) 2 W Bl 1078 (for which see n 110).

216 Commerce and Industry personal service obligations;193 humanitarian explanations came later, as ideas about the employment relationship changed.194 The generally restrictive attitude taken towards the availability of specific performance can be contrasted with the approach of civilian systems, where such orders were the norm rather than the exception,195 and it contributed to a new ethos which downplayed the moral imperatives of promise-keeping, memorably articulated by the American jurist Oliver Wendell Holmes Jr in his famous aphorism that the ‘duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it – and nothing else.’196

iv. Assessment The law of contract which evolved after 1876 was blunter than the mixture of common law and equitable rules which had evolved over preceding centuries. As Stephen Waddams has written, one reason why common law judges of earlier generations had felt confident of their ability to lay down rules in ‘rather absolute terms’ was that they knew ‘another court had power to mitigate the application of the rules in cases of severe injustice’; yet although equity was meant to prevail in the post-Judicature world, important elements of equity doctrine disappeared because they ‘came to seem inconsistent with common law rules’, which themselves took firmer form through the efforts of judges and writers to reconceptualise them in terms of the Will Theory.197 This produced a new version of contract law with a distinctly individualistic tone: parties contracted at their own risk and few excuses for non-performance were permitted. However, this was less the product of conscious ideological realignment than of institutional forgetfulness, as the superior courts after Judicature were largely staffed by judges who had come up through the common law system and who let some of the possibilities offered by equity fall by the wayside through their lack of familiarity with this body of law.

D. Contract Law and Business Needs The question whether commercial activity was stimulated, or at least supported, by contract law in the 1700s and 1800s turns not only on whether the law was well adapted to commercial practice and ‘pro-business’ in content, but also on the extent to which it affected the decisions taken by businessmen when they negotiated deals and resolved disputes with their trading partners, in the sense that they would have acted differently if the law had been different, or had not existed at all.

193 Webb v England (1860) 29 Beav 44, 54; Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116, 125. 194 De Francesco v Barnum (1890) 45 Ch D 430, 438; cf FW Maitland Equity, also the Forms of Action at Common Law (Cambridge University Press, 1916) 240. On employment generally, see ch 4 of the present volume. 195 cf J Oosterhuis, Specific Performance in German, French and Dutch Law in the Nineteenth Century – Remedies in an Age of Fundamental Rights and Industrialization (Martinus Nijhoff & Brill, 2011). 196 OW Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 462. 197 Waddams (2012) (n 161) 207–08.

Part 1: Contract 217

i. Contract in Context Some judges consciously sought to adapt the rules of contract law to commercial practice, to make them better suited to business needs than to those of the landowning, agricultural world from which they had originated. For example, the judges saw that traders wanted recognition of the negotiable character of bills of exchange and promissory notes which passed from hand to hand as financial instruments, and the assurance that title to goods could usually be presumed from physical control over them. There was no room in the transitory world of commerce for the elaborate investigations that were the rule for land or for the common law’s insistence upon nemo dat quod non habet. At the start of the eighteenth century, Sir John Holt made a vigorous start on the integration of mercantile custom,198 and 50 years later Lord Mansfield took this further, combining his wide learning with a readiness to consult City opinion, both informally and through special juries of merchants with whom he sat at the Guildhall.199 Bills of exchange and promissory notes were accorded their prime modern characteristic of negotiability: the person who received the paper for consideration in the ordinary course of business took good title, despite earlier loss, theft or fraud.200 Lord Mansfield also formulated key principles of marine insurance law, which later came to be applied to other forms of insurance, eg fire and life.201 The marine insurance market grew significantly from the end of the seventeenth century as overseas trade expanded and merchants needed to lay off the risks of their trading activities;202 fire insurance business developed in the eighteenth century and grew rapidly in the nineteenth as house-building increased, along with the building of industrial works, factories, and warehouses.203 Bills of exchange were important for a different reason. In the 1600s and 1700s, currency was in short supply and trading was largely based on credit. In these conditions, bills of exchange were a useful payment method for goods: the vendor sent a bill to the purchaser requesting payment in eg six months’ time, the purchaser signed and thereby ‘accepted’ the bill and returned it to the issuer, who could keep it until the due date and present it for payment. Further possibilities were then opened up when it was recognised that the bill was negotiable: the holder could use it to pay his own creditor by

198 The view has been scotched that there was previously a customary law merchant uniformly applied in mercantile courts across Europe: JH Baker, ‘The Law Merchant and the Common Law before 1700’ (1979) 38 CLJ 295; JS Rogers, The Early History of the Law of Bills and Notes: A Study of the Origins of Anglo-American Commercial Law (Cambridge University Press, 1995) 12–31; E Kadens, ‘The Myth of the Customary Law Merchant’ (2012) 90 Texas Law Review 1152. 199 Mansfield was not the only judge to consult with special juries, nor did he and the others always defer to the jurors’ opinions: JS Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004) 20–27; JS Oldham, The Varied Life of the Self-Informing Jury (Selden Soc, 2005) 23–31. 200 See esp Miller v Race (1758) 1 Burr 452. This ran counter to the common law’s hostility to the assignment of debts. Holt had accepted the case for the bill of exchange but had drawn back in the case of the promissory note, accusing Lombard Street of attempting ‘to give laws to Westminster Hall’: Clerke v Martin (1702) 2 Ld Raym 757, the result of which was reversed by the Promissory Notes Act 1704. 201 eg Godin v London Assurance Co (1758) 1 Burr 489 (double insurance); Goss v Withers (1758) 2 Burr 683 and Hamilton v Mendes (1761) 2 Burr 1198 (constructive total loss on notice of abandonment); Stevenson v Snow (1761) 3 Burr 1237 (return of premium when risk not run); Lewis v Rucker (1761) 2 Burr 1167 (valued policies); Carter v Boehm (1766) 3 Burr 1905 (insured’s duty of disclosure); Kenyon v Berthon (1778) 1 Doug KB 12n, Hore v Whitmore (1778) 2 Cowp 784 and De Hahn v Hartley (1786) 1 TR 343 (warranties); Mason v Sainsbury (1782) 3 Doug KB 61 (subrogation); Lowry v Bourdieu (1789) 2 Doug KB 468 (effect of illegality). 202 F Martin, The History of Lloyd’s and of Marine Insurance in Great Britain (MacMillan & Co, 1876). 203 R Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain 1700–1850 (Ashgate, 2004).

218 Commerce and Industry indorsing it and handing it over, the creditor thereby becoming the new ‘holder’; or he could obtain cash by ‘discounting’ the bill at a bank. Once the bill had been endorsed to the creditor or bank they could use it themselves in a similar way, and so bills of exchange came to perform some of the functions of money. They also made it possible to shift capital around the country: bills ‘drawn on Lancashire were transferred to bankers in London, who sold them to country bankers in areas such as East Anglia which had surplus funds.’204 Nineteenth century judges continued to recognise market practices, eg by confirming that the writer of a general letter of credit was liable to any person who advanced money on the faith of it,205 and by developing a set of rules to govern the use of cheques drawn on banks when these began to replace bills of exchange and promissory notes as the preferred domestic payment method in the mid-1800s.206 In the insurance sector, judges took a wide rather than a narrow view of the rules of insurable interest, so that eg merchants could insure against the loss of profits of a marine adventure, and not merely against the loss of their goods,207 and the amount recoverable on life policies was fixed at the value of the insured’s interest when the policy was effected even if this went down afterwards.208 The courts remained committed to the idea that ‘wagering policies’ were undesirable (because they created moral hazard and wasted capital resources), and they continued to enforce the statutory ban on such policies (although this was widely flouted in practice);209 otherwise they generally considered that there was ‘no real merit’ in underwriters objecting to a lack of insurable interest after they had taken the premiums.210 The judges used several techniques to import mercantile usage into the rules of contract law and thereby build up a body of commercial law doctrine. One was the implication of terms on the basis of trade custom, first justified on the basis that commercial contracts were deliberately kept brief in the expectation, shared by the parties, that gaps would be filled by reference to market practice. Thus, Lord Hardwicke said that ‘in all mercantile contracts or adventures the articles are commonly extremely short, and where a doubt arises about them, the usage and understanding of merchants is read thereto.’211 A second technique was to construe express terms by reference to trade custom, also justified by Lord Hardwicke on the basis that merchants ‘have a stile peculiar to themselves, which is short, yet is understood by them; and must be the rule of construction.’212 A third technique was 204 MJ Daunton, Progress and Poverty: An Economic and Social History of Britain 1700–1850 (Oxford University Press, 1995) 249. 205 Re Agra and Masterman’s Bank (1867) LR 2 Ch App 391. 206 For this and other nineteenth-century developments in the law of negotiable instruments, see M Lobban, ‘Negotiable Instruments’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). 207 Puller v Glover (1810) 12 East 124. 208 Dalby v India & London Life Assurance Co (1854) 15 CB 365. For these and other nineteenth-century developments in insurance law, see M Lobban, ‘The Law of Insurance’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). 209 Marine Insurance Act 1745; applied in eg Smith v Reynolds (1856) 1 H & N 221; Roddick v Indemnity Mutual Marine Insurance Co Ltd [1895] 2 QB 380. 210 Stock v Inglis (1884) 12 QBD 564, 571. Insurers might anyway forego their legal rights with a view to establishing a reputation for generosity in the market; examples are given in Lobban, ‘Insurance’ (n 208) 680 (payment on ppi policies), 691 (no objection made to assignment of life policies), 711 (return of premiums paid on life policies avoided for non-disclosure) and 727 (varying attitudes to payment following death by suicide of life assured). 211 Blunt v Cumyns (1751) 2 Ves Sen 331, 331. See too Bayliffe v Butterworth (1847) 1 Ex 425, 429; Gibson v Small (1853) 4 HLC 353, 397. 212 Baker v Paine (1750) 1 Ves Sen 456, 459. See too Shore v Wilson (1842) 9 Cl & F 355, 511; Leidemann v Schultz (1853) 14 CB 38.

Part 1: Contract 219 to construe express terms in a way that would give business efficacy to the contract,213 and a fourth was to imply terms with the same end in view, justified on the basis that this must have been the parties’ intention.214 These rules became harder to apply in the nineteenth century when drafting became more elaborate, creating inconsistencies between trade usage and express terms; further rules were then needed to resolve these clashes.215

ii. Contracts in Practice How much difference did the rules of contract law make to commerce? When considering this question, we should note that there was no single ‘business community’, and that the objectives and opinions of bankers, industrialists, merchants, manufacturers, shopkeepers and self-employed artisans were not all the same – a point which will also hold good when we come to look at the views of ‘commercial’ interest groups about the laws of bankruptcy and imprisonment for debt.216 Legislators, judges and lawyers all believed that the establishment of ‘certain’ rules of contract law were a stimulus to trade, but businessmen had their own perspective. Statutes to invalidate certain types of contract were ignored,217 and the ‘mercantile community often disliked the rules elaborated by judges and so contracted out of them’.218 Many sale contracts were informal, based upon verbal agreements, customary conventions, and the like … [and compliance] was achieved more because of the desire of both parties to undertake repeat transactions, or to avoid the reputational cost associated with contract default, than because of the threat of legal sanction.219

‘Up to a point the law did … operate to hold people to their business engagements, but it operated in terrorem’ – ‘one did not tempt others to invoke it’ for legal processes were potentially ruinous and the fear of bankruptcy was real.220 Litigation in the superior courts was expensive and parties brought proceedings only when large sums were at stake.221 Yet few really large claims were ever made: in 1846 it was 213 Startup v Macdonald (1841) 2 Man & G 395, 402; Gether v Capper (1854) 15 CB 39, 44; Dahl (trading as Dahl & Co) v Nelson, Donkin, & Co (1881) 6 App Cas 38, 59. 214 Sanders Bros v MacLean & Co (1883) 11 QBD 327, 337; The Moorcock (1889) 14 PD 64, 68. Earlier and later cases are discussed in R Austen-Baker, ‘Implied Terms in English Contract Law: The Long Voyage of The Moorcock’ (2009) 38 Common Law World Review 56. 215 Blackett v Royal Exchange Assurance Co (1832) 2 Cr & J 244, 249–50; Hutton v Warren (1836) 1 M & W 466, 475–76; Brown v Byrne (1854) 3 El & Bl 703; Hayton v Irwin (1879) 5 CPD 130. 216 See pp 222–31. See also B Kercher, ‘The Transformation of Imprisonment for Debt in England, 1828 to 1838’ (1984) 2 Australian Journal of Law and Society 60; C Lemercier, ‘How Do Businesspeople Like Their Courts? Evidence from Mid-19th Century France, England and New York City’, paper at the Joint Michigan Legal History Workshop/Law & Economics Workshop, September 2015. 217 eg ‘wagering’ policies of insurance, on which see n 209 and text, and stock-jobbing contracts and oral contracts for the sale of goods, respectively invalidated by the Stock-Jobbing Act 1733 and the Statute of Frauds 1677, s 17: RB Ferguson, ‘Commercial Expectations and the Guarantee of the Law: Sales Transactions in Mid-19th Century England’ in GR Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984). 218 M Lobban, ‘The Politics of English Law in the Nineteenth Century’ in P Brand and J Getzler (eds), Judges and Judging in the History of the Common Law and the Civil Law: From Antiquity to Modern Times (Cambridge University Press, 2012) 122–23. At 117–22 he identifies two areas of contract doctrine that were not always good for business: the implication of warranties of quality and of title in sales of good contracts, and the rules protecting victims of fraud. 219 P Johnson, Making the Market: Victorian Origins of Corporate Capitalism (Cambridge University Press, 2010) 34. 220 S Hedley, ‘The “Needs of Commercial Litigants” in Nineteenth and Twentieth Century Contract Law’ (1997) 18 JLH 85, 88. 221 CW Francis, ‘Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts, 1740–1840’ (1986) 80 Northwestern University Law Review 807, esp 816–17.

220 Commerce and Industry estimated that only three cases worth £10,000 or more found their way to the higher courts each year.222 Rather than resorting to the courts, many traders chose instead to take their disputes to arbitration, by ad hoc processes, or by arbitral tribunals run by trade associations and chambers of commerce223 – a practice which grew in the later 1800s, in response to which the courts made concessions only slowly, and over which they extended their supervision to cover fraud, procedural irregularity and (to an uncertain extent) departures from the common law.224 Dissatisfaction within the business community about the manner in which justice was administered by the higher courts also led to calls for specialised merchant courts or tribunals of commerce;225 these went unsatisfied, although the outrage which followed Lawrance J’s egregious mishandling of a commercial case in 1891 prompted the creation of a commercial list.226 The codification of commercial law was supported by businessmen, particularly on the Scottish side of the border, but the movement for this was also taken forward by English and Scottish lawyers with their own reforming agendas.227

Part 2: Debt, Bankruptcy, Insolvency A. Enforcing Debts As we have said already, there was only a limited amount of coinage in circulation in the eighteenth century and most buying and selling was done on credit, with periodic set-off 222 H Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in 19th-Century England (University of Toronto Press, 1985) 56. 223 Report on Tribunals of Commerce, XII (1871) q 1445; H Barty-King, Food for Man and Beast: The Story of the London Corn Trade Association, the London Cattle Food Trade Association and the Grain and Feed Trade Association 1878–1978 (Hutchinson, 1978); AWB Simpson, ‘The Origins of Futures Trading in the Liverpool Cotton Market’ in J Stapleton and P Cane (eds), Essays for Patrick Atiyah (Oxford University Press, 1991); RJ Bennett, Local Business Voice: The History of Chambers of Commerce in Britain, Ireland, and Revolutionary America, 1760–2011 (Oxford University Press, 2011) 550. 224 Arthurs (n 222) 68–77. The Common Law Procedure Act 1854 allowed judges to refuse to hear a case if the party initiating proceedings had contracted to go to arbitration; Scott v Avery (1856) 5 HLC 811 held that an arbitration clause was enforceable to the extent that a party could not issue proceedings without first going through arbitration. See generally RB Ferguson, ‘The Adjudication of Commercial Disputes and the Legal System in Modern England’ (1980) 7 British Journal of Law and Society 141; Arthurs (n 222) ch 3; S Brekoulakis, ‘The Historical Treatment of Arbitration Under English Law and the Development of the Policy Favouring Arbitration’ (2019) 39 OJLS 124. 225 CR Burset, ‘Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the EighteenthCentury British Empire’ (2016) 34 L&HR 615; Arthurs (n 222) 57–61; GR Searle, Entrepreneurial Politics in Mid-Victorian Britain (Oxford University Press, 1993) 178–81; P Polden, ‘Tribunals of Commerce’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010) 773–76. 226 V Veeder, ‘Mr Justice Lawrance: The “True Begetter” of the English Commercial Court’ (1994) 110 LQR 292. The case was Rose v Bank of Australasia [1894] AC 687. See also TE Scrutton, ‘The Work of the Commercial Courts’ (1921) 1 CLJ 6; Lord Thomas, ‘Keeping Commercial Law Up to Date’ in R Merkin and J Devenney (eds), Essays in Memory of Jill Poole: Coherence, Modernisation and Integration in Contract, Commercial and Corporate Laws (Informa Law, 2019). 227 R Ferguson, ‘Legal Ideology and Commercial Interests: The Social Origins of the Commercial Law Codes’ (1977) 4 British Journal of Law & Society 18; A Rodger, ‘The Codification of Commercial Law in Victorian Britain’ (1992) 108 LQR 570. The Bills of Exchange Act 1882, the Sale of Goods Act 1893, and the Marine Insurance Act 1906 were all drafted by Sir Mackenzie Chalmers; the Partnership Act 1890 was drafted by Sir Frederick Pollock.

Part 2: Debt, Bankruptcy, Insolvency 221 of mutual debts.228 A manufacturing firm might obtain fuel and raw materials for which it would pay only after it had sold finished goods, perhaps to a merchant who might himself sell the goods on credit to a shopkeeper. The firm might also obtain credit from its workers by delaying the payment of wages, a practice that grew when the credit terms offered to manufacturers by suppliers shortened from six-to-18 months in 1815 to two-to-four months in the 1830s and 1840s.229 The result was that many poor households were forced to buy necessaries on credit – a phenomenon that ‘emerged rather by default than engineering’, since for shopkeepers ‘there was the constant risk that some of the debts would never be repaid … yet the poor were too numerous to be excluded en masse as consumers.’230 The costs of buying goods ‘on tick’ were high, for they were bought ‘in small quantities which increased the unit price, and the shopkeeper increased margins to cover defaulters.’231

i. Repeal of the Usury Laws Even at the beginning of the industrial period, attitudes towards credit and debt were still coloured by hostility towards usury. The medieval church had taught that all lending at interest was sinful, though with the growth of trade it was even then becoming an inevitable need. The tension this generated contributed much to the harsh history of European Jewry. In Tudor England it became clear that a new compromise was emerging.232 A series of postReformation Usury Laws set maximum rates of legal interest for moneylending, which in 1713 finally settled at five per cent.233 Various types of transaction involving some element of credit were by then defined as not usurious: to this end, for example, leases of land, partnerships and annuities (payments during life) were used to dress up what were effectively loans at interest. The real objection to usury had probably always been to the oppressive extraction of harsh interest from those desperate to borrow who could find no other source; now it came to be acknowledged that borrowing without pressure had economic and social advantages. Nevertheless, the limitation on interest, for all the uncertainties of its scope, remained operative throughout the early industrial period, and was finally abandoned only in 1854. Adam Smith did not consider that free market notions justified the lifting of this prudent fetter on cupidity, and many in the ruling class believed that their ability to find low-rate mortgages depended on the five per cent ceiling.234 However, Jeremy Bentham achieved 228 See pp 217–18. See also BL Anderson, ‘Money and the Structure of Credit in the Eighteenth Century’ (1970) 12 BH 85; J Hoppit, ‘The Use and Abuse of Credit in Eighteenth-Century England’ in RB Outhwaite and N McKendrick (eds), Business Life and Public Policy (Cambridge University Press, 1986); P Hudson, The Genesis of Industrial Capital: A Study of the West Riding Wool Textile Industry c 1750–1850 (Cambridge University Press, 1986) chs 5–8. 229 Daunton (1995) (n 204) 247–48. 230 C Muldrew and S King, ‘Cash, Wages and the Economy of Makeshifts in England, 1650–1800’ in P S cholliers and L Schwarz (eds), Experiencing Wages: Social and Cultural Aspects of Wage Forms in Europe Since 1500 (Berghahn Books, 2003) 156. 231 M Daunton, Wealth and Welfare: An Economic and Social History of Britain 1851–1951 (Oxford University Press, 2007) 396. 232 It was a long and uncertain struggle: RH Tawney, ‘Introduction’ in RH Tawney (ed), T Wilson, A Discourse on Usury (G Bell & Sons, 1925); AWB Simpson, A History of the Common Law of Contract (Oxford University Press, 1975) 510–18. 233 See p 129, n 74. 234 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) (University of Chicago Press, 1976) 356–8; see generally Atiyah (1979) (n 3) 550–51.

222 Commerce and Industry a distinct success by arguing against any regulation, thus out-Smithing Smith,235 and there were always financiers and bankers ready to put the same case. In 1818 a Select Committee listened attentively to Ricardo and recommended repeal;236 in 1837 there was an important exemption of bills of exchange payable in under 12 months; and finally there came abrogation, after a long period of low interest rates which had made the ceiling seem high, at least for mortgages and other well-secured loans.237

ii. Imprisonment for Debt Another ancient perception of debt was that the relationship placed the debtor in bond to his creditor. Many early societies reduced debtors to servitude to enforce repayment through labour. In medieval England a derivative of this notion survived.238 The higher courts of common law, mainly through early statutes, acquired the power to arrest defendants before trial for debt, as for other causes, so as to ensure their presence at the trial (arrest on mesne process); and equally to enforce judgments against them (arrest on final process). If this did nothing to make the debtor work off his liability, it could act as a stringent incentive to find some source for the money due. A more direct way of extracting payment from a judgment debtor could be to seize and realise his assets in satisfaction and such procedures were certainly available: writs might issue directing the sheriff to seize and realise chattels239 or ordering that the judgment creditor be given possession of land.240 But land itself was too sacrosanct to be the subject of an enforced sale; and in the e ighteenth century there was still no means of proceeding against the newer forms of wealth: bank accounts, negotiable instruments, annuities and other choses in action. The danger of imprisonment therefore loomed over all credit transactions, keeping the relationship personal and impeding the commercial desire to treat debts as negotiable property, transferable to others at a discount.241 Arrest on mesne process was a creditor’s weapon of variable impact. Some appreciation of its dangers appeared from successive statutes which required that the alleged debt be at least £2 (1725), then £10 (1779), then £20 (1827).242 Even so, since it operated merely on the creditor’s issue of a writ, it could have an effect, removing the defendant from his daily existence and cutting him off from such means of earning as he might have. If he had some substance, he might seek and be granted bail, since the whole purpose was only to ensure his appearance at trial. One method was to turn to a bail-broker, although that might only be 235 J Bentham, Defence of Usury; shewing the Impolicy of the Present Legal Restraints on the Terms of Pecuniary Bargains (1787) in M Quinn (ed), J Bentham, Writings on Political Economy, vol 1 (Oxford University Press, 2016); the later classical economists mostly followed him. 236 PP 1818 (376) VI; and see PP 1821 (410) IV. 237 Usury Act 1837; Usury Laws Repeal Act 1854. Byles J wrote a tract against repeal: Observations on the Usury Laws (S Sweet, 1845); but he seems by then to have been a lone voice: cf the Select Committee, PP 1845 (611) XII. 238 WS Holdsworth, A History of English Law, vol 7 (Methuen, 1925) 229–33. 239 Fieri facias was the normal form by the eighteenth century. If it proved inadequate it might be followed by arrest of the debtor, but fi fa was not permitted after arrest: Blackstone (n 3) vol 3, ch 26. 240 The writ of elegit entitled the creditor to possession of one half of the debtor’s freeholds; but arrest of the debtor was thereafter precluded. 241 The fear that a man’s enemy might become his creditor had real meaning even at the end of the eighteenth century: see eg Exall v Partridge (1799) 8 TR 308, 311. 242 Frivolous Arrests Act 1725 (for superior courts already £10); Inferior Courts Act 1779; Imprisonment for Debt Act 1827.

Part 2: Debt, Bankruptcy, Insolvency 223 to fall prey to a truly voracious creditor.243 After 1813, there were permanent arrangements of a sort, where a debtor was prepared to surrender his available assets to his creditors, for getting him out of prison.244 However, there was a growing feeling that a system which sent around 10,000 debtors into the prisons each year (a quarter or more of them on mesne process)245 was expensive, indiscriminate, and open to abuse.246 Reform of the sanctions for debt became part of a campaign for the restructuring of the debt court system; one argument for putting these into the charge of lawyers was that tradesmen could not be expected to control abuse of the enforcement process.247 By this time, most debt enforcement actions did not take place in the higher courts, but in the courts of requests – local courts, many of which had been revived or created afresh in the buoyant commercialism of the eighteenth century, precisely in order to deal with this business on a summary basis.248 They could commit debtors to prison, and although their willingness to do this varied, and some indeed pioneered the practice of ordering repayment by instalments to avoid committal,249 others proceeded in a ‘rapacious, arrogant, arbitrary and illegal’ fashion.250 Worries about this contributed to their replacement by a new country-wide system of county courts in 1846; and the processes of the superior courts also became less cumbersome in time, notably when a summary procedure was provided for cases where defendants did not contest the claim.251 However, these things were achieved only after changes in enforcement rules. In 1832, the Common Law Commissioners recommended restricting imprisonment for debt to cases of fraud, deliberate removal of assets and refusal after judgment to surrender assets towards payment.252 This did at least lead to the abolition of arrest on mesne process in 1838.253 At the same time the courts grew chary of sending judgment debtors to prison and the numbers imprisoned went down.254 A sharp anxiety among small traders – artisans and shopkeepers – then provoked inquiries into insolvency, bankruptcy and the enforcement of judgment debts,255 but the radical campaigners continued to press for abolition of imprisonment. In 1844 an Act excluded it even after judgment for debts under £20, unless there had been fraud or some equivalent misconduct,256 but there followed an immense 243 Common Law Commissioners, Fourth Report, PP 1831–32 (239) XXV, 8: ‘Bail, as is well known, may always be procured at a premium proportionate to the risk.’ 244 See pp 228–29. 245 See the Return for 1830–1834, PP 1835 (199) XLIV. 246 See esp the views of the Common Law Commissioners: above, n 243. 247 The Common Law Commissioners were in large measure hostile to them, contrasting them with the lawyerrun Palace Court of Westminster: Fifth Report, PP 1833 (247) XXII. But the extravagant fees extracted by its officers and attorneys led to its demise twenty years later: T Mathew, For Lawyers and Others (W Hodge & Co, 1937) 37. 248 MC Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2003) ch 5; P Polden, ‘Local Courts’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010) 851–57. 249 MC Finn, ‘Debt and Credit in Bath’s Court of Requests’ (1994) 21 Urban History 211, 218–19. 250 Finn (2003) (n 248) 234. 251 See the Common Law Procedure Act 1852, ss 27–28). 252 See Fourth Report (n 243). 253 Forms of Pleadings Act 1838. The same Act allowed final process against debts, bills and other intangible assets of the debtor; and it allowed the judgment creditor possession of all the debtor’s land by elegit. 254 See the Return of Persons Confined for Debt, PP 1844 (292) XXXVIII. 255 Notably the Royal Commission chaired by Erskine J: PP 1840 [174] XVI. 256 Execution Act 1844.

224 Commerce and Industry commercial outcry and rapid modification. In 1845, for debts under £20, imprisonment for up to 40 days might be ordered on various grounds, including failure to pay when the debtor apparently had means to do so.257 The county courts, instigated amid all this agitation, were given jurisdiction over debts under £20 and equivalent powers of imprisonment.258 Like the courts of requests, they also varied in their enthusiasm for committal.259 Some judges disliked the creditors who most often pressed the system to its extreme – money-lenders and tallymen who hawked finery and household goods and collected payments by regular calls – and they marked their distaste by ordering repayment in derisory instalments.260 But the process often worked summarily against debtors, without any real inquiry into their predicament, and the courts were prone to accept on scant evidence that debtors probably had means to pay and to order imprisonment. In the 1860s there was once more a campaign for abolition of imprisonment for debt and a Select Committee on Bankruptcy made this its first recommendation.261 An Act of 1869 proudly announced the abolition; but at the behest of commercial interests, it added an exception allowing imprisonment for debts of under £50 for up to six weeks, where the debtor, having apparent means to do so, failed to pay.262 Consequently, as the Spencer Walpole Committee was soon to find, there was no change of significance.263 In the decade 1871–1880, five per cent of county court judgments led to orders of imprisonment, and one per cent to actual imprisonment, giving an annual average of nearly 6,000 going to prison. After that the proportions declined, but the annual totals rose – to an average of nearly 10,000 for the decade 1901–1910. Only after that did the numbers fall again, submerging the problem for several decades.264

iii. Assessment The system of imprisonment for debt bore most heavily on the poor, whose treatment stands in stark contrast to that afforded to middle-class debtors with the means to petition for bankruptcy.265 The average value of debt actions in the county courts between 1858 and 1862 was £2 8s 10d; in 1893–1894 it was £3 1s, and ‘the typical action was for even 257 Recovery of Small Debts Act 1845. 258 Recovery of Small Debts Act 1846 (also known as the County Courts Act 1846), ss 9, 99. See Finn (2003) (n 248) ch 6; Polden (n 248) 857–66. 259 GR Rubin, ‘Law, Poverty and Imprisonment for Debt, 1869–1914’ in Rubin and Sugarman (n 217) 295; M Lobban, ‘Consumer Credit and Debt’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010) 838–40. 260 GR Rubin, ‘The County Courts and the Tally Trade, 1846–1914’ in Rubin and Sugarman (n 217). See too MC Finn, ‘Working-Class Women and the Contest for Consumer Control in Victorian County Courts’ (1998) 161 P&P 116: the judges’ unease reflected a conflicting set of attitudes about working-class wives’ expenditure on consumer goods in the home which was theirs to control but which was funded from the fruits of their husbands’ labour. 261 PP 1865 (144) XII. 262 Debtors Act 1869, s 5. 263 PP 1873 (348) XV. The attempt to ameliorate the lot of the lower-class debtor (owing less than £50 in toto) by a simple administration of assets in the County Courts (Bankruptcy) Act 1883, s 122 proved a failure; but some County Court judges achieved a rough division in their debt judgments: see Committee on Enforcement of Judgment Debts, PP 1969 [Cmnd 3909] XXXVI, paras 737–42. 264 Not till the lifting of wartime credit restrictions in the late 1950s would the annual average rise again to 6,000 and above. The unease would lead to a substantial investigation by the Payne Committee (n 263) and considerable, though by no means complete, curtailment of imprisonment for debt. 265 A course open to non-traders after 1861; a £10 fee was levied on bankruptcy petitions.

Part 2: Debt, Bankruptcy, Insolvency 225 smaller sums; 70 per cent of judgments issued in 1865 were for £2 or less, 90 per cent for no more than £5, while in 1913 more than 98 per cent of plaints were for less than £20.’266 Proceedings were most commonly brought by small traders – drapers, grocers, coal merchants – against male manual workers,267 who were personally responsible for the household debts run up by their wives prior to the enactment of the Married Women’s Property Act 1882.268 Apologists for the system argued that traders could not profitably extend credit to marginal debtors without assets or reputation unless such debtors could offer the possibility of their own imprisonment as security; strengthening laws to enable the seizure of assets was no use against them since they had no assets worth seizing; hence abolishing imprisonment for debt would result in an undesirable reduction of the credit facilities available to the poor.269 This argument ignored the fact that no such bad effect had followed the abolition of imprisonment for debt in France, Belgium, Italy, or Scotland, and a strong class bias was manifest in the denunciations of fecklessness and dishonesty which supposedly characterised the behaviour of working-class debtors and justified their incarceration.270

B. Bankruptcy and Insolvency i. Origins From its early manifestations in Tudor England, bankruptcy had been subject to pressure from three forces: the desire to punish the bankrupt by public censure, the wish to administer his assets so that competitors could be treated fairly and efficiently, and the hope that the process might absolve the bankrupt of his liabilities and allow him to rehabilitate himself. In the early stages, the third of these was a much less powerful motivation than the first two, but the prospect of an honest trader being absolved from his liabilities was not entirely forgotten under the Tudors, for the Council could sometimes be persuaded to grant a discharge from liabilities to those who cooperated to the best of their ability. After the Restoration, the only equivalent power lay with Parliament through a private Act or a temporary absolution of debtors; apart from this, any excusal was left to individual creditors, and debtors ran the risk that any new resources received after the bankruptcy procedure had been closed might be seized by an unpaid creditor. In the reign of Queen Anne, there was an attempt to improve the bankrupt’s lot by an Act allowing the Commissioners to discharge him from debts extant at the date of bankruptcy, if he had complied with the requirement to surrender up assets and undergo examination.271 266 P Polden, ‘The County Courts’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010) 885. In 1850 manual workers were unlikely to earn more than £1 a week; their earnings may have doubled by 1900: CH Feinstein, ‘New Estimates of Average Earnings in the United Kingdom, 1880–1913’ (1990) 43 Econ HR 595. 267 P Johnson, ‘Small Debts and Economic Distress in England and Wales, 1857–1913’ (1993) 46 Econ HR 67, 68. 268 Wives had their husbands’ implied authority to buy household goods, but not to buy such extravagant items as no husband would reasonably have authorised: Freestone v Butcher (1840) 9 Car & P 643, 647–48. See MC Finn, ‘Women, Consumption and Coverture in England, c 1760–1960’ (1996) 39 HJ 703. And see p 349 of the present volume. 269 V Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding Up in Nineteenth Century England (Oxford University Press, 1995) ch 3. 270 P Johnson, ‘Class Law in Victorian England’ (1993) 141 P&P 147, 157–63. See too Johnson (2010) (n 219) ch 2. 271 Bankrupts Act 1705, s 7; the same statute allowed the responsible bankrupt who paid at least 8s in the pound an award out of the assets of 5%, up to £200; this small help towards a new start would survive in later legislation.

226 Commerce and Industry However, this was too much for mercantile opinion and in the following year discharge was restricted to those who obtained the assents of four-fifths of the creditors (reckoned both by number and by value), the commissioners and the Lord Chancellor.272 Although the bankrupt’s chance of securing absolution lay with others, this possibility became an attractive appendage of the system. Blackstone, for instance, presented bankruptcy as above all a privilege offered to the honest trader, and justified reserving it to traders by the special economic value of their risk-taking273 – in a sense the ultimate appreciation of capitalist adventure. By 1750, bankruptcy had become a procedure that could only be initiated by a creditor against a ‘trader’ with debts of at least £100.274 Hence the law was commonly invoked against large rather than small businessmen – manufacturers and wholesalers, not artisans and retailers. The creditor would petition the Lord Chancellor to open a Commission of Bankruptcy charged with determining whether the trader had committed an act of bankruptcy: he must have put either his person or his property out of circulation in one of the defined ways – by keeping to his house, departing from it, seeking sanctuary, going to prison, or leaving the country, making a fraudulent conveyance of his land or goods, allowing goods to be attached, or offering preferential treatment to a creditor who threatened a petition in bankruptcy.275 This then led to the public humiliation of examination by the Commissioners to discover assets. In bankruptcy, the seizure of assets could include land, property conveyed to others by way of gift, property transferred after the act of a bankruptcy, and even the property of others which was in the bankrupt’s ‘reputed ownership’ (such as stockin-trade that belonged to other people).276 If necessary, there could be forced entry to the premises to effect the seizure. The available assets were rateably distributed among creditors. There was a splay of criminal offences which a bankrupt who failed to cooperate in the process might commit, and eighteenth-century Parliaments turned the most heinous into capital crimes (with the result that people were rarely prosecuted for committing them).277 There were many complaints from creditors about cost, delay and venality. To avoid these, they often sought to resolve matters privately, eg by agreeing to a composition under which the debtor was given more time and/or a write-off accompanied by a safe conduct during which the threat of imprisonment was suspended; or they might agree to issue a ‘letter of inspectorship’ or ‘letter of administration’ under which the debtor’s affairs were 272 Bankrupts Act 1706, s 2. The three assents remained quite distinct: mandamus would not lie against the commissioners. 273 Blackstone (n 3) vol 2, ch 31. 274 Welbourne (n 64); J Cohen, ‘The History of Imprisonment for Debt and its Relation to the Development of Discharge in Bankruptcy’ (1982) 3 JLH 153; Lester (n 269) 12–31. 275 The concept was broadened through a series of statutes: esp Bankrupts Acts 1571, 1603, 1624, 1711 and 1731. 276 The power to seize and sell goods within a bankrupt’s reputed ownership was first conferred by the Bankrupts Act 1623, s 11, re-enacted as the Bankrupts Act 1825, s 72. The purpose of the rule was to prevent the bankrupt from obtaining credit by creating a fictitious appearance of prosperity. It effectively penalised the true owner of the goods for enabling him to do so, and in the eighteenth century was extended to cases where there had been no dishonest collusion between the owner and the bankrupt: Ryall v Rolle (1749) 1 Atk 165, 185 (Lord Hardwicke, noting that ‘the act was made in the simplicity of former times, long before those large and airy notions of credit prevailed, which have been since introduced’); see too Joy v Campbell (1804) 1 Sch & Lef 328, 336; Re Florence (1879) 10 Ch D 591, 594. Goods were not in a bankrupt’s ‘reputed ownership’ if they were known to belong to another as a matter of notorious trade custom: Watson v Peache (1834) 1 Bing NC 327 (coal barges); ex parte Wingfield (1879) 10 Ch D 591 (horses); Re Ford [1929] 1 Ch 134 (furniture). 277 eg Bankrupts Act 1705 (refusing to surrender person or property within 30 days of notice); Bankrupts Act 1706 (embezzling with intent to defraud creditors). See too E Kaddens, ‘The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law’ (2010) 59 Duke Law Journal 1229.

Part 2: Debt, Bankruptcy, Insolvency 227 placed under supervision while he sought to trade his way out of trouble; or in cases where there was no hope of recovery from insolvency the debtor’s assets might be assigned to one or more of the creditors to act as trustee(s) for distribution to them all. These private ordering devices were popular for their cheapness and efficiency, but they required the consent of all creditors, which could not always be obtained.278

ii. Nineteenth-Century Reforms The period from 1770 to 1850 was a time of economic growth, but also a time of more numerous business failures. In Martin Daunton’s words, increased opportunities meant that more men were willing to take risks, and more intense competition meant that there was a greater chance of failure. … [The] level of bankruptcy was higher in expanding sectors such as overseas trade, Lancashire cotton, and Yorkshire wool textiles than declining areas such as Norfolk textiles. … [Risk] was increased by novelty and the emergence of new firms such as in Lancashire cotton and West Riding wool; and uncertainty was intensified by regional specialisation and reliance on external markets with the difficulties of obtaining accurate information.279

In 1800 there were some 700 bankruptcy commissioners for 140 courts around the country, each paid by the sitting (though many country commissioners had very little work). Proceedings in London were described by a commissioner as ‘the worst constituted court of justice that can be imagined’: the panels of commissioners might change as a case progressed, and creditors competed to attract attention in intolerable noise and confusion; the rules were likely to be bent at the whim of the bench and the right of appeal to the Lord Chancellor became so protracted as to afford more opportunity for abuse than anything else.280 The active creditors could manipulate the system in myriad ways. The commissioners did not themselves administer the assets but appointed one or more creditors as treasurers under their supposed supervision. It was easy for these assignees to make off with the available assets; a fictitious creditor could be hired, replete with forged bills, if that was the object. Equally, a substantial creditor might press for a fraudulent preference as a condition of signing the bankrupt’s certificate of discharge. The catalogue of abuses open to debtors was even longer. A trader could try to shelter behind a more-or-less sham bankruptcy. He could hide away his assets, or get them into the hands of family or friends. He might organise large debts or annuities which his relatives could afterwards prove. Then he could arrange an act of bankruptcy on which a compliant or fictitious creditor would issue a fiat against him. He might use the laborious opening stages of bankruptcy to secure respite from genuine demands. And he could at any time counter-attack a petitioning creditor by requiring proof afresh of the act of bankruptcy. The unscrupulous and the unfortunate became admixed in a procedure that left the judges struggling vainly to exert some kind of authority.281

278 J Hoppit, Risk and Failure in English Business 1700–1800 (Cambridge University Press, 1987) 29–30; J Sgard, ‘Bankruptcy Law, Majority Rule and Private Ordering in England and France (Seventeenth-Nineteenth Century)’ OXPO Working Paper (2010) 13–16. 279 Daunton (1995) (n 204) 249 and 252. 280 Select Committee on Bankruptcy Laws, PP 1818 (276) VI. 281 Although, from the Bankrupts Act 1731, s 24, the Lord Chancellor had supervision of the commissioners, the actions of creditors, assignees and others might well be challenged by a collateral action at common law. This did not aid consistent interpretation of the law.

228 Commerce and Industry Because of its harshness and the opportunities for abuse, they were inclined to stress the quasi-criminal character of the process. A well-meaning debtor might be preserved from surrender of all his assets or from forcible entry by a finding that, since he had not acted with intent to defraud creditors, he had committed no act of bankruptcy,282 or by a refusal to treat an arranged bankruptcy as properly based.283 Accordingly, on a range of fronts, bankruptcy was an evident target for reform, though it was still far from clear in which direction and by what means the campaign should proceed. Sir Samuel Romilly became a leader of this attempt, as of so many others, to reshape judicial administration and he piloted through bills in 1809 and 1813 containing sundry interstitial modifications. These included a reduction in the proportion of creditors needed to assent to the certificate of discharge from four-fifths to three-fifths.284 Most proposals from merchants and reforming lawyers were for making bankruptcy a regular process of absolution.285 The Select Committee of 1818 recommended that a trader should be able to place himself in bankruptcy by his own nomination and this indeed became the law in 1824, thus avoiding the pretence that even the most well-intentioned trader had perpetrated an exceptional wrong.286 But the Select Committee wanted to revert to a four-fifths majority of creditors for certifying discharge, and would countenance handing over the decision to a tribunal only in exceptional circumstances. A very limited power to override a single intransigent creditor was introduced in 1824; but even this proved too much and it was repealed in the following year.287 Not until Brougham became Lord Chancellor was anything done to alter the administrative structure. His Act of 1831 replaced the 70 Commissioners in London with a body of four judges and six commissioners.288 There was also an intermediate Court of Review comprising three of the new judges. In turn, however, this came in for heavy criticism and was abolished in 1847.289 Dissatisfaction even with such a change was merely one instance of a deeper malaise. A search for some more satisfactory mode of coping with insolvencies would run on unrelentingly until at least the 1880s. One element of tension was the continuing confinement of bankruptcy to traders.290 Eighteenth-century Parliaments had from time to time absolved debtors from prison (whether or not they were bankrupts) upon cession of their available 282 Despite the ambiguity of a number of earlier decisions, Lord Kenyon insisted that the criminal law requirement of mens rea was essential to an act of bankruptcy: Fowler v Paget (1798) 7 TR 509. 283 Thus Lord Mansfield refused to treat a bankruptcy arranged between debtor and creditors as ‘the crime of denying oneself to another’: Hooper v Smith (1763) 1 W Bl 441. Lord Kenyon initially showed some sympathy for the opposite position: Roberts v Teasdale (1790) Peake NP 38; but he later refused to make a new departure: Stewart v Richman (1794) 1 Esp 108. 284 Bankrupts (England and Ireland) Act 1809 (for the certificate, s 18); Insolvent Debtors Act 1813. 285 For general discussion of the nineteenth-century reforms, see M Lobban, ‘Bankruptcy and Insolvency’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). 286 Bankruptcy Act 1824, s 6. It soon proved to be an easy source of duplicity and so the bankrupt was required to show that he would pay at least 5s in the pound (Bankruptcy Act 1842); but this in turn proved unduly stringent. 287 Bankruptcy Act 1824, s 122; cf Bankrupts Act 1825, s 122. Only in 1849, was the decision given over to the commissioner (see n 297). 288 Bankruptcy Court Act 1831. Lord Eldon had stood in the way of earlier reform; see eg the Chancery Commission Report (under his chairmanship): PP 1826 (143) XV, 35–37. 289 Bankruptcy Act 1847. Its place was taken, first, by a Vice-Chancellor, and then by the Lords Justices in Chancery. 290 There was much law on who counted as a trader. Not only did it exclude the higher ranks, but also, in most circumstances, farmers, builders, miners, brickmakers: see Welbourne (n 64) 55–57; Cohen (n 274) 160–61.

Part 2: Debt, Bankruptcy, Insolvency 229 assets and this was made a regular and permanent system in 1813.291 The pressure on gaol space was grave in places and the wastefulness and public expense of imprisoning debtors had become increasingly apparent. The creditor was supposed to help support the debtor, but the latter might slide into permanent incarceration with only a modicum of support from relatives, friends or the county rate. The 1813 Act appointed an Insolvent Debtors Court for London but in the provinces left the task of examining debtors, as under the earlier statutes, to the justices. Later the London insolvency commissioners would be sent out on circuit to do the work.292 Once they were satisfied that a debtor had done what he could for his creditors, he would be released and the creditors could only look to such future assets as he might acquire. The process, however, contained no mechanism for wiping out the debts; only a compromise with each creditor would achieve that. It became clear to the Erskine Commission in 1840 that this insolvency process was often being used for small traders – those who did not owe enough to seek or be brought into bankruptcy.293 They accordingly recommended that bankruptcy should become available against traders and non-traders alike,294 but this was not to be until 1861, when the separate scheme for insolvent debtors was abandoned.295 The more immediate outcome of the Erskine Commission, amid the various moves on the procedures and sanctions of debt enforcement by individual creditors,296 was the institution of a new regime of bankruptcy administration. The judges and commissioners were given greater powers and official assignees were introduced to administer the bankrupt’s assets and act as a check on creditors’ assignees.297 They proved in the event to be an expensive encumbrance, lacking both experience and probity. At the same time, minor officers of the court continued to exercise an ‘occult influence over practitioners’, particularly in the matter of unnecessary fees. Some commissioners were disgracefully slack and partisan.298 More generally there was dissatisfaction with the way they exercised their increased power to grant discharge.299 The reaction against the first set of bankruptcy reforms, typical of its period, sought to leave the bankrupt and his creditors substantially free of official interference, following the Scottish model.300 In 1869 the Official Assignee disappeared and the trustee in bankruptcy (frequently a solicitor) was placed under the supervision of a creditors’ committee of inspection, with reference to the court as a last resort.301 However, banishing greedy

291 Insolvent Debtors Act 1813; and see Cohen (n 274) 157–59 and 162–64. 292 Insolvent Debtors Act 1824. 293 Two-thirds of the 3,691 before the Insolvent Debtors Court in 1839 were traders: PP 1840 [274] XVI, 14. For a modern study, see DA Kent, ‘Small Businessmen and Their Credit Transactions in Early Nineteenth-Century Britain’ (1994) 36 BH 47. 294 ibid 23 ff. 295 Bankruptcy Act 1861. 296 The virtual abandonment of arrest on mesne process in 1838 removed the simplest course for establishing an act of bankruptcy (ie remaining under arrest for debt for 21 days). 297 Bankruptcy Act 1842, ss 48–57 and 92. 298 See esp Royal Commission on the Court of Bankruptcy, PP 1854 [1770] XXIII; Select Committee on the Bankruptcy Act 1861, PP 1865 (144) XII. 299 Acquired in 1849; this was complicated by allowing the certificate to be of various kinds, depending on the behaviour of the bankrupt before and during his bankruptcy. 300 Bankruptcy Acts 1861 and 1869. 301 Bankruptcy Act 1869, ss 14–20.

230 Commerce and Industry officials only allowed greater licence to unscrupulous debtors and creditors. The 1869 Act was soon denounced as not having, ‘in its working, satisfied the expectations of the public inasmuch as it affords great facilities for a debtor to relieve himself of his liabilities, while there is great extravagance in administering and long delay in winding up estates.’302 Either the bankrupt (in collusion with friendly creditors), or unfriendly creditors, could dominate proceedings by obtaining proxies from other creditors to vote at creditors’ meetings.303 The only feasible reform was to return to official supervision. The Bankruptcy Act 1883 reincarnated the Official Assignees in the form of Official Receivers, and curbed the manipulation of the system by severely limiting the conditions upon which proxy powers could be given and by allowing the court once more to decide whether, and upon what terms, the bankrupt should be granted his discharge. The new Official Receivers worked out of the Bankruptcy Department of the Board of Trade, one of the larger government departments in the last decades of the century, and they brought to their task a degree of scrupulousness and cost-consciousness that had been distinctly lacking in the Official Assignees and other court officers of the 1830s and 1840s.304

iii. Assessment Annual losses from formal bankruptcies between 1800 and 1860 were some £4–5 million, annual losses represented by those released from prison under the insolvent debtors’ legislation were some £15 million, and there were also losses resulting from 7,000–10,000 compositions each year.305 Annual losses from bankruptcies and private arrangements were between £10 and £30 million in the 1860s and £17 million in the 1870s and 1880s (which was about 0.75 per cent of gross domestic product). These figures do not include losses from company windings-up. Between 1890 and 1913, losses from all three components of insolvency – bankruptcy, deeds of arrangement, and windings-up – averaged £28 million per year, which was 1–2 per cent of GDP. In light of these figures, it is unsurprising that financial failure was seen as a significant problem in nineteenth-century England. Yet although the core principles of rateable distribution and discharge were in place by 1800, Parliament signally failed to settle on a satisfactory system for the administration of bankrupt estates for over 50 years.306 This caused widespread discontent, one measure of which is the extensive use that creditors made of compositions and other private arrangements during the period.307 Reform efforts were focused on devising a system that would separate the merely unfortunate from the culpable, and there were disagreements about what constituted blameworthy conduct. There were disagreements, too, about who should preside over the administration of estates: creditors who would abuse their power or officials whose costs would come out of the estate? The influence of business groups such as the Associated Chambers of Commerce ‘reached its 302 Lord Chancellor’s Committee on the Bankruptcy Act 1869, PP 1877 (152) LXIX. 303 ibid 1–2. 304 Lester (n 269) ch 8. 305 These and the following figures come from Lester (n 269) 297–98. 306 VM Batzel, ‘Parliament, Businessmen and Bankruptcy, 1825–1883: A Study in Middle-Class Alienation’ (1983) 18 Canadian Journal of History 171, esp 173, where he argues that Parliament’s failure shows that ‘English institutions were not all at one with English industrial society’. 307 Batzel (n 306) 181–84; Lester (n 269) 78–80, 165–67 and 219.

Part 2: Debt, Bankruptcy, Insolvency 231 zenith with the rejection of officialism in the 1860s and the imposition of a creditor-managed system’; but they did not represent everyone – in the 1860s, ‘small creditors disagreed with large creditors over the important issue of retaining official assignees’ – and a failure to resolve this difference contributed to a waning of business influence in the 1870s and 1880s, and to the decision which was finally taken in 1883.308

C. Secured Credit The processes of bankruptcy and insolvency, and equally the winding up of partnerships and companies, were all in a sense collectivist: they posited that, where a debtor did not have the resources to meet all his creditors, it was fairer and more orderly to provide for each a rateable share out of a common pool. However, the ferment of competition among creditors built up individualistic counter-pressures; new methods were constantly surfacing by which one creditor would seek to obtain preferential treatment ahead of the rest.309 Mostly this was achieved by asserting ownership of, or a secured interest in, some part of the debtor’s assets. The common law tended to treat novel ways of gaining security with caution; but if a reasonably powerful commercial group determined to press for recognition of a particular transaction, sooner or later this was likely to be forthcoming. The case was always that, if a provider of credit could not deal on the preferential terms, he would not do so at all, or only at a price which would remove all hope of profit from the debtor’s own activity. The common law provided various conceptual mechanisms for the creation of security – in particular through ownership, bailment and lien. The mortgage of land, in its most formal version, had come to operate through the first of these, the borrower transferring his interest in the land (fee simple, copyhold, etc) to the lender for the duration of the loan, even though, in the first instance, the borrower would remain in possession.310 As we shall see, a form of chattel mortgage with essentially similar characteristics would develop as the bill of sale. Lesser rights of possession – interests held by warehousemen, factors, repairers, carriers, pawnbrokers and others – had come to be grouped as bailments, each being fleshed out with detailed rules embodying the intention behind the particular transaction.311 Thus the pledge granted to a pawnbroker gave him the right to retain the goods until he was repaid and to sell up if he was not repaid. A granting of credit, sometimes by the bailor, sometimes by the bailee, was a likely part of many other bailments and some form of preferential treatment was generally sought as a condition. In recognition of this, trade practice came to justify arrangements that were often accorded the status of liens. At common law, a lien was generally the right to retain possession of an object until due payment was made, but not the right to sell it off.312 The repairer, carrier, innkeeper and factor each came to have a common law lien for his services; the vendor of goods a lien for

308 Lester (n 269) 303. 309 Witness the considerable variety of transactions that would rank as bills of sale: see generally, pp 234–36. 310 See pp 129–30. 311 The generalisation of bailment law received particular stimulus from Coggs v Bernard (1703) 2 Ld Raym 909; and from Sir William Jones’ scholarly Essay on the Law of Bailments (C Dilly, 1781). 312 Equity adopted the term for a different institution – a charge over property which did not depend upon possession and allowed sale in order to realise the interest: see generally Holdsworth, vol 7 (n 238) 511–13.

232 Commerce and Industry their price.313 Where goods were to be moved over long distances, the problem was to provide protected credit during the course of their transit. A vendor might be willing to accept payment at a later date, and the growing range of negotiable instruments had helped to facilitate this financing. But he needed more, and in seventeenth-century bankruptcy law an extension of the lien concept had given him the right to stop goods while still in transit to the buyer.314 On the other hand, the production of goods might be stimulated by advance payment, as where the goods were to be made abroad to the order of a British merchant, given perhaps by his local factor. The merchant might in turn sell them for an advance to a consignee, so beginning a passage down a commercial chain in the home market. Here the need was for a title or secured interest in advance of actual possession.315 The courts were reluctant to depart from their basic premise that only a person with sufficient title or authority could grant a secured interest in property,316 and they would not concede that allowing factors to pledge their principals’ goods might benefit commerce because it would enable them to raise credit at times when sale was undesirable because market prices were low.317 On the contrary, judges such as Abbott J saw only the danger that such powers might be abused, and insisted that the rule against factors pledging was ‘one of the greatest safeguards which the foreign merchant has in making consignments of goods to be sold in this country.’318 In 1823 the Government was persuaded to intervene by a select committee dominated by commercial men.319 A new Factors Act provided that factors would be taken to have the authority with which they were apparently clothed by being in possession (say) of a bill of lading or warehouseman’s warrant for goods.320 A series of subsequent Factors Acts thereafter added limits on the ability of a principal secretly to restrict his agent’s authority,321 in a progression that would come to disturb not only mercantile credit, but also consumer credit in the form of hire-purchase.322 However, before we come to that relatively modern phenomenon, we shall first contrast two widespread practices: pawnbroking; and money-lending on a bill of sale.

i. Pawnbroking Pawnshops – and their even dingier relations, the ‘dolly shops’ – were institutions of crucial significance to urban working-class life.323 By 1860, in Liverpool alone, there were said 313 Equally the vendor of land who had not been paid the full purchase price had acquired a charge over the land for the balance owing. 314 WS Holdsworth, A History of English Law, vol 8 (Methuen, 1925) 243. 315 The oldest exception to nemo dat quod non habet at common law had covered sales in market overt. By the nineteenth century, however, such simple protection was of little relevance to the mercantile community, and there were recommendations to remove it (eg Mercantile Law Commission, Second Report, PP 1854–1855 [1977] XVIII 6; and PP 1893–1894 (374) XV 11.) But it survived and was codified in the Sales of Goods Act 1893, s 22. 316 Patterson v Tash (1742) 9 Mod 397; Pickering v Busk (1812) 15 East 38. They conceded that a factor might have ostensible authority to pledge his principal’s goods for his own debts: Boyson v Coles (1817) 6 M & S 14, 17–18; 317 As argued by counsel in Martini v Coles (1813) 1 M & S 140. 318 Queiroz v Trueman (1824) 3 B & C 342, 349–50. 319 PP 1823 (452) IV. 320 Factors Act 1823; discussed in S Thomas, ‘The Origins of the Factors Acts 1823 and 1825’ (2011) 32 JLH 151. 321 Factors Acts 1825, 1842, 1877 and 1889. 322 See pp 236–37. 323 See JH Treble, Urban Poverty in Britain 1830–1914 (Batsford, 1979) 130–39; K Hudson, Pawnbroking (Bodley Head, 1982) chs 3–6; M Tebbutt, Making Ends Meet: Pawnbroking and Working-Class Credit (Leicester University Press, 1983) chs 1–4; B Lemire, The Business of Everyday Life: Gender, Practice and Social Politics in England, c 1600–1900 (Manchester University Press, 2005) ch 2; A Tomkins, The Experience of Urban Poverty, 1732–1782: Parish, Charity and Credit (Manchester University Press, 2006) ch 6.

Part 2: Debt, Bankruptcy, Insolvency 233 to be nearly ten million pawn transactions a year. The articles pawned ranged from quite valuable furniture and jewellery to extremely humble clothing and bedding. Sunday best might be put in from Monday to pay day. Laundresses might pawn each day’s washload to redeem the previous day’s, so that it could be laundered and returned. The pawnbroker provided a regular recourse that could keep tottering domestic economies from total collapse. An essentially urban phenomenon, pawning was already receiving attention from municipal authorities in Tudor times. While there would thereafter be a growing body of regulation, public and charitable institutions to lend by pawn did not take hold to the extent that occurred in some European cities.324 The English trade was private and ran from the respectable to the extremely seedy. By the end of the eighteenth century, the regime of ‘police’ covering pawnbrokers was given over to the justices of the peace.325 It was not a control which would develop nineteenth-century attributes, such as a special inspectorate or central supervision; but equally it was never suppressed, despite all the demands for the trade to enjoy the freedom of other money-lenders and traders. Initially, interference had sprung from the self-interest of the propertied, for the pawn shop was an obvious place for the dishonest servant or petty thief to raise some cash on stolen goods. To this end, pawnbrokers were forbidden to take military items and property of the poor law authorities as pledges; they were obliged to keep proper books of their transactions; and in 1785 they were required to register.326 But other objectives grew out of this impetus, more apparently concerned with the lot of the borrower. Pawnbrokers were required to keep unredeemed pledges for a considerable period, to sell them (in many cases) at public auction and to keep any surplus over the sum due for payment back to the borrower.327 Above all, rates of interest had come to be controlled by special rules. The five per cent limit of the usury laws was lifted in 1757, but in 1784 loans up to £10 were confined to ½d per 2s 6d per month (equivalent to 20 per cent per annum if the full amount were lent for the full period – otherwise more);328 in 1796 this was reduced to 15 per cent for loans of £2 to £10.329 It was said in justification that juries had become prone to award only a very low amount of interest on moneylender loans, marking their abhorrence of the extortionate terms. This was an attempt to define a reasonable maximum. A consolidating measure of 1800330 set a legal frame that would survive the advances of economic liberalism in the money market and abandonment of the usury laws in 1854. Its effect was patchy: in the poorest districts there were thousands of pawnbrokers who did not even register, let alone conform to the law’s conditions.331 Nothing would happen unless a private informer took 324 The Charitable Corporation, founded in 1707, was intended to undertake such a purpose, but it collapsed in 1731 after years of mismanagement: Charitable Corporation v Sutton (1742) 2 Atk 400. 325 For an overview, see W Swain and K Fairweather, ‘The Legal Regulation of Pawnbroking in England: A Brief History’ in J Devenney and M Kenny (eds), Consumer Credit, Debt and Investment in Europe (Cambridge University Press, 2012). 326 Their annual licence fee was set at £10 in London and Edinburgh, £5 elsewhere: Pawnbrokers Act 1785, s l. 327 Pawnbrokers Act 1784, ss 6 and 7. For loans above 2s the pawnbroker was required to give a duplicate ticket recording the details: ss 3–5. For very small loans, this ticket could not be the subject of a separate charge until 1860: Pawnbrokers Act 1860. 328 If the ½d was charged on 3d lent for a week, the rate of interest was over 800% per annum. 329 Pawnbrokers Acts 1784 and 1796. 330 Pawnbrokers Act 1800. The prevous Acts had been temporary. 331 Tebbutt (n 323) 127. In 1856 an Act against ‘dolly shops’ somewhat increased the level of registration: Pawnbrokers Act 1856.

234 Commerce and Industry action, incited by the prospect of sharing in the fine.332 This would contribute to a growing gulf between the respectable top – discreet lenders to the middle classes in times of hardship – and the unscrupulous bottom. When eventually there was a campaign to lift the system of regulation, it was the best-established pawnbrokers who promoted the case for greater freedom in substantial transactions, accompanied by greater supervision for the small.333 Here as elsewhere, competitors were ready to espouse the cause of consumer protection to their own ends.334 An act of 1872 – essentially the law until 1974 – increased the permissible rates to equivalents of 25 per cent per annum for loans up to £2; and 20 per cent for loans of £2–10, with exemption where a ‘special contract’ procedure was followed.335 Between 1870 and 1914, the number of pawnbrokers’ licences rose from some 3,400 to some 5,000; numbers then fell to some 2,700 in 1939, as working-class living standards rose and other forms of credit became available.336

ii. Bills of Sale A system of credit which was generous in its allowable forms of security needed to provide some means by which each new creditor could inform himself about the preferences already given by his debtor. This issue grew in significance with the practice of organising a chattel mortgage in the form of a bill of sale – a transaction in which (typically) money was lent against the security of goods by assigning title in them to the lender while leaving them in the borrower’s possession.337 Such an arrangement was likely to mislead third parties, though in the bankruptcy of a trader-borrower the lender was likely to find that the goods were treated as being in the former’s reputed ownership and so part of his estate.338 In 1854, just as the credit market was being freed of the last fetters against usury, bills of sale were required to be registered with the Court of Queen’s Bench if they were to affect third parties. Once a bill was registered, execution creditors could not take the goods, save to the extent that goods could be seized in distress (eg by a landlord for rent) or brought into bankruptcy under the reputed ownership provision.339 This manifestation of the notice principle, typical of its time, established a balance among the different categories of creditor which lasted for a quarter-century. But in 1878 332 This happened from time to time and might well be used by the trade to snuff out a newcomer. Magistrates were given power to reduce the statutory penalty payable to informers whose conduct they disapproved of, first in London: Metropolitan Police Courts Act 1839, ss 32–35; and then, after a bad case in Staffordshire, generally: Pawnbrokers Act 1859. 333 Tebbutt (n 323) 126–30. The phenomenon was by no means novel: leading pawnbrokers were behind the efforts in the 1740s which led eventually to the Act of 1757; see Hudson (n 323) 35. 334 Select Committee on Pawbrokers PP 1871 (419) XII; AL Minkes, ‘The Decline of Pawnbroking’ (1953) 20 Economica (NS) 10. 335 Pawnbrokers Act 1872, ss 10 and 31, and Sch 4. 336 P Johnson, Saving and Spending: The Working-Class Economy in Britain, 1870–1939 (Oxford University Press, 1985) 165–88. 337 In this, the bill of sale followed the technique of the common law mortgage of land: see pp 129–30. But with land, the documents of title formed the basis of conveyancing practice which served to reduce the likelihood of an innocent purchaser acquiring title without knowledge of a prior mortgage. With chattels the matter was even less secure. General discussion in J de Lacy, ‘The Evolution and Regulation of Security Interests over Personal Property in English Law’ in J de Lacy (ed), The Reform of UK Personal Property Security Law (Routledge-Cavendish, 2010) 8–20. 338 See n 276 and accompanying text. 339 For the priority of the bankruptcy rule, see ex p Harding (1873) LR 15 Eq 223; FCJ Millar and JR Collier, Bills of Sale, 2nd edn (R Stevens, 1860) 181–216.

Part 2: Debt, Bankruptcy, Insolvency 235 this was upset: in the course of revising and expanding the bills of sale legislation, goods covered by a duly registered bill were excluded from the reputed ownership rule in a trader’s bankruptcy.340 This re-adjustment produced unexpected consequences. Previously, moneylenders had chosen not to register many of their bills of sale – because of the inconvenience and expense, but even more because the publicity might provoke doubts about the debtor’s solvency and a rush to get at his assets. Bills of sale were considered last-ditch resorts adding to likely ruin by their own harsh terms. Once there was a distinct advantage in bankruptcy for a registered bill, not only were more traders’ bills registered, but a much higher proportion of small loans began to be similarly treated, even though they would not benefit in the same way.341 This in turn provoked an outcry against the ‘Shylockian propensities’ of money-lenders (which had not changed) and the march that they were now able to steal (which had, to some extent). From many quarters – the trading community, and professionals like county court judges, solicitors and accountants – there were proposals to make lending on bills of sale harder to effect: the fraudulent debtor should be prevented from deploying fictitious bills to hide away his property; the bona fide debtor should be stopped from signing a moneylender’s bill when he ought to be submitting to bankruptcy; the trader should be prevented from making a hostage of all his means by signing a floating bill over whatever assets (including stock and plant) he held from time to time.342 Patrick Atiyah has seen in this upsurge of protest, and the restrictive Act of 1882 which followed, a novel, neoliberal concern for the plight of the consumer.343 Certainly there was a deal of talk about those borrowers who were too foolish or too desperate to be able to organise their affairs adequately under the regime of ‘free’ choice. But this was scarcely new: it belonged to that line of paternalism which had never allowed money-lending by pawnbrokers to be deregulated and which had continued, through the courts of equity, to supervise credit and other transactions against unfairness.344 The interest which was strong enough to procure legislative reaction was that of creditors, not borrowers.345 The Act of 1878 did not stimulate lending on bills of sale so much as registration of bills. Its partial enhancement of the moneylenders’ position touched a highly sensitive commercial nerve. Landlords and trade creditors felt that their positions were being undermined and there was much talk of fraudulent preferences and debtors’ other tricks. The Act of 1882 was, indeed a severe piece of regulatory machinery. Failure to comply strictly with its formalities and registration procedure in many cases rendered the loan itself void;346 and floating charges were effective only if a cumbersome procedure of listing the assets was followed.347 So the bill of sale lost its commercial attraction, at least in dealings with individuals.348 Parliament, in a confused 340 Bills of Sale Act 1878, ss 8 and 20. 341 Registrations in 1875: 11,814 for £2,123,000; in 1880: 56,828 for £4,333,000. See Hansard, March 1882 col 1401. 342 See Evidence to the Select Committee on the Bills of Sale Act (1878) Amendments Bill, PP 1881 (341) VIII (some from moneylenders); and the Circulars to County Court Judges, PP 1881 [C 2859] LXXVI. 343 Atiyah (1979) (n 3) 708–13. 344 See pp 210–11. 345 DW McLauchlin, ‘Securities over Future Goods’ (1973–75) 7 Victoria University of Wellington Law Review 122, 131–6. 346 Courts might strive to escape this draconian result: Davies v Rees (1886) 17 QBD 408. The Act required the lender to give five days’ notice of his intention to remove or sell the goods (s 13), a provision which could leave the advantage with a landlord or judgment creditor. 347 Sections 5, 6, and 9. 348 Loans to ‘incorporated companies’ were explicitly excluded: s 17; see further, p 253.

236 Commerce and Industry upsurge of feeling against a traditional enemy of the respectable, was willing to accept this result. Indeed, by letting in the extreme sanction of non-recovery of the debt itself, it laid the crucial precedent for the legislation which in 1900 would constrain moneylenders eo nomine.349

iii. Hire-Purchase There were other transactions, none too distant from bills of sale, which also came to play a growing role in the provision of trade stock and domestic goods. The instalment credit transaction, which in the latter nineteenth century became ‘hire-purchase’, had antecedents in the 1840s. Symbols of domestic gentility, such as pianos, began to be offered on terms that the purchaser would pay by instalment and would take the goods on hire until he had completed. The device was also used from the 1860s by mining companies to acquire rolling stock,350 and it became the great sales mechanism of the Singer company for its sewing machines.351 Independent financial intermediaries made an early appearance on the scene, buying from the original seller and reselling to the original purchaser on hire-purchase terms, essentially in the manner of the modern finance house. Sales by instalment became another outlet for lenders; one, moreover, that provided a reasonably secure form of priority over the goods, but which could be on such terms as the two sides ‘agreed’. There were often long and complex standard forms, which could subject a defaulting purchaser to immediate reseizure, loss of everything so far paid and even the liability to pay further ‘compensation’. The typical hire-purchase differed from money-lending upon bill of sale in one vital particular: the goods forming the security would initially be owned by the vendor, not the borrower of the money. It was of course possible to dress up loans as the hire-purchase of goods by having the borrower first transfer his own goods to the lender (the amount lent being the price), in order to buy them back by instalments which reflected the repayments on the loan.352 But apart from devices such as this, the courts proved willing to hold that hire-purchase fell outside the constraints of the Bills of Sale Acts,353 and the transaction flourished without even such safeguards as obligatory formalities or registration of the creditor’s interest. The serious threat to the financier’s position came from another quarter. In 1889 the Factors Acts, as well as being consolidated, were extended in a vital particular. A person who had bought or agreed to buy goods could, if he were put in possession of them before becoming their owner, transfer a title good against the seller to his own purchaser or pledgee, provided that the latter acted in good faith.354 Arguably, the person who took goods

349 See pp 213–14. 350 For the early uses of hire purchase in Britain, see R Harris et al, Hire Purchase in a Free Society (Institute of Economic Affairs, 1961) 19–23. 351 Thus bringing American practice to Britain: RA Lynn, ‘Installment Credit before 1870’ (1957) 31 Business History Review 414. 352 For the case-law attempting to settle which transactions remained caught by the Bills of Sale Acts, see HG Hanbury and H Waldock, Law of Mortgages (Sweet & Maxwell, 1938) ch 7. 353 See esp McEntire v Crossley Brothers Ltd [1895] AC 457. 354 Section 9 – subsequently Sale of Goods Act 1893, s 25(2). It replaced a provision of 1877 which operated only when the buyer in possession had documents of title; this normally applied only to a trade sale.

Part 2: Debt, Bankruptcy, Insolvency 237 on hire-purchase had ‘agreed to buy’ them and could therefore give a good title even if he resold before completing his instalments. If he could, the vendor’s or financier’s security would be in jeopardy. The Court of Appeal indeed held this to be so, if the person taking the goods was under an obligation to buy them on paying the last hire instalment.355 But two years later, the House of Lords was persuaded that, provided there was no obligation to buy the goods but only an option to do so, the hire-purchaser had not ‘agreed to buy’. It would, however, be a strange case where he would not do so, after paying all the instalments.356 But for this benign casuistry, legislative correction would doubtless have been sought, since instalment selling was a rapidly developing practice; but it might have been obtained only with a measure of limitation on the most aggressive tactics.357 The first great age of hire-purchase began with the motor-car, and was later augmented by the growth of a wide range of expensive household goods, many of them electrical.358 Instalment credit put these things within reach of lower middle-class and upper workingclass households, but while their acquisition brought status, dealings on the ‘never-never’ were socially stigmatised and often hidden from neighbours, friends and family members, with the result that purchasers were vulnerable to abuse by aggressive and unscrupulous salesmen.359 By the late 1930s, the annual value of consumer hire-purchase transactions was around £100–120 million (representing about half of the consumer credit market) and hire purchase agreements covered more than 70 per cent of sales of cars and bicycles, working class furniture and electrical household equipment.360 The pattern of arrangements did not change much from that settled by 1895. The finance companies involved were either subsidiaries of manufacturers or independent institutions. The banks, however, mostly remained aloof, and the largest finance house of the inter-war period, the United Dominions Trust, was sponsored from New York. It became so important that at the beginning of the depression in 1929, the Governor of the Bank of England found it expedient to recognise its value in maintaining demand and therefore jobs, by purchasing preference shares for £500,000.361 This growth of respectability out of dependence helps to explain why hire-purchase came to be accepted by the courts and legislature. Pawnbrokers and money-lenders had fallen under the increasing suspicion of post1867 Parliaments, but those who financed ‘ordinary’ hire-purchase were left alone to pursue their business without any obligation to obtain a licence or to put their dealings into a given form, or to keep them open for inspection. Nor were they obliged to register their interest in order to secure priority against other creditors. Innocent consumers who had little or no idea of their obligations had no chance to withdraw once the agreement was signed; nor could they resist forfeiture clauses which permitted instant repossession

355 Lee v Butler [1895] 2 QB 318. 356 Helby v Matthews [1895] AC 471, where the option was found in the hirer’s entitlement at any time to end the hiring, though this did not in the particular case have onerous financial consequences (as later became common). 357 A 1912 bill to reverse Helby (n 356), at least so far as innocent purchasers were concerned, made no progress. 358 S Bowden and P Turner, ‘The Demand for Consumer Durables in the United Kingdom in the Interwar Period’ (1993) 53 JEH 244; S O’Connell, The Car and British Society: Class, Gender and Motoring, 1896–1939 (Manchester University Press, 1998). 359 P Scott, ‘The Twilight World of Interwar British Hire Purchase’ (2003) 177 P&P 195. 360 Scott (n 359) 197–98. 361 Harris (1961) (n 350) 29. See too S Bowden and M Collins, ‘The Bank of England, Industrial Regeneration and Hire Purchase Between the Wars’ (1992) 45 Econ HR 120.

238 Commerce and Industry even when most of the price had been paid and the goods retained a substantial proportion of their initial value.362 In the inter-war years the most oppressive cases frequently concerned door-to-door salesmen, who were themselves squeezing a living from their slender commissions on sales.363 Apart from deceptions over price, terms and the quality of goods, a common fraud was to lead the purchaser into thinking that he or she was taking the goods on temporary approval when in fact a binding hire-purchase agreement was being signed. Physical violence was often used to extract payment of the instalments, finance companies or their collecting agents employing ‘bruisers’ for the purpose. The ‘snatch-back’ was more in evidence than ever, some lenders deliberately encouraging default at a late stage. It was common to link successive agreements for different goods together so that default in respect of any one of them gave the right to foreclose on all.364 One MP estimated that there were ‘on average 600 seizures a day due to arrears of payment’.365 The corrective Act of 1938 contained protection only for those who entered small transactions,366 but at least in this context it made significant inroads into the freedom of finance companies to impose whatever terms suited them best.367 The hirer had to sign the contract and be given a copy of it, which had to set out the essential terms of the transaction, such as the retail cash price, the hire purchase price, and the terms for repayment; otherwise it could not be enforced.368 The implied terms by which the owner guaranteed good title, fitness for purpose and merchantability could not be eliminated by an express term to the contrary.369 The Act also limited ‘snatch backs’. If the hirer had paid one-third of the hire-purchase price and did not voluntarily terminate the agreement, the owner had to obtain an order from a county court giving repossession and the judge was invested with a wide power instead to order that the outstanding sums be paid off on fair terms.370 The hirer who chose to terminate – trying perhaps to do the right thing after losing a job or some other misfortune – had to pay half the hire-purchase price (but not more) if the agreement so provided.371 This could operate harshly but the courts were not empowered to intervene where this produced an evident profit for the

362 Cramer v Giles (1883) 1 Cab & El 151 was just such a case. It well illustrated the process by which equity was sapped of vitality, particularly after the Judicature Acts. In the Court of Appeal, Fry LJ held it an inappropriate case for equitable relief allowing more time to pay, since it concerned chattel hire and not the lease of land. 363 They were a new variety of the itinerant packmen and tally-men who had long made good business out of working-class women: see p 224. 364 PD 1937–1938 CCCXXX 729–770. 365 ibid 740 (JR Leslie MP). 366 The original monetary limit on the ‘hire purchase price’ was £100 (£500 for livestock, but only £50 for motor vehicles and rolling stock). These would be raised on a number of occasions, starting in 1954. 367 A Working Party chaired by Dr Morgan, Warden of Toynbee Hall in the East End of London, drew representatives of the finance houses into the process of formulating detailed proposals. Social workers and county court judges were among those who lent influential support to the measure. In the course of the Bill, when its sponsor, Ellen Wilkinson, sought amendments going beyond the concordat with commercial interests, she was publicly rebuked by the Acting President of the Hire-Purchase Trade Association: JJ MacManus, ‘The Emergence and Non-Emergence of Legislation’ (1978) 5 British Journal of Law and Society 185. 368 Hire Purchase Act 1938, ss 2 and 6. 369 ibid s 8. 370 ibid ss 11 and 12. 371 ibid s 4.

Part 3: The Limited Liability Company 239 finance organisation.372 World War II taught governments a different lesson. The urgent need to stop profiteering required not only price controls but controls on the amount and rate of credit. From this detailed legislation, which was to last until 1958,373 it was appreciated that the amount lent could be curtailed by prescribing a minimum deposit and a maximum period for repayments. Such tactics would become a major form of manipulation, as post-war governments turned to Keynesian regulation by stoking and damping demand: and so widespread would hire-purchase become for a time that it was mainly to this form of transaction that the ‘stop-go’ controls would be applied.

iv. Assessment Through most of our period, legal regulation was imposed upon credit when money was borrowed, but not when goods or services were supplied against later payment. The social experience of the two forms of credit was essentially different. Hire-purchase fell between the two stools, since it was a method of purchasing goods in which a charge for the time value of money was built into the price. When eventually it was accepted that there must be control of rapacious hire-purchase financiers to protect gullible buyers, it had to take the form of statutory intervention, for the constriction on notions of good faith in the general law of contract left the judges without power or inclination to act by themselves.374 The 1938 Act had the advantage of being carefully thought through and so was able to define unfair practice with some clarity.375 It was undoubtedly a signal that ‘consumerism’ was acquiring a distinct voice, which in the post-war period, would be raised to demand legal regulation as a guarantee of basic fairness in general trading.

Part 3: The Limited Liability Company The modern limited liability company acquired its principal attributes in the nineteenth century. These are now so familiar that it is easy to misperceive their history and to think that they must all have arrived at once: formation by a cheap and simple registration process, conceptualisation as a reified entity with legal personality distinct from the legal personality of the members, limitation of member liability for company debts, and sufficient flexibility of form to permit adoption by businesses of every size. In fact, these features emerged at different times, as Parliament and the courts implemented ‘top-down’ economic policies and reacted to ‘bottom-up’ business demands and market practices. 372 Before the Act, and for the many cases outside its financial limits, there was no effective control over the minimum part of the price which could be demanded, either for breach or upon termination permitted by the agreement. The weakening of equity’s jurisdiction to give relief against penalties (see p 215) meant that the judges upheld terms of this kind, treating them as genuine pre-estimates of damage: the leading case was Roadways Transport Development v Browne and Gray (1927), noted in CG Jones and R Proudfoot, Notes on Hire Purchase Law (Butterworth, 1937) 118. This and other decisions are reviewed in Cooden Engineering Co Ltd v Stanford [1953] 1 QB 86, where, in the post-war atmosphere, they were reversed. 373 Goods and Services (Price Control) Act 1941 and the various orders made under it. Minimum deposit requirements and other controls were to be reintroduced in 1960. 374 See eg the instance in n 362. 375 Even the revisions of 1965 built upon its foundations.

240 Commerce and Industry

A. Origins and Development, 1700–1830 i. Statutory and Chartered Corporations The origins of the modern company lie in the medieval period when corporations were first created by Crown charter and statute. The corporation sole was a means of holding and administering the property of public and ecclesiastical offices through a perpetual succession of incumbents – the Crown, bishoprics, benefices. The corporation aggregate gave similar legal form to associations whose members carried on activities of a public or quasi-public character: boroughs, institutions of learning and merchant guilds which regulated trade in myriad ways and might also provide an outlet through which goods had to be distributed. Corporate charters were also granted to foreign trading companies with monopolies, eg the Levant and Russia Companies (1551, 1553), the East India Company (1612) and the Hudson’s Bay Company (1670). This practice reinforced the view that incorporation could only be achieved by state grant – by Crown charter or Act of Parliament. A chartered or statutory corporation could own property, enter contracts, sue and be sued in its own name.376 Corporations aggregate formed to pursue commercial activities might have many members who would contribute capital and receive in exchange a right to share in the profits of the enterprise. Such rights could be made freely transferable,377 in which case a member could terminate his interest and transfer his rights to another party without obtaining the other members’ permission, and without the need to dissolve the company if the others did not agree (as in the case of partnerships). Free transferability also meant that company shares could be traded, but before the late 1600s there were too few companies for any significant market to develop. It is unclear whether the members of chartered and statutory corporations were ever thought to be liable for the corporation’s debts in the absence of express statutory provision.378 Early cases suggest that although a corporation’s creditors could not recover from the members directly, they could reach them via subrogation to the corporation’s right to make a ‘levitation’, or call, on the members to meet the corporation’s liabilities.379 But the question whether corporations generally had a power to make such calls does not seem to have been judicially considered in the 1600s or 1700s, and by 1825 it was assumed that in the absence of statutory intervention the Crown could not create a chartered corporation whose members were liable for its debts.380 Legislation was then passed to empower the Crown to

376 Sutton’s Hospital Case (1612) 10 Co Rep 23a. 377 See eg East India Company Renewal Act 1698, s 48; South Sea Company Act 1711, ss 29, 36. 378 For a variety of statutory provisions imposing unlimited liability, limited liability and (by implication) no liability at all, see AB Dubois, The English Business Company After the Bubble Act, 1720–1800 (Commonwealth Fund, 1938) 93–104. 379 eg Edmunds v Brown (1667) 1 Lev 237; Salmon v Hamborough Co (1671) 1 Ch Cas 204. The first of these was an unsuccessful action at common law brought by a corporation’s creditors who subsequently recovered from the members in a Chancery suit: Naylor v Brown (1673) Rep t Finch 83. 380 The Attorney-General took the view that there was no such liability: PD 1826 XIII 1020 (and see Elve v Boyton [1891] 1 Ch 501).

Part 3: The Limited Liability Company 241 do this, or to limit the members’ liability – and after that, limited liability was only granted to the members of chartered corporations very sparingly.381 In the 1700s and early 1800s, ‘the law of corporations’ meant the law governing statutory and chartered corporations, internally and in relation to the outside world. Its essential thrust was public rather than private and its concern as much with the granting of exclusive privilege as with the delineation of joint responsibility.382 The canal-building schemes of the late 1700s stood in this tradition: promoters sought to form statutory corporations for the purpose because they needed Parliament’s authority for the compulsory acquisition of land.383 The private bill process was slow and expensive and usually required the squaring of local interests; many bills failed, but often this was attributable less to deficiencies of the system per se than to the opposition of local competitors and other opponents who could not be bought off with joint stock or a seat on the board of directors: landowners, fishery-owners, mill-owners, trustees of turnpike trusts, and other canal owners or operators of river navigation improvement schemes.384

ii. Partnerships In the 1700s and 1800s, most businesses were small and most business associates traded through partnerships. At this time, the only version of partnership known to English law corresponded to the Roman societas, in which each partner participated in management and shared profits and losses in proportion to his agreed or contributed share, but without any limitation of personal liability to outsiders.385 The Roman form of partnership known as commenda, in which managing partners bore full personal responsibility for the firm’s debts, but ‘sleeping’ contributors of capital were liable only in the amount of their contribution, was not recognised in English law until 1907 (although its introduction was often mooted during the nineteenth century).386 No state sanction was required to create partnerships, which were formed by agreement. The agreement was usually contained in a deed, which would provide that certain assets would be used for the business: the ‘joint stock’.387 The partners were co-owners of this property in equity and no partner could claim any particular asset as his own.388 The deed would also provide for the management of the firm and for allocation and disposal of shares in the business. As active managers, the partners would be authorised to bind their

381 Bubble Companies Act 1825, s 2. Full limited liability was granted to only one applicant between 1825 and 1834, the Nova Scotia Mining Company, formed in 1831: BC Hunt, The Development of the Business Corporation in England, 1800–1867 (Harvard University Press, 1936) 58–59. 382 Thus Stewart Kyd’s Treatise on the Law of Corporations (J Butterworth, 1794) was primarily concerned with borough corporations and similar bodies. 383 See p 156. 384 R Harris, Industrialising English Law: Entrepreneurship and Business Organization, 1720–1844 (Cambridge University Press, 2000) 95–100. At 179–80 and 181, he gives other examples of this phenomenon in other business spheres, viz flour milling and brewing. 385 Grace v Smith (1775) 2 W Bl 998; Green v Beesley (1835) 2 Bing NC 108. 386 See pp 246–47 and 248–49. And see the Limited Partnership Act 1907. The ‘limited partnership’ was never widely used in the twentieth century as it was eclipsed by the far more popular private limited liability company. 387 W Watson, A Treatise of the Law of Partnership, 2nd edn (J Butterworth, 1807) 466. 388 Thornton v Proctor (1794) 1 Anst 94; Burden v Burden (1813) 1 V&B 170. Only on the taking of an account could the shared property be disaggregated and allocated to individual partners.

242 Commerce and Industry co-partners to contracts with outsiders;389 they would also agree to apportion liabilities between themselves, while remaining jointly and severally liable to the outsiders with whom they all dealt. For such outsiders, however, there could be serious problems of enforcement, born of the fact that partners were a group of individuals who possessed no legal personality as a collective.390 This also created problems for the partners themselves, since it meant that in actions by or against a partnership, either at common law or in equity, all the partners had to be joined, and error meant that proceedings had to start afresh. Difficulties were also caused in the early 1800s by Lord Eldon’s refusal to take jurisdiction over disputes between the partners in a going concern, for the pragmatic reason that he wished to avoid adding to the substantial backlog of Chancery business.391 The result was that most disputes which might involve the issue of an injunction or the taking of an account could be resolved only on a dissolution – a rule which put disaffected partners into a strong bargaining position.392

iii. Unincorporated Joint Stock Companies In the years after 1688, a boom in the economy led to a proliferation of companies with passive investors, delegated management and tradable joint stock. Some of these were incorporated by charter or statute, as we have said, but others were not, and companies of the latter kind were seen as modified partnerships which possessed some of the desirable features of corporations although they had not secured the right to incorporate – in particular the ability to issue freely transferable shares.393 There were about 100 unincorporated joint stock companies in the early 1700s, which carried on a fairly wide range of activities, including banking, fire insurance, water supply, mining, and the manufacture of arms, textiles, soap, sugar, paper and glass.394 By then there was also a small but active stock market.395 However, this collapsed in 1720 following the failure of a scheme under which it had been intended that a chartered corporation, the South Sea Company, would take over the national debt, with government bonds

389 Older and larger firms might also employ salaried managers whose expertise might in due course be parlayed into a partnership in the firm: S Pollard, ‘The Genesis of the Managerial Profession: The Experience of the Industrial Revolution in Great Britain’ (1965) 4 Studies in Romanticism 57. 390 Although the group was effectively treated as though it were a separate entity by the ‘jingle rule’, which gave partnership creditors priority over partnership assets, and a partner’s personal creditors priority over his personal assets: J Getzler and M Macnair, ‘The Firm as an Entity Before the Companies Acts’ in P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference (Four Courts Press, 2005). 391 Forman v Homfray (1813) 2 V & B 329; Ellison v Bignold (1821) J & W 503, 511. Only in rare cases would Lord Eldon enjoin partners to comply with the terms of a continuing partnership: eg Marshall v Colman (1820) 2 J & W 266. He would also give directions on the meaning of partnership deeds and make orders to rectify them: eg Baldwin v Lawrence (1824) 2 Sim & St 18; Hodgson v Hancock (1827) 1 Y & J 317. 392 At that time a partnership could be unilaterally dissolved by any partner at any time by his retiring from the firm or simply at will: Grey v Chiswell (1803) 9 Ves Jun 118. 393 FW Maitland, ‘The Unincorporate Body’ and ‘Trust and Corporation’ in HD Hazeltine et al (eds), Maitland: Selected Essays (Cambridge University Press, 1936); CA Cooke, Corporation, Trust and Company: An Essay in Legal History (Manchester University Press, 1950) 83–88. 394 WR Scott, The Constitution and Finance of English, Scottish and Irish Joint Stock Corporations to 1720 (Cambridge University Press, 1910–1912) 327–37; Harris (2000) (n 384) 53–58. 395 KG Davies, ‘Joint-Stock Investment in the Later Seventeenth Century’ (1952) 4 Econ HR 288; PGM Dickson, The Financial Revolution in England: A Study of the Development of Public Credit 1688–1756 (Macmillan, 1967) ch 20; R Michie, The London Stock Exchange: A History (Oxford University Press, 1999) ch 1.

Part 3: The Limited Liability Company 243 converted into company shares. This led to the hectic buying and selling of joint stock, both in the South Sea Company and in other companies that had been formed to cash in on a sudden surge in demand for investment opportunities. The resulting ‘bubble’ soon burst, partly as a consequence of the Bubble Act, a statute enacted in 1720 which made it illegal to act as a corporate body by raising transferable stock without a charter or statute.396 This has sometimes been portrayed as a piece of reactionary anti-joint stock company legislation passed in panicky response to, and designed to suppress the activities of, the South Sea Company and its rivals.397 But it is more likely that it was a misjudged measure promoted by the South Sea Company directors themselves to suppress competition for capital from unincorporated joint stock companies.398 After the excitement of the South Sea Bubble had died down, the Bubble Act lay dormant for the rest of the century. As a result of sluggish economic growth, few unincorporated joint stock companies were created for the next 40 years, but in the late 1700s their numbers began to grow again, eg in the metals and insurance sectors.399 No attempt was made to enforce the statute against the new companies, but the market in joint stock remained small, owing to ‘the English government’s voracious demands for capital to finance [overseas wars, which] easily outpaced the requirements of private companies during the whole of the eighteenth century.’400 By the late 1700s, also, Chancery draftsmen had invented the deed of settlement company, a type of unincorporated joint stock company which drew on a mixture of contract and trust law principles.401 A deed of settlement was created, under which members agreed to pool assets, vest them in trustees to hold for the members’ benefit, and empower directors to manage them.402 Members obtained joint stock, which was often made transferable, although sometimes restrictions on transferability were imposed to deter speculators.403 Provision might be made for the members’ participation in the company’s decision-making, but again the approach taken to this varied.404 These new types of company differed from partnerships, again, not because they possessed different legal status – they were not thought to possess separate legal personality – but because they were economically different – they were larger, and few, if any, of the members were actively involved in management. Deeds of settlement were complex legal documents for which draftsmen charged high fees. Unincorporated joint stock companies also suffered from some practical drawbacks, 396 See ss 18ff of the Royal Exchange and London Assurance Corporation Act 1720 (also known as the Bubble Act). 397 eg HA Shannon, ‘The Coming of General Limited Liability’ (1931) 2 Economic History 267, 268; Holdsworth, vol 8 (n 314) 219–20. 398 Cooke (n 393) 83; JB Baskin and PJ Miranti, A History of Corporate Finance (Cambridge University Press, 1997) 110–11; Harris (2000) (n 384) ch 3. 399 G Todd, ‘Some Aspects of Joint Stock Companies, 1844–1900’ (1932) 4 Econ HR 46, 52–53; Harris (2000) (n 384) ch 7; M Freeman, R Pearson and J Taylor, Shareholder Democracies? Corporate Governance in Britain and Ireland Before 1850 (University of Chicago Press, 2012) 24–25. 400 Dickson (n 395) 488–89. See also P Mirowski, ‘The Rise (and Retreat) of a Market: English Joint Stock Shares in the Eighteenth Century’ (1981) 41 JEH 559. 401 For examples, see Dubois (n 378) ch 3; C Trebilcock, Phoenix Assurance and the Development of British Insurance, vol 1: 1782–1870 (Cambridge University Press, 1985) 69–73. 402 The trustees’ role was simply to hold the property, and they lacked any managerial discretion, which was exclusively vested in the directors: see the Widows’ Case (1785) a decision of Lord Thurlow, noted by Lord Eldon in Pearce v Piper (1809) 17 Ves Jun 1, 15–18. 403 Freeman et al (n 399) ch 5. 404 Freeman et al (n 399) 72–74.

244 Commerce and Industry partly because they were subject to rules of partnership law that resisted adaptation.405 When a member terminated his interest and transferred his share in the enterprise, the members’ agreement had to be rewritten. The trustees could sue and be sued in some matters of property in their capacity as legal owners,406 but the members all had to be joined to other types of legal proceeding and be served with copies of the papers.407 Trustees and directors were potentially exposed to personal liability for losses, and might therefore demand an indemnity clause, but this would render the members vulnerable to their officers’ misjudgments, particularly where the members had little power to oversee their decision-making.408 The law affecting the trustees’ powers and duties was unsettled: could they delegate, retire, appoint successors, act by a majority? The fact that trust litigation fell within the Chancery jurisdiction was also problematic in itself, given the long delays to which cases were subject in the early 1800s. Also, the members were jointly and severally liable for the debts of the business, and although attempts were made to solve this problem by limiting their liability in some deeds, such clauses could be enforced only against third parties who were party to them, in line with the rules of contractual privity409 – claims that such clauses were generally effective were denounced by Lord Ellenborough as ‘a mischievous delusion’ calculated to ensnare unwary investors.410

iv. Repeal of the Bubble Act The question also arose in the early 1800s, whether unincorporated joint stock companies with freely transferable shares infringed the Bubble Act? This became a live issue when ‘bull’ markets in stock trading began to recur, first in the mid-1790s, then more forcibly a decade later, and then in the mid-1820s. In 1806/07, the wartime economy stimulated the sudden promotion of around 40 companies – most of them flimsy, some downright fraudulent411 – and in the aftermath, the Bubble Act was revived for use against them.412 In 1824/25, in ‘a veritable avalanche of extravagant promotions and general speculation’,413

405 Harris (2000) (n 384) ch 6. But cf R Pearson, ‘Book Review’ (2001) 54 Econ HR 555, 555: ‘in the sector most dominated by unincorporated stock companies – insurance – there is no evidence from business practice to support [the claim that] changes of partners, share transferability or limited liability were high cost problems’. 406 See eg Metcalf v Bruin (1810) 12 East 400. 407 Van Sandau v Moore (1826) 1 Russ 441. Since no list of the members had to be published, discovering their identity and naming them could be impossible. The rule could be side-stepped if the members were willing to arbitrate, but they could not be forced to do this. It was relaxed, and some representative suits were allowed, later on: SJ Stoljar, ‘The Representative Action: An Equitable Post-Mortem’ (1956) 3 University of Western Australia Law Review 479; M Lobban, ‘Corporate Identity and Limited Liability in France and England 1825–67’ (1996) 25 Anglo-American Law Review 397, 404, n 20 and text. 408 For case studies of mismanaged insurance companies see R Pearson, ‘Shareholder Democracies? English Stock Companies and the Politics of Corporate Governance During the Industrial Revolution’ (2002) 117 EHR 840, 854–62. 409 See p 202. 410 R v Dodd (1808) 9 East 516, 527. See also Hallett v Dowdall (1852) 18 QB 2, 50–51; Greenwood’s Case (1854) 3 De GM & G 459, 475–83. On these and other devices by which it was sought to limit or control member liability, see Freeman et al (n 399) ch 7. 411 Hunt (n 381) 14–16. 412 R v Dodd (1808) 9 East 516; Buck v Buck (1808) 1 Camp 547; R v Stratton (1809) 1 Camp 549n; R v Webb (1811) 14 East 406; cf Brown v Holt (1812) 4 Taunt 587; Ellison v Bignold (1821) 2 J & W 503. 413 Hunt (n 381) 30.

Part 3: The Limited Liability Company 245 some 624 companies were floated, many on the promise that a statute or charter would be obtained; only 127 survived to 1827, 74 of them in mining, gas and insurance.414 Again, the courts marked the agitated concern of those in authority. Abbott CJ declared the Equitable Loan Bank Company to be illegal under the Bubble Act for providing for transferable shares in its deed;415 and Lord Eldon, after first threatening further legislation, lent all of his authority to the view that such formations were already unlawful, both under the Bubble Act and at common law.416 However, the judges’ position that unincorporated joint stock companies should be ignored, except occasionally when hectic stock-dealing had to be suppressed, could not be sustained over the long term. Ephemeral ventures in this form might be an easy catch for the gullible, but it had also begun to be used by more substantial enterprises. Ignoring the reactionary diatribes of Lord Eldon and other judges, Peel and Huskisson listened to the City of London and saw to repeal of the statute before the 1825 session was out.417

v. Incorporation of Joint Stock Banks At the same time, legislation was passed to allow joint stock banks to incorporate with unlimited liability. One survival of older monopoly ideas was the protection afforded to the Bank of England by the prohibition of banking partnerships of more than six people anywhere in England and Wales.418 The wealthy private banks of the City of London had shown little interest in provincial business, and small country banks had proliferated, many of them issuing their own banknotes.419 Their inability to build a capital base by increasing the number of their partners or by issuing joint stock to investors made them sensitive to financial frosts such as the ending of the 1825 boom. A campaign mounted by Thomas Joplin of Newcastle, with support from the economist David Ricardo, insisted on the need to remove the legal fetter on such a fundamental financial activity.420 In 1826 banks operating more than 65 miles from London were allowed to incorporate with unlimited numbers of share-partners and were given the right to sue and be sued in the name of a public officer, who had a right of indemnity with execution of judgment against any member.421 In 1833 Joplin secured an extension of the same right within the 65-mile radius to any bank which 414 H English, A Complete View of Joint Stock Companies Formed in 1824 and 1825 (Boosey, 1827). 415 Josephs v Pebrer (1825) 3 B & C 639: ‘everyone must observe that the signs of the times require us to declare it without delay.’ 416 PD 1825 XII 31, 127; Van Sandau v Moore (n 407); Kinder v Taylor (1825) 3 LJ Ch 68, 81. The idea that association was illegal without an Act or charter had fallen out of favour since the 1689 settlement, as it had become associated with the bad old days of Stuart absolutism, exemplified by the trial following revocation of the Corporation of London’s charter: R v City of London (1681–3) 8 Howell’s State Trials 1039. 417 Bubble Companies Act 1825. Occasionally judges would revert to the proposition that acting as a corporation was contrary to common law, particularly when the enterprise looked suspicious: eg Duvergier v Fellows (1828) 5 Bing 248, 267 (company evading restriction on number of assignees of an invention patent); Blundell v Winsor (1837) 8 Sim 601 (‘imaginary’ gold-mining venture). In less unsympathetic cases, the opposite view was taken: eg Walburn v Ingilby (1833) 1 My & K 61; and on the eve of the Joint Stock Companies Act 1844, this was accepted as the general law: Garrard v Hardey (1843) 5 M & G 471; Harrison v Heathorn (1843) 6 M & G 81. 418 Banking Partnerships Act 1707, s 9. 419 LS Pressnell, Country Banking in the Industrial Revolution (Clarendon Press, 1956) ch 2; TL Alborn, Conceiving Companies: Joint Stock Politics in Victorian England (Routledge, 1998) ch 4. See also Hunt (n 381) 64–67; Cooke (n 393) 122–23; Harris (2000) (n 384) 211–15. 420 T Joplin, Essay on the General Principles and Present Practices of Banking, in England and Scotland (Ridgeway & Co, 1822). 421 Country Bankers Act 1826. They had to make a return of members, thus anticipating the general scheme of 1844.

246 Commerce and Industry forswore the right to issue its own notes.422 Banking thus came, from a position of special constraint, to be the first field in which unincorporated joint stock companies with particular legal advantages could be formed without the need to obtain official approval.

B. Reforming Company Law, 1830–1862 i. The 1830s In the 1830s, steps were taken to reduce the practical difficulties faced by unincorporated joint stock companies. In 1834, the Crown was authorised to grant by letters patent (rather than a full charter) ‘some of the privileges of and incident to corporations’, such as the power to sue and be sued in the name of a principal officer.423 Legislation in 1837 additionally empowered the Board of Trade to grant limited liability on petitioners without fully incorporating them,424 although the Board took a cautious view of the merits of each proposal when such privileges were sought.425 The number of incorporated and unincorporated companies traded on the London stock market increased, and shares in many others were traded privately,426 the members of many companies belonging to provincial business elites who were known to the founders, and to one another, through local trading networks.427 Between the mid 1820s and mid 1830s, more than 200 companies were listed each year in the Course of the Exchange, the semi-official journal of the London Stock Exchange; around one-third were engaged in canalbuilding and another third in insurance and the provision of gas lighting.428 Between 1834 and 1836, there was a surge in formations as bankers took advantage of the 1833 Act, and as railway schemes proliferated; by the mid-1840s, some 720 companies were listed.429 In 1836, Henry Bellenden Ker wrote a report on the law of partnership for the Board of Trade, in which he recounted the arguments of the banker, Francis Baring, and the economist, Nassau Senior, that industrial progress had been advanced in France and the state of New York by adoption of the old civilian conception of a société en commandite, in which active partners were personally responsible in full but investing partners were liable only to the extent of their agreed share.430 Ker found majority opinion in England to be against such a move, and declined to recommend a change to the law.431 However, he berated the judges for denying suits against unincorporated joint stock companies on procedural grounds, with the result that rash and fraudulent promoters were effectively rendered immune from redress. Ker’s solution was a system of registration for large partnerships, which would carry with it the right to sue and be sued in the name of an officer. Failure to register would render the transfer of shares illegal.432 422 Bank of England Act 1833. 423 Trading Companies Act 1834. 424 Chartered Companies Act 1837. 425 Hunt (n 381) 56–57; Cooke (n 393) 130–31; Harris (2000) (n 384) 270–73. 426 Pearson (2002) (n 408) 849–50: ‘Hundreds of thousands of shares in incorporated and unincorporated companies were already in circulation by 1810.’ 427 R Pearson and D Richardson, ‘Business Networking in the Industrial Revolution’ (2001) 54 Econ HR 657. 428 Harris (2000) (n 384) 219. 429 Harris (2000) (n 384) 223. 430 See p 241. 431 PP 1837 (530) LXIV 19–23. 432 ibid 4–19. He thought registration should apply to partnerships of more than 15.

Part 3: The Limited Liability Company 247

ii. The 1840s Ker’s conclusions represented the balance of respectable opinion over the ensuing decade, and his main proposal was taken up in the early 1840s by a select committee chaired in its later stages by the young William Gladstone, President of the Board of Trade. The committee had been charged with investigating fraudulent company formations following a series of scandals over failed insurance companies. In the wake of its report,433 Gladstone secured crucial new legislation: the Joint Stock Companies Act 1844.434 This required all partnerships with more than 25 members and freely transferable shares (other than joint stock banks) to register with a new Registrar of Joint Stock Companies at the Board of Trade.435 However, there would no longer be any official assessment of the merits of the venture. The purpose of registration was to supply prospective investors with information to decide these for themselves, and to deter speculation by denying them the protection afforded by official oversight. This was a policy driven as much by moral as by narrowly economic considerations: those who gambled without counting the cost would face retribution.436 Joint stock companies seeking the initial capital for formation could secure ‘provisional registration’ upon filing a prospectus and the names of the promoters and the ‘provisional committee’. ‘Complete registration’ could then be secured once a deed of settlement had been signed (by a quarter of the potential subscribers for at least a quarter of the shares) and a copy filed with information about the objects, capital structure, directors, members and other matters. Companies were obliged to make half-yearly returns to members and audited balance sheets, both of which had to be filed with the Registrar.437 Although these rules were meant to suppress fraudulent promotions and cap speculation, they were almost immediately shown to have failed in these objects when another railway boom followed in 1845.438 In that year, 1,520 companies were provisionally registered, inspiring public confidence in their merits; most then failed to secure complete registration or obtain Parliamentary authority for their schemes.439 In the ensuing litigation, it became clear that the position of joint stock companies and their members had been confused rather than clarified by the system of double registration. Were provisional committee members partners in the concern, liable for its debts? Were provisional allottees of shares? These questions came to be resolved in the investors’ favour against the creditors.440 433 PP 1844 (119) VII. 434 In the same year Gladstone saw through the Railway Regulation Act 1844, the Joint Stock Companies Winding Up Act 1844, and the Joint Stock Banks Act 1844; to be followed by the Companies Clauses Act and Railway Clauses Acts 1845, which made available standard clauses for those seeking statutory incorporation of railway and other enterprises. 435 The Joint Stock Banks Act 1844 continued the system under which banks had to petition the Board of Trade for letters patent if they wished to incorporate. 436 B Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Economic Thought, 1785–1865 (Oxford University Press, 1988) 224. 437 The requirement to file financial statements proved ineffective because there were too few accountants available to prepare them and it was revoked in 1856, not to be reinstated until 1900 although greater disclosure was mooted by several committees in the interim: JR Edwards, Legal Regulation of British Company Accounts 1836–1900 (Garland, 1986); AC Storrar and KC Pratt, ‘Accountability vs Privacy, 1844–1907: The Coming of the Private Company’ (2000) 10 Accounting Business & Financial History 259. 438 RW Kostal, Law and English Railway Capitalism, 1825–1875 (Clarendon Press, 1994) ch 2. 439 M Lobban, ‘Nineteenth Century Frauds in Company Formation: Derry v Peek in Context’ (1996) 112 LQR 287, 297. 440 Reynell v Lewis (1846) 15 M & W 17; M Lobban, ‘Joint Stock Companies’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914 (Oxford University Press, 2010) 623–24.

248 Commerce and Industry Between 1844 and 1856, 910 companies proceeded to complete registration; the main types were insurance (219), gas and water (211), markets and public halls (85) and shipping (46); few industrial and manufacturing concerns were registered – the largest group of these were 13 cotton spinning companies.441 Registration gave companies the same capacity as statutory and chartered corporations to use a registered name and to sue (and be sued) in this name. But registered companies were still seen as modified partnerships, to which more of the advantages associated with incorporation had been attached by legislation.442 Only gradually did a different conception emerge, which understood them to be reified entities endowed with separate legal personality. This shift in thinking has been attributed by Paddy Ireland to the renewal of joint stock trading in the mid-century.443 This caused shares to become readily realisable liquid assets once more, an economic transformation which fed into their legal reconceptualisation, as the courts came round to the view that they gave their owners no direct interest in the company’s assets, and were realisable as money in the market without winding up the company.444 The knock-on effect of this re-imagining of shares was that companies themselves also came to be understood differently: as legal persons in their own right, whose separate legal existence could continue despite the comings and goings of individual members. In Len Sealy’s words, ‘the company was ceasing to be an association and was in the process of becoming an institution’.445

iii. The 1850s and 1860s The early 1850s saw renewed (and passionate) debate over the conferral of limited liability on traders. Under the existing law, an investor could not even lend to a firm of partners at interest varying with profits without being treated as a partner, thus becoming jointly liable for all debts and other amounts due from the business.446 Legislation to avoid this was recommended by a Select Committee on Partnership in 1852,447 but neither this Committee 441 HA Shannon, ‘The First Five Thousand Limited Companies and Their Duration’ (1932) 3 Econ HR 396. 442 In Ridley v Plymouth, Stonehouse and Devonport Grinding and Baking Co (1848) 2 Ex 711, 716, Parke B described them as ‘quasi corporations … which are for some purposes a partnership consisting of a great number of individuals’. 443 P Ireland, ‘Capitalism Without the Capitalist: The Joint Stock Company and the Emergence of the Modern Doctrine of Separate Corporate Personality’ (1996) 17 JLH 40. 444 For development of the courts’ thinking, see: Bligh v Brent (1836) 2 Y & C 268; Pinkett v Wright (1842) 2 Hare 120, 130–34; Baxter v Brown (1845) 7 M & G 198; Myers v Perigal (1852) 2 De GM & G 599; Watson v Spratley (1854) 10 Ex 222; Bank of Hindustan, China and Japan Ltd v Alison (1860) LR 6 CP 222; Entwhistle v Davis (1867) LR 4 Eq 272. See also C Stebbings, ‘The Legal Nature of Shares in Landowning Joint Stock Companies in the Nineteenth Century’ (1987) 8 JLH 25. 445 L Sealy, ‘Perception and Policy in Company Law Reform’ in D Feldman and F Meisel (eds), Corporate and Commercial Law: Modern Developments (LLP, 1996) 2. Decisions which reflected the new thinking include: Burnes v Pennell (1849) 2 HLC 497 (partnership doctrine of mutual agency did not render company shareholders liable to outsiders); Ashbury Railway Carriage & Iron Co Ltd v Riche (1874) LR 7 HL 653 (shareholders could not evade operation of ultra vires doctrine by authorising company to carry on activities beyond its objects, although they purported to do so unanimously); Trevor v Whitworth (1887) 12 App Cas 409 (shareholders could not collectively override capital maintenance doctrine, so as to cause company to repurchase its own shares); Salomon v A Salomon & Co Ltd [1897] AC 22 (existence of genuine partnership between members not required for incorporation under Companies Acts – see pp 253–54); Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame [1906] 2 Ch 34 (directors were agents of company, not shareholders). 446 Grace v Smith (1775) W Bl 997 – the arrangement was accordingly held not to offend the Usury Laws. See also Waugh v Carver (1793) 2 H Bl 235. 447 PP 1851 (509) XVIII. Legislation to this effect was eventually passed: Partnership Act 1865 (also known as Bovill’s Act); this was later re-enacted as ss 2 and 3 of the Partnership Act 1890. See also Cox v Hickman (1860) 8 HLC 268, and the discussion in J Hening, ‘On the Sesquicentennial of Bovill’s Act’ (2016) 37 Company Lawyer 329.

Part 3: The Limited Liability Company 249 nor an ensuing Royal Commission on Mercantile Laws448 could bring themselves to accept the general principle that businessmen should be able to trade with limited liability for their business debts. This accorded with the views of many commercial groups: limited liability ran counter to their notions of business morality, centred as these were on personal propriety; the proposed trade-off of limited liability in exchange for publicity was also unpalatable to businessmen who were used to keeping their affairs private; and large industrialists disliked the proposal because they feared competition from smaller enterprises which they thought would be encouraged by the change.449 However, arguments supporting limited liability were beginning to flow. Laissez-faire enthusiasts such as George Bramwell QC (who dissented from the Royal Commission’s Report450) maintained that allowing traders to limit their liability would improve commercial morality and stability: unlimited liability encouraged reckless credit, but those who lent to borrowers with limited liability would assess their risks more carefully and price their loans accordingly.451 Advocates of this view introduced Parliamentary bills in 1854 and again in 1855 to modify the law of partnership to limit the liability of sleeping investors. Both lapsed for want of time, but a bill introduced in 1855 to amend the Joint Stock Companies Act 1844 made it onto the statute book. This allowed the liability of a registered company’s members to be limited to calls for the unpaid portion of the nominal value of their shares. The House of Lords still insisted that at least 25 members, holding at least £10 shares paid up to 20 per cent, should have subscribed for three-quarters of the nominal capital or more.452 But even these vestigial protections were purged the following year, in legislation introduced by the arch-liberal, Robert Lowe, Vice-President of the Board of Trade.453 This eliminated provisional registration, reduced the number of members to seven, and made limited liability available on whatever terms were specified in the memorandum and articles of the company filed on the public record.454 Lowe was categorical:455 The principle is the freedom of contract, and the right of unlimited association – the right of people to make what contracts they please on behalf of themselves, whether those contracts may appear to the Legislature beneficial or not, as long as they do not commit fraud, or otherwise act contrary to the general policy of the law.

The tide continued to run: joint stock banks were placed under the same essential regime in 1858456 and insurance companies in 1862.457 The Companies Act of that year gave the Victorian legislation a final form which would last with relatively minor modifications until 1948. 448 PP 1854 [1791] XXVII. 449 GR Searle, Entrepreneurial Politics in Mid-Victorian Britain (Oxford University Press, 1993) 187–93; R Bryer, ‘The Mercantile Laws Commission of 1854 and the Political Economy of Limited Liability’ (1997) 50 Econ HR 37; R McQueen, A Social History of Company Law (Ashgate, 2009) 77–125. For the hostility of the Manchester Chamber of Commerce, stirred mainly by John Bright, see Cooke (n 393) 156; and for other protests, legal and industrial, see RR Formoy, The Historical Foundations of Modern Company Law (Sweet & Maxwell, 1923) 120–22. 450 PP 1854 [1791] XXVII 23–29; there were four other dissents. 451 J Taylor, Creating Capitalism: Joint Stock Enterprise in British Politics and Culture, 1800–1870 (Royal Historical Society / Boydell Press, 2006) chs 4, 5 and Epilogue. 452 The Lords did not, however, insist upon a proposal that the nominal capital should be at least £50,000. 453 On whom, see J Maloney, The Political Economy of Robert Lowe (Palgrave, 2005) esp ch 2. 454 Joint Stock Companies Act 1856. Under this Act, the model deed of settlement, which had been attached to the Act of 1844, became Table B (in 1862, Table A) – a set of articles of association to apply in default of any specific provision. 455 PD 1856 CXL 129. 456 Joint Stock Banks Act 1858. 457 In the general legislation of that year: Companies Act 1862; Lobban, ‘Joint Stock Companies’ (n 440) 629–31.

250 Commerce and Industry Commercial attitudes changed less suddenly than the quick pace of these reforms might suggest. After 1856, there was no rush to incorporate with limited liability and many companies which did so felt compelled to issue shares with large denominations and large uncalled margins. As a result, the members’ liability was only partly limited, for if the companies became insolvent the members still had to pay the companies’ debts to the extent of the uncalled portion of their shares.458 This was brought home in 1866 during the panic that followed the failure of the bill-broking firm of Overend, Gurney & Co: shares in companies (particularly banking companies) which were only partly paid up became unsaleable because buyers would not risk taking on the potential liability. To address this, further legislation was passed in 1867 to permit companies to reduce the nominal value of their shares, and with it their nominal capitalisation,459 and within a decade it became standard practice for shares to be issued with much lower nominal values.460

iv. Assessment Given the lack of business demand for limited liability, and the slow take-up of this feature of the registered company once it had become available, the question arises, why was it introduced? Some scholars have argued that in the absence of a convincing ‘demand side’ explanation, the answer must lie on the ‘supply side’: overseas traders based in London and the Home Counties needed new opportunities to invest their accumulated profits and politicians such as Lowe feared that they would take their savings overseas if they were not incentivised by limited liability to put them into domestic enterprises.461 Others have denied that there is evidence of the ‘influence, let alone the preferences’ of such rentier investors on the political process,462 and have depicted the 1855/56 legislation as a ‘topdown’ measure designed not to provide sleeping investors with outlets for their capital, nor to stimulate economic growth, but to stabilise the economy by discouraging reckless credit, and to reduce the state’s ‘troublesome responsibility’ for scrutinising incorporation bills, a task ‘which it was keen to shed’.463 The more general question also arises of whether the law of business associations supported economic growth between 1700 and 1850. As we have said, most industrial and manufacturing enterprises of this period were small and run by individuals or a few associates joined in a partnership. The premises and machinery which they needed to operate were generally inexpensive and so they did not need much fixed capital to start trading,

458 Taylor (2006) (n 451) ch 5. 459 Banking Companies (Shares) Act 1867. 460 JB Jefferys, ‘The Denomination and Character of Shares, 1855–1885’ (1946) 16 Econ HR 435, 450–52. cf GG Acheson, JD Turner and Q Ye, ‘The Character and Denomination of Shares on the British Equity Market’ (2012) 65 Econ HR 862: high share denomination persisted in sectors such as utilities, railways banking and insurance; but their findings do not detract from Jefferys’ conclusion that denominations went down in the 1880s and 1890s. 461 Shannon (1931) (n 397); JB Jefferys, ‘Trends in Business Organization in Great Britain since 1856’ (PhD thesis, University of London, 1938; reprinted Arno Press, 1977) 10: ‘their great eagerness to give their savings outran the demand for them by the industrialists’; P Ireland, ‘Limited Liability, Shareholder Rights and the Problem of Corporate Irresponsibility’ (2008) 34 Cambridge Journal of Economics 437. 462 Johnson (2010) (n 219) 148. 463 Taylor (n 451) 17 and ch 4.

Part 3: The Limited Liability Company 251 and could accumulate such capital as they needed to expand from their trading profits.464 Alternatively, they could borrow from family, social or religious connections,465 through local lending networks,466 or from a bank – although many banks were ‘reluctant either to supply working capital on a continuous basis or … to support investment in plant and machinery for any length of time’,467 and the high rate of failures among those who did extend long-term credit to local businesses (perhaps drifting into such arrangements by default) made other banks still less willing to engage in such lending practices.468 Alternatively, a new partner might be brought into the concern who had capital to invest and wished to participate in managing the business.469 This all suggests that the law provided a satisfactory framework within which most businessmen could obtain the fixed capital they needed without having to rely on sleeping investors, and that the mid-century reforms of company law ‘had little to do with [their] financial requirements’.470 The law did less well, however, in relation to enterprises which required a larger capital outlay: transport infrastructure projects such as the building of canals, railways, harbours and docks, urban improvement projects such as the supply of gas lighting and water and the construction of public buildings, mines which needed expensive equipment, and commercial undertakings such as overseas trading, ship ownership and insurance, where the risks of loss were large enough to make it desirable to spread these among a group of investors. The only way to fund such activities was by forming a joint stock company, and this was problematic: creating a statutory or chartered corporation was laborious and expensive, and creating an unincorporated joint stock company was not simple either, nor was this a particularly efficient legal form. It was, moreover, a form that was encouraged by the legislature only after decades during which it had merely been tolerated when it had not been actively persecuted, and the resulting uncertainty of the external legal framework within which unincorporated joint stock companies operated ‘rendered [their] constitutions … fragile and their financial, administrative and governance structures defective’.471 For these reasons, Ron Harris has argued that the period from 1720 to 1840 was one of economic dynamism but legal inertia, and that the law was ‘less than satisfactory in terms of overall social costs, efficient allocation of resources, and eventually the rate of

464 H Heaton, ‘Financing the Industrial Revolution’ (1937) 11 Bulletin of the Business History Society 1; S Pollard, ‘Fixed Capital in the Industrial Revolution in Britain’ (1964) 24 JEH 299, 300–03; P Mathias, ‘Capital, Credit and Enterprise in the Industrial Revolution’ (1973) 2 Journal of European Economic History 121. 465 Hudson (1986) (n 228) 265: ‘connections through family, church or chapel arise again and again in examining the business papers of the textile concerns’. See too PL Cottrell, Industrial Finance 1830–1914: The Finance and Organization of English Manufacturing Industry (Methuen, 1979) 41; P Hudson, ‘Industrial Organization and Structure’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation 1700–1860 (Cambridge University Press, 2004) 53–54. 466 See also p 255, n 499 and text. 467 Cottrell (1979) (n 464) 248. 468 Jefferys (1938) (n 461) 15–17, noting that between 1846 and 1857 about 100 banks, both private and joint stock, failed with liabilities totaling £50 million. See too L Brunt, ‘Rediscovering Risk: Country Banks as Venture Capital Firms in the First Industrial Revolution’ (2006) 66 JEH 74; L Newton, ‘Regional Bank–Industry Relations During the Mid-Nineteenth Century: Links Between Bankers and Manufacturing in Sheffield, c 1850 to c 1885’ (2006) 38 BH 64. 469 R Bubb, ‘Choosing the Partnership: English Business Organization Law During the Industrial Revolution’ (2015) 38 Seattle University Law Review 337. 470 Cottrell (1979) (n 464) 10. 471 Pearson (2002) (n 408) 862.

252 Commerce and Industry growth of the English economy.’472 There is truth in this, but it is also true that market factors played a significant role in the slow emergence of large industrial firms, ie that even if the law had been quicker to supply legal forms which would facilitate and incentivise outside investment, there was not the same demand for this that characterised later periods. As Brian Cheffins has written, there was ‘ample capital theoretically available in Britain for investment in industrial enterprise’, but Consols (ie government bonds) were widely regarded as a preferable investment,473 not least because investors believed that the salaried managers of large enterprises were insufficiently incentivised to do their jobs well;474 difficulties were created by the ‘fractionalised nature of British capital markets’;475 and meanwhile the proprietors of industrial and commercial enterprises had little incentive to opt to sacrifice their dominant position through the sale of shares to the public since economies of scale were lacking, capital requirements were modest and there was a strong aversion to dissipating control.476

C. The Corporate World, 1862–1950 i. Proliferation of Small Companies The mid-century reforms of the law affecting joint stock companies were founded on the premise that these were large concerns, financed by large groups of investors, many of whom would play no part in management. No one imagined that they might be small, closely controlled enterprises. As we shall see, large companies with dispersed memberships played an important continuing role after 1862, but the reforms also set in motion new practices that no one had anticipated: a growing number of small limited liability companies were registered in the following decades, a trend which eventually forced statutory recognition of the private company in 1907, and which persisted with the result that the private limited liability company became the dominant form of business entity in the twentieth century, largely eclipsing sole proprietorships and partnerships.477 Although the 1862 legislation provided that a company must have at least seven members, the practice developed of creating companies with fewer majority shareholders than this (perhaps only one) and a set of ‘dummy’ shareholders who held one share each and

472 Harris (2000) (n 384) 167. See too Hunt (n 381) 13: ‘the story of an economic necessity forcing its way slowly and painfully to legal recognition against strong commercial prejudice in favour of “individual” enterprise’; N Crafts, ‘The Industrial Revolution’ in R Floud and D McCloskey (eds), The Economic History of Britain since 1700, vol 1: 1700–1860 (Cambridge University Press, 1981) 52: ‘institutional weaknesses relating to … company legislation … must have had some inhibiting effects both on savers and on business investment’. 473 JG Williamson, ‘Why Was British Growth So Slow During the Industrial Revolution?’ (1984) 44 JEH 687. 474 S Pollard, The Genesis of Modern Management: A Study of the Industrial Revolution in Great Britain (Edward Arnold, 1965) 19–23. 475 cf P Hudson, The Industrial Revolution (Edward Arnold, 1992) 101–05. 476 B Cheffins, ‘Law, the Market and Corporate Enterprise: The Case of the Industrial Revolution’ in J Armour and J Payne (eds), Rationality in Company Law: Essays in Honour of DD Prentice (Hart, 2009) 310–11. 477 In 1885, there were about 100,000 ‘important partnerships’ and fewer than 10,000 limited liability companies: Jefferys (n 461) 104. But by then partnerships were beginning to be strongly squeezed between sole proprietorships and limited liability companies, and the form was most often used by no more than two people: RJ Bennett, ‘Interpreting Business Partnerships in Late Victorian Britain’ (2016) 69 Econ HR 1199.

Part 3: The Limited Liability Company 253 did what they were told by the majority. These companies were created by businessmen who intended to continue as owners and managers of the concern, and did not seek to access the stock markets for finance. Their motivation was to gain the benefits of limited liability, something which came to seem increasingly desirable after the economic downturn of the 1870s and 1880s;478 they also used the companies as mechanisms through which to bring family members into their businesses and in due course to hand over ownership and control to the next generation. Use of the registered company form also enabled them to borrow money against the security of a floating charge over the company’s stock-in-trade and other changing assets,479 a device which provided lenders with security while leaving businessmen with considerable trading freedom, and which was developed by the courts even as legislation curbing the use of bills of sale impeded this form of security in respect of loans to individuals.480 Floating charges were used to secure debentures issued by companies to lenders who thereby acquired high priority in a winding up, in advance of the company’s ordinary creditors, and with careful planning, company founders might even acquire such debentures themselves at the time of formation. The growth of small companies formed for these various purposes has been tracked by Ron Harris, who has shown that the number of company registrations rose dramatically in the second half of the nineteenth century: between 1856 and 1869, the average number each year was 445; after 1872 it was over 1,000; in the 1890s it was over 3,500; and in 1907 it was over 5,000.481 During the same period there was a marked decline in the nominal capital of companies at the time of registration and in the number of their shareholders.482 Also worthy of note is the fact that many of the new companies operated in business sectors where they had not previously been found: the companies formed in 1892, for example, included brick-makers, manufacturers of carriages and firefighting apparatus, tool and machine engineers, chemical manufacturers, opera and theatre companies, electricity and telephone suppliers, chemists, florists and grocers.483 The legitimacy of ‘one-man companies’, and the practice of issuing secured debentures to a company’s founder to enable him to recover its surviving assets in the event of a winding-up, were tested in Salomon v A Salomon & Co Ltd.484 After building up a reasonably successful leather and shoe business, Aron Salomon sold it to a company, whose shares were almost all owned by himself.485 The price of £39,000 – unquestionably an 478 A ‘flood’ of ‘single-ship’ company registrations starting in the late 1870s seems to have been prompted by Plimsoll’s campaign over the loss of life at sea and the fear of liability following a collision or similar misadventure: P Cottrell, ‘Domestic Finance, 1860–1914’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 2: Economic Maturity, 1860–1939 (Cambridge University Press, 2004) 263, adding that ‘continuity [was] maintained through each vessel being run respectively by the same managing agency’. 479 As in eg Re Hamilton’s Windsor Ironworks (1879) 12 Ch D 707. See generally RR Pennington, ‘The Genesis of the Floating Charge’ (1960) 23 MLR 630; J Armour, ‘The Checquered History of the Floating Charge’ (2004) 13 Griffith Law Review 25; J Getzler, ‘The Role of Security over Future and Circulating Capital: Evidence from the British Economy circa 1850–1920’ in J Getzler and J Payne (eds), Company Charges: Spectrum and Beyond (Oxford University Press, 2006); Lobban ‘Joint Stock Companies’ (n 440) 636–38. 480 See pp 234–36. See also R Gregory and P Walton, ‘Fixed Charges over Changing Assets – The Possession and Control Heresy’ [1998] Company, Financial and Insolvency Law Review 68. 481 R Harris, ‘The Private Origins of the Private Company: Britain 1862–1907’ (2013) 33 OJLS 339, 347. 482 ibid 348–52. 483 ibid 355–56. 484 [1897] AC 22. 485 Salomon held 20,001 of the issued shares; six other associates held one each (possibly on trust for him).

254 Commerce and Industry over-valuation – was received by Salomon partly in shares and cash, but as to £10,000 by way of debenture secured by a floating charge over the company’s assets. Within a year the company became insolvent and was wound up. The Court of Appeal found the arrangement, which left the original business owner as preferred creditor, deeply offensive, labelling it ‘a device to defraud creditors’.486 But the House of Lords did not agree that the preference should be disallowed: the company was a distinct legal entity, not an ‘alias’ for Salomon, and its purchase of the business had involved no prejudice to his business creditors at the time of the company’s formation as he had paid them all from the cash portion of his price.487 There was nothing impermissible in what had been done under the existing law and therefore nothing which could undermine its consequences. The Lords’ decision came as company law was undergoing political review, for the Davey Committee had just reported488 and the Government was considering its options. In 1900, the very year in which it placed novel constraints on moneylenders,489 Parliament chose only to reinforce the requirements of public notice in the law of companies. It insisted on registration of debentures and other charges with the Registrar (and not merely with the company itself).490 However, it did not require secured loans to the company to comply with formalities such as those which made bills of sale over an individual’s property so difficult to grant. It did not limit the use of floating charges by calling for a complete listing of items as they came to be covered;491 nor were the rules of winding up made to include the ‘reputed ownership’ rule that could swell the assets of individual traders in bankruptcy.492 The ‘one-man company’ was also shown to be acceptable in other ways: for the first time since 1856, companies were required by the 1900 Act to have an annual audit of accounts; but although the Companies Act 1907 additionally provided that audited accounts must be filed in the companies registry, this rule was not extended to companies whose shares were not open to public subscription.493 The 1907 legislation thereby created a distinction between private and public companies that has persisted to modern times. It also created a strong incentive for businessmen to adopt the private company form in preference to the public company form: if they accepted the restrictions placed on the liquidity and transferability of a private company’s shares (in the form of articles requiring the consent of the board or other members to share transfers or mandating that the shares be offered to other members first) they could avoid the stringent disclosure regime to which public companies were subject.494 This trade-off immediately

486 [1895] 2 Ch 323; at first instance, Vaughan Williams J reached the same result by treating the company as Salomon’s agent. 487 Later creditors who failed to inquire about debentures had, according to Lord Watson, to ‘bear the consequences of their own negligence’: Salomon (HL) (n 484) 40. 488 The Committee, of which Vaughan Williams J was a member, approved of the Court of Appeal’s view of the matter and proposed additional grounds for winding up in such cases: PP 1895 [C 7779] LXXXIII, viii–ix. On the later Reid Committee, only a minority were in favour of eliminating the floating charge: PP 1906 [Cd 3052] XCVII, 14–16 and 27–29. 489 See pp 213–14. 490 Which was all that s 43 of the 1862 Act required; there was no right of public inspection. 491 For these constraints upon bills of sale, see p 235. 492 See p 226, n 276 and text. 493 Companies Act 1907, s 21; and similarly for the directors’ annual report, s 22. 494 Public companies could also achieve this effect by hiving off parts of their businesses to wholly owned subsidiary private companies; an effort was made to stifle this practice by enacting the Companies Act 1948, s 129.

Part 3: The Limited Liability Company 255 won favour with most company founders: many thousands of new private companies were created and year by year the number of new public companies grew proportionately smaller.495

ii. Growth of Large Companies Although their relative numbers decreased in the late 1800s and early 1900s, the size of large companies increased during the same period as their operations expanded,496 as substantial partnerships were floated on the stock market, and as a wave of mergers, some driven more by the speculative activities of financiers than by a genuine quest for business efficiency, caused smaller firms to disappear.497 Some of the capital needed to effect these changes came from banks, but much of it came from capital investors. In 1853, the London stock market was still dominated by trading in government bonds, which comprised 70 per cent of the nominal values of quoted securities, but by 1913, this figure had fallen to 15 per cent; over the same period the figures for corporate securities grew from 20 per cent to 75 per cent, and the value of commercial and industrial securities rose from £22 million to £917 million.498 Before the mid1880s, moreover, the London stock market’s role in supplying investment capital to businesses was modest by comparison with the role played by provincial markets – and in a continuation of earlier trends, 76 per cent of company share capital in 1850 came from members who lived within a ten-mile radius of the company’s registered offices, a figure that still stood at 61 per cent in 1885.499 Between 1860 and 1910, however, the total number of company investors grew ten-fold from about 50,000 to about 500,000,500 and company memberships became more dispersed.501 These figures are all consistent with the view that British investors were eager to invest in domestic industries at the turn of the twentieth century,502 although there is an ongoing scholarly debate as to whether British industries lost ground to overseas competitors 495 In 1952 there were about 261,000 private companies and about 12,000 public companies: Board of Trade, Companies Annual Report for 1952. See too TW Guinnane, R Harris, NR Lamoreaux and J Rosenthal, ‘Putting the Corporation in its Place’ (2007) 8 Enterprise and Society 687, 707–08. 496 The largest were not in the most modern and dynamic sectors of the economy. In 1905, 18 of the 52 largest firms were in brewing and distilling, 10 were in textiles, and only nine were in iron, steel and metals: PL Payne, ‘The Emergence of the Large-Scale Company in Great Britain, 1870–1914’ (1967) 20 Econ HR 519, 528 and 539–41. 497 L Hannah, The Rise of the Corporate Economy, 2nd edn (Methuen, 1983) 178. 498 Michie (1999) (n 395) 70–142. See too RS Grossman, ‘New Indices of British Equity Prices, 1870–1913’ (2002) 62 JEH 121. 499 Cottrell (n 478) 262–65 and 267. 500 RC Michie, The London and New York Stock Exchanges, 1850–1914 (Harper Collins, 1987) 119. 501 On the identity of the new shareholding classes, see J Rutterford, DR Green, J Maltby and A Owens, ‘Who Comprised the Nation of Shareholders? Gender and Investment in Great Britain, c 1870–1935’ (2011) 64 Econ HR 157; GG Acheson, G Campbell and JD Turner, ‘Who Financed the Expansion of the Equity Market? Shareholder Clienteles in Victorian Britain’ (2017) 59 BH 607. The strong local bias in investor preferences continued into the 1930s, and supports the argument that investors may have relied more heavily on informal trust networks than they did on their formal legal rights to exercise control over management: J Franks, C Mayer, and S Rossi, ‘Ownership: Evolution and Regulation’ (2009) 22 Review of Financial Studies 4009; J Rutterford, DP Sotiropoulos and C van Lieshout, ‘Individual Investors and Local Bias in the UK, 1870–1935’ (2017) 70 Econ HR 1291. They also appear to have used proximity to their investments as an alternative to diversification as a means of risk reduction: DP Sotiropoulos and J Rutterford, ‘Individual Investors and Portfolio Diversification in Late Victorian Britain: How Diversified Were Victorian Financial Portfolios?’ (2018) 78 JEH 435. 502 J Armstrong, ‘The Rise and Fall of the Company Promoter and the Financing of British Industry’ in JJ Van Helten and Y Cassis (eds), Capitalism in a Mature Economy: Financial Institutions, Capital Exports and British Industry 1870–1939 (Edward Elgar, 1990) 119, noting that yields from other investments such as consols and the railways fell off in the late 1800s.

256 Commerce and Industry at this time because they were relatively under-capitalised, and, if so, whether this was due to the failure of banks and capital markets to supply them with the funds which they needed or to the failure of British industrialists to understand why they needed them.503 Before the 1890s, most large enterprises floated on the stock market were formed by company promoters who sought investment capital to pursue new business activities. However, in the decades which followed, flotations more typically entailed the conversion of family firms which had previously been partnerships.504 So, for example, only 25–50 per cent of large enterprises in the cotton spinning, iron and steel industries took the corporate form between 1884 and 1891, but this rose to 80–90 per cent between 1900 and 1914.505 Partners in such firms were motivated to convert them into companies by a number of considerations: to fund expansion, perhaps, but also to make it easier to bring in salaried managers and to enable partners to extract value from the firm by selling their shares. Once they were incorporated, companies of this kind were often dominated by family interests who retained large shareholdings and used their voting power, and the fact that they had always managed the business, to remain in executive positions. However, the growing size of such companies made management complex and opened up organisational fronts that called for varied expertise: financial control, demand prediction, management of personnel, marketing and distribution, all of which required skilful coordination and judgment. This was not a development that meshed easily with continuing family control, and although historians once thought that there was little separation of shareholder ownership from managerial control of public companies before WWII, recent studies have demonstrated that in some sectors this happened sooner – in the case of banking and railway companies, before WWI; in the case of companies engaged in heavy industry, insurance, shipping and electric utilities, from the interwar period onwards.506 This occurred although English law gave minority shareholders little protection at that time from expropriation by those who controlled the companies – contrary to the claims of ‘law and finance’ scholars who have argued that the ownership and control of large companies became separated sooner in countries like England and the US than in civil law countries because they were quicker to provide shareholders with protection from expropriation.507 If anything, the evidence suggests that 503 WP Kennedy, Industrial Structure, Capital Markets and the Origins of British Economic Decline (Cambridge University Press, 1987); MW Kirby, ‘Institutional Rigidities and Economic Decline: Reflections on the British Experience’ (1992) 45 Econ HR 637; M Collins, Banks and Industrial Finance in Britain, 1800–1939 (Cambridge University Press, 1995); Cottrell (n 478); L Hannah, ‘Banks and Business Finance in Britain Before 1914: A Comparative Evaluation’ in P di Martino et al (eds), People, Places and Business Cultures: Essays in Honour of Francesca Carnevali (Boydell Press, 2017). 504 BR Cheffins, Corporate Ownership and Control: British Business Transformed (Oxford University Press, 2008) 181; G Acheson, G Campbell, JD Turner, and N Vanteeva, ‘Corporate Ownership and Control in Victorian Britain’ (2015) 68 Econ HR 911. 505 Jefferys (n 461) 104–05. 506 eg J Franks, C Mayer and S Rossi, ‘Spending Less Time with the Family: The Decline of Family Ownership in the United Kingdom’ in RK Morck (ed), A History of Corporate Governance Around the World: Family Business Groups to Professional Managers (University of Chicago Press, 2005); Cheffins (2008) (n 504) 221–51, 292–300, and 350–70; J Foreman-Peck and L Hannah, ‘Extreme Divorce: The Managerial Revolution in UK Companies Before 1914’ (2012) 65 Econ HR 1217; Acheson et al (2015) (n 504). 507 A Musacchio and JD Turner, ‘Does the Law and Finance Hypothesis Pass the Test of History?’ (2013) 55 BH 524; TW Guinnane, R Harris, and NR Lamoreaux, ‘Contractual Freedom and Corporate Governance in Britain in the Late Nineteenth and Early Twentieth Centuries’ (2017) 91 Business History Review 227. The leading proponents of the ‘law and finance’ hypothesis are Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert Vishny. See eg R La Porta, F Lopez-De-Silanes, A Shleifer and RW Vishny, ‘Law and Finance’ (1998) 106 Journal of Political Economy 1113.

Part 4: Legal Control of Anti-Competitive Activity 257 the causal flow went in the other direction, ie that English rules protecting minority shareholders were strengthened in response to the rise of the capital market and the dispersal of shareholdings.508

Part 4: Legal Control of Anti-Competitive Activity One cause of the separation of ownership from control in some public companies in the first half of the twentieth century was an increase in merger activity and cartelisation. By the 1870s England may have come closer to textbook conditions of free competition – its marketplaces jostling with suppliers – than any industrialised state has subsequently managed. It was a domestic condition which, combined with dominance in international markets, helped to prolong the country’s faith in free trade, when its emerging rivals – headed by the US and Germany – were returning to a protectionism that would secure their home industries against foreign intruders. By comparison with them, also, the English were slow to build up very large enterprises, which, by organising the whole of production and distribution within an industry, could become dominant within it, either single-handed or through market-sharing with a few other firms of comparable size and efficiency.509 In Germany, large-scale cartelisation began in the 1870s and was actively encouraged until after WWII; in the US, there was a wave of mergers in the 1890s, as a result of which only 100 enterprises accounted for 22 per cent of net manufacturing output by 1909. The same position was not reached until the 1920s in Great Britain, where a merger wave between 1895 and 1902 created large market shares in staple industries and brewing, but where there were few cartels before 1914. During WWI, however, Trade Development Associations proliferated, and a second wave of mergers in the 1920s was followed by increased cartelisation in the 1930s, accompanied by a dramatic increase in Resale Price Maintenance agreements: in 1935, 30 per cent of gross manufacturing output was controlled by cartels, rising to 50–60 per cent in the 1950s, before falling as a result of post-war legislation.510 For most of our period, therefore, the fear in England was of too much competition rather than too little. The question whether the state should intervene to inhibit anti-competitive activities in industry was left to one side and there was no public feeling to equal the outcry which had led the US to enact the Sherman Act of 1890 against the restrictive practices and

508 See also C Gerner-Beuerle, ‘Law and Finance in Emerging Economies: Germany and Britain 1800–1913’ (2017) 80 MLR 263, examining the disclosure obligations of companies and finding similar levels of shareholder protection in the UK and Germany. 509 B Elbaum, ‘The Steel Industry Before World War 1’ in B Elbaum and W Lazonick (eds), The Decline of the British Economy (Oxford University Press, 1986); W Mass and W Lazonick, ‘The British Cotton Industry and International Competitive Advantage: The State of the Debates’ (1990) 32 BH 9; AD Chandler Jr, Scale and Scope: The Dynamics of Industrial Capitalism (Harvard University Press, 1990) 320–32. 510 H Mercer, Constructing a Competitive Order: The Hidden History of British Antitrust Policies (Cambridge University Press, 1995) 10–12; B Cheffins, ‘Mergers and Corporate Ownership Structure: The United States and Germany at the Turn of the Twentieth Century’ (2003) 51 American Journal of Comparative Law 273; B Cheffins, ‘Competition Law and Corporate Ownership Structure: A European Research Agenda’ (2003) EBOR 4, 16, noting that by the outbreak of WWII, ‘one of the most notable features of the British industrial scene was the degree of collusion on price and output policies by legally separate enterprises’ and that the law’s tolerance of anticompetitive alliances ‘helped to preclude merger activity which could have accelerated a reconfiguration of corporate governance’.

258 Commerce and Industry the monopolising activities of the first big business ‘trusts’ there – in petroleum, meat, sugar, whisky and so on.511

A. Mercantilist Regulation and Its Ending The instinct to monopolise is as old as trade itself. To be able to restrict the supply of a commodity so as to raise its price to the level which, after accounting for demand and costs, allows the maximum exaction of profits is a heady stimulant to entrepreneurial endeavour and capitalist risk-taking. The middle ages had feared engrossers, badgers, forestallers and regraters who in various ways cornered corn and other supplies before or as they reached market, and a succession of statutes made their activities criminal.512 The tendency of Queen Elizabeth I and her Stuart successors to reward favourites by granting them patent monopolies over particular trades had attracted the growing resentment of the Commons and the hostility of the common law judges. The latter, led by Coke CJ, had been prepared to pronounce monopoly illegal and this principle would later be used to declare against unwarranted attempts to impose local guild and similar restraints and would meld into a broader doctrine against ‘general’ restraints of trade. This might be used against masters or journeymen who sought to exclude unapprenticed workmen from their trade, or against an anti-competition clause in a contract of service or the sale of a business. It was an openended conception capable of adaptation against novel threats to the freedom of capital and trade, and its potential as a weapon against collective labour action would prove daunting.513 In the economic conditions of the later eighteenth century there was a shift in attitudes as markets developed on a larger scale and it became possible to hope that competitors would always emerge to challenge the combination of traders intent on dividing up or sharing out markets. The very fact of wholesale trading made the old laws against engrossing and the like appear anomalous. In 1772 Parliament was persuaded to repeal the chief statutes against these practices.514 But the country was not entirely ready for such progressive ideas. Sharp inflations of food prices, particularly in the war disruptions of the 1790s, brought panic-buying and deep suspicion of profiteering. In 1800 Lord Kenyon led King’s Bench to hold that engrossing and regrating remained criminal at common law.515 Convictions of 511 The contrast was the more striking because of the common legal heritage: the Sherman Act claimed parentage in the common law’s antipathy to monopoly and restraint of trade (for which see the next paragraph): WL Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (University of Chicago Press, 1965); H Hovenkamp, ‘The Sherman Act and the Classical Theory of Competition’ (1989) 74 Iowa Law Review 1019. For comparison of the position in the US with that of England, Germany and France, see WR Cornish, ‘Legal Control Over Cartels and Monopolization, 1880–1914: A Comparison’ in N Horn and J Kocka (eds), Law and the Formation of the Big Enterprises in the Nineteenth and Early Twentieth Centuries (Vandenhoek & Ruprecht, 1979); T Freyer, ‘Legal Restraints on Economic Coordination: Antitrust in Great Britain and America, 1880–1920’ in NR Lamoreaux and DMG Raff (eds), Coordination and Information: Historical Perspectives on the Organization of Enterprise (University of Chicago Press, 1995). The ‘trust’ was used in the US until (from 1889) companies began to be permitted to own shares in other companies; in Britain, this practice seems to have crept in at an earlier stage. 512 W Herbruck, ‘Forestalling, Regrating and Engrossing’ (1929) 27 Michigan Law Review 365; D Dewey, ‘The Common-Law Background of Antitrust Policy’ (1957) 41 Virginia Law Review 759. See also pp 516–17 of the present work. 513 See pp 283ff, 300ff and 317ff. 514 Repeal of Certain Acts 1772; a turn strongly approved by Adam Smith: Wealth of Nations (1976 ed) 534. 515 R v Waddington (1800) 1 East 143 and 167; R v Rusby (1800) Peake Add Cas 189.

Part 4: Legal Control of Anti-Competitive Activity 259 merchants for these offences were greeted with enthusiasm and it was not until 1844 that this residual form of criminal liability was lifted by statute, though there is no evidence of positive application of the law in the interim.516 This indicates the long-term trend, which is also marked in civil litigation. Adam Smith had noted with some unease the instinctive tendency of merchants to collaborate on prices, wages, supplies and so on, to the disadvantage of consumers or workers; but in general he was prepared to trust to the sovereign remedy of competition from outsiders or from insiders, duplicit or weary of the game.517 From 1815, the common law judges showed little willingness to treat market-sharing arrangements between traders as anything other than enforceable contracts. A restraint of trade there might be, but, as Jessel MR would later express it:518 [You] are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing more than another that public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice.

An agreement between two coachmakers to fix prices and divide services; an agreement between three Oxford box-makers to divide the country between them; an agreement between builders to refrain from tendering for work so that all would share in the profits of a single high bid by one of them; an agreement among dock firms to share work and profits – all these were held enforceable.519 The obvious capacity of railways to behave as monopolists provoked curbing legislation on some fronts – eg the control which began in 1854 over their freight rates.520 But other mutually supportive arrangements were allowed to continue – notably those which eliminated competition over fares and freights between various destinations. Disputes between participants went to arbitration, on occasion before the prestigious figure of Gladstone.521 Only when it came to labour relations would the reaction be different. In Hilton v Eckersley, a combination among masters to fix wages and conditions of employment was held void as an illegal restraint of trade; otherwise, by simple reciprocity, the courts would have to entertain questions of trade union agreement, and 516 But cf Cousins v Smith (1807) 13 Ves Jun 542, which concerned a bill in equity to discover the circumstances of a deal between a powerful ‘Fruit Club’ and another trader concerning a cargo of fruit. At 545, Lord Eldon denounced the Club’s activities not only as a ‘conspiracy against the vendors’ but also as a ‘conspiracy against the world at large’. This was regarded as outdated conservatism by Victorian judges, eg Bowen LJ in Mogul Steamship Co Ltd v McGregor Gow & Co (1889) 23 QBD 598, 619, who thought it ‘not very intelligible’. However, war conditions obtained in 1807, and views similar to Lord Eldon’s resurfaced during the market conditions of WWI, as noted in the present volume at pp 261–62. 517 But he opposed the protectionist legislation of mercantilism: Wealth of Nations (1976 ed) 462 and 493. 518 Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462, 455 (unsuccessful attempt by assignor of an invention patent to escape obligation to assign rights in improvements). 519 Hearn v Griffin (1815) 2 Chitty 407; Wickens v Evans (1829) 3 Y & J 318; Jones v North (1875) LR 19 Eq 426; Collins v Locke (1879) 4 App Cas 674. 520 The Railway and Canal Traffic Act 1854 ss 2–4, conferred jurisdiction on the Court of Common Pleas. It was a task inimical to the judges and was given to Railway Commissioners by the Railways Regulation Act 1873. 521 PS Bagwell, The Railway Clearing House in the British Economy (Allen & Unwin, 1968) ch 9. Companies which sought to escape liability under pooling arrangements by pleading that their actions were ultra vires their statutory powers found no sympathy in the courts: see Shrewsbury & Birmingham Railway Co v London & North-Western Railway Co (1851) 21 LJQB 89, (1853) 16 Beav 441, 450–51; Hare v London and North-Western Railway Co (1861) 2 J & H 80; cf Midland Railway Co v London & North Western Railway Co (1866) LR 2 Eq 524.

260 Commerce and Industry according to Lord Campbell, might even ‘establish a principle upon which the fantastic and mischievous notion of a “Labour Parliament” might be realized for regulating the wages and the hours of labour in every branch of trade all over the empire.’522

B. The Courts and ‘Unfair’ Competition ‘Loose-knit combinations’ of traders – going by such names as trade associations, marketing pools, cartels, conferences, and rings – were a growing feature of the late Victorian economy, a response more often to conditions of depression than to expansion, a tool of defence until trade improved rather than of monopolistic aggression. A pooling arrangement typically strove (through the administration of a trusted secretary) to determine the existing market shares of the collaborating traders, so as to allow them only the same proportion of total sales of the pool thereafter. The secretary would organise payments into the pool for excess sales and rebate out of the pool for sales below allotment. The system might save the least competitive from going under during stretches of slack trade, thus preserving capacity for the livelier times of the next turn in the cycle. Although disputes between such collaborators were commonly referred to arbitration, some still found their way to court. It became plain that the judges would only re-affirm their earlier attitude. They would not treat common law as a positive means of promoting competition: ‘to draw the line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the courts.’523 This abnegation came first in answer to a novel attempt at ‘strong’ legal redress. In Mogul Steamship Co Ltd v McGregor Gow & Co,524 a ring of shippers had succeeded in excluding an outsider from shipping the annual China tea harvest to Britain by such tactics as threatening the consignors of the tea with no transport for the bulk of their cargo if they dealt with the outsider. This the outsider claimed to be a tortious conspiracy to cause trade injury which sounded in damages. But the judges found nothing actionable in conduct undertaken in the selfish pursuit of ‘legitimate’ business interest: nothing had been done which was unlawful by itself. True, most of the judges said or assumed that the agreement of the shippers’ ‘conference’ against any one of their number would not have been enforceable because it was in undue restraint of trade. But soon afterwards, in the different context of a restrictive covenant not to compete, given by the seller of an arms business to the purchaser, the House of Lords restated the restraint of trade doctrine so as to focus enquiry primarily on whether the restraint was reasonably in the interests of the parties to the agreement and only secondarily (and as it would prove, to a shadowy extent) on whether it was in the public interest. This rule, laid down in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co Ltd,525 would be applied with some severity to guarantee to an individual employee the right to take

522 (1855) 6 El & Bl 47, 65–66. The Chartist Ernest Jones had begun to campaign for a Labour Parliament during the Preston textile strike of 1853: N Kirk ‘Special Note: The Labour Parliament, 1853–4’ in K Gildart, D Howell, and N Kirk (eds), Dictionary of Labour Biography, vol 11 (Palgrave Macmillan, 2003), sv ‘Ernest Jones’, 150–59. 523 Mogul Steamship Co Ltd v McGregor Gow & Co (1889) 23 QBD 598, 625–26 (Fry LJ). 524 (1889) 23 QBD 589; [1892] AC 25. 525 [1894] AC 535.

Part 4: Legal Control of Anti-Competitive Activity 261 his labour where he wished (itself one reaction against collective restraints on labour).526 But when it came to mercantile agreements such as the sale of a business, a much more benign attitude prevailed towards upholding non-competition clauses.527 So, although the second limb of the Nordenfeldt test ‘might have given the judges an opportunity to take an active role in shaping the competitive nature of the economy … by equating the public interest with reasonableness between the parties to the contract, they avoided deciding questions about the public interest in competition.’528 So the Privy Council upheld the tying agreements by which the United Shoe Machinery of Boston and its subsidiaries leased their machines to shoe manufacturers and so acquired a dominant position in the industry in various countries. Nothing had deprived the manufacturer-lessees of their freedom to decide whether to enter the agreements and any evil, according to the Conservative Lord Atkinson, ‘may be capable of cure by legislation or by competition, but … not by litigation’.529 Again, an Australian version of the United States Sherman Act, couched in more limited terms, was held by the Privy Council not to apply to a combination among coal-shippers intended to restrain an impending downturn in freight rates. Applying the Nordenfeldt rule, Lord Parker insisted that, once the agreement was found to be in the interests of the parties (which was a natural inference from their entering it), there was a heavy onus in showing that it was against public interest.530 Again, the House of Lords found no sympathy for a salt manufacturer who sought to escape liability under an agreement with an amalgamation of salt manufacturers designed to maintain prices. Because restraint of trade had not been pleaded, no evidence had been introduced to substantiate the claim that the restrictive agreement injured the public. The Liberal Lord Chancellor, Lord Haldane, speculated that too much competition might lower wages and cause unemployment and labour disturbance, and Lord Sumner approved the term by which the parties agreed not to open new salt-bearing ground, for its tendency to conserve resources.531

C. Shifting Perceptions War conditions, however, produce sudden demands and unexpected scarcities and thereby create immense opportunities for profiteering. In Britain the effect was evident after 1914, but it took official investigations in the United States of the predatory activities of the ‘Meat Trust’ for it to be realised just how serious the problem might be. The Trust had come to control a substantial part of the world’s meat supply and was deriving a large part of its immense profits from Britain. In 1918/19 a Ministry of Reconstruction Committee on Trusts heard

526 Mason v Provident Clothing & Supply Co Ltd [1913] AC 724; Herbert Morris Ltd v Saxelby [1916] 1 AC 688. Severance of part of the clause was unlikely to be allowed in an employment case. 527 In addition to the Nordenfeldt case itself, see eg Vancouver Malt & Sake Brewing Co Ltd v Vancouver Breweries Ltd [1934] AC 181. 528 RB Stevens, ‘Experience and Experiment in the Legal Control of Competition in the United Kingdom’ (1961) 70 Yale Law Journal 867, 872. 529 United Shoe Machinery Co of Canada v Brunet [1909] AC 330; and see British United Shoe Machinery Co v Somervell (1906) 95 LT 711; PD 190 CLXXI 686. 530 Commonwealth of Australia v Adelaide Steamship Co Ltd [1913] AC 781. 531 North-Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1914] AC 461.

262 Commerce and Industry much from industry on the need for the organisation of consortia and cartels if British business was to survive the rigours of international competition.532 Into this case was woven the demand that home and colonial markets be at last protected by tariff preferences; the profits of this preferment would then allow them to go price-cutting in foreign markets. This was the language of rationalisation, but the Committee was suspicious. It recommended arming the Board of Trade with powers of investigation into monopolistic action and the setting up of a Tribunal to which the Board might refer cases for a decision on whether the activities were against the public interest. At the end of this process, however, only political action was envisaged: the American armoury of criminal prosecutions and civil remedies was not to be copied. A Standing Committee on Trusts was indeed created and delivered 57 reports on pricing, some of them unequivocally critical.533 In line with this mistrust, a pooling association of cased-tube manufacturers was held to be in unreasonable restraint of trade; a participant could therefore not sue on the contract to claim a rebate due to him for not filling his quota.534 An attempt to hold an Irish dairy farmer to an indeterminate contract to supply all his milk to a cooperative dairy was similarly held to be contrary to the public interest.535 Yet the post-war boom was short-lived, collapsing by 1921 into slump and the edgy uncertainties which were to follow. On the political front, the Standing Committee on Trusts was abandoned in May 1921. Occasional arguments subsequently for its resurrection attracted no serious support. Even the Labour Party was unable to make progress on a Consumers’ Council against monopoly pricing and other practices.536 The courts also reverted to their old line. In 1928, a joint marketing organisation set-up by hop-growers was judged proper since the parties had joined it in pursuit of their own interests – questions of public interest in the arrangement were not even raised.537 Resale price maintenance was looked upon in similar light. The practice, which aimed to protect smaller distributors against the price-cutting efficiencies of chain-stores and large outlets,538 had before the war run up against a strict application of privity of contract: the manufacturer who had agreed to impose the standard resale price could not enforce it against retailers who bought only from an intermediate wholesaler.539 But techniques evolved for side-stepping this barrier: wholesalers were obliged to sue indirect retailers; manufacturers organised ‘stop-lists’ among themselves collectively so that defaulting retailers would be unable to obtain supplies; and they offered ‘offenders’ the more lenient alternative of a penalty to keep their names off the list. The irascible Lord Hewart CJ led the Court of Criminal Appeal to denounce this last practice as blackmail (demanding with menaces).540 But with equal determination – and more opportunity to have their say – the civil courts refused to accept that the practice 532 Committee on Trusts, PP 1918 [Cd 9236] XIII. 533 The Standing Committee on Trusts was established under the Profiteering Act 1919. See generally, Hannah (1983) (n 497) ch 4; Mercer (n 510) ch 2; T Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880–1990 (Cambridge University Press, 1992) ch 5. 534 Joseph Evans & Co v Heathcote [1918] 1 KB 418. 535 McEllistrim v Ballymacelligott Cooperative Agricultural & Dairy Society Ltd [1919] AC 548. 536 Hannah (1983) (n 497) 47. 537 English Hop Growers Ltd v Dering [1928] 2 KB 174. 538 For its emergence from chemists’ goods in the 1890s to books, periodicals, photographic materials, records confectionery and cars, see BS Yamey, ‘The Origins of Resale Price Maintenance’ (1952) 62 Economic Journal 522; BS Yamey (ed), Resale Price Maintenance (Weidenfeld & Nicolson, 1966) 251–4; Mercer (n 510) 18–23. 539 eg Taddy & Co v Sterious & Co [1904] 1 Ch 354 (tobacco); Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 (tyres). 540 R v Denyer [1926] 2 KB 258.

Part 4: Legal Control of Anti-Competitive Activity 263 amounted to this crime, since the pursuit of ‘legitimate trading interest’ provided the defence of reasonable cause; equally it prevented there being any tortious conspiracy.541 Once again the judiciary had sensed the economic atmosphere of the moment. The catastrophic depression in world trade made rationalisation an urgent necessity in preserving the existing structures of capital. If the relatively stable 1920s saw a drive towards merger, the 1930s turned to cartelisation and restrictive agreements.542 Some agricultural producers secured political backing in the form of statutory marketing boards, run by their representatives and designed to match production to demand.543 Certainly the state provided a major buttress against foreign competition when finally in 1932 it abandoned free trade and instituted the protective tariffs which allowed for imperial preference.544 Beyond this, the taxation system was used to some extent to encourage the reduction of surplus plant and relocation in units of larger, more efficient size.545 While these interventions were generally indirect, their effect was significant. The essentially private arrangements acquired a greater stability than ever before: it became worthwhile for market leaders to abide by their agreed rules, rather than backsliding into surreptitious breaches. And the reversion to war conditions greatly enhanced this process: a wartime government which needed to direct production as never before turned to the trade asssociations and groupings for help that could not wait upon bureaucratic manoeuvrings. Partly because governmental controls were so much more complete during WWII, its aftermath did not produce the same ferment against profiteering that followed WWI. The Labour Government was sufficiently uneasy with a private industrial sector that was largely characterised by ‘imperfect competition’ to set up a Monopolies and Restrictive Practices Commission in 1948.546 However, this followed the pattern established by the Standing Committee on Trusts a quarter-century before: the new machine was to be for investigation and report, not for legal condemnation. If its reports were unfavourable, they would have to be followed by political intervention.547 For the time being, the country was preoccupied not with the aggression of dominant firms but with the need to rebuild industries that could compete in the reviving markets of the world. Much attention was focused on the state’s role in promoting enterprises that were sufficiently large and efficient to survive an unpredictable future.548

541 See esp Hardie & Lane Ltd v Chilton [1928] 2 KB 306; Thorne v Motor Trade Association [1937] AC 797. 542 Hannah (1983) (n 497) chs 7–9. 543 Boards were created for milk, bacon, potatoes and hops under the Agricultural Marketing Acts 1931 and 1933; cf the subsidy arrangements of the Wheat Act 1932 and the Sugar Industry (Reorganization) Act 1936. The coal mining industry adopted a system of quotas administered by a central council under the Coal Mines Act 1930, Part I. Part II created a Commission for amalgamation of collieries which laboured to little effect. 544 See pp 76–7. 545 Hannah (1983) (n 497) 136. 546 Monopolies and Restrictive Practices (Inquiry and Control) Act 1948. For background and assessment, see Mercer (n 510) chs 4 and 5; Freyer (n 533) ch 7. 547 Mercer (n 510) 123 states that only ‘minimal’ use was made of the Monopolies and Restrictive Practices Commission to outlaw ‘anti-social’ restrictive practices and to enquire into private monopoly. In 1956, it was followed by a Restrictive Practices Court and Registry which Mercer argues in ch 7 had the effect, deliberate or not, of favouring the development of large transnational firms at the expense of national, protectionist enterprises. 548 D Edgerton, ‘War, Reconstruction, and the Nationalization of Britain, 1939–1951’ in M Mazower, J Reinisch and D Feldman (eds), Post-War Reconstruction in Europe: International Perspectives, 1945–1949 (Oxford University Press, Past and Present Supplement No 6, 2011).

264 Commerce and Industry The Labour Government saw the rationalisation movement of the inter-war period as an intermediate stage in a progress towards nationalisation of whole industries; and within the business community there was undoubtedly support for greater public and private collaboration.549 The main arguments were over the extent to which this process should be carried through and the degree of socialisation to be achieved. Consensus was strongest over the utility services of transport and power, where already there had been a considerable measure of public intervention – by local authorities in pursuit of ‘municipal socialism’; in the Metropolis by the creation of the Port of London Authority (1908) and the London Passenger Transport Board (1932);550 at national level by the consolidation of 120 railway companies into four systems under the Railways Act 1921 (which lasted until nationalisation in 1947), by the Post Office, the BBC and, on the eve of war, the conversion of Imperial Airways into BOAC. Attlee’s post-war Government brought in legislation nationalising gas and electricity, thus replacing a patchwork of local authorities and commercial enterprises oversewn with statutory regulation; allied to this the coal industry was nationalised since it provided the chief energy source for both types of power. The Government’s largest creation was the scheme nationalising the railways, canals and inland waterways, road haulage, the London transport system and (in anticipation) the main harbours and passenger road services, all under a British Transport Commission. The one staple production industry which was similarly treated was iron and steel.551 This last case would provide the great post-war cause between those whose goal was social ownership and political planning and those who sought only to prop up an essentially private system by public intervention at necessary points. Churchill’s Government moved soon enough to denationalise (or in today’s jargon, privatise) the steel industry, perceiving that its potential profitability was considerable and that it accordingly fell outside the compass of ‘lame duck’ enterprises which national interest obliged the state to maintain. The other major nationalisations, however, the Conservatives would keep and seek to improve. When they created the new state monopolies, the Labour Government used the legal form of the public corporation. Among other advantages this demonstrated to doubters that authority would lie primarily with managerial experts, rather than political amateurs. The new boards and authorities were a revival of the pre-industrial semi-public corporations and trusts, rather than the descendants of the private joint stock company. Their object was to provide a public benefit which was not directly tested by market confidence, since there was no share capital and investment was sought through loans buttressed by Treasury guarantee. The boards and chief executives were not answerable to shareholders and debenture-holders but to ministers who themselves bore political responsibility to Parliament and the electorate. To turn this form of accountability into reasonably effective supervision was the great challenge of the new dispensation. Managers needed freedom to react swiftly and with purposeful initiative, but continuing pressure was needed to forestall comfortable resistance to change, rosy-eyed experimentalism, refusal to consider the consumer’s interest in cost-cutting and tendencies towards favouritism or downright dishonesty. 549 See pp 113–14. 550 The Port of London Authority had been the one significant instance of transfer to public ownership before WWI; for the London Passenger Transport Board, see p 113. 551 The details of these schemes are beyond the scope of this book. For an overview and assessment, see L Hannah, ‘A Failed Experiment: The State Ownership of Industry’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 3: Structural Change and Growth, 1939–2000 (Cambridge University Press, 2004).

Part 5: Technological Advance and the Patent System 265

Part 5: Technological Advance and the Patent System What part was played by technological innovation in England’s industrialisation, and what part was played by the patent system in fostering innovation? These are complex questions to which there is no simple answer. Many scholars believe that technological and industrial development were intimately linked, but the relationship between the two is not well understood. One reason, identified by Kristine Bruland, is that historians of technology traditionally focused on innovation and productivity growth in a few ‘critical’ industries (particularly textiles), assuming that advances in these areas had direct or indirect effects on the whole economy;552 in contrast, more recent studies have viewed innovation not as a matter of heroic breakthroughs but as a pervasive incremental process which affected many different activities.553 In Richard Sullivan’s words, [the] industrial revolution was not just advances in making cloth, or pig iron, or faster ships, or alkalies, or farm machinery, but also advances in making clothing, pins, needles, nails, coaches, roads, dyes, glass, beer, and bread, as well as advances in making building materials, building structures, making paper, printing, heating and lighting houses, making weapons, treating medical ailments, making musical instruments, and a host of other inventions.554

This suggests a general social propensity to innovate, the reasons for which lay as much in the cultural as in the economic sphere.555 It also suggests that establishing links between the patent system and innovation is likely to be difficult, even before one gets to the links between innovation and industrialisation. 552 K Bruland, ‘Industrialisation and Technological Change’ in Floud and Johnson, vol 1 (n 465), instancing A Toynbee, Lectures on the Industrial Revolution in England [1884] (David & Charles, 1969); DS Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge University Press, 1969); R Lloyd-Jones and MJ Lewis, British Industrial Capitalism Since the Industrial Revolution (UCL Press, 1998). 553 Bruland (ibid), instancing GN von Tunzlemann, ‘Technical Progress During the Industrial Revolution’ in R Floud and D McCloskey (eds), The Economic History of Britain since 1700, vol 1: 1700–1860 (Cambridge University Press, 1981); M Berg, ‘From Imitation to Invention: Creating Commodities in Eighteenth-Century Britain’ (2002) 55 Econ HR 1. See also S King and G Timmins, Making Sense of the Industrial Revolution: English Economy and Society 1700–1850 (Manchester University Press, 2001) ch 3; K Bruland and DC Mowbry, ‘Technology and the Spread of Capitalism’ in L Neal and JG Williamson (eds), The Cambridge History of Capitalism vol 2: The Spread of Capitalism: From 1848 to the Present (Cambridge University Press, 2014). 554 RJ Sullivan, ‘The Revolution of Ideas: Widespread Patenting and Invention During the English Industrial Revolution’ (1990) 50 JEH 349, 361. 555 For ‘cultural’ explanations of innovation, see MC Jacob, Scientific Culture and the Making of the Industrial West (Oxford University Press, 1997); J Mokyr, The Enlightened Economy: An Economic History of Britain, 1700–1850 (Yale University Press, 2009). For an ‘economic’ explanation, see RC Allen, ‘The Industrial Revolution in Miniature: The Spinning Jenny in Britain, France, and India’ (2009) 69 JEH 901, generalised in RC Allen, The British Industrial Revolution in Global Perspective (Cambridge University Press, 2009). Allen argues that English entrepreneurs who wished to compete in international markets were incentivised to innovate by their relatively high labour costs and cheap energy and capital costs; but for criticism of his data and calculations, see U Gragnolati, D Moschella, and E Pugliese, ‘The Spinning Jenny and the Industrial Revolution: A Reappraisal’ (2011) 71 JEH 97; J Styles, ‘Fashion, Textiles and the Origins of Industrial Revolution’ (2016) 4 East Asian Journal of British History 161; J Humphries and B Schneider, ‘Spinning the Industrial Revolution’ (2019) 72 Econ HR 126. For an attempt to reconcile Allen’s and Mokyr’s views, see N Crafts, ‘Explaining the First Industrial Revolution: Two Views’ (2011) 15 European Review of Economic History 153. Jane Humphries explains mechanisation and the use of factory systems on the different basis that employers wished to use cheap child and female labour in a way that would ensure discipline and quality control: J Humphries, ‘The Lure of Aggregates and the Pitfalls of the Patriarchal Perspective: A Critique of the High Wage Economy Interpretation of the British Industrial Revolution’ (2013) 66 Econ HR 395. See too pp 281, 290–96.

266 Commerce and Industry

A. Early Industrialisation i. Origins and Development of the Patent System The Statute of Monopolies 1624 was Parliament’s most determined effort to stop James I from indiscriminately granting monopoly privileges in trade.556 But the Act contained an exception for ‘the sole working or making of any manner of new manufacture within this realm, to the true and first inventor’: the Crown kept the right to grant patents over these methods for 14 years.557 The aim was to stimulate industrial activity at a time when the English economy was backward in comparison with the economies of France and the Low Countries, and in the seventeenth century ‘inventors’ included those who brought in manufacturing techniques from abroad which had not previously been known in England.558 The nationalistic impulse behind this rule found further expression in laws to prevent the export of ideas: the export of knitting frames was forbidden in 1696, in 1719 it was made an offence to entice skilled metalworkers to foreign manufacturies, and further prohibitions were applied to other trades through the eighteenth century.559 At a time when new skills had not been reduced to writing and drawing, artisans and the knowledge in their heads were the key to technology transfer and so the penalties for inducing their emigration were higher than those for the illegal export of machinery. In 1824 all laws prohibiting the emigration of skilled artisans were repealed, and some licensed exports of machinery were permitted after 1825, but the machinery laws remained in general effect until 1843, when they were abolished following Robert Peel’s conversion to free trade and abandonment of protectionism. Only with this ideological shift would English governments become readier to accept that the free dissemination of technical ideas might also be in the public interest, and fully embrace a patent system which linked publication to the grant of exclusive rights of exploitation. Before 1760 there was only a trickle of invention patents, but after that the number grew and many were granted for home-developed techniques rather than importations.560 The annual total would fluctuate somewhat, following pretty closely the pattern of the trade cycle, until 1852, when – very tardily – the procedure for procuring a patent would be made less costly and time-consuming; the numbers then rose from hundreds to thousands each year. Before this reform, the acquisition of a patent marked a triumph over administrative 556 See p 258. 557 For the emergence of the patent system, see EW Hulme, ‘On the History of Patent Law in the Seventeenth and Eighteenth Centuries (1902) 18 LQR 280; HG Fox, Monopolies and Patent: A Study of the History and Future of the Patents Monopoly (University of Toronto Press, 1947) chs 4–6; C McLeod, Inventing the Industrial Revolution: The English Patent System 1600–1800 (Cambridge University Press, 1988) chs 1–2. 558 Fox (ibid) 214–32; EW Hulme, ‘The History of the Patent System Under the Prerogative and at Common Law: A Sequel’ (1900) 16 LQR 44. The concept of the importation-inventor would survive in law until 1977; but at least in later law the person who ‘stole’ the idea from abroad or who was breaking confidence in trying to obtain a patent for himself could be prevented from doing so. 559 For details of the legislation see the Select Committee on Export of Tools and Machinery, PP 1825 (504) V 6–9; and for general discussion see DI Jeremy, ‘Damming the Flood: British Government Efforts to Check the Outflow of Technicians and Machinery, 1780–1843’ (1977) 51 Business History Review 1; JR Harris, Industrial Espionage and Technology Transfer: Britain and France in the Eighteenth Century (Ashgate, 1998); S Bottomley, ‘The Origins of Trade Secrecy Law in England, 1600–1851’ (2017) 38 JLH 254. 560 For the annual figures 1750–1852, see HI Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750–1852 (Manchester University Press, 1984) 2. In the decade 1750–59, the annual average was nine; but in 1760–69 it was 21, by 1801–09 it was 112 and by 1840–49 had become 458.

Part 5: Technological Advance and the Patent System 267 adversity. The granting process, originating in the Clerks Act 1536,561 involved the preparation of petitions, warrants and bills for many different offices, and months spent in personal attendance on officialdom and the payment of sweeteners. Separate grants had to be sought for England and Wales, Ireland and Scotland. For a purely English patent, the cost in official fees alone was between £100 and £120.562 Nor were patent agents regularly available to guide an inventor or his backers through the labyrinth before 1800, when they started to emerge as a distinct profession.563 The practice of enrolling a specification of a patented invention in Chancery began in the early 1700s, possibly as a move by patentees to lay a securer foundation for their own protection, possibly because this was required as a measure designed to give proper warning to a patentee’s competitors of what they should not do.564 In 1753, the Privy Council gave over its power to determine the validity of patents, leaving the courts as the sole arbiters of the validity of grants as well as the adjudicators of patent disputes, and between 1770 and 1820 the courts imposed new duties on patentees to describe their inventions, taking the view that patents were dependent on the ‘consideration’ of a sufficient description and publication of their content.565 It became a common belief among inventors that the courts were hostile to patentees, and were apt to invalidate patents on minor technical points.566 But inventors such as Richard Arkwright and James Watt wished to withhold any exact description of their inventions until their patents had expired,567 and the courts’ opposition to this was not motivated by hostility to the granting of patent monopolies per se. From 1794, the specifications enrolled for invention patents were transcribed and published several times a year in The Repertory of Arts and Manufactures, but until the mid-century it remained hard for inventors to see or obtain copies of patent specifications, and their situation only improved after 1852 when the new Patent Office was assigned responsibility for publishing specifications at grant. While it was clear that a patent could be had for a new machine or article, there were doubts, not entirely put aside until 1842, about novel processes of production, and new ways of using old machines.568 There had been some shift over the requirement that the ‘manner 561 The original function of this legislation was to provide an income to unsalaried Crown officers. 562 For all three, about £400: Dutton (n 560) 35. 563 Dutton (n 560) ch 5, noting that by 1851 some 90% of all patents granted passed through the hands of patent agents. See also D Van Zyl Smit, ‘“Professional” Patent Agents and the Development of the English Patent System’ (1985) 13 International Journal of the Sociology of Law 79; S Bottomley, The British Patent System and the Industrial Revolution 1700–1852 (Cambridge University Press, 2014) 65–72. 564 D Brennan, ‘The Evolution of English Patent Claims as Property Definers’ [2005] IPQ 361, 362–66. 565 For surveys of the case law, see WR Cornish, ‘Industrial Property: Patents for Invention’ in WR Cornish et al, The Oxford History of the Laws of England, vol XIII: 1820–1914: Fields of Development (Oxford University Press, 2010) 943–51; Bottomley (n 563) chs 3–5. 566 eg PP 1829 (332) iii 415, 453 (evidence of Marc Isambard Brunel): ‘it is generally known that there are such cases, and a great hardship it is, when, for a trifling flaw, a patent is set aside.’ 567 RS Fritton and AP Wadsworth, The Strutts and the Arkwrights, 1758–1830: A Study of the Early Factory System (Manchester University Press, 1958) 88; E Roll, An Early Experiment in Industrial Organization: Being a History of the Firm of Boulton & Watt 1775–1805 (Cass, 1968) 145–47. A bill to enable the specification to be kept secret during the patent’s life came to nothing: JHC, 9 May 1793; but later the registered design system would introduce just this form of secrecy. Other considerations arose in connection with new military hardware which the Crown wished to keep for itself and deny to potential enemies; for discussion see TH O’Dell, Inventions and Official Secrecy (Oxford University Press, 1992). 568 The apprehension was that a monopoly might be granted in a general scientific principle: see esp Boulton & Watt v Bull (1795) 2 H B1 463; and for the resolution: Crane v Price (1842) 4 M & G 580. See too Hill v Thompson (1818) 8 Taunt 375; R v Wheeler (1819) 2 B & Ald 345; Neilson v Harford (1841) Web PC 295; WM Hindmarch, A Treatise on the Law Relating to Patent Privileges (Stevens, Norton & Benning, 1846) ch 5.

268 Commerce and Industry of manufacture’ be ‘new’: originally, it appears that a patent could be defeated only by showing that the invention had already been in use in the country, an idea associated with the policy of attracting foreign technology, but, at least by the 1770s, publication of the idea in the country was treated as enough to anticipate and defeat the patent.569 The question was also considered whether additions to, or variations of, existing machinery were immaterial or mere equivalents, and cases in which patents were struck down on such grounds prefigured the later requirement of an inventive step.570 In general, the courts insisted that specifications should be described with enough detail for a worker in the field to carry out the invention, should not include information that the patentee knew to be misleading, and should not describe something that did not work. Patentees were required to state the best method of performing the invention that they knew, so that they should not keep for themselves knowledge of the true path to success.571

ii. Assessment Douglass North claimed that the increase in patented inventions in the late 1700s stimulated industrial growth founded on technological advances.572 A more plausible view is that the increase was not the cause but the effect of industrialisation (which made the exploitation of inventions more worthwhile) and of increased general awareness of the system (which led inventors to patent defensively out of fear that they might be excluded from their own work).573 Harry Dutton and Christine MacLeod have both argued that the patent system was too expensive, too slow and too inefficiently administered to make anything like as great a contribution as North believed, although Dutton argued that its weaknesses paradoxically made it a more effective incentive to innovate and to disseminate innovation than a better designed and administered system would have been – a ‘Panglossian’ claim in MacLeod’s view, which ignored the practice of defensive patenting and, conversely, the fact that many important inventions were never patented.574 Joel Mokyr has similarly emphasised that patents were used sparingly in England between 1700 and 1850 because they were costly and their value uncertain; that the incentive they provided to a minority of inventors was counterbalanced by the obstacles they created for others; that many patents were infringed; and that as a result of these problems, and of ambiguities in the law, many patentees before the mid-1800s believed that ‘they were 569 Accepted eg in Liardet v Johnson, Morning Post, 23 February 1778, for which see Hulme (1902) (n 507), although there was greater continuity before and after the case than he suggests: JN Adams and G Averley, ‘The Patent Specification: The Role of Liardet v Johnson’ (1986) 7 JLH 156; DP Miller, ‘Watt in Court: Specifying Steam Engines and Classifying Engineers in the Patent Trials of the 1790s’ (2006) 27 History of Technology 43; JN Adams, ‘History of the Patent System’ in T Takenaka (ed), Research Handbook on Patent Law and Theory, 2nd edn (Edward Elgar, 2019). 570 eg Brunton v Hawkes (1820) 4 B & Ald 541, 549–50. 571 eg King v Arkwright (1785) 1 Web PC 64, 70; Bovill v Moore (1816) 1 Hayward’s PC 618; Morgan v Seward (1836) 1 Web PC 170, 174. 572 DC North, Structure and Change in Economic History (Norton, 1981) 164–66. See too DC North and RP Thomas, The Rise of the Western World: A New Economic History (Cambridge University Press, 1973) 156. 573 D Greasley and L Oxley, ‘Patenting, Intellectual Property Rights and Sectoral Outputs in Industrial Revolution Britain, 1780–185’ (2007) 139 Journal of Econometrics 340; C MacLeod and A Nuvolari, ‘Inventive Activities, Patents and Early Industrialisation: A Synthesis of Research Issues’, Druid Working Paper 06–28 (2006). 574 Dutton (n 560); C MacLeod, Inventing the Industrial Revolution: The English Patent System 1600–1800 (Cambridge University Press, 1988). For the latter point, see also P Moser, ‘Innovation Without Patents: Evidence from World’s Fairs’ (2012) 55 Journal of Law and Economics 43.

Part 5: Technological Advance and the Patent System 269 exposing their secrets with no real guarantee of protection’.575 On Mokyr’s account, there was, even so, a widespread belief that successful patents would bring financial reward, reflected in the fact that there was a lively secondary market in patents,576 and in the fact that ‘few important inventions or inventors bypassed the patent system entirely’.577 He argues that this belief encouraged the dissemination of information which inspired more innovation;578 hence although most patentees ‘were disappointed … the patent system, by cheating [them], benefited the larger economy immeasurably.’579 MacLeod doubts even this, arguing that access to patent specifications was sufficiently hard to obtain that patentees could effectively enjoy the benefits of secret working even after the specifications for their patents had been enrolled.580 A more positive view of the patent system has been taken by Sean Bottomley, who argues that this improved over time: patents became easier to obtain after 1800 thanks to the work of patent agents; the courts were never systematically hostile to patentees, and supplied them with many remedies for infringement; specifications were more widely circulated than MacLeod allows; and some inventors exploited their patent rights very effectively by selling or licensing them. Collectively, he claims, these factors resurrect ‘the possibility that the patent system, by providing effective protection, did encourage the development and diffusion of technology during the Industrial Revolution’.581 However, it may be doubted that his examples displace the evidence on which Dutton and MacLeod based their more negative conclusions. The most one can say is that the system produced beneficial effects in some industries, some of the time; but in others its effects were nugatory if not detrimental:582 even Bottomley, who ‘takes issue’ with the claim by Michele Boldrin and David Levine that Watts’ patent for the separate condenser, in force from 1769 to 1800, obstructed the industrial revolution ‘by a decade or two’,583 concludes that it was ‘almost certainly an impediment’ to the sequential development of steam engineering technology, although ‘it did not represent an absolute stop’.584

B. Reform or Abolition of the Patent System? Various unsuccessful attempts were made to get the patent system reviewed in the late 1700s and early 1800s.585 In 1829 a Select Committee then met to receive evidence from witnesses

575 Mokyr (2009) (n 555) 404–05. See also ZB Khan and KL Sokoloff, ‘Patent Institutions, Industrial Organization, and Early Technological Change: Britain and the United States, 1790–1830’ in M Berg and K Bruland (eds), Technological Revolutions in Europe (Edward Elgar, 1998). 576 Dutton (n 560) ch 7. 577 Bottomley (n 563) 19. 578 R Thomson, Structures of Change in the Mechanical Age (Johns Hopkins University Press, 2009) 209–14. 579 Mokyr (2009) (n 555) 410. 580 C MacLeod, ‘The Paradoxes of Patenting: Invention and Its Diffusion in 18th- and 19th-Century Britain, France, and North America’ (1991) 32 Technology and Culture 885, 897; C MacLeod, ‘Strategies for Innovation: The Diffusion of New Technology in Nineteenth Century British Industry’ (1992) 45 EHR 285, 289. 581 Bottomley (n 563) 28. 582 A Nuvolari, ‘Collective Invention During the British Industrial Revolution: The Case of the Cornish Pumping Engine’ (2004) 28 Cambridge Journal of Economics 347. 583 M Boldrin and D Levine, Against Intellectual Monopoly (Cambridge University Press, 2008) 2–3. 584 Bottomley (n 563) 264–65. 585 Dutton (n 560) 34–41.

270 Commerce and Industry who poured forth a stream of complaint.586 There was little agreement on how matters might be improved and the Committee did not continue long enough to report. But it was said by some witnesses (and repeated subsequently) that, if the granting regime were to be liberalised, it might be necessary (following French and American precedents) to refer petitions initially to a Committee of scientific experts for a view on the merits of the case. To the limited extent that justification for the system was discussed, most witnesses accepted the theory of a bargain under which monopoly rights were given in exchange for information, though some advocated the view that patents were rewards designed to incentivize innovation. In the 1830s there was further discussion of how the system might be improved, and Lord Brougham was induced to take an interest: he pushed through an Act of 1835 which empowered the Privy Council to extend a patent term in exceptional cases where it had taken a long time to secure a commercial return.587 From the mid-1840s the patent system came to new prominence in public debate, as confidence in English industrial entrepreneurship surged and the work of great inventors began to be widely celebrated.588 The high watermark of this euphoria was the Great Exhibition of 1851, the year in which another Select Committee met to investigate reforming ideas.589 On this occasion, supportive witnesses emphasised the role of patents as incentives to innovation. There were some prominent doubters, however, including the inventors and industrialists William Cubitt and Isambard Kingdom Brunel, and the free trader Robert Macfie, who called for abolition on the ground that a morass of bad patents could build up and block the advance of new technology – telegraphy was given as an example. Nevertheless, the running was made by those who wanted patents to be more readily available and more easily enforced, and legislation was passed to replace the old convoluted system of application by what was in effect a simple process of registration at the new Patent Office, the patent being a single grant for the whole of the United Kingdom.590 The official fees, though in the end greater than previously for an English patent, were spread over three stages; initially the cost was reduced to £25.591 The applicant might file a provisional specification and then take a year in which to put in his complete version. Since it was now well settled that the first among rival inventors to get to the Patent Office would have the better entitlement, this system allowed some valuable leeway in the business of working out technical details and refinements. Yet fears were soon realised that greater liberality would induce licence, and that the high cost of registration would be a poor substitute for official examination of patent validity.592 Even transparently bad patents had to be resisted before a judge and jury and this remained an expensive and problematic business. Support for the system continued among

586 PP 1829 (332) III; Dutton (n 560) 41–46. 587 Letters Patent for Inventions Act 1835. 588 On the inventor as hero, see C MacLeod, Heroes of Invention: Technology, Liberalism and British Identity, 1750–1914 (Cambridge University Press, 2007). 589 Lords Select Committee on Two Bills to amend the Patent Law, PP 1851 (486) XVIII; interestingly the Chairman, Lord Granville, was an anti-patenteer. See too Dutton (n 560) chs 3 and 8; VM Batzel, ‘Legal Monopoly in Liberal England: The Patent Controversy in the Mid Nineteenth Century’ (1980) 22 BH 189. 590 Patent Law Amendment Act 1852. 591 ibid ss 6–9. 592 The numbers of patents granted rose immediately to some 2,000 a year; two-thirds of them would lapse within three years: see Royal Commission on Patents for Invention, PP 1864 [3419] XXIX 6.

Part 5: Technological Advance and the Patent System 271 technicians and businessmen, and it was assiduously advanced by patent agents and specialist lawyers, but doctrinaire liberals – economists, journalists, politicians and others – began to urge the wastefulness of the patent monopoly in a world of free and expanding trade.593 Against moral arguments that an inventor deserved reward, the anti-patent school urged that the ability to innovate came largely from the state of technical knowledge of the whole industry – witness the frequency with which several inventors would come to the same discovery at the same time. Nor was it any longer accepted that the making and application of inventions needed the special incentive of limited monopoly; competition was arguably as effective a goad, for the first inventor would always have his ‘lead time’. These ideas had a striking impact in some countries which had yet to achieve much industrialisation: in Switzerland and Holland the patent systems were abandoned for decades.594 In Britain the anti-patent feeling was caught up not only in concern over the growing number of grants that were of dubious validity but also over the disruptive effect that lengthy patent litigation might have on a major industry.595 In the late 1860s a number of leading public figures despaired of ever finding a workable system and a Royal Commission reported in favour of halving the patent term, subjecting applications to strict examination, forfeiting the patent for failure to work in Britain within two years, and compulsory licensing. A Bill to this effect was passed by the Lords in 1874, but abandoned in the Commons.596 Three years later, the international balance was then tipped the other way when Germany enacted a patent law for the whole Reich – one of the first marks of her commitment to catching up on industrial strength by a determined protectionism. In 1883 the leading patent countries, including the United Kingdom, joined together in the Paris Convention, which established a principle of equal treatment for the nationals of all participant countries and aided the process of applying for patents in a number of countries by a system of priority dating. It also curbed the enthusiasm for invalidating patents if they were not immediately used for production in the particular country.597 The flood of societies, pamphlets, meetings and lobbying behind this shift saved the British patent system from any drastic foreshortening or cutting down, but in the end it was substantially modified so as to restrain some of the excesses identified by the Royal Commission. A Committee in 1901 acknowledged that perhaps half of all the patents being granted lacked novelty when read against earlier British specifications and a search through this material and consequent examination by the Patent Office was instituted in 1905.598 The fear that foreigners – in particular the German chemical industry – might acquire British

593 For this anti-patent movement in Britain and Europe, see F Machlup and E Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10 JEH 1; M Coulter, Property in Ideas: The Patent Question in Mid-Victorian Britain (Thomas Jefferson Press, 1992). For the main political expression of criticism in Britain, see Royal Commission on Patent Laws, PP 1864 [3419] XXIX; Select Committee on Letters Patent, PP 1872 (193) XI. 594 E Schiff, Industrialization Without National Patents: The Netherlands, 1869–1912, Switzerland, 1850–1907 (Princeton University Press, 1971). 595 See LF Haber, The Chemical Industry During the Nineteenth Century (Clarendon Press, 1971) 167 and 198–99, for the view that the strategic German advances in dye-stuffs were possible without the distracting litigation which affected the British chemical industry. 596 Machlup and Penrose (n 593) 3–4. 597 On the Convention, see SP Ladas, International Protection of Industrial Property (Harvard University Press, 1930): ED Penrose, The Economics of the International Patent System (John Hopkins Press, 1951) ch 3. 598 See PP 1901 [Cd 506, 530] XXIII: Patents Act 1902.

272 Commerce and Industry patents purely for the purpose of protecting their import trade into the country led in 1883 to the first tentative provisions for compulsory licensing on this and related grounds.599 As far as enforcement was concerned, a practice developed of ending the specification with a claim or claims to invention monopolised. This became a positive requirement of the system in 1883.600 It seemed to offer some solution to the old dilemma of how to give the patentee coverage of alternative versions of the invention without letting him annex ideas that were essentially different or belonged to territory not yet explored. As a counterpart, juries might be waived by either party in an infringement action and frequently were.601 The judges, as sole arbiters of patent issues, began to exhibit a hostile scrupulousness towards specifications: claims were treated as marking out monopoly territory and were accordingly construed against the patentee where there was ambiguity. The game of determining their meaning was played by the standards of the best Chancery minds602 and that left the patentee with an unfavourable handicap. In the first half of the twentieth century, the essential rules would remain very much in this condition, the periodic investigations and legislation being concerned with minor adjustments. The paradox of the history is thus that an evidently restrictive device should have been most freely deployed in the high age of liberalism. Partly this was because, if there had to be incentives to stimulate the introduction of new techniques, the patent system came closer to minimal intervention than direct subsidies, or actual conduct of research, by the state. The motivating force behind the Act of 1852 was the desire to make the marketopportunity monopoly of a patent available to the small innovator as well as the established industrialist. Its disturbing effects greatly advanced the case for abandoning the whole system; but it also provoked a conservative reaction, led by the larger, better-established users, for the re-erection of more substantial barriers to acquiring and exploiting patents. In the twentieth century movement to ‘rationalise’ private industry, patents could be used for shoring up the position of the reigning firm or cartel, particularly if the rights were shared together in a pool which contained all the advanced technology of the moment. This might, of course, be viewed as an unjustified expansion of the power intended by the patent grant. But even in the 1950s the issue was rarely raised in the public arena.603 This is at first glance surprising, for in post-war conditions the dominant groupings of an international industry were as likely to be foreign as British. In the past, it had been the deployment of the patent system by outsiders which had most readily raised the cry of ‘monopolistic abuse’ and led to attempts at curbing, such as compulsory licensing and provisions against ‘tie-ins’. That there was so little concern over patent pools once more underscores the preoccupations of the recovery period where we leave this history. What was most vital was to find a legal and political framework which would allow British industry – some of it now nationalised – an adequate place in world markets. If the price was monopolistic behaviour by the most successful, then this was a price which, for the moment, the consumer would be forced to pay. 599 Patents, Designs and Trade Marks Act 1883, s.22. A strengthening of the provision by the Patents and Designs Act 1907 was given a limited reading in Re Hatschek’s Patents [1909] 2 Ch 68: see Haber (n 595) 199–200. The 1907 Act, s 38, also sought to outlaw certain contractual clauses which were considered to ‘extend’ the monopoly. 600 1883 Act, s 5(5). 601 Supreme Court of Judicature Act 1873, s 57. 602 As in Nobel’s Explosives Co Ltd v Anderson (1895) 12 RPC 164, discussed in S Mauskopf, ‘Nobel’s Explosives Company Ltd v Anderson (1894)’ in J Bellido (ed), Landmark Cases in Intellectual Property Law (Hart, 2017). 603 Not until the Fair Trading Act 1973, s 101, would patent pools be brought unequivocally within the embargoes of the legislation against restrictive trading practices.

4 Labour Relations At the beginning of the period covered in this book everyone except the tiny minority in the landed classes had to work long and hard to survive. However, as the economy grew, the numbers of those not directly engaged in income-producing labour increased somewhat. Some elderly men outside of the elite were eventually able to retire in reasonable health and modest comfort. Increasingly, on marriage, women were able to shift from domestic, agricultural or cottage industry to concentrate on running a house and bearing children.1 Those children were, at first, pushed into work from an early age, the boys into agriculture and textiles, the girls into textiles and domestic service. The extent of child employment in the eighteenth and early nineteenth centuries can only be guessed at, but it was commonplace. It did not begin to decline until the third quarter of the nineteenth century, when the general rise in real wages (including in agriculture), combined with an increasing degree of mechanisation and regulatory legislation, made it possible to insist that children attended school until the age of 13.2 In this chapter, we are more concerned with those who provided labour for others under a contract than with those who were self-employed and who supplied goods or services for sale. It was the nature of the employment contract which fixed in place the divisions of labour. At the beginning of industrialisation there was a broad range of relationships, but from the late eighteenth century onwards the aggregation of ever larger farms and the organisation of industry on a factory and workshop basis began to change the nature of employment contracts. Eventually, this led to the typical modern form – with a wage based on full-time and permanent employment, and accompanied by social security payments, PAYE tax deductions, fringe benefits and legal protections against redundancy and unfair dismissal. By about 1875 the old forms of service had moved some distance towards the modern conceptions of employment. That year also marked a decisive advance in the legislative recognition of trade unions. It is accordingly at that point that the two Parts of this chapter divide.

1 In 1851 the census recorded women as 30%, of the whole workforce, only a small proportion of them married. Of this 2.7 million, one million were in domestic service: J Rendall, Women in an Industrialising Society: England 1750–1880 (Oxford University Press, 1990); D Valenze, The First Industrial Woman (Oxford University Press, 1995); I Pinchbeck, Women Workers in the Industrial Revolution, 2nd edn (Routledge, 2004) esp 317–21. For an industry specific study, see J Greenlees, Female Labour Power: Women Workers’ Influences on Business Practice in the British and American Cotton Industries, 1780–1860 (Ashgate, 2007). 2 The beginnings of the decline in the birth-rate aided the process: K Honeyman, Child Workers in England, 1780–1820: Parish Apprentices and the Making of the Early Industrial Labour Force (Ashgate, 2007): J Burnette, ‘Child Day-Labourers in Agriculture: Evidence from Farm Accounts, 1740–1850’ (2012) 65 Econ HR 1077, J Humphries, ‘Childhood and Child Labour in the British Industrial Revolution’ (2013) 66 Econ HR 395; P Kirby, Child Workers and Industrial Health in Britain 1780–1850 (Boydell, 2013).

274 Labour Relations

Part 1: Service and Its Regulation 1760–1875 A. Labour in Country and Town Until the middle of the eighteenth century, population growth in England and Wales had been steady but unremarkable. In 1700 the total population had amounted to some 5.3 million and in 1750 it was still only 5.7 million. Thereafter, it accelerated to reach some 8.3 million by 1800 and 16.8 million by 1850.3 Explanations for this acceleration are various. Wrigley and Schofield assert that economic development meant that people were able to marry earlier and that this resulted in a consequent increase in fertility.4 They contend that mortality rates remained very high, asserting that, for example, the life expectancy of men aged 30 increased by only about three years between 1550 and 1799.5 This interpretation has, however, been challenged by Razzell – partly on the basis of a study of Canterbury marriage registers. Women under the age of 21 were required to have parental consent or the consent of a guardian in order to marry. It was therefore recorded at the time of the marriage whether the bride’s parents were living or dead and who, if they both were deceased, had given consent. A far higher proportion of the aforesaid parents were recorded as being deceased at the time of marriages in the seventeenth century than in the eighteenth. For example, in 21.32 per cent of the marriages of young brides between 1677 and 1700 both parents were reported as deceased whereas between 1780 and 1809 the figure was only 5.43 per cent.6 Parents in Kent were apparently living longer. So, for good or ill, were MPs. MPs aged between 30 and 39 who entered Parliament between 1660 and 1690 could expect to live a further 22 years; those from the same age group who entered between 1790 and 1820, however, lasted on average 32 years.7 It seems then that there were gains at both ends with both higher birth and lower mortality rates. The expanding population in the eighteenth century stimulated the demand for food. This encouraged investment in land, which in turn led to a number of technological inventions, such as the seed drill invented by Jethro Tull and the programmes of selective breeding pioneered by Robert Bakewell and others. Despite economic development, in 1801 agriculture still directly engaged about a third of the British workforce, a figure which would fall to just over a fifth in 1851 and to a twelfth by 1911. In the countryside, land was increasingly enclosed and holdings rationalised with the result that the number of independent small proprietors decreased and the numbers of those working for wages increased. Some were employed all year round as servants and some as casual labourers as and when the need arose. There were great variations as to the proportion of each employed in different parts of the country.

3 RA Houston, ‘The Population History of Britain and Ireland 1500–1750’, in M Anderson (ed), British Population History from the Black Death to the Present Day (Cambridge University Press, 1996); J Jefferies, ‘The UK Population: Past, Present and Future’ in Office for National Statistics, Focus on People and Migration (Palgrave Macmillan, 2005) 3. 4 EA Wrigley and RS Schofield, The Population History of England, 1541–1871 (E Arnold, 1981) 256. 5 ibid 250. 6 P Razzell, ‘The Growth of Population in Eighteenth-Century England: A Critical Reappraisal’ (1993) 53 JEH 743, 761, table 6. 7 ibid 763, table 8.

Part 1: Service and Its Regulation 1760–1875 275 There is some disagreement as to the number and significance of farm servants by 1851. Goose notes that farm servants had almost disappeared from the counties of south-eastern England. They amounted, for example, to just 7.9 per cent of the male farm labour force recorded in Hertfordshire for that year.8 In contrast, though, Gritt reports that they continued to make up more than a fifth of all those engaged in agriculture north of the Wash and as much as two-fifths of the agricultural workforce in Cumberland and Westmorland.9 Howkins and Verdon have challenged earlier pictures of a perhaps rather simplistic north– south divide by asserting that it was not until the 1870s and 1880s that the number of farm servants began to decline in the south Midlands and counties immediately west of London, and it was not until WWI that the same occurred in the south-west proper, the central Midlands and Welsh borders.10 The servant in husbandry was normally hired from year to year, initially at a hiring fair. He received lodging and provision but the only money he was paid was a terminating ‘wage’ which stood as a bond for good and faithful service. So long-standing was this form that the common law presumed a hiring to be by the year until the contrary was shown. This meant that neither side, in the absence of a breach, had any right to terminate the contract by earlier notice; and to prevent it from running into a new term, each had to give a quarter’s notice before the annual expiry date.11 The geographic distribution of such servants has led to suggestions that such labour belonged to less developed farming systems and as such was rapidly displaced in the south by more capitalistically minded proprietors.12 However, studies of the East Riding of Yorkshire and Lancashire have shown that in these areas it was the more entrepreneurial of farmers who were most likely to employ farm servants.13 Farm service actually increased in Lancashire in the nineteenth century as arable farming gave way to stock rearing. Gritt has an explanation: in Lancashire, labour was being sucked into industrial enterprises paying higher wages. Lancashire farmers were accordingly forced to enter into service contracts in order to guarantee the availability of the labour that they required.14 The master–servant relationship was familial. This meant, among other things, that the master had the right to order the servant to work at any time of the day or night.15 The farm

8 N Goose, ‘Farm Service, Seasonal Unemployment and Casual Labour in Mid Nineteenth-Century England’ (2006) 54 Ag HR 274, 277. 9 AJ Gritt, ‘The “Survival” of Service in the English Agricultural Labour Force: Lessons from Lancashire, c 1650–1851’ (2002) 50 Ag HR 25. 10 A Howkins and N Verdon, ‘Adaptable and Sustainable? Male Farm Service and the Agricultural Labour Force in Midland and Southern England, c 1850–1925’ (2008) 61 Econ HR 467. 11 The quarter’s notice was standard in agricultural hirings. But domestic servants (in a strict sense) were covered by only one month’s notice; this short period was certainly inappropriate to a skilled servant such as an army agent’s clerk: Beeston v Collyer (1827) 4 Bing 309, 311 (Best CJ): ‘it would be extraordinary if a party in his station in life could be turned off, like a cook or scullion’ . 12 A Kussmaul, Servants in Husbandry in Early Modern England (Cambridge University Press, 1981); A Howkins, ‘Peasants, Servants and Labourers: The Marginal Workforce in British Agriculture, c 1870–1914’ (1994) 42 Ag HR 49. 13 A Mutch, ‘The “Farming Ladder” in North Lancashire, 1840–1914: Myth or Reality?’ (1991) 27 Northern History 162; G Moses, ‘“Rustic and Rude”: Hiring Fairs and Their Critics in East Yorkshire c 1850–75’ (1996) 7 Rural History 155. 14 Gritt (n 9) 25. 15 Hence the distinction of ‘exceptive hirings’ for Poor Law purposes, where the labour was ‘only’ for the 12 hours that a factory was running: O Kahn-Freund, ‘Blackstone’s Neglected Child: The Contract of Employment’ (1977) 93 LQR 508, 521–22.

276 Labour Relations servant who refused to go on a journey without first having his dinner,16 the maid who absented herself to visit her dying mother,17 any servant guilty of an act of insubordination or dereliction of duty, might be punished (physically beaten, if under-age18) or summarily dismissed.19 It was not an unlimited authority, however: excessive punishment and cruelty might lead to criminal conviction of the master or an order to pay damages, and such disputes were not uncommon at Quarter Sessions or before individual justices or in a local court; occasionally they even reached the rare world of the royal courts.20 Moreover, the master (at least in some ideal view) took responsibility for the servant’s physical and moral condition. He was expected to provide during sickness, and even perhaps to call in medical assistance.21 Nonetheless, eighteenth-century judges had no more difficulty than those four centuries earlier in regarding the servant, like a wife or child, as the property of the master. Thus he might sue for damages if another master enticed his servant away.22 Lord Kenyon was willing to extend this liability to include even the employer who took on another’s servant without initially knowing of the broken relationship.23 As a form of paternalism it was highly possessive.24 Those in service in agriculture were typically youngsters who had moved away from their own families. Casual labouring on a daily or weekly basis was a condition to which the agricultural worker graduated with time, as he married and was allowed a cottage with perhaps a plot and some grazing animals.25 Apart from the cottage, the day labourer tended to be paid in money, though part might still come in kind. The labourer’s earnings accordingly fluctuated with the seasons, and in years of poor harvest he and his family would suffer longer than usual periods of under-employment. There was a general over-supply of such labour in the southern counties throughout the later eighteenth century and this 16 Spain v Arnott (1817) 2 Stark 256. 17 Turner v Mason (1845) 14 M & W 112. 18 The beating had to be ‘with moderation’. If the servant died in the process, it would be death by misadventure unless ‘so barbarous as to exceed all bounds’. The servant who ran away would be imprisoned by the justices for up to a year, unless he returned; but he could not be kept by a master as a prisoner: Burn’s Justice of the Peace (1805 edn) 190–91. 19 The Statute of Artificers 1563 required a summary dismissal to be approved by the justices (s 5) and Lord Mansfield insisted that this be done: Temple v Prescott (1773) Cald 14n; but other judges of the King’s Bench considered that a master could sack a maid without ceremony on discovering her pregnancy: R v Inhabitants of Brampton (1777) Cald 11. 20 See eg Spain (n 16) and Turner (n 17). 21 At common law, this appeared to give the servant no more direct right of action than a child (see p 352). But as late as 1795, Lord Kenyon was prepared to recognise that an apothecary might sue the master upon an implied undertaking to pay for attention to a servant while under the master’s roof: Scarman v Castell (1795) 1 Esp 270. But this was not the case for a servant in husbandry if he was elsewhere: Luby v Wiltshire (1795) 1 Esp 271; and it was soon excluded for a weekly servant (Simmons v Wilmot (1799) 3 Esp NP 91), and then more generally, in order not to overburden ‘many persons who are obliged for purposes of their trade, to keep a number of servants’: Wennall v Adney (1802) 3 Bos & P 247. In effect, any responsibility for medical attention was left to the overseers of the poor. 22 The action for seduction or enticement, per quod servitium amisit, first appeared as a judicial extension of the Statute of Labourers 1349: WS Holdsworth, A History of English Law, vol 4 (Methuen, 1924) 383–85. 23 Blake v Lanyon (1795) 6 TR 221, an important stepping stone in the evolution of the tort of inducing breach of contract. 24 For a thorough discussion of farm servants and their contracts see S Caunce, ‘Farm Servants and the Development of Capitalism in English Agriculture’ (1997) 45 Ag HR 49. 25 But to get this labouring force to live in a neighbouring parish would keep down the poor rate. So there was an undoubted tendency for the better organised, less paternal estate owners and farmers to reduce their own supply of agricultural cottages; sometimes they knocked them down.

Part 1: Service and Its Regulation 1760–1875 277 kept wages very low. Communities were therefore forced to supplement wages through the mechanism of the Poor Law.26 The progress of industrialisation and rise of industrial employment did not remedy this imbalance for half a century. The medieval towns had fostered numerous crafts; cloth-making, clothing and leatherwork, milling, baking and brewing, saddlery and bow-making are among those listed in the Statute of Artificers 1563. They carried forward the old guild structure by which an entrant progressed from apprentice to journeyman and thence to master craftsman. This imported a two-fold division of service, providing an urban counterpart to agricultural labour. The apprentice, whose family generally paid a premium for his induction into the mysteries of the craft, was taken into the master’s family and subjugated to his will (and his wife’s). Once the apprenticeship was complete, the fledged craftsman would continue to work for a master, with a journeyman’s independence and in general for a money wage. Sometimes the wage was calculated on the basis of the number of hours that the journeyman worked, in which case he might need to be supervised to ensure that he worked hard. Sometimes he might be paid according to the number of pieces of work that he produced, in which case the concern was to monitor the quality of his efforts in order to discourage shoddy workmanship. Many of these trades had, through local bye-laws or charters, or through general legislation, succeeded in making apprenticeship a condition of entry. Even into the eighteenth century non-agricultural apprenticeships may have made up 7.5–10 per cent of the labour force.27 There is some disagreement as to whether apprenticeships were by the eighteenth century still functioning as useful mechanisms through which skills were transferred down the generations or whether the requirements of a sometimes rather worthless apprenticeship were being advanced primarily as a mechanism by which to exclude competition.28 What is clear is that many apprentices failed to complete their apprenticeship29 and courts often heard complaints from apprentices and masters seeking to be released from their indentures, because of the neglect and severity of masters or the idleness, drunkenness or thievery of apprentices.30 The move to large-scale production and mechanisation (which would eventually put paid to the journeyman’s hope that he would be able to set up on his own) was irregular. Even into the 1840s production in Birmingham was substantially centred upon the workshop with its traditions and customary practices.31 However, enterprises which deployed considerable sums of capital and employed substantial amounts of labour had been developing sporadically even before the appearance of the cotton factories with their powered machines for spinning and weaving. In textiles, particularly, a growing number of entrepreneurs had emerged who hired out frames and tools and supplied materials to outworkers. 26 For the wage subsidy that the Poor Laws gave to farmers see PP 1834 XXVIII, 297, 595–96 cited in GR Boyer, An Economic History of the English Poor Law, 1750–1850 (Cambridge University Press, 1990) 195. 27 P Wallis, ‘Apprenticeship and Training in Pre-modern England’ (2008) 68 JEH 832, 832. 28 Jane Humphries inclines to the former view, Sheilagh Ogilvie to the latter: J Humphries, ‘English Apprenticeship: A Neglected Factor in the First Industrial Revolution’ in PA David and M Thomas (eds), The Economic Future in Historical Perspective (Oxford University Press, 2006); S Ogilivie, ‘Guilds, Efficiency, and Social Capital: Evidence from German Proto-Industry’ (2004) 57 Econ HR 286. 29 Wallis (n 27) 839, table 1. 30 Wallis (n 27) 841. For a critical consideration of the extent to which apprenticeship rules were enforced see C Minns and P Wallis, ‘Rules and Reality: Quantifying the Practice of Apprenticeship in Early Modern England’ (2012) 65 Econ HR 556. 31 C Behagg, ‘Custom, Class and Change: The Trade Societies of Birmingham’ (1979) 4 SH 455, 461.

278 Labour Relations These dependent outworkers laboured in their own homes and were usually paid for each piece of work completed. Independent worker craftsmen, who were to be found in weaving (especially in woollen manufacture in the south-west), in lace-making and in some types of metalwork found it difficult to compete with the outworker model which spread out from manufacturing towns into the surrounding villages. Outworking was a useful source of employment for members of families who were not immediately engaged in agriculture and provided the precedent from which the cotton factories of the north-west grew. In addition, there were proto-industries in which the labour was more closely integrated: mines for coal, iron, tin and copper, ironworks, glassworks, potteries and dockyards required substantial capital. They also employed labour forces of 100 or more, whereas in the older trades a workshop of a dozen or so was considered rather large.32 In these larger enterprises the worker had no share in the profits of the thing produced. He did not make or purchase the starting material, he neither owned nor ran commercial risks in the product. His risk centred around the ‘wage’, however precisely it was made up, and to earning it he devoted a large part of his waking hours. For most there was little security of employment. In some of the early manufacturing industries such as glass, the need to conserve a trained workforce meant that employment contracts might be for several years.33 But the movement was towards short service in which the labourer bore his own risks and could look only to charity or the Poor Law to save him from starvation once work dried up. The turning of employment from a serf-like status, with fixed and subjugate conditions, into a ‘free’ contractual relationship – Maine’s celebrated indicator of a progressive society34 – was not something which followed on from industrial capitalism. Rather, the law in the centuries preceding the industrial revolution had already developed in such a way as to permit many employers to organise their workers in ways largely free from outside interference.

B. The Old Controls i. The Statute of Artificers 1563 In 1800 there still remained, however, numerous statutory controls over particular forms of labour, chief among them being the Statute of Artificers 1563. This Act, part of the wide Tudor fear of landless, marauding vagrants, had struck out in three main directions. First, it had required justices at sessions annually to set wages, both the money wages of town labour and the mixed provisions of the country.35 The main thrust was to curb demands for more money and to penalise those employers who gave in to such demands. 32 See eg MI Thomis, The Town Labourer and the Industrial Revolution (Batsford, 1974) ch 5; A Fox, History and Heritage (Allen & Unwin, 1985) 61–67. The extent to which geographically dispersed activities owned by a single family or proprietor were actually integrated into what we would recognise as something akin to the modern enterprise has been questioned, though: C Evans, O Jackson and G Rydén, ‘Baltic Iron and the British Iron Industry in the Eighteenth Century’ (2002) 55 Econ HR 642. 33 The silkworker pauper who was the subject of the Devizes case (n 52) was bound for a period of four years. 34 Ancient Law (J Murray, 1861) ch 5. On attitudes to wage labour in the early modern period, see C Hill, ‘Pottage for Freeborn Englishmen: Attitudes to Wage Labour in the Sixteenth and Seventeenth Centuries’ in CH Feinstein (ed), Socialism, Capitalism and Economic Growth (Cambridge University Press, 1967); J Boulton, ‘Wage Labour in Seventeenth-Century London’ (1996) 49 Econ HR 268. 35 Statute of Artificers 1563, ss 15–19.

Part 1: Service and Its Regulation 1760–1875 279 Theoretically, employees were guaranteed a minimum wage rate but magistrates always seem to have been reluctant to proceed against producers who did not comply.36 As a system, its application seems always to have been patchy. In some counties the same wage rates were reset over long periods of time as a matter of form, because prices had changed little and the main stimulus for altering wages was missing. In other places the constraints of the old wage rates were increasingly ignored as the eighteenth century progressed but, as we shall see, even in such places wage-fixing was by no means wholly moribund.37 Secondly, the Statute had imposed seven-year apprenticeships on all those entering any ‘craft now used within the realm’38 – a period far longer than was needed to teach the skills of most trades and accordingly intended to impose a close, domestic control over an otherwise unruly element in the towns.39 Thirdly, the justices had been empowered to compel those who had a trade but no employment, and those living on the land, into yearly contracts of service.40 However, there had not been enough willing employers to make this a practical proposition and nine years later the parishes had been obliged to assume responsibility for the destitute through a public Poor Law. Whilst the fears of masterless men were ever present, it had been recognised that there needed to be mobility of labour since much work, such as harvesting and fruit-picking, was seasonal. By the end of the eighteenth century it had long been the rules of settlement, removal and certification under the evolving Poor Law which had served as the means by which such movement was regulated rather than the system of master’s testimonials envisaged by the Statute of Artificers. It had been more successful in imposing discipline upon those in work on piece rates by requiring them, on pain of a month’s imprisonment or a £5 fine, to complete work undertaken.41 The Statute of Artificers then, with its re-enactments and extensions in Master and Servant Acts, would remain a regular weapon in workforce control during the first century of industrialisation.

ii. The Fate of Tudor Regulation In pre-industrial as in industrial conditions, work was often harsh and exhausting; sometimes it was dangerous and unhealthy. Masters often found it better to work in cooperation with each other rather than to try to compete. Many of their labourers retained a degree of independence and were not in fact reduced to a condition of abject submission. There is considerable evidence that, in line with human relationships generally, in-servants and wage-labourers treated their employers argumentatively, truculently, sometimes even aggressively.42 Workers regularly took collective action in town trades especially when their position was reinforced by a shortage of their particular skills or where the law a ctually 36 But a later statute made it an offence for clothiers to pay their workers less than the rate: Weavers and Spinners’ Wages Act 1603. 37 See generally, C Eisenberg, ‘Artisans’ Socialisation at Work: Workshop Life in Early Nineteenth-Century England and Germany’ (1991) 24 JSH 507; D Hay, ‘Patronage, Paternalism, and Welfare: Masters, Workers, and Magistrates in Eighteenth-Century England (1998) 53 International Labor and Working-Class History 27. 38 Statute of Artificers 1563, s 26. 39 Adam Smith made a strong (and much repeated) case against undue protection through apprenticeship: A Smith, The Wealth of Nations, Books 1–3 (Penguin, 1976) 135–40. 40 Statute of Artificers 1563, ss 3–7. The justices could direct labour to get in the harvest: see ss 22–23. 41 ibid s 13. 42 On the constant complaint of the upper classes against the insolence of servants, see P Horn, The Rise and Fall of the Victorian Servant (St Martins, 1975) ch 7; and for the earlier period, D Woodward, ‘Early Modern Servants in Husbandry Revisited’ (2000) 48 Ag HR 141.

280 Labour Relations gave them protection against interlopers.43 The strike was not an uncommon weapon. These ‘combinations’ or ‘conspiracies’ (as they were labelled) occurred without the continuing organisation that would later be provided by trade unions; nevertheless they sometimes succeeded, at least in part, in securing in their objectives. Legislative responses to disputes were often notable for their attempts to constrain masters as well as employees. The tailors, for example, secured an Act in 1721 which laid down a new and improved scheme of wages and set regular working hours from 6 am to 7 pm.44 If the Act sought to set a minimum, however, it also sought to set a maximum, since it also provided for a fine of up to £500 to be levied upon masters who might be tempted to pay more than the agreed wage rates to acquire skilled journeymen. According to Orth, ‘The emphasis on violations by masters shows that the legislation was designed as much to maintain employer solidarity in face of economic temptation as to keep workmen down.’45 An Act to regulate the woollen trade in 1725 voided all contracts made by journeymen weavers in excess of permissible wage rates and it also provided some draconian punishments for recalcitrant employees, such as a penalty of up to seven years’ transportation for threatening a master.46 But it also allowed magistrates to collect overdue wages from masters by distress and sale, and punished those who tried to pay workers in ‘truck’, that is to say, those who tried to pay with goods (often over-valued) rather than the promised cash wages. The Silk Weavers Spitalfields Act 1773 penalised those who combined to raise wages or intimidated others to persuade them to leave work, but it also empowered justices of the peace to set wage rates. Once more, it fined masters who paid too much, but on the other hand it protected existing labour by prohibiting masters from employing workmen from outside the regulated area and limited the number of apprentices per master to two.47 These Acts, in short, attempted to freeze economic relations once and for all, and thereby solve labour disputes. Masters were not to pay too little but equally intervention was to prevent them from paying too much. Thus was competition for skilled workers constrained. A right to receive payment was acknowledged and some attempts were made to reinvigorate the old protections intended to limit the number of entrants into trades and hence protect the position of those already within them. A corollary to this was that workmen were expected to be subservient, to honour absolutely their employment contracts and not to seek to advance their position. Maintenance of the ‘just’ economic relation depended much on the magistrates. Some regarded intervention in serious labour disputes as part of their role in keeping the peace in a world where social tensions easily disintegrated into threats and violence. In London, the blind Sir John Fielding, who assiduously built up the special position of the Bow Street magistracy, was regularly involved as an intermediary. He was just one of a number of justices who could command a measure of respect from both sides. That is not to say that there was an equality of arms as between the parties, for the preponderance of legal and economic power was naturally with the employers and this became even more the case as the eighteenth century progressed and as the employer–employee

43 Hay (n 37). 44 London Journeymen Tailors Acts 1720 and 1768. 45 JV Orth, Combination and Conspiracy: A Legal History of Trade Unionism 1721–1906 (Clarendon Press, 1991) 11. 46 Woollen Manufacturers Act 1725. 47 A similar act to secure the position of Gloucester weavers had been passed in 1755 but was overturned two years later after petitioning of Parliament by the master clothiers. See WH Fraser, A History of British Trade Unionism, 1700–1998 (Macmillan, 1999) 9.

Part 1: Service and Its Regulation 1760–1875 281 relationship changed its nature. When Blackstone gave an account of master and servant law, he was already being somewhat anachronistic insofar as he gave particular prominence to the various regulations of the Statute of Artificers and stressed the serf-like elements of the employer–employee relationship.48 That relationship was characterised as a personal one in the same class as those which existed between husband and wife, parent and child, guardian and ward. Blackstone made only passing mention of contract.49 Yet, as with fixed wage rates, the rules on compulsory apprenticeship were already being only sporadically enforced. A growing number of capitalist employers repudiated the rigid rules of yesteryear in favour of the more liberating possibilities of employment contracts, supposedly freely negotiated. As mechanised cotton mills began to take over cotton production, they were worked partly by parish apprentices and partly by families who had hitherto engaged in agriculture or cottage work. Thereafter, the children of such families went naturally into the same employment. The apprentices might still be bound for long periods, but the older workers were mostly taken on piece-work rates, or daily, weekly or even hourly terms, often bringing in family members to help them, as in domestic manufacture. The employer thus had a force which could be set to such work as he had, running his machines for 14, 16 or even more hours a day to meet peak production, putting his employees onto short time when business was slack. He also had a workforce that he could subject to his own disciplinary regime. Already in the early eighteenth century, the great Crawley ironworks in County Durham had operated to a Lawbook. The book outlined numerous offences for which money, sometimes a few pence, sometimes up to 40s, might be deducted from wages as well as the circumstances under which a worker might be demoted or dismissed.50 At his Etruria pottery, Josiah Wedgwood laid down a moral, paternal regime in great detail; there were, for instance, fines for leaving a fire at night, whereas to strike an overseer or abuse him courted dismissal.51 Masters who did not commit themselves to explicit rules could claim a large discretion over what was to be done and not done. In 1829 a silk factory foreman gave evidence that the rules ‘existed only in the breast of the master but were known and acted on by the work people’.52 So it must often have been. The ascendant manufacturers were active in demanding a legal regime that would further support their interests. Although eighteenth century legislation often acknowledged the interests of labour there was a substantial disparity as between the penalties normally provided for breaches by employers as opposed to breaches by employees. There was an even greater disparity in respect of the application of law in practice. Whereas employers could only be fined for wrongdoing there were 10 acts of Parliament between 1720 and 1792 which provided for the imprisonment of employees for leaving work or for misbehaviour in work. Instead of the traditional maximum one month’s incarceration, recalcitrant employees could now be sent to a house of correction for three months, they could be put to hard labour and in some circumstances whipped. Between 1792 and 1818 the Reverend Edward Powys, of Westwood, near Leek in the Potteries, sent 168 men and women to Stafford 48 Equally so in much-used compendia such as Burn’s Justice of the Peace (sv Servants). 49 Commentaries, vol 1, ch 14; vol 3, ch 9. Kahn-Freund (n 15) notes, as a remarkable illustration of Blackstone’s impress, that master and servant was still an aspect of textbooks on domestic relations law appearing in the 1950s. 50 MW Flinn (ed), The Lawbook of the Crawley Ironworks (Surtees Society, 1957). 51 N McKendrick, ‘Josiah Wedgewood and Factory Discipline’ (1961) 4 HJ 30, G Clark, ‘Factory Discipline’ (1994) 54 JEH 128. See also pp 520–21 of the present work, on the criminalisation of customary practices such as the taking of remnants, spoiled samples, etc. 52 R v St John, Devizes (1827) 9 B & C 896.

282 Labour Relations house of correction for master and servant offences and the Rev Haden of Wednesbury in Birmingham sent 115.53 Of course many of the magistrates in industrial regions were also significant employers of industrial labour themselves.54 The Masters and Servants Act 1823 rendered virtually any breach of an employment contract by a servant a summary crime, again with a maximum of three months’ imprisonment.55 As the nineteenth century progressed the statute was applied with increasing enthusiasm. Between 1858 and 1875 there were more than 10,000 prosecutions per annum for master and servant offences: more than for petty larceny.56 Employees were still attempting to compel masters to abide by the terms of the Statute of Artificers. In 1811 journeymen millers in Kent sought and procured a mandamus from King’s Bench to their sessions to consider a case under the statute; but Lord Ellenborough pointedly left it to the discretion of the justices whether or not to set a rate. In due course, they refrained. Free labour and free bargaining principles were in the ascendency and the prevailing mood of the Commons was displayed by a Select Committee which pronounced that:57 No interference of the legislature with the freedom of trade, or with the perfect liberty of every individual to dispose of his time and of his labour in the way and on the terms which he may judge most conducive to his own interest, can take place without violating general principles of the first importance to the prosperity and happiness of the community.

Accordingly, in 1813, the wage-fixing provisions of the Statute of Artificers were repealed,58 and the following year the other provisions of the statute, most notably those governing apprenticeship, came under scrutiny. The power of guilds to set seven-year apprenticeships and the restrictions that they placed upon the number of apprentices a master could have, had long proved irksome to those capitalists who, employing new methods, wanted to set up larger businesses with employees paid less than journeymen rates. As we have seen, governments occasionally intervened to attempt to reinstate the old restrictions and fix wages rates. However, from the seventeenth century onwards the common law courts had begun to destroy the more egregious guild rules as being unreasonable restraints of trade; in so doing they would frequently create (and win) a legal conflict with borough or corporate tribunals which existed to police the trade of the town and drive away intruders.59 In the same spirit, the common law courts confined the apprenticeship requirement of 1563 to its literal terms, allowing it to cover no trade which had developed since, and in other ways restricting its scope.60 53 Hay (n 37) 33–36. 54 For a detailed regional study see C Frank, ‘“Let But One of Them Come Before Me, and I’ll Commit Him”: Trade Unions, Magistrates and the Law in Mid-Nineteenth Century Staffordshire’ (2005) 44 JBS 64. 55 Discussion in TR Tholfsen, Working-Class Radicalism in Mid-Victorian England (Croom Helm, 1976) 180–86; M Chase, Early Trade Unionism: Fraternity, Skill and the Politics of Labour (Ashgate, 2000) 111–12. For legal challenges to the 1823 Act, see esp C Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–1865 (Ashgate, 2010). 56 S Naidu and N Yuchtman, ‘Coercive Contract Enforcement: Law and the Labor Market in Nineteenth Century Industrial Britain’ (2013) 103 American Economic Review 107, 108. 57 R v Justices of Kent (1811) 14 East 395. Report on Weavers’ Petition PP 1810–11 (232) II, 1; see likewise the Select Committee on Woollen Manufacture, PP 1806 (268) III. 58 A few special cases, such as the Silk Weavers Spitalfields Act 1773, would survive a little longer. 59 Notably in Coke CJ’s famous decision against the tailors of Ipswich for requiring a qualified tailor to seek their licence before working there: (1615) 11 Co Rep 53a. 60 In Raynard v Chase (1756) 1 Burr 2, Lord Mansfield castigated the statute as penal, in restraint of natural right, contrary to the common law in general and of doubtful policy. He approved of cases confining it strictly to the trades it listed; mentioned the limitation that a person duly apprenticed to one trade could thereafter practise another; and held that a sleeping partner did not have to be qualified if the active partner was.

Part 1: Service and Its Regulation 1760–1875 283 As small-scale industry spread from established towns to rising villages, there might be no one with the interest and persistence to enforce the apprenticeship requirement where it did apply. Sometimes it was subverted by masters, who, expecting a growth in business over a long term, took on large numbers of ‘false’ apprentices. In many trades, therefore, genuine apprenticeships succumbed and by the beginning of the nineteenth century the dominant experience of artisans in the face of competition from other labour was a ‘deterioration in status, control, independence and general condition’.61 Journeymen did not endure this passively, and during the Napoleonic wars they attempted to preserve the remnants of the old system. The ‘Luddite’ machine-breaking in the Midlands in 1811–12 was directed against framework-knitting masters who were using untrained labour to produce inferior goods.62 In London, the great centre of many crafts, a series of prosecutions to enforce the law was launched using the same attorney, Chippendale.63 Then in 1812 the ‘mechanics of the metropolis’ petitioned Parliament, demanding a reinstatement of the legal prohibition on the employment of unapprenticed labour. The masters responded by arguing that should the workmen succeed they would then move on to demand the enforcement of all sorts of terms and conditions. The masters prevailed and a Bill by Serjeant Onslow to repeal the remaining sections of the 1563 Act was easily carried, amid rhetoric which showed how thoroughly Adam Smith’s arguments had been transmuted into simple cries of laissez-faire.64

iii. Conspiracy and Combination Adam Smith accepted as a commonplace that wage-labour would breed collective action, the workmen combining to raise wages, the masters to lower them.65 Disputes are the very stuff of labour history, but they can readily leave the impression that relations between masters and men were always at a distance, always hostile and governed by mutual incomprehension. The strike can easily appear to have been the invariable response to any refusal to give into workers’ demands with an appeal to the full oppression of the law as the inevitable response of the employer. This was not so. Jaffe has demonstrated that there was a vigorous tradition of collective bargaining throughout the industrial revolution, generally conducted without recourse to law. If the customary and collective bargaining arrangements of particular trades were always in danger of being construed as unlawful, still a recognition 61 N Kirk, Labour and Society in Britain and the USA, 1780–1850 (Scolar, 1994) 50. In Bath the tailors were deprived of their enforcement power in 1765 and this resulted in the disappearance of apprenticeships in all the other trades as well: RS Neale, Bath: A Social History, 1680–1850 (Routledge, 1981) 63–69. For London, see JR Kellett, ‘The Breakdown of Guild and Corporation Control Over the Handicraft and Retail Trade in London’ (1958) 10 Econ HR 381. 62 For discussion of working conditions see A Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776–1809 (Cambridge University Press, 1991); C Steedman, ‘At Every Bloody Level: A Magistrate, a Framework Knitter and the Law’ (2012) 30 L&HR 387. For the Luddites themselves, see MI Thomis, The Luddites (David & Charles, 1970); K Binfield (ed) Writings of the Luddites (John Hopkins University Press, 2004); K Navickas, ‘The Search for “General Ludd”: The Mythology of Luddism’ (2005) 30 SH 281. 63 TK Deny, ‘The Repeal of the Apprenticeship Clauses of the Statute of Apprentices’ (1931) 3 Econ HR 67 discusses conflicts among calico printers (1803–04), woollen workers (1802–06), cotton weavers (1808) and silk weavers (1811), mostly in country districts. 64 See J Mokyr and JVC Nye, ‘Distributional Coalitions, the Industrial Revolution, and the Origins of Economic Growth in Britain’ (2007) 71 Southern Economic Journal 50, for an account of the many ways in which legislation in the late eighteenth and early nineteenth centuries deregulated economic activity. 65 Wealth of Nations (1976 ed) 83–85.

284 Labour Relations of mutual interests often prevented the matter being put to the test.66 The existence of judgments and laws against particular practices (which we shall explore) did not mean that such practices were not commonplace and indeed often of mutual convenience – the marketplace as viewed through the lens of the law and as through the lens of business expediency was (and is) a rather different thing. With these caveats we are here, though, concerned with the formal position of the worker once relations with the employer had substantially broken down. The number of disputes that proceeded so far must inevitably escape us. However, Dobson has traced accounts of 383 British labour disputes between 1717 and 1800. Nearly threequarters of the issues were over wages or hours, many of the rest over breaches in established practices of apprenticeship or working methods, which craftsmen were concerned to maintain not least because these set them apart from their unskilled competition. Such disputes seem to have been particularly prevalent in the 1730s and during the Wilkesite disturbances of 1768, which brought a rash of strikes in their train. To be effective, withdrawals of labour had to be organised and the early union movement owed much to the establishment of friendly societies.67 These emerged out of the practice of workmen in particular trades gathering together at houses of call – public houses. Here they took their leisure and it was from here that they could be hired. However, in the houses of call they might also formulate common terms of employment to be presented to masters or they might link with the other houses when some coordinated action in protection of their interests was called for. Wages were often paid at such houses and a box club might be run there, offering, for small weekly contributions, some security against illness, incapacity, burial and widowhood.68 Box clubs might eventually be formed into friendly societies, but the line between those friendly societies concerned only with providing succour for unfortunate individual members and those facilitating combinations seeking to improve the general conditions of all the members of a society was a fine one. Friendly societies were required to register under the Friendly Societies Act 1793. A local magistrate had to approve their rules and sometimes magistrates would reject applications out of hand if they believed that an improper combination was intended.69 Nonetheless, it was out of such societies that early unions were often formed. The Friendly Society of Ironworkers, for example, became the Foundry Section of the Amalgamated Union of Engineering Workers. Southall has shown that these societies were first distributed in industrial and artisanal trades such as ironworking, mining, carpentry and joinery. The largest concentration was in London, but many societies sprang up in the Lancashire cotton towns around 1794. There was another significant cluster of societies in Durham arising from the activities of keelmen, sailors and ship-builders. Finally, there were also a goodly number of societies associated with the wool 66 JA Jaffe, Striking a Bargain: Work and Industrial Relations in England, 1815–1865 (Manchester University Press, 2000). 67 For trade disputes see CR Dobson, Masters and Journeymen (Rowman & Littlefield, 1980). For the sporadic growth of Friendly Societies, see M Gorsky, ‘The Growth and Distribution of English friendly societies in the Early Nineteenth Century’ (1998) 51 Econ HR 489, and for a local study M Gorsky, ‘Mutual Aid and Civil Society: Friendly Societies in Nineteenth-century Bristol’ (1998) 25 Urban History 302. 68 See generally E Hopkins, Working Class Self-Help in Nineteenth Century England (UCL Press, 1995) and for craftsmen’s clubs in particular, AJ Reid, United We Stand: A History of Britain’s Trade Unions (Allen Lane, 2004) 27–41. 69 H Southall, ‘Towards a Geography of Unionisation: The Spatial Organisation and Distribution of Early British Trade Unions’ (1988) 13 TIBG 466, 468.

Part 1: Service and Its Regulation 1760–1875 285 trade in the south-west.70 Strikes were recorded at this time in all these areas amongst hatmakers, carpenters, coalmen, weavers and cotton-workers and others. This, of course, begs the question as to whether the friendly societies were formed in areas of particular labour distress or whether it was the existence of such societies that enabled the protests that other, less well-organised groups, were unable to contemplate. Notably missing is any evidence that many societies were active in the more agricultural counties.71 Membership of these societies was at this stage confined to only a small proportion of the labouring population and mainly to those who were relatively skilled. It is important to understand that at the start of our period such groups were mainly interested in preserving their own interests. Even in times of distress they had little sense of being part of what today we would call the ‘working class’. As Randall puts it, referring in general to the eighteenth century, ‘Few historians today would claim to discern anything beyond the earliest stirrings of any sort of “class” consciousness informing the attitudes of rioting crowds in this period.’72 As aforementioned, however, within occupational groups common interests were recognised and a long-established tramping system allowed for skilled men to move around the country, to communicate and to coordinate activities. Such men were sufficiently organised to be able to raise funds and employ lawyers to protect their interests.73 It is a somewhat open question as to the extent to which a broader sense of labour solidarity was advanced at the eighteenth century by the events of the French Revolution. Certainly, the number of industrial disputes grew considerably in the 1790s, but modern scholars have doubts as to whether this increase can be connected to new radical ideas. Rule argues that the pattern of disputes closely matched periods of economic downturn and that the increasing number of disputes cannot therefore necessarily be connected with political activity.74 Chase observes that no radical writer of the period can be found who envisaged industrial action being a tool through which political objectives could be achieved.75 On the other hand the authorities at the time readily made a connection. Thus the Duke of Portland wrote to a Bolton magistrate in respect of the Associated Weavers that:76 Associations so formed contain within themselves the means of being converted at any time into a most dangerous instrument to disturb the public tranquillity … take every measure in your power in order that the proceedings and Progress of these Societies be carefully attended to and watched.

One remedy for masters who fell victim to combinations against them was to prosecute for criminal conspiracy since, ‘There can be no doubt but that all conspiracies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.’77 The journeymen 70 ibid 469. 71 ibid 470–72. 72 A Randall, Riotous Assemblies: Popular Protest in Hanoverian England (Oxford University Press, 2006) 7. 73 In R v Nield (1805) 6 East 417, unionists were able to combine to raise sufficient funds to instruct five counsel, led by the celebrated Thomas Erskine. For the tramping system see Reid (n 68) 39–41. Informal relations could be of great significance even in new trades such as cotton weaving: HA Turner, Trade Union Growth, Structure and Policy (Allen & Unwin, 1962) Pt II. 74 J Rule, ‘Trade Unions, the Government and the French Revolution, 1789–1802’ in J Rule and R Malcolmson (eds), Protest and Survival: The Historical Experience – Essays for EP Thompson (Merlin, 1993) 123. Reid believes that most trade unionists eschewed calling for any political reforms after the passage of the Combination Act in 1799: Reid (n 68) 68–69. 75 Chase (n 55) 80. 76 HO 43/11/222-3, 8 August 1799, cited in Chase (n 55) 82–83. 77 T Leach (ed), W Hawkins, A Treatise of the Pleas of the Crown, 7th edn (1795) Bk 1, ch 72, s 2.

286 Labour Relations tailors of Cambridge had been successfully prosecuted for this offence in 1721,78 and for the rest of the century Dobson has traced some 30 instances of similar proceedings, or attempts at them.79 This was an indictable misdemeanour requiring presentation by grand jury and conviction by trial jury. Millwrights petitioning Parliament complained that:80 The only method of punishing such delinquents is by preferring an indictment … but before that time arrives the offenders frequently remove into different parts of the country … and the expense of apprehending them and bring them back, by habea, to the place where the offence was committed, is so heavy to the masters … that the journeymen carry on their combination with boldness and impunity.

A Bill to outlaw combinations amongst journeymen millwrights was abandoned, however, when William Pitt intervened and proposed a general piece of legislation: the Combination Act 1799.81 It treated contracts and combinations between workmen as illegal if they were for obtaining any advance of wages, for reducing or altering hours of work, for decreasing the quantity of work, for preventing any person from employing whomsoever he should think proper, or for ‘controlling or in any way affecting any person carrying on manufacture, trade or business, in the conduct or management thereof.’ The Act, addressing the concerns of the master millwrights about the expenses and delays of common law conspiracy, provided for trial before a single justice. The Act struck not just those in dispute insofar as it specified fines (with imprisonment for non-payment) for those who contributed to general funds for the purposes for supporting a workman whilst in dispute with his employer. Workingmen petitioned against the new legislation, protesting in particular about the loss of jury trial and of review by King’s Bench. The result was a revised version in the following year, which originated from a group of radicals, including the playwright, Richard Brinsley Sheridan.82 It recognised the interests of labour insofar as it also made masters’ combinations void and subject to a £20 fine, a provision that proved to be not entirely cosmetic.83 More importantly it required two justices to hear the charge, rather than one, and gave a right of appeal to Quarter Sessions – a significant counter-response for those accused.84 In addition, there were provisions for the compulsory arbitration of disputes by nominated arbitrators or, if necessary, by a single justice (and above him Quarter Sessions).85 What the Combination Acts brought – as had the occasional precedent covering, for instance, the London tailors, the silk workers and the hatters86 – was the chance of a rapid disposal

78 (1721) 8 Mod 10 – ill-reported, but apparently accepted in R v Eccles (1783) 1 Leach 274 and R v Mawbey (1796) 6 TR 619, 636; see RS Wright, Law of Criminal Conspiracies (1872) 52–53; RY Hedges and A Winterbottom, The Legal History of Trade Unionism (Longmans, 1930) ch 2. 79 Dobson (n 67) ch 9, esp 127–129. The sentences, when the proceedings were actually carried to conviction, were mostly for a month or two in prison, though in one or two cases the period was two years. Even these, however, were mild punishments in the age of the ‘Bloody Code’ against property crimes (as to which, see p 516). 80 (1798–9) 54 Commons Journal 405, cited in Orth (n 45) 22. 81 Unlawful Combination of Workmen Act 1799. 82 Unlawful Combination of Workmen Act 1800. For both Acts see Orth (n 45) ch 4. 83 ibid ss 1 and 17. 84 ibid ss 2, 23. No justice could sit if he were a master in the trade in question – a problem in the new industrial districts in particular: s 16. 85 ibid ss 18–22. Though no evidence has been found of actual reliance on these provisions, their existence may well have induced the two sides to a dispute to use a conciliator or voluntary arbitrator. These, after all, were not infrequently resorted to. 86 London Journeymen Tailors Act 1768; Silk Manufacturers Acts 1720 and 1792; Hat Manufacturers Act 1776.

Part 1: Service and Its Regulation 1760–1875 287 of the question of criminality, together with a brief sentence. Summary discipline added a distinctive weapon to the armoury of the magistracy. In particular, it might enable the leading spirits in a journeyman’s club or union to be picked off by prosecution before the general run of their fellows had been persuaded into striking. However, a mere meeting to discuss conditions of employment was not, of itself, an offence. The judges required proof of an agreement to pursue the claim by withdrawal of labour, picketing, violence or similar pressure.87 Even so, some clubs took the precaution of adopting the form of friendly societies,88 or of avoiding rules requiring members to support positive action (unless it was to seek amendment of the law by Parliament, which remained permitted and outside the Act). The extent to which the Acts were actually employed has been the subject of controversy. Both the Webbs and the Hammonds wrote of these Acts as initiating a quarter-century of repression against incipient trade unionism.89 They conceded that the Acts had only a small role in established crafts. In Nottingham, for instance, with some 50 craft unions in this period, only five prosecutions were known.90 On the other hand, they noted that they were used to put down strikes in the new industries of the north, notably cotton. The Scottish weavers in 1812, the Bolton weavers in 1817, the Manchester spinners in 1818 were all dealt with in peremptory style which contributed to ‘an abundant record of judicial barbarities’.91 Dorothy George remained unconvinced, preferring to stress that nationally the Acts were not generally employed and were merely the end point of an eighteenth-century tradition rendering strike activities and similar ‘combinations’ illegal under the common law. George concluded that the Acts were ‘in practice a very negligible instrument of oppression’.92 In practice, once a dispute had commenced, a prosecution under the common law of conspiracy offered the prospect of more severe punishment.93 Later historians seem to believe that prosecutions under the Acts were comparatively rare.94 However, Chase argues that regardless of its actual deployment the existence of the legislation ‘had an immense psychological and practical impact upon the way trade unionism evolved … However well managed a trade union might be it was cast in the role of enemy of the establishment.’95 The real novelty lay not so much in the Combination Acts themselves as in the emerging forms of industrial employment and the new basis of labour relations which they produced. The old and complex linkages between masters and journeymen were being replaced by a structural divide between capitalist mill-owners and their hands whilst the authorities 87 R v Nield (1805) 6 East 417. ‘If workmen could have borne the cost of appeals, it seems probable that many of the dubious convictions might have been quashed in this way’: Hedges and Winterbottom (n 78) 30; but certiorari was notoriously expensive. Note s 9 of the Act which obliged a conspirator to give evidence for the Crown, with the advantage of indemnity from prosecution himself. 88 Following the registration procedure under the Act of 1793. 89 S and B Webb, The History of Trade Unionism (Longmans, 1920) 71–72; JL and B Hammond, The Town Labourer (Longman, 1925),129; and see Fox (n 32) 73–91. 90 Thomis (n 32) 138. Even so a determined employer might resort to the courts, as did the proprietor of The Times against his printers in 1810: Webb and Webb (ibid) 78–79. 91 Webb and Webb (n 89) 81–83. 92 MD George, ‘The Combination Laws Reconsidered’ (1927) 6 Econ HR 214. 93 Reference to the legal basis of prosecutions was often rather inaccurate so for example, John Doherty, leader of the spinners was sentenced to two years’ imprisonment and referred himself to his conviction under ‘the combination laws’ but he was actually found guilty of common law conspiracy. See Reid (n 68) 75. 94 See eg J Moher, ‘From Suppression to Containment: The Roots of Trade Union Law to 1825’ in J Rule (ed), British Trade Unionism, 1750–1850 (Longman, 1988) 84–90. 95 Chase (n 55) 84–55

288 Labour Relations looked on. The three distinct but interconnected movements that emerged in 1811 in the East Midlands, the West Yorkshire valleys of Colne, Calder and Spen, and the cotton districts of Lancashire have, under the label of Luddism, came to be associated for ever more with disorder and machine-breaking. Far from being radical or even revolutionary, however, the demands of the participants were, for the most part, rather reactionary. In all three areas at the root of the disturbances were rather traditional trades actions intended to induce Parliament to restore or to extend regulation of the relevant industries.96 Amongst the framework knitters of the East Midlands, the Stocking Makers’ Association for Mutual Protection was committed to opposing the entry of unapprenticed labour and agitated for both constitutional reform and labour regulation. In Yorkshire the wool-combers were angered by the repeal of the statutory regulation of the woollen industry in 1809. In Lancashire the cotton workers were agitating for minimum wage agreements, and it was only when such agreements were denied that they turned their attention to the question of machine-weaving.97 Government, however, had no interest in extending wage regulation agreements. In any case, where these were in place the law was in reality only being enforced against those employees seeking higher wages than the law allowed and not against those employers paying less than the law specified. In 1824 it was claimed in the Parliamentary Committee that reviewed the combination laws that ‘several instances have been stated to the committee of prosecutions against masters for combining to lower wages, and to regulate the hours of working; but no instance has been adduced of any master having been punished for that offence.’98 The declining enthusiasm for wage regulation was a logical consequence of the belief that the market could and should set the appropriate levels of remuneration. But the belief in free wage bargaining was not necessarily entirely inimical to the interests of labour. In 1824, Francis Place was able to secure the repeal of the Combination Acts by making much more of their distortive effect on the functioning of orthodox market principles.99 The laws, he argued, drove journeymen and operatives into secret conclave and violent, destructive action. Left to free organisation, workers would come to appreciate the demands of the market and ameliorate their demands in conformity with the prospects of their employers. Union activity, he declared, would actually decline. Accordingly, he found support not only amongst radicals in Parliament – notably Joseph Hume – but even from some manufacturers. A carefully organised Select Committee declared that ‘it is the opinion of this committee that masters and workmen should be freed from such restrictions, as regards the rate of wages and hours of working, and be left at perfect liberty to make such agreements as they may think mutually proper.’100 The ensuing Act permitted workmen to enter into combinations to raise wages or improve conditions, or indeed allowed masters to combine, with that promise that they should not be liable to prosecution under it or ‘any other Criminal Information or Punishment whatever, under the Common or Statute Law.’101 However, a penalty of up to two months’ imprisonment was provided for anyone who tried to induce another workman to depart from his hiring by violence, threats or intimidation. 96 Chase (n 55) 91–95. 97 Chase (n 55) 91. 98 PP 1824 (51) V, 589–91. 99 For Place’s campaign and the evidence to Hume’s Committee, see H Pelling, A History of British Trade Unionism, 5th edn (Penguin, 1992) 20–22; Reid (n 68) 74–77. 100 PP 1824 (51) V, 589–91. 101 Combination of Workmen Act 1824; Orth (n 45) 73–74; Chase (n 55) 109–10.

Part 1: Service and Its Regulation 1760–1875 289 In the following months there was an upturn in trade, a rise in food prices and with them a run of wage demands supported by strikes. The result was the organisation of a Select Committee at the behest of manufacturers to counter-attack.102 The Government looked nervously at signs of coordination between different trades and different parts of the country in support of the strikes. Against the threat of reversing legislation, unions organised massive petitions and the Government secured a compromise measure which contained no flat prohibition of combination as such, but which restated more broadly the prohibitions which had been kept in the 1824 Act. On the one hand, by s 4, no one was to be liable to prosecution for taking part in a combination, if wages, prices and hours alone were discussed, and the wages and hours in question were those of the persons actually present in a meeting at any one time. On the other hand, s 3 specified particular acts which would expose ‘every person so offending, aiding, abetting or assisting therein’ to a term of three months in prison with or without hard labour. These included: (i) forcing any workman to depart from his hiring, or to return his work before it was finished; or preventing any workman from entering into any employment; (ii) forcing or inducing any person to belong to any club or association or to contribute to any funds or pay any fines; or (iii) forcing any manufacturer, or person carrying on any trade or business, to make any alteration in his mode of conducting it or to limit the number of his apprentices or the number or description of his workmen.

But in each case, to constitute the offence under this section, the act in question had to be done ‘by violence to the person or property of another, or by threats or intimidation, or by molesting or in any way obstructing another.’103 Trade unions, then, were not formally unlawful after the reforms of 1824/25, but their activities were still very much constrained. Concepts such as ‘molesting’ or ‘obstructing’, introduced in the 1825 Act, were so broad as to leave great latitude for judicial interpretation. Furthermore, repeal of the 1824 Act restored the possibility that those taking action against ‘blackleg’ labour could again be prosecuted for criminal conspiracy at common law for acting in restraint of trade. In the course of debate upon this omission, Lord Eldon conceded that such proceedings were not contemplated by the Act, and would not be permitted.104 However, within a few years, Patterson J was telling a jury that the Act of 1825 was ‘never meant to empower workmen to meet and combine for the purpose of dictating to a master whom he should employ’; to do so was to over-step the bounds of s 4, which amounted to a conspiracy at common law.105 Workers who wished to withdraw their labour were probably more intimidated by the Master and Servant Act 1823, however. This restated the sentence of up to three months’ hard labour for breaches of employment contracts and made it more explicit that such a contract between employer and employee could be an oral one. The partiality of justice was clearly stated insofar as proceedings against employers for breaches were to be civil whereas those against employees were criminal. Once the employer had made a complaint on oath the employee was accordingly liable to arrest and detention until 102 PP 1825 (437) IV. 103 Combination of Workmen Act 1825; Hedges and Winterbottom (n 78) 38–51; on the interpretation of ‘molestation’ see JV Orth, ‘English Law and Striking Workmen: The Molestation of Workmen Act, 1859’ (1981) 2 JLH 238. 104 G Wallas, Life of Francis Place (Allen & Unwin, 1918) 239; cf Hedges and Winterbottom (n 78) 39 and 42, opining that the contrary was the common assumption of the time. 105 R v Bykerdike (1832) 1 M & Rob 179.

290 Labour Relations trial. The Act was regularly enforced and Chase has described it as ‘the most serious legal issue that confronted labour in the nineteenth century’.106

C. Factory Regulation i. The First Attempts Early industrial activities, and cotton mills in particular, were water-powered and therefore had to be situated at places with strong river flows. Such places were generally outside of the population centres. These enterprises were often staffed by pauper children (many from London) who could be apprenticed away from parishes grateful to be free of the burden of supporting them. Levene has shown that some 76 per cent of all children apprenticed by London parishes between 1751 and 1833 were sent into manufacturing, that almost half of them were girls and that the average age upon apprenticeship was between 12 and 13.107 Child labour was of course nothing new, though the scale of it was hidden since the employment was often informal and familial. In a distinctly rural society the most common forms of child employment were in agriculture, tending animals, helping with the harvest, gleaning, gathering and so on. The typical child labourer was actually a farm boy. The jobs in new industries, however, had none of the characteristics of familial employment or of the traditional workshop apprenticeships where personal relationships and the hopes of better prospects after training could do much to soften the apprentices’ situation. Conditions were appalling, with children often injured, required to crawl into confined spaces under machines and kept at work (often by flogging) for the 12 hours or more that the factory ran. Industry quite simply could not run without them. Children (under 13) and young people (under 18) were by 1833 supplying between one-third and two-thirds respectively of all labour in the textile mills, and in 1842 they made up about a quarter of the workforce in mining.108 Participation rates were highest in the 1820s and 1830s, when more than 10 per cent of children between five and nine years old and more than 75 per cent of 10-to-14-year-olds were in employment.109 The desire to ameliorate conditions first manifested itself in an Act sponsored by Robert Peel (the elder), a Tamworth mill-owner who had been stirred to action by a report issued in 1796 by the Manchester Health Board.110 The Health and Morals of Apprentices Act 1802 applied only to pauper apprentices in textile mills and limited work to no more than 12 hours a day (excluding meal times), as well as requiring the provision of clothing, instruction and separate sleeping for the sexes.111 There were also some basic sanitary 106 Chase (2000) (n 55) 111. 107 A Levene, ‘Parish Apprenticeship and the Old Poor Law in London’ (2010) 63 Econ HR 915. See also J Humphries, ‘Child Labor: Lessons from the Historical Experience of Today’s Industrial Economies’ (2003) 17 World Bank Economic Review 175, 178. 108 C Tuttle, Hard at Work in Factories and Mines: The Economics of Child Labor During the British Industrial Revolution (Westview Press, 1999). 109 S Horrell and J Humphries, ‘“The Exploitation of Little Children”: Children’s Work and the Family Economy in the British Industrial Revolution’ (1995) 32 EEH 485. 110 Earlier there had been an ineffective attempt to regulate pauper chimney boys by an Act of 1788: B Inglis, Poverty and the Industrial Revolution (Hodder & Stoughton, 1971) 30–32; also, 132–38 and 167–69. 111 Sections 3–4, 6–8. See also D Fraser, The Evolution of the British Welfare State: A History of Social Policy Since the Industrial Revolution, 4th edn (Palgrave Macmillan, 2009) 19–20.

Part 1: Service and Its Regulation 1760–1875 291 provisions that affected all factories and mills, whether or not they contained apprentices.112 Enforcement was supposed to be secured through inspection by two nominees of quarter sessions,113 since most of the labour had come from Poor Law authorities. But there were only a few trial runs at investigation and the Act was ignored. In any case, the increasing use of steam power in the developing industrial towns made the Act more and more irrelevant. Instead of pauper apprentices, adults were increasingly directly employed in factories and mills and acted in turn as sub-contractors employing their own children or the children of neighbours. Nonetheless, the principle that there might be paternalist intervention to regulate the employment conditions of children had been established. Furthermore, Peel’s intervention showed that the more enlightened owners were prepared to countenance and even advance improvements in conditions provided they could be assured that they would not be economically disadvantaged in competition with others. Robert Owen, as manager of one of the earliest experiments in paternal factory planning – the New Lanark Mills, with their own village and school – had excluded children under the age of 10 from work and had kept hours to 12 including meals and yet had maintained a very profitable business. His ideas caught the attention of those shocked by the inhuman possibilities of factory organisation and disturbed by the manufacturers as a new social and political presence.114 The elder Peel campaigned for new legislation and between 1815 and 1819 became engaged, with Owen, in a series of Parliamentary tussles against the mill-owners and their supporters. In the end an Act of 1819 emerged. Much reduced in scope by comparison to the original proposals, it applied only to cotton factories from which it entirely excluded children under nine (not 10), while imposing maximum hours for those under 16 (not 18) to 12, including one and a half hours for meals (without any provision for schooling).115 The intention had been that the sessional courts appoint paid inspectors to enforce the Act, but this fell foul of virulent opposition from factory-owners and in the end enforcement was left to rewarded informers. Again, this meant that the Act was nugatory in effect; apart from anything else, there were grave difficulties in proving a child’s age or the hours that he or she actually worked.116 Nevertheless, at the time when the tide of free market ideas was in full race, it established that the employment of children as a whole, within a given industry, might be regulated and that the mill-owner could be made the responsible party even if he was only the head-contractor in a sub-divided empire.

ii. The Act of 1833 and Its Aftermath The question of children’s hours refused to die. Its vitality derived from a cross-fertilisation of motives. Genuine concern for the health and life expectation of factory children 112 ibid s 2 (whitewashing and ventilation); s 10 (infectious disease). 113 ibid ss 9, 11–14. 114 Owen’s first work, A New View of Society, began to appear in 1813. His evidence to Peel’s Committee of 1816 gave considerable publicity to his ideas and for a time he enjoyed some success with fashionable society: GDH Cole, Life of Robert Owen (Macmillan, 1926). 115 Cotton Mills Act 1819, ss 1–7. Protected children were excluded from night-work (9 pm–5 am) and dinner hours were regulated. See D Fraser (n 111) 20. 116 In 1825 and then in 1831, Sir John Cam Hobhouse was able to press through amending Acts which nominally added to the obligations on mill-owners: Cotton Mills Acts 1825 and 1831. The second even increased to the age of 18 the limit of 69 hours a week (for details, see MW Thomas, The Early Factory Legislation (Thames Bank, 1948) 28–32). They too went largely unenforced.

292 Labour Relations remained a political rallying point, particularly among humanitarian Tories, who saw brute self-interest in demands for free contract and wanted the chance to impose fundamental decencies by way of regulated, ‘fair’ competition. There was, in addition, a growth in political awareness amongst parts of the workforce itself, which would in time lead to increasing demands for education, political rights and free trade unions. In a 10-hour day for factory children, workers’ leaders saw the chance to limit the hours of the whole factory, since children played a key part in running the machines.117 On the other side, most millowners conceded that there was no escaping some regulation of their child workers and they were obliged to argue for solutions that would not impede free bargaining by adults. This led them back to Owen’s notion of a ‘relay’ of children working shorter hours in shifts beside the adults. In 1830, Richard Oastler’s rousing articles in the Leeds Mercury on ‘Yorkshire Slavery’ triggered mass demonstrations by operatives for a 10-hour day, ostensibly for young workers. His friend, Michael Sadler, introduced a Bill to this end in December 1831 and had it referred to a Select Committee under his own chairmanship. Shortly after the passing of the First Reform Act, the Committee published a barrage of evidence demonstrating the depths to which ill-treatment of factory children might sink.118 Sadler had just lost his seat in the new elections and leadership of the 10-hours movement was taken over by Ashley, who introduced his own Bill on the lines of Sadler’s, but with more severe penalties than before.119 The masters just succeeded in procuring the appointment of a Royal Commission to disprove the ‘utterly unjustifiable’ imputations against them. As Commissioners, the Government put in the team of the young Edwin Chadwick, Thomas Tooke and Dr Southwood Smith. Though the assistants that they sent out for information were spurned by the Short-Time Committees as the merest lackeys of the mill-owners, the Commissioners’ first Report was critical in tone, finding many textile factory children to ‘suffer the immediate effects of fatigue, sleepiness and pain’ and the remote effects of ‘deterioration of the physical constitution, deformity, disease, and deficient mental instruction and moral culture’.120 Accordingly, in terms unmistakeably Chadwick’s, the Report recommended that children under the age of nine should not be employed at all in factories, while those under 14 should work a maximum of eight hours a day. The restriction to eight hours left adults to be worked as ‘free agents’ for double a child’s shift: Chadwick never abandoned the central yardstick of the classical economists that the conditions of adult labour must be settled by bargaining.121 The children were to be better fitted for this adult position by education: a ticket system would ensure that factory children attended school in the other half of their day.122 And something of his penchant for self-executing remedies appeared in proposals for preventing accidents by imposing strict liability on employers to compensate victims.123

117 For

the beginnings of the 10-hours movement, see D Fraser (n 111) 21–22. 1831–32 (706) XV. 119 Thomas (n 116) 44. 120 PP 1833 (45) XX, pp 29, 33. For their subsequent reports, 1833 (519) XXI, 1834 (167) XIX, XX. 121 See, generally, SE Finer, The Life and Times of Sir Edwin Chadwick (Methuen 1952) 19–27. 122 For the role of factory regulation in the provision of working-class education, see p 414. 123 See p 487. 118 PP

Part 1: Service and Its Regulation 1760–1875 293 The Factories Act 1833, drafted by Chadwick and modelled on the report, was rapidly passed into law in order to outpace Ashley’s 10-hours Bill.124 It applied to most kinds of textile factory, though not to lace or (for the most part) silk manufacture. Children under nine were not to be employed at all; those under 13 were to work no more than a nine-hour day and 48-hour week; young persons under 18 were restricted to a 12-hour day and 69-hour week.125 For any offence under the Act the fine levied against an employer was to be a mere £1, and only one fine per day could be imposed for a particular type of offence. Whilst the Act envisaged the adoption of a relay policy, and thereby shorter shifts for children, it was otherwise no more than an extension of the 1819 Act; the education provisions were rendered of no account by Lords’ amendments and the safety provisions disappeared. The best-known novelty – showing Chadwick’s respect for his master, Bentham – was the creation, under the Home Office, of the factory inspectorate of four, with provision for subinspectorships to give local assistance.126 Private enterprise was to be policed by central government, a striking development at the very time when mistrust of the ‘new police’ was running so high. The inspectors were made magistrates and were vested with powers not merely executive, but also legislative and judicial, going well beyond the amalgam of power conferred on justices in general. The inspectors could make regulations for their districts without even submitting them to Parliament, and they could hold summary proceedings on view and convict in the very cases that they were investigating.127 The constitutional structure of the inspectorate, in short, was constructed in such a way as to insulate it, as far as possible, from outside interference.128 The offences pursued were a prototype of administrative criminal law: the factory occupier was made liable whether or not he knew that children were being improperly employed.129 The inspector prosecuting would find many relevant facts hard to prove,130 but he would at least be spared the need to show the occupier’s mens rea.131 It has been argued that the independence of the inspectorate and the power of the inspectors to act as judges in their own cause soon became the subject of antagonism from the Crown’s legal officers, but in fact the inspectors themselves expressed some unease at the free range of their remit.132

124 The Commission had carried through its First Report in the two months that the government had before Ashley’s Bill came up for second reading. cf WG Carson, ‘Symbolic and Instrumental Dimensions of Early Factory Legislation’ in R Hood (ed), Crime, Criminology and Public Policy (Heinemann, 1974) 107. 125 Factories Act 1833, esp ss l, 2, 8; Thomas (n 116) 65–70; URQ Henriques, The Early Factory Acts and Their Enforcement (Historical Association, 1972); O MacDonagh, Early Victorian Government (Holst & Meier, 1977) ch 3. 126 Chadwick’s original proposal was to give the justices a concurrent power of inspection, so that, where they were unbiased, the workforce could go to them: Finer (n 121) 66. 127 Factories Act 1833, ss 17–19, 33. But the sub-inspectors had no power to compel the appearance of witnesses. 128 S Field, ‘Without the Law? Professor Arthurs and the Early Factory Inspectorate’ (1990) 17 Journal of Law and Society 445, 447. 129 But the court was empowered to mitigate even the £1 minimum fine, if the offence was not wilful or grossly negligent: s 32. 130 The chief witnesses might be hands who feared for their jobs. The continuing difficulties over children’s ages made Chadwick an eager advocate of birth registration. 131 cf WG Carson, ‘White Collar Crime and the Enforcement of Factory Legislation’ (1970) 10 British Journal of Criminology 383; WG Carson, ‘The Conventionalisation of Early Factory Crime’ (1979) 7 International Journal of the Sociology of Law 37. 132 See generally, HW Arthurs, Without the Law: Administrative Justice and Legal Pluralism in 19th Century England (University of Toronto Press, 1985); Field (n 128) 448–53.

294 Labour Relations In the face of such determination to make the law bite, the inspectors’ power to act as judges in their own cause became a focal point in a cry for the separation of powers. Russell, as Home Secretary, drew the inspectors back and the Act of 1844 confirmed the new scrupulousness by confining them to their executive role. Jurisdiction was for the magistrates; and they would sometimes demonstrate hostility towards the efforts of the inspectors to put the legislative machinery into operation.133 The 1833 Act was in any case greeted by both manufacturers and operatives with a contemptuous fury. The 10-hours movement still demanded legislation which now would have the effect of adding hours to the factory child’s day. Some manufacturers, on the other hand, convinced the inspectors and then the Government that relay arrangements were unworkable. The latter’s nerve failed to the extent of promoting a Bill to repeal this allimportant part of the 1833 Act. It was Ashley who saw the foolhardiness of conceding so much ground to masters determined to drive out all legislative interference, and his opposition prevented the Government from completing its volte face.134 Gradually, the inspectors were able to set about enforcing the Act,135 somewhat waveringly supported by Whig, then Tory governments. As many administrative defects appeared, the inspectors pressed for legislative improvements of their own devising: the self-generative processes of bureaucracy became conspicuous. Reform was not easily achieved against the opposition of the manufacturers. Only after Bills had been lost on three occasions was further legislation enacted in 1844. This operated with some effect giving the inspectors better control over persistent problems such as the certification of children’s ages and introducing requirements for schooling and the fencing of machinery.136 But the question of hours remained unavoidable. The short-time movement remained completely opposed to the ‘relay’ policy of the 1833 Act, though for a time the case for the 10-hour day could not be pushed. Instead there was some concentration on extending the range of trades covered by the legislation. Ashley’s Children’s Employment Committee of 1840 exposed the dreadful conditions to which women and children were subjected in many mines and a wave of sympathy swept through an Act keeping not only boys under 10 but also women of any age out of the pits.137 Opposition from the colliery owners, however, was powerfully organised and there was only token implementation of the statutory power of inspection.138 133 How common was such hostility is disputed. It has been suggested that rivalry between different types of enterprise may account for some of the success of the inspectors in prosecuting under the acts. For example, that the high conviction rate under the 1833 Act may have been the result of an attack by steam-mill owners on watermill owners: HP Marvel, ‘Factory Regulation: A Reinterpretation of Early English Experience’ (1977) 20 Journal of Law and Economics, 379; C Nardinelli, ‘The Successful Prosecution of the Factory Acts: A Suggested Explanation’ (1985) 38 Econ HR 428. 134 BL Hutchins and A Harrison, A History of Factory Legislation (King, 1926) ch 4; Thomas (n 116) ch 6; Henriques (n 125). 135 The most courageous was the radical, Leonard Homer, for whom, see B Martin, ‘Leonard Horner: A Portrait of an Inspector of Factories’ (1969) 14 International Review of Social History 424. For the background of the inspectorate generally see D Roberts, Victorian Origins of the Welfare State (Yale University Press, 1962) 177–78; and for their development, TK Djang, Factory Inspection in Great Britain (Allen & Unwin, 1942) 31–41; Arthurs (n 132) 102–07, 114–15. 136 Factories Act 1844; Thomas (n 116) chs 10, 13, 14. 137 PP 1840 (various) X; Mines and Collieries Act 1842, and note the Commission’s Report, PP 1842 [380–82] XV–XVII. 138 See O MacDonagh, ‘Coal Mines Regulation: The First Decade, 1842–1852’ in R Robson (ed), Ideas and Institutions of Victorian Britain (Bell, 1967); RK Webb, ‘A Whig Inspector’ (1955) 27 JMH 352; Arthurs (n 17) 107–13.

Part 1: Service and Its Regulation 1760–1875 295 At the same period, Ashley also procured a committee of inquiry into trades outside the range of the 1833 Act, they produced disturbing reports of the hours and conditions of children, first in lace- and silk-making, and then in the fabric-processing, clothing, glass, pottery, metal, paper, printing and similar manufactures.139 All that came of this was an Act applying a mild measure of regulation to children’s employment in calico printing.140 It was to take another two decades before the factory legislation was extended in any real degree to the non-textile trades. In 1844, Ashley returned to the question of general regulation of the working day, seeking to use the case of young persons and all women as the basis for a 10-hour maximum. Even the Government in its own Factory Bill for the textile industry felt obliged to bring all women within the 12-hour day prescribed for those under the age of 18, even though this would breach the sacred freedom of adults to contract as they would. Ashley almost succeeded in reducing their hours to 10. The arguments had become more specific, even if, in terms of economic theory, they scarcely rose above the commonplace. Less was heard of ‘free agency’, more of the effect that limited hours would have on wages, profits and level of employment of those affected.141 In 1837, Nassau Senior had produced his notorious calculation purporting to demonstrate that profits could be made only in the last hour of an 11-hour day, and much was heard of this in the debates.142 Nonetheless, all the fact-finding about the long hours often worked by the notionally ‘free’, and the disastrous effects that such work could have on health and constitution, was beginning to tell. So also was the fact that the administration of the existing laws had proved possible under the aegis of the inspectors who themselves had become an important influence for further intervention. In 1847, in the midst of a downturn in trade, Fielden succeeded with a Bill limiting young persons’ and women’s hours in textile factories to 10 per day and 58 per week.143 This early history of legislative interference with contracts of employment points up the inability of the common law, by technique or temperament, to perform an equivalent function. The judges, indeed, were furnished with little opportunity to influence the development of the Factory Acts until after 1847. Some manufacturers had introduced staggered hours within shifts. That is to say, they had introduced long breaks within shifts, thus ensuring that their factories could operate for longer than the maximum hours which women and children were permitted to actually work. This strategy was accordingly labelled ‘false relay’ to distinguish it from Chadwickian half-time relays. The inspectors asserted that this was unlawful. A test case in 1850 showed the general dislike harboured by the judges for such legislative interference with contractual ‘freedom’.144 The crucial statutory provision, being 139 PP 1843 [430] XIII. As the Committee emphasised, in the worst places of work it was the operatives who were left to employ the children. 140 Print Works Act 1845; Hutchins and Harrison (1926) (n 134) 120–31; Thomas (n 116) ch 17. 141 M Blaug, ‘The Classical Economists and the Factory Acts: A Re-examination’ (1958) 72 Quarterly Journal of Economics 211, shows that the leading economists, far from being supporters of the legislation (as claimed by Robbins and others), provided the main arguments against each extension of protection; they were, however, prepared to acquiesce ex post facto in the degree of regulation already achieved – a significant example of the power of law to mould influential opinion. 142 Letters on the Factory Act (B Fellowes, 1837) 12–13. 143 Factories Act 1847; Thomas (n 116) ch 18. 144 Ryder v Mills (1849) 3 Ex 853. Only by the parties agreeing to the imposition of a fine above the statutory maximum was it possible to bring the appellate machinery into operation.

296 Labour Relations penal, was construed strictly by the Court of Exchequer. Nowhere could the court find a statement sufficiently plain to prevent regulated workers from agreeing to ‘any intervals of leisure that may be thought convenient’.145 This acceptance of the ‘false relay’ made it once more very difficult for the inspectors to determine whether the Act of 1847 was being observed. But such was the lingering antagonism to the Act that it took two further statutes, and the concession of two extra working hours in the week, to outlaw the practice of staggered working.146 There were to be many further battles over maximum hours in the various forms of manual employment, in which economic liberals argued the virtues of freedom of choice against the advocates of a minimum standard defined by legislation. In 1864, in particular, an Act was finally passed to restrict children’s hours in a number of trades where immensely long hours were still common.147 In 1872–74 the textile operatives would once more use the case of women and children to secure a small reduction in the working week.148 The notion that an outside limit should be imposed on the work of the adult male remained anathema despite periodic demands from unions. Parliamentary intervention was good only for outlawing the most oppressive or dangerous conditions. The prescribing of maximum hours in textiles only followed the lines already laid by the leading artisans. By the beginning of the nineteenth century, the London trades had reached a norm, it seems, of 10½ working hours a day (12 with meals). By the 1830s they were moving to 10 hours and in the 1860s to nine hours (9½ during the week, with a short Saturday). Not until the 1890s would the eight-hour day make headway, being accepted, for instance, in government and municipal works. All this was a gradual accretion by bargaining. In its course the number of hours ceased to be a measure of what was bearable in itself and became a standard for calculating wages beyond which overtime would be payable.

iii. Truck Under Industrial Conditions Truck meant paying wages in kind rather than in coin. This was a very old practice wellsuited to a world where coin had not always been available. However, by the eighteenth century the practice of supplying necessities and then deducting the cost from a cash amount owing had come to serve as a mode by which labour could be both disciplined and fixed in place.149 Workers employed on long-term but periodic contracts might not

145 ibid 872 (Parke B). He also remarked that ‘though the immediate question in this case did relate to adult females, who are more capable of taking care of themselves, and of continued labour, than children, and consequently need less protection, and on whom the restriction from employing themselves as they think best appears more of a hardship, the point to be decided is the same as if we were considering the case of children and young persons only.’ 146 Factories Act 1850 and 1853. Ashley incurred the odium of the Short-time Committees by urging that the extra time provided a workable compromise: Thomas (n 116) 316–27. 147 For this and similar legislation, see Hutchins and Harrison (n 134) chs 7 and 8. 148 By the Factory Act 1874. The complex law was consolidated and extended by the Factory and Workshop Act 1878. For the view that this regulation stimulated a move towards workshops and sweating, see J Schmiechen, ‘State Reform and the Local Economy: An Aspect of Industrialisation in Late Victorian and Edwardian London’ (1975) 28 Econ HR 413; but cf J Morris, ‘State Reform and the Local Economy’ (1982) 35 Econ HR 292. 149 S Deakin, ‘Wage Protection Before and After Delaney v Staples’ (1992) 55 MLR 848.

Part 1: Service and Its Regulation 1760–1875 297 be entitled to any regular cash payments; rather, they would be provided with goods and services of value (such as board and lodging) and only be entitled to claim their wages at the end of the employment period. Courts would generally not allow quantum meruit claims, that is to say that a worker who departed early could not generally claim a proportion of his cash wages in respect of the proportion of the agreed work that he had already done.150 Thus a workman had a powerful incentive to remain for the contracted period else he might well leave with nothing.151 Unscrupulous employers could turn truck to their advantage in many ways. Sometimes they required workers to buy particular goods from their own factory stores. Such goods were often overpriced – with the result that the real value of workers’ wages was reduced. Attempts in response to regulate truck went back as far as the fifteenth century, but the very repetition of the attempts was a sign of their continuing ineffectiveness.152 Regulation in the nineteenth century owed much to the competition between large and small employers. Truck was mainly utilised by smaller enterprises and it was defended by a small knot of Ricardian theorists, headed by Joseph Hume. They argued that truck was a device employed in times of depressed trade and monetary shortage to avoid going out of business. If truck were restricted then smaller enterprises might be unable, in difficult times, to find the cash to pay their workers and thus would have to lay them off. However, the larger employers generally paid wages in cash, and they were in competition with the smaller truck masters. It was therefore with the support of the larger employers that the Truck Act 1831 was passed.153 Under the Act the entire wages due to a worker had to be paid in coin of the realm, on pain inter alia of summary prosecution. But the fact that workers now had to be paid in cash did not do anything to regulate the practice of making agreed deductions from wages in order to meet the expenses of an employer. For example, in order to take up employment a factory worker might have to agree that the owner could deduct a sum from his or her wages to pay for heating and lighting the factory. What the employer could not do (theoretically) without the agreement of the workers was impose a new deduction after the employment relation had commenced nor could he stipulate that a proportion of the wages would henceforth be paid in kind.154 In the early years there were some prosecutions in consequence of the Act. However, downturns in some trades continued to induce some small employers to resort to truck as a method of effecting cuts in agreed rates of pay.155 Each decade brought a campaign for

150 Cutter v Powell (1790) 6 TR 320. But the case was rather particular, insofar as it concerned a seaman who had been paid a premium wage on condition that he served for the entire voyage: SJ Stoljar ‘The Great Case of Cutter v Powell (1956) 34 Canadian Bar Review 288; M Dockray, ‘Cutter v Powell: A Trip Outside the Text’ (2001) 117 LQR 664. 151 Turner v Robinson (1833) 5 B & Ad 789. 152 For these statutes, stretching back to 1465, see GW Hilton The Truck System (Cambridge University Press, 1960) 7. 153 The progenitor of the Bill, Edward Littleton, was a large employer in Staffordshire, the area where truck was most rife. He had also sponsored an Act in 1820 intended to breathe life into the earlier legislation: the Wages of Artificers Act 1820. It had been opposed by Ricardo and Hume, who succeeded in securing its non-renewal three years later: Hilton (ibid) 98–100. 154 Deakin (n 150) 849. 155 The degree to which truck persisted until 1870 is detailed in the Report of two royal commissioners (one of them Charles (later Lord) Bowen) on the Truck System, PP 1871 [C 326, 327] XXXVI.

298 Labour Relations further legislative intervention, aimed mainly at practices equivalent to truck.156 But it was not until 1887, when the evil itself had largely abated under the general rise in wages, the effects of trade union pressure and changes in manufacturing organisation, that the inspectors of factories and mines were given supervisory power over truck itself.157 Throughout this period, it was still lawful for non-consensual deductions to be made from wages for alleged breaches of labour discipline. Furthermore, magistrates could still discharge employment contracts and thereby cancel any contractual claim to wages.158 Whilst the Master and Servants Acts were repealed in 1875, the Employers and Workmen Act 1875 gave justices and county courts a civil jurisdiction to order workers to pay damages for absenteeism or breaches of labour discipline. They made full use of their powers and fines of up to the maximum of £10 were regularly imposed.159

D. Trade Unions and Legality i. The Fortunes of the Unions In the period after 1825, two fairly distinct directions were taken by unions of labour. Robert Owen’s cooperative ideas found a receptive audience among artisans and mechanics eager for education and improvement. From this sprang a succession of attempts to form large, cross-craft unions – among engineers, among building workers, among clothiers. The cotton-spinner John Doherty first established a General Union of Cotton Spinners in 1829 which linked English, Scottish and Irish spinners’ unions. Campaigning through the United Trades Co-operative Journal and then the Voice of the People he then established a National Association of United Trades for the Protection of Labour (1831/32), which sought to provide a federal umbrella uniting all trades. The Grand National Consolidated Trades Union (GNCTU), with which Owen was directly associated, was formed in 1834. The impetus for its formation was a dispute in Derby over the winter of 1833/34 during which the employers in a number of trades, most importantly that of silk-weaving, refused to re-employ anyone who had been involved in a union. When the weavers appealed for support from the London tailors, the tailors formed the GNCTU in response. Most of its subscribers were indeed tailors (including women tailors) but bonnet-makers and the London shoemakers

156 In 1860, unionised miners succeeded in procuring the first legislation on check-weighmen (the Inspections (Mine Regulation) Act) 1860 allowing the men to appoint their own official to ensure that the weighing of ore (on which wages depended) was done without cheating. The charging of excessive rents to frame-knitters for the hiring of frames was controlled by the Hosiery Manufacture (Wages) Act 1874. Eventually, too, the practice of fining for poor workmanship and misbehaviour, which had been used in some industries largely as a wage-cutting device, was placed under certain rather ineffectual limits by the Truck Act 1896. The pious hope that truck could bring the benefits of labour to the whole family, whereas money wages too often disappeared in drink, sometimes figured as a reason for opposing the legislative curtailment of truck. Certainly, the payment of miners’ wages in public houses was prohibited by the Mines and Collieries Act 1842, ss 10–12 (after a Committee chaired by Ashley) and generally by the Payment of Wages in Public Houses (Prohibition) Act 1883. See F Tillyard, The Worker and the State (Routledge, 1923) chs 2 and 3. 157 Truck Act 1887, passed partly on the initiative of Charles Bradlaugh. (It also extended the scope of the 1831 Act to all manual workmen except domestic servants.) The inspectors scarcely made use of their new powers: Hilton (n 153) 142–46. 158 Lilley v Elwin (1848) 11 QB 742. 159 See Deakin (n 149) 851.

Part 1: Service and Its Regulation 1760–1875 299 also joined in numbers. But the total number of subscribers to the union never amounted to more than 16,000 although the union itself claimed a membership of 800,000. In April 1834 six Dorsetshire labourers, members of the Friendly Society of Agricultural Labourers, were convicted of having taken seditious oaths and transported. In support of these ‘Tolpuddle Martyrs’ the GNCTU held a demonstration in London which was attended by some 40,000 people. However, this marked the high point of its influence and the general theme of the year was that of resurgent employers successfully defeating union activity. The dispute in Derby ended unfavourably for the employees, whilst an attempt at a strike across all trades in Oldham was defeated in April. A strike of Yorkshire weavers ended in failure in May as did one by London building-workers in July. Aside from the vigour with which employers resisted demands, another reason for the general pattern of failure was that true collective action remained elusive; sectional interest often outweighed common purpose and no financial basis for survival could be established.160 These efforts at ‘general union’, however, were symptomatic of an emerging working-class consciousness that was opposed in particular to a middle class of capitalist employers. That consciousness had many expressions: it supported the fervour for further Parliamentary reform after the disappointments of 1832, sustained the suspicion of the new London and municipal police and informed the opposition to the Poor Law of 1834. It galvanised the programmes for workers’ education through mechanics’ institutes and day schools and it underpinned support for the 10-hour day in the textile factories. In the succeeding years it would mostly be channelled into political protest under the Chartist banner and then into the campaign against the Corn Laws.161 The period was one of persistent tensions, when the propertied did not sleep altogether calmly in their beds. The other path for trade unionism was the traditional course of the craft clubs and houses of call. Where they were not outpaced by technical change, skilled manual workers would strive to restrict entry so as to maintain their higher wages and security of work. As Kirk puts it, ‘coach-makers, bookbinders, glassblowers, butchers and others involved in the luxury trades or catering to (often local) custom-based markets belonged to a pre-1850 labour elite which … was largely aloof from involvement in radical political and industrial movements.’162 These ‘aristocrats of labour’ were often quite as well-off as the lower middle classes; their children not infrequently moved or married into the white-collar ranks of clerks and supervisors. For such workers, the union provided the security of a benefit society and the strength needed for negotiations with employers. When engaging in the latter, the union might well put itself forward as collaborator rather than as antagonist, in common cause against the purchasing public. These craft unions, then, restricted membership to the suitably qualified. They were sceptical of the grander ambitions of Chartism and not at all sure that it was in their interests to support the general advancement of all labouring men and women. Their own situation had after all only been secured by restricting entry to their respective trades. As Randall remarks,

160 For these developments, see WH Fraser (n 47) 14–19; Reid (n 68) 95–97. 161 G Claeys (ed), The Chartist Movement in Britain (Chatto and Pickering, 2001); M Chase, Chartism: A New History (Manchester University Press, 2007); PJ Gurney, ‘The Democratic Idiom: Languages of Democracy in the Chartist Movement’ (2014) 86 JMH 566. 162 N Kirk, Labour and Society in Britain and the USA: Capitalism, Custom and Protest, 1780–1850 (Scholar, 1994) 50. See also TR Tholfsen, Working Class Radicalism in Mid-Victorian England (Croom Helm, 1976) ch 9; G Crossick, An Artisan Elite in Victorian Society: Kentish London 1840–1880 (Croom Helm, 1978).

300 Labour Relations ‘a language of custom was frequently deployed against the poor. Skilled workers or artisans often turned customary rules against poorer waged labourers’.163 New unions, whether they were single-industry or multi-occupational enterprises, relied upon the recognition of common interests, but in addition they rarely survived unless this was also accompanied by sound financial management and by the prudence to engage only in those conflicts which they were likely to win. Over-ambition proved the doom of many. The Miners’ Association of Great Britain and Ireland is a case in point. Initially established in Durham and Yorkshire in 1842/43, it soon boasted a newspaper (the Miner’s Advocate), a national executive, a general secretary and a delegate conference. However, although it claimed a membership of some 70,000 miners it was never able to fully centralise funds or discipline its districts. An ill-conceived strike in the north-east in 1844 led to the union being defeated by the importation of blackleg labour. Thereafter, the districts survived in only a loose federation and often acted independently of the union itself. In 1848 the arrest of key activists for their Chartist activities led to its final demise.164 In the 1850s the first of the ‘new model’ unions (in the Webbs’ phrase) appeared – federations of local craft unions in particular trades which were able to sustain a central office that could promote the union’s position on a national and regional level. The Amalgamated Society of Engineers, Machinists, Smiths, Millwrights and Patternmakers was formed in 1851 out of a number of local societies. Initially with about 12,000 members, the society distinguished itself by requiring a high rate of contributions from its members (1s a week), offering in return sickness, retirement and unemployment benefits. In common with older craft unions its primary concern was to maintain wage levels by exercising a strict control over the apprenticeship system and specifying a standard minimum wage appropriate to a skilled employee. Led by its first General Secretary, William Allan, the society built up its deposits. It was in fact defeated at the end of a three-month strike the following year, but critically this was merely a setback and not a cause for dissolution. Slowly the society rebuilt itself and by the mid-1860s it had grown to some 30,000 members. Led by Robert Applegarth, the Amalgamated Society of Carpenters and Joiners also weathered a number of disputes, growing steadily from its foundation in 1860. Both of these associations were characterised by moderation and caution. They managed to centralise the decision whether or not to strike. This curbed exuberant spirits, allowed time for reflection and permitted the careful conservation of funds.165

ii. Judicial Views After 1825 In 1851, Lord Justice Campbell declaimed upon ‘the clear right of English workmen to make the best they could of their own labour, and to refuse to work unless upon terms that they thought were satisfactory; that each might do that, and that the whole might do it.’166 The real meaning of this apparently ringing endorsement of the liberty of labour becomes 163 Randall (n 62) 200. See also Pelling (n 99) 34–35; WH Fraser (n 47) 20–22. 164 AJ Taylor, ‘The Miner’s Association of Great Britain and Ireland, 1842–1848 A Study in the Problem of Integration’ (1955) 22 Economica 45; Reid (n 68) 126–27. 165 See WH Fraser (n 47) ch 2; Reid (n 68) 83–87, 98–99. Fraser points out that all the features of Amalgamated Society of Engineers could be found in earlier trade societies but that this was larger, offered greater benefits and, crucially, was better administered. 166 R v Rowlands (1851) 5 Cox CC 466.

Part 1: Service and Its Regulation 1760–1875 301 apparent once one considers the qualifications which in practice limited the opportunity for enjoyment of this ‘right’. Stopping work without proper notice in breach of a contract of service invited arrest, prosecution, and incarceration for up to three months, accompanied by whipping and hard labour. As already mentioned, the provisions of the Master and Servant Act 1823 were a formidable deterrent to collective action and were often deployed selectively against ringleaders. For example, in Staffordshire in 1843 two pit owners, James and Samuel Dabbs, were eager to prevent unionisation and so they brought in blackleg labour to provoke fights with the union men. In consequence, four of the union men left their work early. When they attempted to return to work the following day two of them were hauled before Bilston magistrates for unlawfully absenting themselves from work. They were committed for two months’ hard labour without being allowed to speak in their defence. The same magistrates committed two other men to a house of corrrection for refusing to work in a mine with an unsafe roof, although at the very moment that they delivered their verdict the roof of the mine collapsed.167 Instances of magistrates acting in ignorance or wilfully acting in excess of their powers were far from uncommon. Complaints were accordingly numerous, but the response of Parliament was to pass the Justices Protection Act 1848, which gave the magistrates greater protection from suit than they had hitherto enjoyed.168 Even if not in a contract of employment, workers could not stipulate whom they would be prepared to work alongside or how many apprentices might be employed.169 A d ifficult question, though, was the extent to which workers were entitled to persuade others to adopt common stances on questions such as wage rates, hours worked and so on. Peel’s view after the passage of the Combination of Workers Act 1825 was that the power to do so was severely circumscribed, ‘to prevent that species of annoyance which numbers can exercise towards individuals, short of personal violence and actually threat, but nearly as effectual for its object.’170 The aim was to make the workman ‘free’ to contract for his labour without any undue influence from his fellows which might condition his response to an employment offer. Thus would a true and efficient market emerge. The Whigs shared Peel’s sentiments and when they took office in November 1830, Melbourne commissioned an internal report into combinations which was written by Nassau Senior and Thomas Tomlinson. Senior claimed the intimidation of workers by combinations was widespread and proposed that employers should be empowered to arrest anyone picketing a mill or factory and bring them before a magistrate under the 1825 Act. Here they would face summary justice with no right of appeal.171 Senior’s suggestion was not adopted and on the bench there was some disagreement as to whether the prohibition of ‘molestation’ and ‘obstruction’ in s 3 of the 1825 Act entirely prevented workmen from trying to persuade others to adopt their views on employment conditions. In 1847 Sir Robert Rolfe concluded at the trial of 26 men, including Henry Selsby, secretary of the Journeymen Steam-Engine and Machine Makers’ Society, that the organising of pickets to persuade new hands not to work on inferior terms did not amount to molestation.172 However, a different conclusion was drawn in the leading cases of Rowlands 167 C Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–1865 (Ashgate, 2010) 94–95. 168 ibid 193–97. 169 M Curthoys, Governments, Labour and the Law in Mid-Victorian Britain (Oxford University Press, 2005) 18. 170 Peel to Leonard Horner, 29 November, 1825 cited in Curthoys (ibid) 19. 171 PRO HO44/56, p 26 cited in Curthoys (n 169) 22. 172 R v Selsby (1847) 5 Cox CC 495.

302 Labour Relations and Duffield.173 The Wolverhampton Tin-plate Workers Society, whose work was in great demand, had called in organisers from a National Association of United Trades to run a strike, which was an attempt to secure from two manufacturers the same rate of wages as other employers were already paying. One parry by the masters was to put men onto longterm contracts, so that any rapid strike would be criminal under the Master and Servant Act 1823. The unionists nevertheless not only withdrew their labour but persuaded other workers to do the same. The employers scoured the Midlands for substitutes and even went as far afield as France and Germany. These blacklegs were effectively discouraged: mostly they were given enough to drink and put on a train home. The jury refused to accept the little evidence that was offered of violence by the pickets who organised this riposte. However, Erle J, the trial judge, led the jury to convict the defendants on a wide variety of conspiracy counts which did not allege violence. His directions to them make clear his general view of the 1825 legislation: that s 4, in allowing workmen to combine (without breaking their contracts) to raise their own wages, set a boundary. Beyond it they could not interfere with the freedom of employers to conduct business, or of other workers to dispose of their labour, as they chose. Whether a strike which overstepped this limit constituted a conspiracy at common law or a conspiracy to offend under s 3 of the Act seemed scarcely to matter; each left the question of fine or imprisonment to the court’s discretion.174 Some activities of the strikers clearly fell within the specific list in that section, and it was held that, despite the absence of violence, the activities had involved ‘threatening’, ‘molesting’ or ‘obstructing’ the employers or their workmen. Erle’s position was largely upheld by the full Queen’s Bench and became the dominant judicial view in the ensuing years. Employers thus secured a wide interpretation of s 3 which could be applied in summary proceedings up and down the country. In the following years the higher courts proceeded to rule that various forms of union pressure were illegal, directly under s 3 or by common law operating in the no-man’s land of the 1825 Act. A strike was illegal if it was to secure the dismissal of the disobedient union member.175 A member who refused to collaborate in a demarcation dispute could not be threatened with being sent to Coventry or with expulsion from the union.176 A closed shop could not be enforced by threatening to strike, however politely or regretfully the proposed withdrawal of labour was worded.177 When in 1851 Lord Campbell enunciated the freedom of labour it was therefore a freedom to be subject to the forces of the market without any opportunity to improve the working man’s situation through collective action. Judicial orthodoxy was that:178 By law every man’s labour is his own property, and he may make what bargain he pleases for his own employment; not only so – masters and men may associate together; but they must not by their association violate the law; they must not injure their neighbour; they must not do what would prejudice another man … If this were permitted, not only would the manufacturers of the land be injured, but it would lead to the most melancholy consequences to the working-classes. 173 R v Duffield (1851) 5 Cox CC 404; R v Rowlands (1851) 5 Cox CC 466. 174 Conviction for conspiracy to commit a summary offence could result in punishment greater than for that offence itself. On a conspiracy charge, evidence against one co-defendant was admissible against others; and the conspiracy might be inferred from the fact that several defendants individually had done acts which tended towards a common purpose: see eg R v Druitt (1867) 10 Cox CC 592, 602. 175 R v Hewitt (1851) 5 Cox CC 162. 176 O’Neill v Longman (1863) 4 B & S 376. 177 Walsby v Anley (1861) 3 E & E 516; Shelbourne v Liver (1866) 13 LT (NS) 630; Skinner v Kitch (1867) LR 2 QB 393. 178 Hewitt (n 175) 163.

Part 1: Service and Its Regulation 1760–1875 303 It seemed in particular that the judiciary had become irretrievably hostile to union picketing. It was not quite so in Parliament. A small committee of the National Association of United Trades, although it had been weakened by the proceedings arising out of the Wolverhampton tin-makers strike, managed to secure backers for the Molestation of Workmen Act 1859.179 Under the Act, attempts ‘peaceably and in a reasonable manner, without threat or intimidation, direct or indirect, to persuade others to cease or abstain from work’ were not to fall within s 3 of the 1825 Act.180 What was peaceable and reasonable was quite as open to interpretation as what constituted obstruction and molestation, however. R v Druitt181 concerned a lock-out and strike which grew out of a wages dispute in the London tailoring trade. The organising subcommittee of the workers had given careful instructions to their many pickets to keep to peaceful and reasonable communications of their case, although (inevitably) there were some incidents in which these instructions were exceeded. Irrespective of this, and despite the new legislation, Bramwell B is reported to have summed up as follows:182 Even if the jury should be of opinion that the picket did nothing more than his duty as a picket, and if that duty did not extend to abusive language and gestures such as had been described, still if that was calculated to have a deterring effect on the minds of ordinary persons, by exposing them to have their motions watched, and to encounter black looks, that would not be permitted by the law of the land … If the jury were satisfied that this system, though not carried beyond watching and observation, was still so serious a molestation and obstruction as to have an effect upon the minds of workpeople, then they ought to find these three men guilty.

Even so much as an angry look was, it seemed, enough to bring a picket back within the scope of s 3 with the prospect of prosecution. It was also, as Malins V-C held in 1868,183 to risk an injunction, backed by the sanctions for contempt of court. Thus did the prospect of civil proceedings against dispute activity make its first appearance.

iii. The Royal Commission It is often observed that as the century progressed, the law against union combinations became less severe. However, this does not quite tell the full story. It was only once the unions had become firmly established and organised that their opponents began to explore

179 See Webb and Webb (n 89) 277; Curthoys (n 169) 35. On the bench, however, there was some measurable difference of opinion. At one extreme, Crompton J maintained the old opinion that at common law labour combinations were criminal conspiracies, and that s 4 of the 1825 Act conferred a strictly limited exemption from penal consequences: Hilton v Eckersley (1856, discussed at pp 259–60). At the other, Erle CJ and Cockburn CJ required, for an indictable conspiracy, that the collaborators must contemplate at least the violation of a private right, or of a public right with particular damage to an individual; a strike or a threat to strike would not be unlawful. In Wood v Bowron (1866) LR 2 QB 21, Cockburn said that: ‘Large numbers of men, who have not the advantages of wealth, very often can protect their own interests only by means of association and co-operation, and we ought not to strain the law against men who have only their own labour and their association by which they can act in the assistance of one another.’ See also R v Stainer (1870) 11 Cox CC 483. 180 The Act also broadened s 4 of the 1825 Act by providing that no person should be prosecuted for conspiracy by entering an agreement to fix rates of wages, even if he himself was not in the employment in question. This gave new protection to union officers. 181 (1867) 10 Cox CC 592. 182 ibid 601. 183 Springhead Spinning Co v Riley (1868) LR 6 Eq 551.

304 Labour Relations the full potential of the criminal law against them. Unionists responded to this growing pressure by joining the bid for greater political power in the years before and after the Second Reform Act. A potential blow to their ability to organise and secure their finances came with the case of Hornby v Close.184 Like other benefit societies of the period, the finances of the unions were administered by inexperienced treasurers who were sometimes incompetent and sometimes purloined union funds. Unfortunately, it was a long-established rule of the general criminal law that one joint owner could not steal from another. However, the Friendly Societies Act 1855 provided for summary proceedings before two magistrates in cases of fraud by any officer of member of a friendly society and gave the magistrates the power, in the same proceedings, to order reimbursement to the society185 – provided that it was not established ‘for any purpose which is not illegal’, and provided that it had deposited its rules with the Registrar of Friendly Societies.186 Several of the larger unions had accordingly done so. In Leeds in January 1866 the United Society of Boilermakers was successful in prosecuting a fraudulent branch official despite the objection that since the union organised unlawful strikes it could not benefit from the procedures outlined under the 1855 Act.187 A second prosecution, however, against the treasurer of the Bradford Branch, Charles Close, was dismissed by magistrates and on appeal the Court of Queen’s Bench held, on the strength of the union’s rules against accepting piece-work or work in a shop under strike, that the union was established in unlawful restraint of trade – an ‘illegal’ purpose as far as the Friendly Societies Act was concerned. This could be said to follow logically from the earlier decisions on the unenforceability of industrial combinations and the criminality of strike action beyond the confines of the 1825 Act. The significance of the decision in Hornby v Close was disputed and misunderstood at the time. A conservative newspaper, the Standard, declared that the decision meant that funds subscribed to trade unions were ‘lost beyond the power of recovery in any court in the kingdom’.188 There was, though, considerable sympathy elsewhere for the situation of the unions in respect of funds and in 1868 the law of larceny was amended to provide that one could be convicted for taking funds out of a co-partnership.189 Furthermore, the Trades Unions Funds Protection Act 1869 declared that the fact that some rules of an association were deemed to be in restraint of trade would not make that association unlawful

184 (1867) LR 2 QB 153. See Orth (1999) (n 45) 102–03; Curthoys (2005) (n 169) 68–73. 185 Friendly Societies Act 1855, s 24. 186 ibid s 44. 187 Bradford Observer, 11 January 1866; cited in Curthoys (2005) (n 169) 6. 188 Standard, 18 January 1867. 189 Larceny and Embezzlement Act 1868. See Orth (1999) (n 45) 103. There are various legal indications of sympathy for the unions on the question. The Act was secured by Russell Gurney and was immediately and successfully used against an official of the London Operative Bricklayers (R v Blackburn (1868) 11 Cox CC 157), the Common Serjeant emphasising that ‘a trade union consists of poor men laying by a portion of their wages against the necessities of their deserving brethren who by reason of loss of work, sickness or accident were compelled to seek assistance.’ Nothing was heard of the impropriety of strike rules as an objection to the prosecution, despite the precedent of R v Hunt (1838) 8 C & P 642. In 1869, the carefully drawn rules of the Amalgamated Society of Carpenters and Joiners, which imposed no directly restrictive obligations on members, were treated in the same way as those in Hornby v Close: Farrer v Close (1869) LR 4 QB 602 (a different defendant). But two members of the Court dissented, insisting on the clearest proof that the society did operate against the public interest. One of them, Hannen J, remarked that, in holding acts done in furtherance of strikes to be illegal, ‘we should be basing our judgment, not on recognised legal principles, but on the opinion of one of the contending schools of political economy.’

Part 1: Service and Its Regulation 1760–1875 305 within the meaning of the 1855 Act.190 By 1870 Keating J was declaring that ‘the late Act … contains a clear indication of the intention of the Legislature that the mere fact of societies having rules that are void as being in restraint of trade shall not cause such societies to be deemed illegal so as to deprive them of the protection of the law in respect of their property.’191 In the meantime, Derby’s Government had set up a Royal Commission in 1867 with wide powers to enquire into the organisation and rules of the unions, their effect on workmen, employers, industrial relations and trade and industry; and to suggest improvements in the law.192 The Royal Commission was chaired by Sir William Erle. The precarious position of the unions was emphasised by the absence of any working man on the Commission, though after substantial protests the Government added Frederick Harrison – Liberal and close associate (with Professor Beesly) of the ‘Junta’ of ‘new model’ union leaders.193 Through the summer of 1867 the sub-commission investigating in Sheffield secured revelations of guerrilla activities in various small unions of grinders, including ‘rattening’ (the temporary removal of tools) and personal violence. Dramatic though these revelations were, they concerned only a few small and backward societies, the vestiges of an older, cruder industrial condition.194 If anything, they strengthened the arguments of the sober and respectable leaders of the new, large unions of the most important skilled workers, presented to the Commission with particular effect by Robert Applegarth, Secretary of the Amalgamated Society of Carpenters and Joiners and a central figure in the ‘Junta’. In the end, he and his fellows found that they had the sympathy of a minority of three on the Commission,195 whose report, in a changing political atmosphere, was to have great significance. The draft of the final report was written by James Booth and was fully informed by classical political economy. Unions were monopolies which stifled competition, restricted trade and thereby impoverished the nation. There was to be little concession then on the question of the legal regulation of unions.196 Any industrial action which stepped beyond the confines of the 1825 Act was to remain penal – in particular, picketing against strike-breakers. Unions which sought to impose rules limiting the numbers of apprentices, to enforce a closed shop, to prevent sub-contracting and piece-work or to support other unions on strike were not to be regarded as lawful.197 A majority on the Commissions softened but substantially approved of this approach. However, they did favour the voluntary arbitration of disputes and had no objection to the raising of contributions to support union organised benefit funds. Ideally, they would have preferred that benefit and trade activities were 190 Trades Unions Funds Protection Act 1869. 191 R v Stainer (1870) 11 Cox CC 488. 192 D Brodie, A History of British Labour Law 1867–1945 (Hart, 2003) ch 1. In order to get at the truth about the outrages, the Commission was given special powers of investigation, including the power to offer witnesses indemnity against prosecution. 193 It would be Harrison who drafted the minority report that led to the 1871 Act. 194 Reports of Examiners, PP 1867 [3952–1] XXXII; 1867–68 [3980] XXXIX. 195 In addition to Harrison, these were the radicals, Thomas Hughes MP and the Earl of Lichfield. 196 Eleventh and Final Report of the Trades Unions Commission, PP 1868–69 [4123] XXXI, esp paras. 60–75, 78–91. On the Commission and its consequences, see Fox (1985) (n 32) 149–60; Curthoys (2005) (n 169) 97–107. 197 On the other hand, unions which did not have such objects would be permitted to register with the Registrar of Friendly Societies and thus to enjoy a ‘capacity for rights and duties resembling in some degree that of corporations’ (paras 80–83).

306 Labour Relations conducted by different societies, but thought it feasible only to recommend that the funds for the two activities be kept separate.198 A minority on the Commission, however, did not believe that closed-shop demands and sympathetic payments to strikers in other unions had produced any seriously deleterious effects on industry or on working men themselves.199 They believed that it was necessary to grant the unions freedom to pursue industrial action within the general law in order to counterbalance the combinations of capitalists whose practices of blacklisting and wagefixing operated beyond the bounds of any legal regulation. Accordingly, they issued their own report which proposed removing the common law of conspiracy and repealing the 1825 Act. Unions should have no civil liability for acting in restraint of trade and those which registered with the Registrar of Friendly Societies would acquire legal privileges in property management similar to those enjoyed by friendly societies. And the minority poured scorn on the majority’s proposal to separate trade and benefit funds as ‘an arbitrary interference with the liberty of association’.200

iv. The Liberals’ Response The minority report received support from perhaps surprising quarters, notably from the claimant to the French throne, the Comte de Paris, exiled in London, who produced an important treatise in 1869 on Trades’ Unions of England which lauded the principles of free association and associated union activity with constitutional liberty. Gladstone was to some extent of a like mind: although he believed that some trade union practices damaged the working interest and the nation, he nonetheless preferred the route of persuasion rather than prescription.201 However, the Trade Union Act 1871, which was introduced by the Liberals, after some prevarication,202 was soon revealed to be a compromise as between the differing views of the Commission and a very modest advance for the situation of trade unions. The mere fact that the purposes of a trade union constituted a restraint of trade no longer rendered them unlawful, either so as to render a member liable to criminal prosecution for conspiracy or otherwise, or so as to render void or voidable any agreement or trust. They could acquire rights to hold property and to have summary remedies against dishonest officials, but they had in return to register their rules and accounts. But agreements between unions and their members in respect of terms of employment, subscriptions to union funds and entitlements to benefits remained unenforceable.203 The Government was determined to keep the criminal provisions of the labour laws and when their Bill was first presented in February 1871 it contained a clause 3, which very largely reproduced s 3 of the 1825 Act. While ‘threats’ and ‘intimidation’ were now

198 Some employers chose to attack the financial stability of the benefit funds of the largest amalgamations. But the Majority Report refused to accept actuarial criticisms, pointing to the unions’ unlimited power to raise funds by special levies should the need arise: paras 85–91. 199 See the dissent of Harrison, Hughes and Lichfield in PP 1868–69 [4123] XXXI and the ensuing statement of reasons to which Lichfield did not feel able to subscribe. 200 ibid lx–lxi. 201 Curthoys (2005) (n 169) 107. 202 They gave the unions temporary protection against Hornby v Close by the Trades Unions Protection Act 1869. 203 Brodie (n 192) 15–18; Curthoys (2005) (n 169) 129.

Part 1: Service and Its Regulation 1760–1875 307 defined only to cover threats of physical violence, there was no knowing whether the clause as a whole would be treated in this spirit. The Molestation of Workmen Act 1859 was to be repealed and its assurance (for what it was worth) of the lawfulness of peaceful picketing was not repeated. Small wonder that the Colliery Guardian, representing the view of the Mining Association (and thus the owners) declared, having scrutinised the proposals, that ‘we entertain no fundamental objections’.204 Protest against the clause was principally organised through the third national Trades Union Congress. This brought together the northern originators of the Congress and the London ‘Junta’ in a united front from which the TUC’s influential Parliamentary Committee would develop. The Government’s determination to keep the core of the criminal labour laws remained unshaken. Its sole ‘concession’ was to put clause 3 into a separate Bill, which, after some confused amendments, became the Criminal Law Amendment Act 1871.205 Offences concerned with threats and intimidation had now to involve a breach of the peace. Much wider were the offences involving molestation and obstruction of a person with a view to coercing him in various ways in his trade or business. It remained to be seen how broadly such offences would be construed. It became clear soon enough. In 1872 the newly formed Amalgamated Gas Stokers’ Society began a campaign to secure wages and end Sunday working.206 Based initially on persuasion rather than industrial action the campaign had some success, but the gas companies responded by weeding out and dismissing those perceived to be most active in the new union. On 1 December 1872, the union agreed on a London-wide strike unless the men were reinstated. The following day some 500 stokers at Beckton gasworks demanded that the superintendent reinstate one of their members, who had been dismissed for union activities. The gas companies had already laid a plan to bring in blackleg labour, however, and were able to bring in 2,000 men to replace the 500 stokers. All of the stokers were summonsed, but in the end only 23 from Beckton and another two from the Bow Common works were brought to trial. All but one were convicted of aggravated breaches of contract under s 14 of the Master and Servant Act 1867 and sentenced to six weeks’ imprisonment with hard labour. In addition, however, five ringleaders were brought to trial at the Central Criminal Court on 10 counts of conspiracy. Sir William Brett divided the counts into two types. The first was that of a common law conspiracy to interfere with the management of the gas company’s business by molestation and improper threats; the second was that of conspiring to breach their contracts and so commit an offence under the 1867 Act. The defence argued that the 1871 Act extinguished the common law offences, but Brett J instructed the jury:207 If there was an agreement among the defendants by improper molestation to control the will of the employers, then I tell you that would be an illegal conspiracy at common law and that such an offence is not abrogated by the Criminal Law Amendment Act.

The defence pointed out that a conviction for the alleged common law offence would mean that any action at all by labour which induced an employer to do anything that he did not want to do would amount to the offence. In the event, the jury would not convict them of it. However, the men were convicted of conspiring to commit the statutory offence of breach

204 Colliery

Guardian, 31 March 1871, 340; cited in Curthoys (2005) (n 169) 129–30. (1999) (n 45) ch 9. 206 For a detailed discussion of the dispute, see Curthoys (2005) (n 169) ch 7. 207 R v Bunn (1872) 12 Cox CC 331, 340; cited in Curthoys (2005) (n 169) 172. 205 Orth

308 Labour Relations of contract for which they were sentenced to the exceptionally severe penalty of 12 months’ imprisonment. In the meantime, the justices were beginning to be alarmed by a new threat from unionism, novel insofar as it came from the counties and amongst agricultural labour. Joseph Arch’s National Union of Agricultural Labourers was founded in May 1872. By the beginning of 1874, the National Union had somewhere in the region of 86,200 members with about 50,000 in other independent unions. However, the vast majority of the one million agricultural labourers were never unionised and thus the trade union position was rather weak. When they tried nevertheless to raise the agricultural wage, they were generally defeated by farmers who collaborated to fire and then evict unionised labour. The law played its part. There were a great many prosecutions of strikers and their supporters, under the Master and Servant Acts and the Criminal Law Amendment Act, particularly before justices. Even The Times felt uneasy over the brief imprisonments of the wives of farm labourers in Oxfordshire when they had only shouted at blackleg labour.208 Cleasby B, however, was explicit in 1875: ‘if watching and besetting is carried on to such a length and to such an extent that it occasions a dread of loss, it would be unlawful under the 1871 Act itself.’209 Details of these and great many other cases were assiduously collected for the Parliamentary Committee by George Howell, a prominent member of the Junta.210

v. Conservative Concessions The steady rain of punishments upon the heads of union activists at least gave their leaders abundant material with which to keep up a fusillade against the compromise of 1871. Gladstone took little interest in the whole question and this contributed to the decline of his first ministry. Disraeli’s pledges of social reform, which included promises to improve the legal position of trade unions,211 fell to be redeemed after his electoral success in 1874. The cabinet’s first move was to push the industrial disputes issue off onto another Royal Commission, this time headed by Cockburn CJ. It duly reported in favour of minor ameliorations, particularly in regard to the crime of conspiracy.212 But by now the political organisation of the union movement had passed its adolescence: the leaders all but ignored the Commission213 and insisted to the Government that the recommendations were pusillanimous. In 1875, the Home Secretary, Sir Richard Cross, who introduced so much of the social

208 The Times, 23 May–23 June 1873. This was the Chipping Norton bench’s reaction to the spread of Joseph Arch’s National Agricultural Labourers’ Union, short-lived though it proved. For a detailed regional study see J Draper, ‘“Never-To-Be-Forgotten Acts of Oppression … by Professing Christians in the Year 1874”. Joseph Arch’s Agricultural Labourers’ Union in Dorset, 1872–4’ (2005) 53 Ag HR 41. 209 R v Hibbert (1875) 13 Cox CC 82, 87. 210 Later summarised in his Labour Legislation, Labour Movements and Labour Leaders (TF Unwin, 1905) vol 2. In 1874, a Sheffield firm demonstrated the full range of the Master and Servant Acts (even after their amendment in 1867) by obtaining against a worker an order for repayment of their loss of profits during a strike and three months’ imprisonment for failing to return to work; then they saw to it that he got no work elsewhere in the town: TUC Circular, June 1874. On Howell, see M Chase, ‘George Howell, the Webbs and the Political Culture of Early Labour History’ in K Laybourn and J Shepherd (eds), Labour and Working-Class Lives: Essays to Celebrate the Life and Work of Chris Wrigley (Manchester University Press, 2017). 211 The TUC Parliamentary Committee had sought appropriate pledges from all candidates. 212 PP 1875 [C 1157] XXX. 213 The miner and MP, Alexander Macdonald, was persuaded to serve as a member; he dissented.

Part 1: Service and Its Regulation 1760–1875 309 legislation of his government, put through two Bills fundamentally affecting trade union law. The first replaced the criminal penalties of the Master and Servant Acts entirely by civil remedies; the second in essence espoused the proposition in the Minority Report of 1869, that the general law alone should determine the extent of criminal liability for industrial action. The Employers and Workmen Act 1875 gave the new civil jurisdiction over employment contracts to the county courts, if the sum claimed exceeded £10, and to the magistrates’ courts, if it did not. The old power to order a servant back to work on pain of imprisonment gave place to a power, if both parties agreed, to waive damages and take security for future performance of the contract.214 Although this was couched in neutral terms, it is clear from the Parliamentary debates that it was conceived as a method of impelling a man back to work, rather than a technique for securing his reinstatement when wrongfully dismissed.215 The Conspiracy and Protection of Property Act 1875 tried to end the practice of charging with criminal conspiracy those who had committed acts during the course of trade disputes which were not of themselves illegal: ‘an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers or workmen216 shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.’217 Memories of recent strikes were too strong for all special criminal statutes to be repealed. Indeed, the threat to a vital supply presented by the gas-stokers’ strike of 1872 led to the introduction of criminal penalties against gas or water employees who ‘wilfully and maliciously broke their contracts in the knowledge that they would probably deprive inhabitants to a great extent of their supply.’218 A broader section made similar provision against employees whose breach of contract would probably ‘endanger human life, or cause serious bodily injury, or … expose valuable property … to destruction or serious injury.’219 And s 7 retained a version of the 1871 section aimed at oppressive tactics against opponents during industrial action. But now the crucial provision was qualified: ‘attending at or near a house or place … in order merely to obtain or to communicate information shall not be deemed a watching or besetting.’ This concession was procured by the TUC Parliamentary Committee at a late stage of the Bill’s progress, and even in this form it did not go as far as the Act of 1859, for it did not admit ‘persuasion’, however peaceful. Altogether, the Bills acknowledged the new-found strength of a union movement fortified by the Parliamentary franchise. The admission of principle was larger than in any other social legislation enacted in the last quarter of the century. To a significantly greater degree it was to be legitimate to use collective power, even where the result was to interfere with the

214 In the controversial atmosphere of 1867, the anti-reform or ‘Adullamite’ Conservative, Lord Elcho, then a promoter, with the miner-unionist, Macdonald, of non-militant unionism, had secured a partial amelioration of the Master and Servant Act; but the power to fine, and to punish ‘aggravated’ cases had remained: CJ Kauffman ‘Lord Elcho, Trade Unionism and Democracy’ in KD Brown (ed), Essays in Anti-Labour History (Macmillan, 1974); Fox (1985) (n 32) 139–40; Reid (2004) (n 68) 129, 153. 215 See eg PD CCXXIV 1677–78. 216 The words ‘between employers or workmen’ were subsequently repealed by the Trade Disputes Act 1906, s l. 217 In addition, conspiracy to commit a summary criminal offence in contemplation or furtherance of a trade dispute was to carry no sentence of imprisonment greater than that permitted for the summary offence itself: s 3. 218 ss 4 and 5, extended in 1919 to electricity supply workers. 219 s 6. See generally Hedges and Winterbottom (n 78) 117–18.

310 Labour Relations freedom of others to dispose of their capital or labour as they saw fit. To liberals of Dicey’s stamp this was the foremost, and least admissible, concession and it explains why they regarded ‘collectivism’ rather than ‘socialism’ as the evil of the hour. Most union leaders of this period were content to remain within the fold of capitalist production, but they sought a new structure of power within which to conduct their arguments with employers. The ability to bargain collectively, with the ultimate threat of a legitimate withdrawal of labour, was substantially secured in 1875, and would last without serious challenge for 20 years. And law, as a protection for the employee, was henceforth to be used primarily to assist the weak, who were not able to look to a union to fight their battles for them. Over time there had been a noticeable growth in regular, relatively formal institutions for labour bargaining. As we have seen, the older craft unions had long negotiated with the masters of their locality. They had often resorted to ‘honest brokers’, men trusted by both sides to act as conciliators and, if necessary, arbitrators, in resolving disputes over wages, hours, exclusive rights and other conditions of work. As the industrial trades began to be unionised, employers in those industries were often obliged to accept that they could no longer simply ignore or suppress grievances in the way they had done in the past. Agreeing to the establishment of regular negotiating procedures was not without advantage for employers since such mechanisms could both help to prevent sudden eruptions of discontent and ensure that deals that were made with employees were honoured. After 1836, for example, all disputes in the Staffordshire potteries were supposed to be submitted to a committee composed of three employers and three employees who might call in an arbitrator. By the 1850s silk-weavers in Macclesfield, shipwrights in the Wear and carpet-weavers in northern England and Scotland had established formal mechanisms to resolve disputes.220 In 1860, an impending dispute in the Nottingham hosiery trade was headed off by the actions of a sympathetic and influential employer, AJ Mundella. A Nottingham Board of Arbitration for the Hosiery Industry was established comprising six members chosen by the employers’ association and six workers chosen by vote from the union. Mundella became its first chairman and later before the Royal Commission of 1867–69 stressed that such arrangements exercised an important moderating influence on the demands of labour. In 1864, also in the face of an impending strike, Judge Rupert Kettle of the Worcestershire County Court was invited to preside over a board of six men drawn from the carpenters of Wolverhampton and their employers. He moulded the board into a permanent body, taking care, with professional scruple, to have the subsequent agreement incorporated into the contracts of employment of individual employees.221 He saw to the inclusion not only of the final outcome but also of the agreement to submit the dispute to arbitration. What was established was not merely that there would be discussions if and when issues arose, but also that there would be regular meetings or other procedures to deal with defined issues which would be settled by reference to agreed types of information and calculation. This was no novelty, but related back to the old craft practices of negotiating whereby the outcome and the understanding upon which conditions of employment were henceforth to be fixed

220 WH Fraser (n 47) 66. See also VL Allen ‘The Origins of Industrial Conciliation and Arbitration’ (1964) 9 International Review of Social History 237. 221 Mainly by the technique of posting the terms in prominent positions in the works: Royal Commission on Trade Unions, 4th Report, see PP 1867 [3952] XXXII at 26.

Part 1: Service and Its Regulation 1760–1875 311 would be recorded with the Quarter Sessions or else by some other formality. In some industries – notably coal and iron and steel – a formula of tying wages to prices led to the establishment of a regular sliding scale. This did not always operate in the interests of the employees since where unions were weak or non-existent scales might be imposed which operated to their disadvantage.222 Kettle himself did not hesitate to have recourse to the laws of political economy. The price of products was treated as supplying the fund for wages: if the one fell so should the other, without reference to the question of profits. Early in 1867, Lord St Leonards, at the request of ‘thousands of operatives’, was able to pilot through a Bill giving the Crown power to license a conciliation board, upon the petition of both sides of an industry; though this particular mechanism was to be ignored, as had the earlier attempts at compulsory arbitration. Nonetheless, the late 1860s and early 1870s saw the development of formalised negotiating procedures in important industries. Arbitration boards were established in most coalfields and in 1869 a Board of Arbitration was established to cover the Teesside iron industry. South Staffordshire iron works followed in 1872 and in 1875 permanent negotiating bodies were established for the boot and shoe industry in Leicestershire and the chemical industry in Northumberland and Durham.223 The scrupulousness with which Judge Kettle incorporated collective agreements into the individual employment contracts in Worcestershire may well have stemmed from the realisation that such agreements might otherwise be legally unenforceable. Prior to 1871, collective agreements were likely to offend against the common law’s disapproval of behaviour which operated in restraint of trade. Despite its reforms, the Trade Union Act 1871 did not allow for the enforcement of trade union agreements, and both sides were regarded in the eyes of the law as unions since a ‘trade union’ was defined to include not only associations of workmen but associations of masters for imposing restrictive conditions on the conduct of any trade or business.224 The business community then conducted its labour relations in accordance with norms not considered within the range of the general law. Ultimately it would be said that a collective bargain was not normally to be understood as intended to create legal relations. But that was very much a lawyers’ rationalisation ex post facto.225 If the law stood apart from the enforcement of bargains it did not, of course, stand aloof in respect of the means by which bargains might be secured. Unions were still constrained as to the ways in which they could conduct themselves in industrial disputes. As noted above, the Conspiracy and Protection of Property Act 1875 did something to lift the threat of charges of criminal conspiracy. It seemed to permit the most neutered forms of gatherings called in order to display solidarity. It was unclear however, at what point a gathering to convey information would be translated by the courts into unlawful besetting or picketing. Thus, whether the Act had really conceded to the unions a broader latitude in which to operate during industrial disputes remained quite uncertain.

222 For instance, in the South Wales coal mines: see K Burgess, The Origins of British Industrial Relations (Croom Helm, 1975) ch 3. 223 WH Fraser (n 47) 67. 224 s 23, amended somewhat in 1876: Hedges and Winterbottom (n 78) 92. 225 The perception of the issue would be much raised by Otto Kahn-Freund; see eg his essay on ‘Legal Framework’ in A Flanders and H Clegg, The British System of Industrial Relations (Blackwell, 1956).

312 Labour Relations

Part 2: Employment 1875–1950 A. The Emergence of the New Unionism i. Labour Conditions The fall in prices of 1874 pushed the economy into that passage of sporadic difficulties and unsettling changes which has been labelled the ‘Long Depression’. It brought with it the phenomenon of persistent unemployment and underemployment, for the first time in industrial conditions.226 The respectable were exposed to the plight of the poorest; in 1886 and 1887 London demonstrations by the unemployed took an ugly turn. At the bottom of the labour market, unskilled and semi-skilled workers were employed as ‘sweated labour’, defined by a Lords Select Committee as work at below subsistence wages, with excessively long working hours combined with ‘an insanitary state of the houses in which the work is carried on’.227 Moral persuasion was seen as the solution the law could (or would) not be used to impose wages levels, restrict hours and prevent home-work or sub-contracting. It was hoped, however, that in making supply contracts, central and local government would insist on such guarantees as minimum wages and employment only in factories.228 The new London County Council and other local authorities adopted resolutions on fair conditions. In 1891, Sidney Buxton persuaded the House of Commons to adopt its own ‘Fair Wages Resolution’, a declaration that the Government in its contracts would ‘insert such conditions as may prevent the abuses arising from subletting, and make every effort to secure the payment of the rates of wages generally accepted as current for a competent workman in his trade.’229 While not explicitly saying so, it was intended to submit contractors to the threat of removal from the list of tenderers if they did not comply. Discreetly and cautiously, government took its place at the head of the forces for decent employment. As in the private sphere, the norms were to be supported by sanctions that were economic, but not legal. These were years in which the trade union movement remained largely within its earlier mould, concerned to preserve the privileges and differentials of skilled work, collaborating with employers and concentrating on the insurance and saving functions of benefit funds. In the political arena, men such as Henry Broadhurst, Thomas Burt and George Howell kept 226 The percentage unemployed began in these years to move between 2% and 11%. It was only a hint of the conditions that would prevail after 1929. 227 Select Committee on the Sweating System, Fifth Report PP 1890 (169) XVII cited in L Raw, Striking a Light: The Bryant and May Matchwomen and THeir Place in History, 2nd edn (Continuum, 2011) 73. See generally J Rickard, ‘The Anti-Sweating Movement in Britain and Victoria. The Politics of Empire and Social Reform’ (1979) 18 Historical Studies 582; JA Schmiechen, Sweated Industries and Sweated Labour (Croom Helm, 1984), J Morris, Women Workers and the Sweated Trades: The Origins of Minimum Wages Legislation (Gower, 1986); S Blackburn, A Fair Day’s Wage for a Fair Day’s Work? Sweated Labour and the Origins of Minimum Wage Legislation in England (Ashgate, 2007). 228 The Conservative leadership would, however, only agree to a diluted version of Buxton’s original resolution: PD CCCL 616–647, esp 626 and 642; and see generally, Sir RD Denman, ‘Sidney Buxton and the Fair Wages Clause’ (1947) 18 Political Quarterly 161. While the resolution referred to the Lords Committee’s revelations concerning the sweated trades, its scope was not confined to them; in the sweated trades, indeed, union power was weak and so the reference to ‘current’ wages (ie union rates) can have had little meaning in those fields. See O Kahn-Freund, ‘Legislation THrough Adjudication’ (1948) 11 MLR 270, 275. 229 If the necessary terms were written into the supply contract, they would be legally enforceable; this was later required.

Part 2: Employment 1875–1950 313 the Parliamentary Committee of the TUC in a ‘Lib–Lab’ conjunction with radical employers such as Mundella and Thomas Brassey. Their objectives were strictly limited, and they became much preoccupied with questions of safety and accident compensation.230 The sudden spread of militant unionism that accompanied the upturn in trade of 1888/89 came as a considerable shock to the more traditional union leaders as well as to employers. At the beginning of July 1888 some 1,400 workers, mainly women, struck at the Bryant and May match factory in Bow, East London.231 Complaints about inadequate wages, fines for alleged misbehaviour and charges levied upon the workers for brushes, paint and other necessary items of manufacture were received with considerable sympathy in many sections of the public and press. By 18 July the company was forced to concede to the strikers’ demands, even so far as reinstating the ringleaders of the affair.232 The success of the strike and the formation of a Union of Women Matchworkers inspired others in the East End. On 31 March 1889 a meeting of gas workers from Beckton was staged at Canning Town Hall, the National Union of Gas Workers was formed and it resolved to demand an eight-hour working day. Some 3,000 workers joined the union and by the end of August most London gas companies had conceded.233 There was a series of strikes elsewhere, such as those by seamen organised within Havelock Wilson’s new national federation. All were dwarfed, though, by the scale of the great London dock strike.234 The London strike began on 14 August 1889 and initially concerned about 2,500 unskilled dock labourers who appealed to the newly formed Tea Operatives’ and General Labourers’ Union. The union demanded a wage increase of one penny to sixpence per hour for regular work and eight pence for overtime. What transformed the situation was the support of other unions, notably those of the Seamen and the Firemen. By 21 August some 20,000 men had joined a march in support of the ‘docker’s tanner’ (6d). The employers responded with attempts to recruit blackleg labour but picketing rendered this ineffectual. Amongst the notable features of the strike were the attitudes of the police and at least some of the magistracy. Whilst it is true that the police were obliged to enforce the law against the interest of unionised labour, it is also true that the pay and conditions of policemen were poor – indeed, they were shortly to attempt a strike themselves. There was then some sympathy between the two groups and one of the striker leaders, John Burns, intimated that constables were themselves donating to the strike fund. When policemen escorting a coal van were attacked, they were careful to distinguish between the strikers, who ‘behaved remarkably well’, and groups of opportunists hoping to exploit the situation. The magistrate trying a subsequent case of assault arising from the incident agreed that:235 [The] men on strike were behaving most orderly and properly. They felt that they were not being paid all they were entitled to, and they were legally entitled to go out on strike. It was the roughs … who created disturbance and disorder in the streets.

230 For this the ‘Front Bench’ were wigged by the Webbs; but some historians have greater sympathy for their scepticism of land resettlement, municipal enterprise and nationalisation as an answer to the besetting problem of urban unemployment: Webb and Webb (n 89) ch 7; HA Clegg et al, A History of British Trade Unions Since 1889 (Oxford University Press, 1964) 51–54. 231 See generally, Raw (n 227). 232 Raw (n 227) 141. 233 J Charlton, ‘It Just Went like Tinder’: Mass Movement and New Unionism in Britain 1889 (Redwords, 1999) 28–30. 234 See J Ballhatchet, ‘The Police and the London Dock Strike of 1889’ (1991) 32 HWJ 54. 235 HO 144 227 A50732.

314 Labour Relations The press, even The Times, praised the moderation of the strikers, and donations from the City sympathisers helped sustain the meagre strike funds. In the end the docker’s tanner was secured. All of a sudden, it seemed that successful trade unions might be organised for the great mass of semi-skilled and unskilled workmen and might advance their interests to a hitherto unimagined degree. By 1890, perhaps 350,000 had joined the nine largest of the new societies and in total union membership rose from about 750,000 in 1888 to some two million by 1900.236 The phenomenon was complex and much depended upon individual initiatives of men such as Ben Tillett, the London dock leader, who by the time of the dock strike had already assisted the match and gas workers and launched a drive towards a union amongst the tea operatives.237 Socialist organisations such as Hyndman’s Social Democratic Federation provided both practical and intellectual support. However, it proved difficult to sustain all of the initial successes. The demand for labour began to tail off and large employers began to collaborate much more closely to organise resistance to the new unionism. Lower-paid and unskilled workers were the most vulnerable since they could most readily be replaced by blackleg labour and were least able to accumulate a substantial benefit or strike fund.238 As early as December 1889, the gas-workers of the South Metropolitan Gas Company proved unable to maintain their earlier victory: 2,000 struck, only to find 4,000 replacements already engaged by the Company. Organisers appeared who were able to systematically recruit ‘free’ labour.239 William Collison’s National Free Labour Association, established in 1893, was the best-known and respectable, achieving in 1898 a link with the Employers’ Federation and its Parliamentary Council.240 Confrontations between unionists and ‘free labour’ men sometimes turned ugly, with threats or actual physical violence.241 The police (often relying on support from the magistracy) generally took the strike-breakers’ part.242 From such clashes, a press that mostly supported the employers could whip up fears of ‘organised terrorism’.243 However, there remained overall a high degree of respect for law; civil disorder in any serious degree remained a rarity. Those unions best placed to resist employer pressure were those formed by alliances of closed-shop, regularly employed skilled workers, who found that recognition of their organisations by employers led them into the paths of collaboration.244 One consequence of the newer union movement, however, was that it induced some of the more established unions

236 JFC Harrison, Late Victorian Britain 1875–1900 (Fontana, 1990) 142–43. Both the Transport and General Workers Union and the National Union of General and Municipal Workers have their origins in this period. 237 Charlton (n 234) 37. 238 For the incidence of strikes in the late nineteenth century, see MJ Haynes, ‘Strikes’ in J Benson (ed), The Working Class in England 1875–1914 (Croom Helm, 1985); J Cronin, Industrial Conflict in Modern Britain (Croom Helm, 1979); J Cronin, ‘Strikes 1870–1914’ in CJ Wrigley (ed), A History of British Industrial Relations 1875–1914 (Harvester, 1982). 239 J Saville, ‘Trade Unions and Free Labour: The Background to the Taff Vale Decision’ in A Briggs and J Saville (eds), Essays in Labour History in Memory of GDH Cole (Macmillan, 1960) 322; Fox (1985) (n 32) 186–99. 240 By its side, the Free Labour Protection Association was formed in 1897, with the Earl of Wemyss (formerly Lord Elcho) as chairman. He brought to it the rampant individualism of the Liberty and Property Defence League. 241 Lord Askwith, Industrial Problems and Disputes (J Murray, 1920) 295. 242 For an example, see Clegg et al (n 231) 68. 243 The Times, 20 December 1903 (editorial on the Taff Vale trial). 244 EJ Hobsbawm, Labouring Men. Studies in the History of Labour (Weidenfeld & Nicolson, 1964) 9–11.

Part 2: Employment 1875–1950 315 to begin to recruit on a broader basis, with the result that by the end of the 1890s there was no simple division between the old craft and the new general unions.245

ii. The Royal Commission on Labour In addition to industrial counter-moves, the new unionism provoked a significant political response and an even more decisive legal reaction. By 1891, Salisbury’s Government had appointed a Royal Commission, under the Duke of Devonshire, to inquire into labour relations and ‘to report whether legislation can with advantage be directed to the remedy of any ills that may be disclosed, and, if so, in what manner.’ A quarter of the members were unionists but of very differing political opinions. One of the most important unionist members was James Mawdsley, who had been the TUC’s chairman in 1886 and a member of its Parliamentary Committee. A passionate anti-socialist, who had resigned from the Parliamentary Committee in 1890 in protest at their growing influence, he had little in common with the four avowed socialists on the Commission who subsequently issued their own Minority Report.246 The Commission assembled a remarkable picture of labour relations in every section of British industry, from the great staples to the mean sweated trades.247 The reports depicted the wide variety of practices by which wages and other conditions were either agreed or imposed. The majority were persuaded that ‘many of the evils … cannot be remedied by legislation, but we may look with confidence to the gradual amendment by natural forces now in operation which tend to substitute a state of industrial peace for one of industrial division and conflict.’248 Accordingly, their Report swept aside any prospect of compulsory arbitration. Regarding disputes over future terms and conditions and over bargaining procedures, it would go no further than to adopt Mundella’s Bill of 1893.249 This gave the Department of Labour statutory authority to maintain the conciliation service which had already begun to form around the Department’s activities in collecting labour statistics. Even as regards disputes over existing rights, where the model of the French conseils de prud’hommes was examined as it had been in the past, it could find no sufficient case for legislation. At most, local authorities were to be empowered to create special bodies to meet particular difficulties.250 The Socialist minority gave a pungent diagnosis of the evils of industrial society and listed the legislative changes which they demanded by way of remedy: a general Eight Hours Act;251 extension and real enforcement of the Factories Acts; proper housing for the working

245 A significant example was the Amalgamated Society of Engineers, which in 1892 began to recruit semi-skilled machine-men. 246 C Wrigley, ‘Churchill and the Trade Unions’ (2001) 11 TRHS (6th series) 273, 274–75. 247 This evidence is summarised in Part II of the Fifth and Final Report of the Royal Commission on Labour, PP 1894 [C 7421] XXXV. A considerable quantity of comparative material was also amassed. 248 ibid para 363. 249 This emerged as the Conciliation Act 1896. 250 Above, n 247, paras 292–315. 251 The eight-hour day had become the most immediate socialist demand, being proposed partly as a remedy for unemployment. By 1890 the TUC was persuaded to adopt a motion in favour of the principle, though some workers (such as the Durham and Northumberland miners) feared that they would lose their already more favourable position. Numerous eight-hour Bills were introduced, but in the end none succeeded.

316 Labour Relations man and ‘honourable maintenance’ in old age; the payment of standard union rates by all government departments and local authorities; the extension of joint industrial boards at least to disputes over the interpretation of existing agreements; and most fundamentally, the substitution for private capital of national or municipal enterprise wherever possible, and ‘where this substitution is not yet practicable … the strict and detailed regulation of all industrial operations so as to secure to every worker the conditions of efficient citizenship.’ Yet even they did not go so far as to recommend statutory controls on low pay, instead arguing that the Board of Trade be given discretionary powers to arbitrate over pay and working conditions – provided both sides of the relevant industries agreed.252 The Fabian accent is unmistakeable. Labour relations were to progress with social improvement step by step, and the method of improvement was to be legislation.253 Strangely, it was over the question of means that the socialists came closest to their most vigorous opponents on the Commission. For a group of eight among the majority appended observations which suggested that, far from wholeheartedly accepting the voluntarist thesis, they hoped eventually for a shift of opinion towards the legal enforceability of collective agreements; and this they assumed would follow from allowing unions and employers’ associations to acquire separate legal personality. In that event, if ‘a body had agreed to submit future disputes … to arbitration, and subsequently refused to do so and resorted to a strike or lock-out’, it might be sued for damages.254 Notions of compulsory arbitration or conciliation were in sympathy with developments elsewhere. In both the United States, where the unions were comparatively weak, and in Australia, where they were comparatively strong, developments were in progress that would introduce compulsory legal techniques for the resolution of disputes.255 However, in Britain, the unique balance of power between the two sides of industry, together with special experience of early industrialisation, was to mean the retention of ‘collective laissez-faire’ to a unique degree.256 One assumption was taken as a constant in the domestic debates: a trade union could not be sued, and so collective agreements were incapable of enforcement by legal process.257 The point is driven home by a special arrangement reached in the footwear industry. In 1895 there was added to the annual conciliation procedure an agreement to submit irreconcilable differences to arbitration. A document, executed with the full solemnity of a deed under seal, set up a trust fund to which both sides made contributions. Out of this fund, the arbitrator might award penalties to be paid for breach of agreement.258 That an important industry should take such pains to construct an edifice of private norms appeared to some to be one harbinger of enforcement through the general law. Such was the strength of the counter-tradition that this was not to be. Indeed, as we shall see, the assumption that collective bargains generally created no legal obligations was to outlive the premise upon which it was built: that unions were incapable of suit.

252 SC Blackburn, ‘Curse or Cure? Why Was the Enactment of Britain’s 1909 Trade Board Act So Controversial?’ (2009) 47 British Journal of Industrial Relations 214, 219. 253 Sidney Webb played a large part in drafting the Minority Report: B Webb, Our Partnership (1975 edn) 40–41. 254 Observations, para 23. The signatories included several of the employer-members and the principal lawyer, Sir Frederick Pollock, Professor of Jurisprudence at Oxford. 255 New Zealand introduced compulsory arbitration in 1894, just as the Royal Commission was reporting (cf Appendix V of its Final Report). 256 Kahn-Freund (1959) (n 15) 215. 257 Kahn-Freund (1959) (n 15) 323. 258 A Fox, History of the National Union of Boot and Shoe Operatives (Blackwell, 1958) 148.

Part 2: Employment 1875–1950 317

iii. Judicial Activism Hostile employers were determined to find some legal means of breaking strikes. Unfortunately for them, in 1891 Lord Coleridge CJ limited the scope of the crucial part of the Conspiracy and Protection of Property Act 1875,259 concluding that ‘intimidates’ in the phrase ‘uses violence to or intimidates another person’ was only satisfied by a threat to use violence to a person or property. The court refused to accept the premise that ‘strikes and combinations expressly legalised by statute may yet be treated as indictable conspiracies at common law’.260 Employers turned to civil remedies. In any case, there were definite procedural advantages to be had from civil process. When a civil case came to trial, the employer might have a special jury.261 A verdict against strikers and union organisers might result in substantial damages to compensate for the employer’s lost profits during the strike.262 Collective action by employees would be crippled if their union funds could be confiscated under a court judgment. Furthermore, strikes themselves might be prevented if interlocutory injunctions were able to forbid such activity pending a court judgment. All that was needed was to show a prima facie case that legally wrongful injury would result. To disobey such an order would then be contempt of court, and this could be punished by fine or imprisonment entirely at the court’s discretion. Any move required a civil cause of action to lie and in that direction lawyers began active exploration. The lead came in Temperton v Russell,263 a case of secondary boycott. The defendants, officials of three building unions in Hull, were seeking to secure observance of agreed ‘working rules’ by a non-compliant firm. The plaintiff, a master mason, had been supplying building materials to this firm and had refused to stop doing so. To try to compel him the unions had instructed their members not to work with any of the materials that the plaintiff supplied to anyone, thus ensuring no further orders would be placed with him. The Court of Appeal upheld the special jury’s verdict of £250 in his favour, on the grounds that a tort of breach of contract had been committed by inducing other builders and their workers to break existing contracts with the plaintiff and by inducing traders or workers not to enter into new contracts with him. The notion of such a tort had emerged in Lumley v Gye,264 but it had scarcely flourished in face of the disapprobation of Willes J and several other judges.265 Now it was accepted within the canon of common law torts, whether the contracts 259 Gibson v Lawson; Curran v Treleavan [1891] 2 QB 545. In the preceding years there had been a few prosecutions of picketers (eg R v Bauld (1876) 13 Cox CC 282). Here, five judges sat in order to clarify the scope of the law. 260 Curran v Treleavan [1891] 2 QB 545, 560, disapproving the well-known views of Bramwell in Druitt (n 174) and Esher (Brett) in Bun (n 207) and relying instead on Wright J’s lucid Law of Criminal Conspiracies and Agreements (Butterworths, 1872) 50–59. The new view against criminal conspiracy at common law was criticised by such trenchant conservatives as Halsbury (see the Mogul case [1892] AC 25, 38), just as Lindley reserved his opinion on the interpretation of ‘intimidation’: J Lyons & Sons v Wilkins (No 1) [1896] 1 Ch 811, 824. 261 By this time, special jurors were chiefly selected by reference to a property qualification (occupation of a dwelling) higher than that for common jurors. A century before special juries had also been used in criminal prosecutions, notably for sedition; but in such cases they were too openly partisan to have survived. How they could behave in a civil action against a trade union is well-illustrated by Trollope v London Building Trades Federation (1896) 12 TLR 373. 262 But against such individuals, the judgment might prove valueless. 263 [1893] 1 QB 715. 264 (1853) 2 El & B1 216. 265 The doctrine had some roots in the old action for seduction of servants. But the new extension, depending on malicious inducement, was distinct in a number of respects. Those who objected to it, felt it to be an erosion of the privity doctrine that contracts created obligations only for the parties to them: eg Coleridge J, dissenting in Lumley v Gye (n 264).

318 Labour Relations in question were commercial or for labour. So, whilst workers were free not to enter into contracts, to induce someone else not to enter such a contract was wrongful where it was ‘malicious’, or where it amounted to a ‘malicious’ conspiracy to injure. This seemed to be at odds with general principles that were to be to be affirmed within months by Mayor of Bradford v Pickles.266 There, the House of Lords held that a man might exercise his freedom in law to extract subterranean water from beneath his land, even though his only purpose was to make a local authority pay him to stop: a ‘malicious’ motive (if so it could be described) could not turn a lawful act into a tort. Equally in point, in the Mogul case,267 the House affirmed that a trading ring might combine to exclude a competitor by offering price-cutting inducements to clients who refrained from dealing with the competitor. In this there was no actionable conspiracy, provided that the ring did nothing in itself unlawful, and (here came a rub) provided that their motive was to advance their own selfish interests rather than to injure the competitor. Subsequently, in Allen v Flood,268 the House of Lords concluded that malice, even on the part of a trade unionist, could not transform what was legally permissible into actionable wrong. Allen was in essence a demarcation dispute in which one particular official had procured the discharge of workers competing with his own union. Importantly, whether combined action in such circumstances would have amounted to a conspiracy was not explored. In Allen, the Liberal, Lord Herschell, carried a majority of the House against the advisory opinions of six of the eight judges specially summoned for the occasion. He put his views stridently:269 I can imagine no greater danger to the community than that a jury should be at liberty to impose the penalty of paying damages for acts which are otherwise lawful, because they choose, without any legal definition of the term, to say that they are malicious. No one would know what his rights were.

Nonetheless the Allen judgment continued to leave the law in respect of industrial disputes in a state of uncertainty. What might be thought to connect the Mayor of Bradford, Mogul and Allen cases was an apparent reluctance on the part of the courts to determine what should be accounted as unfair economic pressure.270 But this stands in contradiction to the fact that throughout the 1890s interlocutory injunctions were readily granted against trade union officials attempting to apply just such pressure. In justification North J pointed out in Lyons v Wilkins that in ‘most of the cases … a decision that there can be no remedy but damages would be equivalent to a decision that there cannot be any remedy at all.’271 In the case an interlocutory injunction was granted on the loose principle that a likely case of criminal behaviour had been made out, the supposed crime being ‘watching and besetting’ the employer’s premises.272 But the Act of 1875 had the specific proviso excluding from

266 [1895] AC 587. 267 Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25. 268 [1898] AC 1; for personalities, see RFV Heuston ‘Judicial Prosopography’ (1986) 102 LQR 90; and Brodie (n 192) 31. 269 [1898] AC 1, 118. 270 Brodie (n 192) 31–32. See also M Taggart, Private Property and the Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply (Oxford University Press, 2002). 271 [1891] 1 Ch 811, 818. 272 The interlocutory injunction also issued against secondary boycott activities, on the strength of the broader grounds in Temperton v Russell.

Part 2: Employment 1875–1950 319 illegality ‘attending at or near the … place where a person … carries on business … in order merely to communicate information.’273 Since the union had been careful to post only two pickets at a time, and had them merely hand out cards requesting non-union workers to stay away from the firm as soon as they were free in law to do so, the case was far from obvious. Yet the Court of Appeal was prepared to distinguish between communicating information simpliciter, and doing so when ‘the object and effect [is] to compel the person so picketed not to do that which he has a perfect right to do’.274 As Lindley LJ remarked, ‘You cannot make a strike effective without doing more than is lawful.’275 The case was then taken to full trial, and judgment was reserved until the House of Lords had pronounced its opinion in Allen v Flood. But the Court of Appeal hearing Lyons found nothing relevant in the Allen decision and took the opportunity to reiterate its casuistic distinction between picketing to inform and to persuade.276 In Quinn v Leathem,277 a union sought to persuade an employer to employ only union labour. During the course of the dispute a customer of the employer was persuaded not to enter into further contracts with him, but no breach of current contract was occasioned. However, the House of Lords were unanimous that this ‘wide’ form of tortious conspiracy had been committed. Lord Halsbury set the tone by his peremptory dismissal of the argument that such a result would be inconsistent with Mogul and Allen: ‘Such mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.’278 And, indeed, whatever might be thought of the differentiation of joint from individual action, it remained an utter puzzlement to many that ‘malicious’ secondary pressure when practised by a union became for a business cartel the pursuit of legitimate self-interest. Never was the law more nakedly the partisan of masters against men. Questions remained, though, as to what the courts might do against a trade union per se. First, could all the members of a trade union be made subject to a judgment by suing one or two of them in a representative action? Secondly, could a trade union itself, despite its lack of corporate status, be made party to an action, at least if it was registered under the Act of 1871? Finally, if it could, it must, like a corporation, be treated as acting through its agents; in what circumstances, then, did it authorise action on its behalf? In respect of the first question, since the Judicature Acts, equity’s device of a representative action had been available in proceedings concerning common law rights and there were a number of possible spheres for its application by or against unincorporated groups. But the courts proved reluctant to sanction its employment in new ways, fearing to give judgment against persons who had had no chance to show that their interest differed from that of their representative. Even against the members of trade unions, the Court of Appeal in Temperton v Russell ruled

273 Conspiracy and Protection of Property Act 1875, s 7(4). 274 [1896] 1 Ch 811, 826 (Lindley LJ). 275 ibid 820; echoing Bramwell B in R v Bailey (1867) 16 LT (NS) 859. 276 [1899] 1 Ch 255. On this second occasion the Court of Appeal gave more thought to the principle that injunctions are granted to prevent wrongful infraction of private rights, not mere criminal offences. Invasion of private right was held either to follow by implication from the prohibitions of the 1875 Act, or else because the picketing constituted an actionable nuisance – in the circumstances, a decidedly strained view. 277 [1901] AC 495. 278 ibid 506.

320 Labour Relations that no representative action could be constituted.279 This might have ended the question, but for a dispute on the Taff Vale Railway. The dispute had begun as a long-standing wage claim and had disintegrated into a strike over the alleged victimisation of a union spokesman. The railway, led by its pugnacious general manager, Ammon Beasley, brought in ‘free labour’, and the strikers responded with ‘persuasion’ a good deal less circumspect than that in Lyons v Wilkins. Farwell J granted an interim order against two union officials280 enjoining ‘watching and besetting’. After the strike was over, he went on to rule that his order might extend to the union itself, since it had been registered under the 1871 Act. That Act he held to invest trade unions with the ‘essential qualities of a corporation’ and accordingly to render them suable in tort. Parliament could not be taken to have legalised ‘irresponsible bodies with such wide capacities for evil’.281 In the Court of Appeal, however, the view was very much to the contrary. In their opinion, it was clear that in withholding corporate status in 1871, Parliament had kept back any ability to sue or be sued.282 The historical evidence almost entirely pointed to this view of Parliament’s intention but the rule that Parliamentary debates are not an admissible aid to the interpretation of statutes kept this out of direct argument.283 In the Lords, however, Macnaghten and Lindley strove successfully to assert both that representative actions could be used to sue trade unions, registered or unregistered, so as to render union funds liable for damages and costs,284 and that, as per Farwell J, the unions did indeed possess the qualities of a corporation.285 At times the reasoning seemed rather thin,286 and Brodie remarks that ‘the surprise caused by Taff Vale was immense’.287 Lurking behind the argument, though enshadowed by the 1871 Act and its registration procedure, was the jurisprudential notion that large and powerful collectivities should be treated as legal persons by the courts: in terms of contemporary German theory, all corporations were ‘real’ persons and not fictitious projections of the law.288 279 [1893] 1 QB 435. 280 These were James Holmes, West of England organiser, who started the strike unofficially, and Richard Bell, the union’s secretary and soon to be a Labour Representation Committee MP, who was impelled to give financial support. 281 Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426, 430. 282 [1901] 1 QB 170. The 1871 Act (s 9) had specifically given to trustees the power to bring and defend actions touching the property of a registered union. ‘A most remarkable section,’ said AL Smith MR at 176, ‘if … the purview of the Act is that a trade union can be sued in its registered name’. 283 Haldane, leading for the union, did succeed in referring to the Minority Report of 1869, as the basis of the 1871 Act; and this was taken up by Lord Macnaghten to his own ends: [1901] AC 426, 435, 438. 284 [1901] AC 426, 438–39, 444. Lord Macnaghten chose to explain away Temperton as a case where the selection of representatives was inappropriate. 285 [1901] AC 426. The question had been aired on several occasions in the 1890s, the weight of judicial opinion apparently being against allowing the union to be sued: see eg Pink v Federation of Shipping Unions (1892) 67 LT 258; Trollope v London Building Trades Federation (1895) 72 LT 342. 286 The substance of Lord Halsbury’s speech was confined to a single sentence (at 436): ‘If the Legislature has created a thing which can own property, which can employ servants and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a Court of Law for injuries purposely done by its authority and procurement.’ 287 Brodie (n 192) 88. 288 For Maitland’s impact on the contemporary debate see WM Geldart, ‘Legal Personality’ (1910) 27 LQR 90. Pollock, on the other hand, espoused a sceptical positivism on the matter: corporations, if not truly fictitious, at least acquired their legal capacities solely from Parliamentary enactment or Crown grant: ‘Theory of Corporations in the Common Law’ (1911) 27 LQR 219.

Part 2: Employment 1875–1950 321 The proceedings which reached the House of Lords in 1901 were interlocutory; and so long as the resulting injunction was obeyed it mattered little whether the order bound the union or only its officials, since they would be its active agents in any event. But Beasley insisted on pressing the case to trial for an award of damages,289 and it was in January 1903, when the railway agreed to settle for a sum of £23,000, that both sides of industry were finally shown the immense significance of the House of Lords’ decision. Any strike which involved either a withdrawal of labour in breach of contract, or ‘watching and besetting’ in the sense of picketing to persuade, would be tortious; and if ordered by union officials, the resultant damage to the employer might be recovered from union funds. In the labour conditions of the time, the confines of legitimate action had become narrow indeed. Other employers took to litigating. In 1902 the weavers of Blackburn were held liable for wrongful picketing and libel.290 Crippling damages were awarded against them of some £11,000.291 In 1905, the South Wales Miners’ Federation were obliged to pay damages in the region of £60,000 after the House of Lords upheld a finding of inducing breach of contract; the Federation had ordered a series of one-day stoppages in the hope of protecting sliding-scale wages. The stoppages were directed not at the employers but at the middlemen dealers in coal; but that was not treated as amounting to any justification.292 Only in the months after the Liberal victory of 1906, when new legislation on industrial action was under scrutiny, was there a noticeable onset of judicial caution. In February, the Operative Printers’ Assistants’ Society escaped liability for picketing, when the Court of Appeal insisted that the activities must be shown to constitute a civil wrong such as a common law nuisance and that the 1875 Act had done nothing to extend the scope of what was ‘wrongful’293 (an attitude very different from that in Lyons v Wilkins).294 In May, the House of Lords held that the Yorkshire Miners’ Association was not liable for a strike called by two of its branches, because they had acted beyond their power under the rules;295 this was so even though the union had supported the strikers for several months with benefits.296 By then, as we shall see, the political balance was nicely poised.

289 The special jury found the defendants to have molested by unlawful means and to have induced breaches of contract. The verdict was reached in 10 minutes without leaving court: The Times, 20 December 1902. 290 J Saville, ‘The Trade Disputes Act of 1906’ (1996) 1 HSIR 11, 16; Brodie (n 192) 100–01. 291 Clegg et al (n 230) 323–24. 292 South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 (hearings had been spread over nearly three years). Other cases that added to the legal pressure on the unions were Giblan v National Amalgamated Labourers’ Union [1903] 2 KB 600 (civil conspiracy arising out of an attempt to secure payment of debt by member to union); Read v Friendly Society of Operative Stonemasons [1902] 2 KB 732 (union pressure for dismissal of an apprentice; held to make it liable for inducing breach of contract). 293 Ward Lock & Co v Operative Printers’ Assistants’ Society (1906) 22 TLR 327. At the trial the jury had found the small level of picketing to be injurious and to have involved attempts to persuade non-union labour to break contracts of employment: the Court of Appeal could see no sufficient evidence on either point. 294 ibid 331. 295 Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners’ Association [1906] AC 384 (the Court of Appeal had already taken the same view before the election). 296 But separate proceedings determined that the payments were unauthorized: Yorkshire Miners’ Association v Howden [1905] AC 256. The set of circumstances was highly complicated.

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iv. Reactions to Taff Vale The intervention of the judges in Taff Vale and the surrounding cases gave them a unique chance to reweight the scales of social conflict. In industrial terms, the consequences of the decision are not easily calculated.297 In the years 1902–05, the number of stoppages and workers involved in them was much reduced.298 Doubtless the new liabilities of unions and officials had a dampening effect. But equally the trend was beginning to show before the Taff Vale judgment made a real impact (ie with the award of damages in 1903)299 and this reflected the beginnings of the fall in real wages which in the pre-war period would eventually reach 10 per cent.300 Politically, however, the consequences were more evident: the judicial attack on the ‘right to strike’ became part of the growing disgruntlement with Conservative rule, giving the Liberals a radical cause and sustaining the Labour Representation Committee in its struggle to establish an independent working-class voice. Both would draw distinct benefits from it in the election of 1905, with its Liberal landslide and the return of 29 LRC candidates. But both before and after that result it was far from clear what would be done in re-adjustment. Among unionists and sympathisers there were those who thought legal restraints were necessary for a disciplined and responsible movement: they included the Secretary of the Railway Servants Union itself, Richard Bell,301 and the Webbs, in a new edition of their book, Industrial Democracy.302 In 1905, the Parliamentary Committee of the TUC consulted the Liberals, who were much under the guidance of the lawyers, Asquith and Haldane. Together they sponsored a Bill which, in addition to moderate ameliorations of the crime of picketing and the tort of conspiracy, would have exempted unions from damages unless it could be proved that the members in question had ‘acted with the directly expressed sanction and authority of the rules’. The Government rejected this conciliatory approach and responded with the appointment of another Royal Commission. Opinion in the TUC rapidly hardened, no unionist was included on the Commission and it was boycotted by the movement.303 Congress now decisively favoured complete immunity of union funds from damage awards and turned for help to Sir Charles Dilke. During the 1905 election, the Liberal party under Campbell-Bannerman pledged support on the issue and the Bill that had been proposed by the TUC’s Parliamentary Committee was introduced before the new Parliament was two months old. But in the meantime, Campbell-Bannerman had published the Royal Commission’s Report showing a bare

297 Clegg et al (n 230) ch 9; and see EH Phelps Brown, The Growth of British Industrial Relations: A Study from the Standpoint of 1906–1914 (Macmillan & Co, 1959) ch 2; Brodie (n 203) ch 3. In comparison with 1899–1902, the number of days lost through stoppages was reduced by nearly two-thirds. 298 The trend is perceptible from 1899 onwards. 299 With costs the total bill was £42,000: Webb and Webb (n 89) 601–02. 300 A definite rise once more in the period 1906–1909 can be related both to the new legal immunities provided in 1906 and to increasing evidence that profits were rising while wages were falling. 301 Bell saw the judgments as necessary to curb the enthusiasms of ‘the younger bloods’. 302 2nd edn (1902) xxxiii–iv (with very limited draft Bill); Clegg et al (n 230) 317–20. 303 The Commission consisted of two conventional lawyers (Viscount Dunedin (Chairman) and Arthur Cohen, KC), an industrial arch-foe (Sir William Lewis), a fair-minded civil servant (Sir Godfrey Lushington), and Sidney Webb.

Part 2: Employment 1875–1950 323 majority in favour of moderate compromise.304 Since Haldane and the Government’s Law Officers were bitterly opposed to the ‘legal monstrosity’ of complete immunity, the Government introduced its own Bill on Royal Commission lines.305 But pressure from the unions’ supporters forced the introduction of a crucial amendment conceding the Parliamentary Committee’s demand to the extent of excluding a union’s liability (in all circumstances, not merely in trade disputes) ‘for the recovery of damages in respect of any tortious act alleged to have been committed by or on behalf of the trade union’. This clause continued to be the subject of hard bargaining. After various additional amendments a final settlement was reached, at a private meeting with the Attorney-General. The limiting words ‘for the recovery of damages’ were removed, so that the clause appeared also to give exemption from the grant of injunctions.306 In addition, in its final version the first three sections of the Bill conferred immunities from suit upon individuals (such as union officers and members) where their actions were ‘in contemplation or furtherance of a trade dispute’. The first gave immunity from that form of the tort of conspiracy which covered agreements to do lawful acts for the predominant motive of injuring others; this was intended to undo the main basis of Quinn v Leathem. The second gave immunity to picketing which involved ‘peacefully persuading any person to work or abstain from working’; this was to reverse Lyons v Wilkins. The third rendered non-tortious the acts of inducing breach of contract of employment,307 and of interfering with the trade, business or employment of any other or with his right freely to dispose of his capital or labour; this annulled Taff Vale and certain broader pronouncements in Quinn v Leathem. And while each immunity was confined to the circumstances of a trade dispute, this was defined broadly enough to cover ‘any dispute between employers and workmen, or workmen and workmen, which is connected with the employment or non-employment or the terms of employment, or the conditions of labour, of any person.’308 In these terms, in December 1906, the Bill became law, excluding the possibility of legal redress, save in peripheral areas, against union officers and members personally. The circumstances still courting legal liability included inducing breaches of contracts that were not for employment (for instance, in secondary boycotts), and indulging in or threatening violent picketing. Equally, to overstep that ill-defined boundary between trade disputes and political action would be to move into territory governed by the general law of torts, unfettered by the special provisions of the Act. The growing participation of government in the economy would serve to render an uncertain distinction even less determinate.

304 Report on the Royal Commission on Trade Disputes and Trade Combinations, PP 1906 [Cd 2825] LVI. Lewis and Lushington, in differing degrees, wanted fewer concessions to the unions. Webb was one of the majority but added a rider favouring compulsory arbitration on the Australasian model. See WM Geldart, ‘The Report of the Royal Commission on Trade Disputes’ (1906) 16 Economic Journal 189. 305 For the Parliamentary career of the Bill and its precursor see Saville (n 290). 306 This became s 4 of the Act. It contained two additional points: the device of the representative action, the use of which had been encouraged in Taff Vale, was excluded; but it was declared that the section did not affect the liability of union trustees to be sued in respect of misuse of union funds. For detailed discussion of the clauses see Brodie (n 192) 101–06. 307 Another hotly contested provision, it was inserted at Dilke’s behest only at the Committee stage. 308 Emphasis added.

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B. State Underpinning: Trade Boards After 1906 the Liberals, casting around for a social programme that would retain them a sizeable working-class allegiance in the face of the challenge from the emergent Labour Party, listened to their radical wing. In the end they offered the basic guarantees of state-run benefits for sickness and unemployment, for which a person qualified through his own and his employer’s contributions at work. This was traditional ground for the benefit activities of unions, and, as will be seen, the state sickness scheme had to be cast in forms which gave unions an administrative role and the opportunity to provide somewhat enhanced payments to their members.309 Beyond this, and despite considerable misgivings from the labour movement, the Government in 1909 created a national network of labour exchanges, aimed at facilitating the movement of labour into new jobs and so ameliorating where possible the effects of unemployment.310 Closest of all to the essential trade union function, however, was the creation, in the same year, of trade boards. The Trade Boards Act 1909 created four boards covering some 250,000 workers in tailoring, chain-making, cardboard-box-making and the lace-making and finishing trades.311 The boards were intended to tackle the problem of sweated labour which had never been wholly forgotten, thanks to the persistence of radicals such as Sir Charles Dilke and then later the support of a press campaign run by The Daily Mail. Dilke was particularly influenced by the state of Victoria in Australia and its 1896 Factory Act which provided power for the governor to appoint boards composed of employer and employee delegates. The boards commended themselves to Dilke since he was aware that the stronger trade unions were opposed to the alternative approach of compulsory wage arbitration which might undermine their own positions.312 A board scheme was acceptable to the unions because it was intended to set a minimum wage but not a maximum and thus did not interfere with the right to collectively bargain for more.313 Employers, of course, argued that a minimum wage would but result in higher unemployment as foreign imports displaced home-produced goods. Even amongst progressive reformers there was a fear that they might be right. Margaret and Ramsay MacDonald campaigned instead through the Women’s Industrial Council for a system of licensing of homeworkers. They feared that the boards would simply induce manufacturers either to mechanise, with disastrous results for employment, or else relocate work into the home where it would be even more difficult to regulate.314 Nonetheless, the board approach with its initially very limited scope was adopted. Whilst the sweated trades were under consideration, the period up until the onset of war also saw a series of attempts to limit the hours of employment in a number of industries. Such proposals required special justification, given that they interfered with the supposed right of adults to freely contract for their labour. In 1908 the miners won their campaign for

309 See pp 429–30. 310 See pp 425–26. 311 Blackburn (n 252) 215. 312 Blackburn (n 252) 221–22. 313 Even in respect of the minimum wage set there were exceptions allowed in favour of the employer who could apply for an exemption certificate which allowed them to pay less than the minimum to the elderly and the inform. See Blackburn (n 252) 228. 314 Blackburn (n 252) 223.

Part 2: Employment 1875–1950 325 an eight-hour day.315 Their claim was conceded, however, on the grounds of the peculiarly harsh nature of their work: ‘there is no trade in the whole country which for a moment stands in a similar position or can make a claim in equal degree for a fuller measure of leisure.’316 Other industries did not fare so well, a series of Bills to regulate hours in the bakery industries, in factories and on the railways, failed in the pre-war period, although the Shops Act 1912 did reduce shop assistants to five and a half days a week by providing for one weekday afternoon off. In truth, though, it was the particular strength of the miners that led to successes where others sometimes failed. During the passage of the 1908 Act the Home Secretary conceded, ‘Well, if this Bill is not to be passed, and if the miners are to be left to their own devices and to the strength of their own organisation, it means a coal strike and nothing else.’317 The Act did not in fact prevent a wave of strikes in the coalfields, however, and an attack upon the pithead at Tonypandy in October 1910. In March 1912 a national miner’s strike began, encouraged by the successes of mass action amongst the seamen, railway workers, Manchester carters and Liverpool dockers the previous summer.318 To settle the strike Asquith was forced to concede legislation to establish wage boards that would fix rates for the different mining districts.319 The Act did nothing to prevent collective bargaining to establish higher pay rates, but marked a step towards protecting basic levels of pay as part of the new, cautious collectivism.

C. Internal Union Affairs The Trade Union Act 1871 had as its first object the intention of preventing unions being declared illegal merely because they pursued policies in restraint of trade. Section 3 declared this, and s 4 furthermore declared that the courts were not to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of five certain types of agreement.320 In the main these concerned the internal relations of members, including mutual restrictive agreements concerning trade and labour, union dues and fines, and the application of disbursements of funds for members’ benefits, the purchasing of outsiders’ cooperation and the discharge of court fines. A particular consequence of the 1871 Act was that the immunities from proceedings granted in s 4 applied only to those unions and societies that would have been considered unlawful save for the operation of s 3. Forms of organisation that would not have been illegal prior to 1871 had no need of s 3 and did not benefit from s 4. So the contracts of, for example, a society of workers organised purely for mutual insurance against sickness or old age, or a trades council which existed for exchanging information and discussing common interests, were enforceable under the general law. This led to the 315 Coal Mines Regulation Act 1908. 316 PD, HC, 6 July 1908, vol 191, col 1277. 317 ibid col 1279; cited in Brodie (n 192) 73. 318 The government’s Industrial Council, founded in 1911 to enquire into disputes referred to it, demonstrated its ineffectiveness by producing no proposals: Fox (n 32) 260–62. 319 Coal Mines (Minimum Wage) Act 1912; which would after a decade be replaced by collective negotiation: see Brodie (n 192) 69–70. 320 See p 306 n 203 and text.

326 Labour Relations perhaps counterintuitive position that whilst a member seeking payment of a benefit might argue before a court that the union in question had always been lawful, the union might seek to defend itself by arguing that it was illegal by common law standards. Until 1889 there was little discussion of the criteria for determining whether associations had always been lawful. But in that year the Bradford Power-Loom Overlookers’ Friendly Society was held lawful because it was first and foremost a benefit society.321 Accordingly a member could sue for an accident benefit provided in its rules. The society, it is true, did have ‘trade’ rules, but these the court felt able to dismiss as ‘incidental’. Subsequently the courts were to make the similar but distinct point that the trade rules were ‘severable’ if trade and benefit funds were kept separate.322 The case of the Bristol Trade and Provident Society was an unusual one insofar as the society drew its members from a variety of trades. It did not engage in collective bargaining nor organise strikes but it might use its trade fund to support strikes once they were underway. The Court of Appeal treated the society as legal, and allowed a member to recover a fine improperly deducted from sickness benefit since:323 Strikes per se are combinations neither for accomplishing an unlawful end nor for accomplishing a lawful end by unlawful means, and I therefore come unhesitatingly to the conclusion that the fact that the arrangements for giving strike pay do in a sense facilitate strikes is quite immaterial for the purposes of our decision.324

Whilst on one level one might expect unions to welcome declarations of their legality upon another it can be seen that this was not necessarily advantageous since this gave the courts power to adjudicate over their internal affairs. Dissatisfied members had of course, every reason to hope that courts would intervene on their behalf. Such members included those who sued to stop wrongful expenditure in favour of other people and those who claimed that they had been wrongly expelled and so derived of their rights to benefits. There was then a question of whether upholding such claims would entail direct enforcement of agreements where the possibility of the court doing so seemed to be ousted by s 4 of the 1871 Act. The question then was how broadly were the effects of s 4 to be construed? In Rigby v Connol, Jessel MR refused to allow an action by an expelled member of the Journeyman Hatters’ Fair Trade Union: ‘if I decide in favour of the plaintiff, I directly enforce [the agreement contained in the rules,] because I declare him entitled to participate in the property of the union.’325 Others, though, took the view that s 4 was narrower in its effects and soon decisions on improper expenditure were pointing in a different direction. In Wolfe v Matthews, Fry LJ enjoined union officers from carrying out a merger which did 321 s 4 was treated as a bar in Scotland: McKernan v United Operative Masons’ Association (1874) 1 R 453; and again in England: Old v Robson (1890) 64 LT 282; cf R v Registrar of Friendly Societies (1872) LR 7 QB 741. The seeds of difference were already implanted in the case law, however; against the conservative view that ‘trade’ objectives created unlawful restraints, could be set the more favourable view of withdrawals of labour taken by Hannen and Hayes JJ in Farrer v Close (1869) LR 4 QB 602. 322 Swaine v Wilson (1889) 24 QBD 252. 323 Gozney v Bristol Trade & Provident Society [1909] 1 KB 901, 921–23 (Fletcher Moulton LJ). The notion of ‘severance’ was also being used as a device for distinguishing degrees of heinousness in other aspects of restraint of trade: ibid 270. 324 cf O Kahn-Freund, ‘Some Reflections on Company Law Reform’ (1944) 7 MLR 192, 200. 325 (1880) 14 Ch D 482, 490–91; see also Duke v Littleboy (1880) 43 LT 216.

Part 2: Employment 1875–1950 327 not satisfy the requirements of the Trade Union Acts. ‘All that is sought here is to prevent the payment of monies to somebody else. Either that is no enforcement of an agreement at all, or it is an indirect enforcement.’326 When in the Yorkshire Miners’ strike of 1902/03 a dissentient member successfully sued to stop payments to strikers as being impermissible disbursements, the House of Lords accepted that this was the proper interpretation of s 4 and the correctness of Rigby v Connol fell open to question.327 At this point the first Osborne case was carried to the House of Lords.328 The case concerned the Amalgamated Society of Railway Servants. It concerned expenditure and, following on from the Yorkshire Miners’ case, an action could be brought regardless of whether the union was illegal at common law. In the wake of its Taff Vale defeat, the railway union had revised its rules in order to permit the use of union funds for the support of Parliamentary candidates and members, provided that they stood for the Labour Party and accepted its whip.329 Three years earlier, in Steele,330 an injunction had been sought preventing the South Wales Miners’ Federation from misapplying union funds by returning representatives to Parliament. It had been argued that the rules of the union were ultra vires in that the purpose intended did not fall within the statutory definition of a trade union. In the Divisional Court, however, Darling J had taken the view that the statutory definition of a union was non-exhaustive; he said:331 It seems to me that one of the ways of regulating relations between workmen and masters, or workmen and workmen, or masters and masters, is to get laws passed by Parliament for their regulation, and that one of the first steps towards getting those laws passed would be to send a representative to Parliament to promote a Bill for that purpose.

The issue was tested once more when a substantial minority of the Amalgamated Society of Railway Servants objected to the association of their union with the Labour Party, amongst them WV Osborne – head porter, secretary of the Walthamstow branch and a Liberal of the old trade union school.332 His intention was to attack not political expenditure per se but its application in the socialist cause.333 The argument was developed on two lines, the separate issues of constitutionality and vires. The constitutional question, for all its political immediacy, only attacked those rules of the society which required acceptance of the Labour Party whip and so (it was alleged) fettered the member of Parliament’s freedom of individual conscience. For this reason, the rule was said to be contrary to general public policy. The question of vires, applying the principle that a body existing under statutory 326 (1882) 21 Ch D 194. 327 Yorkshire Miners’ Association v Howden [1905] AC 256. 328 [1910] AC 87. 329 Sir Robert Reid, in a joint opinion with Sir Edward Clarke, had advised the union that a rule properly passed at the AGM might provide for a compulsory political levy. Accordingly, as Lord Loreburn, he was precluded from sitting on the Osborne appeal. 330 Steele v South Wales Miners’ Federation [1907] 1 KB 361. 331 [1907] 1 KB 361, 367. 332 WV Osborne, My Case. The Causes and Effects of the Osborne Judgment (E Nash, 1910). For the cases in general, see Webb and Webb (n 89) 615–31; PS Bagwell, The Railwaymen (Allen & Unwin, 1963) ch 9; Brodie (n 192) 109–15. 333 The vision of a socialist party stuffing its war coffers with the proceeds of union levies was vigorously denounced by the Daily Mail and Daily Express. Whether Osborne benefited by financial as well as moral support from non-unionists in his litigious forays is not known, though often alleged by his opponents: see Bagwell (n 332) 253–54.

328 Labour Relations authority might exercise only those powers allowed it by its enabling Act, had a technical, non-political colour. But if it succeeded, its consequences would reach much farther, for it might prevent all political support and, indeed, other activities in which unions then engaged. Both the Court of Appeal and the House of Lords found against the union. In the lower court, two judges very much of a mind to foster legal intervention in union affairs, waxed eloquent on the constitutional audacities of the rules in question.334 In the House of Lords, Lord James, rather apologetically, and Lord Shaw, in grander terms, took the same line.335 But the other three members, staunch Conservatives all,336 deliberately disavowed any intention of taking up the constitutional question. Instead they insisted that trade unions were the subject of the ultra vires rule, well-known in its application to municipal and commercial corporations; and that the Trade Unions Acts 1871 and 1876, in defining the expression ‘trade union’ and in delineating the agreements covered by s 4 of the former Act, laid down the list of permissible powers.337 Nothing in these Acts gave a power of expenditure to support any candidate or member of Parliament. Both the justifications for the decision were coloured by political partisanship. Of the constitutional argument, Heuston has remarked:338 It is difficult for anyone not brought up in England to understand how three men, two of whom had been in their time members of Parliament, and thus had practical experience of the working of the party machine, should have committed themselves to statements so out of keeping with the nature of English constitution in the twentieth century.

Nothing in British Parliamentary tradition obliged members to foreswear financial support from outside organisations and many directors of railway companies and major industries had anchored themselves to the Conservative and Liberal benches. But the vires point appears equally strained. The analogy was to corporate status which the Trade Union Acts had deliberately refrained from conferring. The ultra vires doctrine had been applied to registered companies in general as a necessary implication from the terms of the Companies Act 1862; but that Act permitted those promoting the company to select for themselves the objects desired.339 In essence the same applied to companies incorporated by special act.340 The analogy was perhaps strongest to municipal corporations since their objects were defined by the terms of a general statute.341 But even here, Parliament’s 334 Osborne v Amalgamated Society of Railway Servants [1909] 1 Ch 163, 186–87 and 196–98 (Fletcher Moulton and Farwell LJJ). 335 Amalgamated Society of Railway Servants v Osborne [1910] AC 87, 99 and 107–15. 336 ibid 91–97 and 101–05 (Lords Halsbury, Macnaghten and Atkinson). 337 ‘Trade Union’ was defined in the two Acts principally in order to determine what bodies should qualify for the privilege of registration conferred by them in 1871. The definition was limited to bodies illegal at common law. The unfortunate discrimination that this invoked against ‘legal’ unions was remedied in 1876 (s 16). Thereafter the operative part of the definition was contained in the following brief phrases: ‘Any combination, whether temporary or permanent, for regulating the relations between workmen and workmen or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business …’ While Lords Macnaghten and Atkinson laid most stress on this definition, Lord Halsbury’s emphasis is on the agreements listed in s 4 of the 1871 Act. 338 RFV Heuston, Lives of the Lord Chancellors (Clarendon Press, 1987) 163–64; RB Stevens, Law and Politics: The House of Lords as a Judicial Body (Weidenfeld and Nicolson, 1978) 247–48. 339 Stevens (n 338) 260–61. 340 ibid. 341 See pp 15, n 94, and 29, n 196. But consider also the status of incorporated building societies, as to which see p 152.

Part 2: Employment 1875–1950 329 intention to delimit the range of powers was reasonably clear, whereas it requires the most oddly focused vision to see any similar intention in the Trade Union Acts. This legislative amputation was particularly infuriating to the Webbs.342 Their analysis of union development towards a central and responsible role in the modern state showed how closely the ‘method of legal enactment’ had been allied to the ‘method of mutual insurance’ and the ‘method of collective bargaining’.343 The earlier decisions on ‘legality’ under s 4 had seen virtue in a union pursuing both mutual insurance and collective bargaining by keeping benefit and strike funds apart. Now the law appeared to be insisting that the first technique – the seeking of new legislation – was simply not open to the unions at all, since they were debarred from spending anything in its pursuit. There was, moreover, an immediate sequel to be taken into account. Osborne was expelled from the union under a rule permitting expulsion of a member ‘found guilty of attempting to injure the Society or to break it up otherwise than as allowed by these rules, and the same being proved to the satisfaction of the Committee.’ Osborne proceeded to a second action to negate his expulsion and so brought forward once more the legality and enforceability issues inherent in s 4. The Court of Appeal, in finding in Osborne’s favour, used both these as alternative justifications.344 It was held, building on one rationale of the Bristol Trade Society case,345 that since the rules only gave the ASRS power to sanction a strike rather than to order one, the union was not unlawful at common law; on this view, s 4 had no limiting effect. If, on the other hand, the union was unlawful at common law, an action over expulsion was not directly enforcing a s 4 agreement and so could be brought. Rigby v Connol346 was effectively overruled. An expulsion for daring to litigate was likely to provoke a particularly firm response from the courts. The first reason given for the decision had its ironies. The actual distinction between sanctioning and ordering a strike was a confection of the court room, but the desire to extend union legality that lay behind it was realistic enough. For it stemmed from a true appreciation of the Webbian perspective that unions, by building benefit funds and using the strike weapon as a last resort, could have the practical power to pursue collective bargaining and secure legislative support for it. In this the court ran quite counter to the philosophy of the majority of the first Osborne case. Indeed, at a technical level their view might also be seen as undercutting those judgments. For if a union is legal at common law how can it be said that it ‘places itself under [an Act of Parliament] and by so doing obtains some statutory immunity or privilege’?347 It is no surprise, therefore, to find that a year later, the House of Lords quietly disapproved of the wide view of the legality of unions.348 For the future, the scope of s 4 was to be judged by the enforceability test. Direct enforcement was to be understood in that limited sense which left the courts free to examine allegations of improper expenditure and wrongful expulsion. In the months after the Lords’ judgment in the first Osborne case, a long succession of actions were organised to 342 Their denunciations are summarised in Webb and Webb (n 89) 615–16; cf Bagwell (n 332) 259; Clegg et al (n 231) 414–15; H Pelling, ‘The Origins of the Osborne Judgment’ (1982) 25 HJ 889. 343 Industrial Democracy (1898), Part II. 344 Osborne v Amalgamated Society of Railway Servants (No 2) [1911] 1 Ch 540. 345 Above n 323. 346 Above n 325. 347 Thus had Lord Macnaghten phrased the precondition for application of the ultra vires rule: [1910] AC 87, 94. 348 Russell v Amalgamated Society of Carpenters and Joiners [1912] AC 421.

330 Labour Relations stop Labour party support by other unions.349 The common form of injunction included a prohibition against distributing moneys for any purpose other than the purposes of s 16 of the Act of 1876 and in particular from making any payments for the purpose of securing or maintaining Parliamentary or municipal representation. From the generality of this formula it seemed to follow that expenditure on, for instance, education, journalism, law reform and assurance benefits for widows and children would be impermissible.350 The joint TUC-LRC Board pressed for legislation completely to restore the pre-Osborne position, but the Government, already engrossed in its constitutional match with the House of Lords, was in no mood to revive the strength of the stricken challenger on the sidelines. In 1911, it sought to dispose of the matter by conceding salaries of £400 per annum to members of Parliament.351 But it was plain that much wider issues were involved. Eventually, the Trade Union Amendment Act 1913 gave the unions the practical freedom to make payments without regard to any statutory limitation of objects.352 The legitimacy of expenditure would in future be a matter for the rule book and resolutions passed in accordance with its procedure. Levies to support political candidates were, however, subject to particular safeguards. Such levies had to be first approved by a vote of the majority of members. The Registrar of Friendly Societies had then to approve rules which would see the establishment of a separate political fund from which payments for electoral expenses and members’ salaries might be made. Any member might give notice of his objection and be exempt from making a contribution to this fund. Contributions to the fund might not be made a condition of entry into any union and no existing member might be in any way disadvantaged in consequence of his or her refusal to contribute.353 However, there were still a number of ways in which one could support the causes of the Labour movement outside of the political fund – for instance, by running a newspaper.354

D. Labour in the World War Era WWI saw major intervention by the state to put the economy on a war footing. The effect on industrial relations was considerable, and not only for the period of hostilities.355 349 For references, see MA Hickling, Citrine’s Trade Union Law, 3rd edn (Stevens, 1967) 18–19. According to Webb and Webb (n 89) 631: ‘discontented or venal Trade Unionists were sought out by solicitors and others acting for the employers, and induced to lend their names to proceedings for injunctions’ and in some of the cases the union tried to make outside fermentation an issue (without success – see Thurlowary v Amalgamated Union of Shop Assistants, Warehousemen and Clerks, The Times, 9 December 1910; Parr v Lancashire and Cheshire Miners’ Federation, The Times, 29 and 30 January 1913). But how far outside support extended beyond the moral to the financial remains conjectural. Clegg et al (n 231) 418 note that after the introduction of the new rules for political levies in 1913, very substantial minorities elected to ‘contract out’; in the case of the miners, 43%. 350 Injunctions covered subscribing to educational classes and taking shares in a ‘Labour’ newspaper: Webb and Webb (n 89) 631. 351 Sir B Cox, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 17th edn (Butterworths, 1964) 18. 352 s l(l) (redefining ‘trade union’). 353 Brodie (n 192) 113–14. 354 The Registrar, who was given jurisdiction over breaches of the political fund rules, had eventually to decide whether a union’s contributions to TUC funds, which were then used partly to maintain The Daily Herald, were improper. In a witty judgment, he held not: see his report for 1925, and cf Forster v National Amalgamated Union of Shop Assistants, Warehousemen and Clerks [1927] 1 Ch 539. 355 For the way in which the government managed industrial relations and developed a war economy, see B Millman, Managing Domestic Dissent in First World War Britain (Frank Cass, 2000).

Part 2: Employment 1875–1950 331 The proportion of the civilian workforce in trade unions rose from 13.4 per cent in 1910 to 34.9 per cent in 1920.356 One domestic consequence of war conditions was an average rise in the cost of living of 27 per cent, per annum. The Government was pushed into controlling rents at the lower end of the market, and then price controls and some food rationing, but wages had still not returned to their 1913 real-term level by the war’s end. Beyond this, labour shortages meant the introduction of women and young workers into skilled and semi-skilled jobs; inevitably there were anxieties over the long-term effects of this dilution, particularly once peace returned.357 Prior to the war, the belief had grown within the labour movement that industries should be organised into syndicates owned and managed by the workers, each syndicate cooperating with those in other plants and industries. During the war these ideas expressed themselves in the development of a shop-steward movement, with union activity centred on shop-floor organisation in each plant. What was new was the degree to which these union members were free from the control of national or regional officers. Shopfloor unionism sometimes expressed itself in strong anti-military ideals and also often displayed a particular anxiety to preserve old demarcations of skills. Accompanying this rise in industrial activism came the growth in Labour Party support. The party itself found great difficulty in coming to terms with the war. Prior to the war many of its leaders and members had been committed to pacifism, but the majority now joined the war effort and only a minority on the left denounced it. The Party survived these strains. It began to feel that it might draw the democratic allegiance of the people so as to use the Parliamentary system to govern; equally the new measure of government intervention and regulation might be carried over to a peacetime condition of state economic management. The trade union and Labour Party leaders who were prepared to collaborate in the war effort made very substantial concessions towards controlling the course of labour disputes. Many of these limitations were embodied in the Treasury Agreements of March 1915, which set aside established union rights and customs for the duration of the war.358 In addition, Asquith’s coalition Government pushed through the Munitions of War Act 1915.359 This imposed on munitions workers (and workers in other war industries to which it was extended by proclamation) the compulsory arbitration of labour disputes either by a Board of Trade appointee, or a court of arbitration (consisting of equal numbers of representatives of workers and employers with a Chair appointed by the Board of Trade) or a Committee on Production. This last body, consisting initially of the Chief Industrial Commissioner and representatives of the War Office and Admiralty became much the most important. Throughout the war it constituted a national arbitration tribunal which increasingly made its awards upon a national rather than a regional or local basis.360 It became a criminal offence to strike or take part in a lock-out while the arbitration was pending. In ‘controlled establishments’ it also became an offence to disobey factory regulations. Munitions workers 356 It would fall back from a third to a quarter during the depression, and make another jump only during the next war. By 1950, the proportion was 44.3%. 357 For two studies of the role of working women in the Great War, and two very different estimations of the cultural responses to the changes in labour that this engendered, see CA Culleton, Working Class Culture: Women and Britain 1914–1921 (St Martin’s Press, 2000) and D Thom, Nice Girls and Rude Girls: Women Workers in World War One (IB Tauris, 2000). 358 Labour Yearbook 1916, 60–61. 359 Brodie (n 192) 119–48. 360 ibid 122.

332 Labour Relations required their employer’s certificate if they were to seek fresh employment. In the first nine months of operation, there were over 1,000 convictions of strikers and 10,645 convictions for other breaches of the Act.361 The Act, though, did not prevent the South Wales Miners’ Federation calling a strike in July 1915 in which almost 200,000 miners participated. The Government was forced to quickly concede the miners’ demands, as it did again in respect of further demands in 1916. The Government tried to take a tougher stance on the Clyde where following a shipyard dispute the ringleaders were prosecuted, heavily fined and then imprisoned when they refused to pay. This invited further disruption but eventually the unions were persuaded to pay the fines involved which allowed the men to be released. Action was initially taken again the following year against shop stewards on the Clyde but the Attorney-General felt it politic to ask for the withdrawal of the charges against them.362 In truth, the numbers prosecuted under the Act were but a small proportion of those who took part in illegal strikes – Rubin has calculated around 0.2 per cent.363 In fact industries covered by the Munitions Act experienced more strikes than any others.364 Nonetheless, in conjunction with the Defence of the Realm Regulations, the Government had novel whips for use when legal goads or threats seemed likely to profit it.365 By the end of the war the Government had, understandably, become more involved with regulation of the economy than ever before, consulting with trade unions and interfering with relations between masters and men upon a scale previously unimaginable. Some recognised in this an opportunity, and planning for the post-war period was in full swing long before the end of the conflict. The Whitley Committee (named after its chair, JH Whitley) was established in 1916 together with a Ministry for Labour and, in the following year, the Ministry of Reconstruction. The Whitley Committee was charged to make and consider recommendations for permanently improving the relations between employers and employees, and to suggest ways of periodically reviewing industrial conditions with an eye to future improvement. The Committee made five reports, proposing for each industry, at least as an ultimate ideal, a national joint council, district joint councils and works committees. As an interim measure in unorganised industries, the Ministry would set up trade boards; they would no longer be confined to eliminating ‘sweated’ wages, becoming instead a major force in the movement towards the Webbs’ ‘national minimum’ for all.366 The joint industrial councils would deal not only with wages, hours and related questions but also with conditions of work, technical education, research and development and proposed legislation affecting the industry; but beyond this the traditional preserves of management would not be entered. In the event, little of this eventuated save in the field where government least expected or welcomed it. ‘Whitley Councils’ became regular

361 W Hannington, Industrial History in Wartime (Lawrence & Wishart, 1940) 63; thereafter, there were no official statistics – part of a widespread clamp-down on information. 362 Brodie (n 192) 125–26. 363 GR Rubin, War, Law and Labour (Clarendon Press, 1987) 247. 364 Of the 3,099 strikes recorded during the war, four-fifths were in Munitions Act industries: ID Sharp, Industrial Conciliation and Arbitration in Great Britain (Allen & Unwin, 1950) 317. 365 Rubin (n 363) chs 2–4; Phelps Brown (n 297) ch 4. 366 The Trade Boards Act 1918 led to the creation of some 35 new boards, in, for instance, shoe-making, tobacco, milk distribution, jute and flax and laundries. A special system evolved for agriculture, which until the second war would operate primarily through local committees on the trade board model. WH Fraser (n 47) 140–64.

Part 2: Employment 1875–1950 333 features of employment by central and local government.367 A particular concern of the Government was that the rapid demobilisation of men upon the coming of peace would lead to plunging wages and resultant agitation. Accordingly, the Wages (Temporary Regulation) Act 1918 was brought in to maintain wage levels. Intended to last only six months, it was eventually extended until the end of September 1920.368 In 1919 the Industrial Courts Act set up a court to take over from the arbitral functions of the Committee on Production. However, a dispute could only be referred to the court where both parties consented and, unlike those of the Committee on Production, its decisions were not binding.369 Behind these developments lay the assumption that peace would restore an economy of private enterprise, still primarily unregulated, but with a modest degree of state underpinning. In matters of the health, unemployment, pensions and housing of employees, and education of their children, the pre-war beginnings would be built upon, in order to contain the discontents of a democratised working class and to ensure the survival of a viable obedient labour force. Maintaining social stability was very much on the minds of decision-makers after the armistice. Events in Russia had excited the labour movement and the prospect of protest at home enabled Lloyd George to resist the demands of some Tories for more active intervention abroad against the Bolsheviks. At home there was some doubt as to whether the Government could count upon the police whose working conditions had deteriorated dramatically during the war. Attempts to establish a trade union in the Metropolitan Police were squashed, but only after a strike. The striking officers were dismissed but the Government moved quickly to implement the recommendations of the Desborough Committee raising pay and other entitlements and establishing the Police Federation as an alternative to a genuine trade union.370 In the same year a miners’ strike could be averted only by setting up a Royal Commission under Sankey J on the future of the industry. Trade unionists in the mines, as well as in other industries such as rail, hoped that they would be taken into public ownership and that this would improve both pay and conditions.371 The Government undertook to abide by the Commission’s conclusions. An interim report recommended nationalisation and the Government first declared that it accepted the recommendations ‘in spirit as well as in the letter’.372 After a ballot the threat of industrial action was accordingly rescinded. By the time of the publication of the final report, however, the Government had changed its mind (or achieved the advantage it had sought) and declared itself against nationalisation. Later in the year, the railwaymen actually went on strike and secured most of their wage and other demands; but again, on the question of ownership, the Government temporised and eventually got an agreement on the rationalisation of the companies into four groups, still privately owned. A number of other temporary measures – an extension of rent control, introduction of an ‘out-of-work donation’ for unemployed ex-servicemen, controls on profiteering – were 367 See Fox (n 32) 293–98; Pelling (n 99) 160–61. 368 Brodie (n 192) 150. 369 It would continue in operation, accumulating a number of extra functions, until being replaced by the Central Arbitration Committee in 1976. See Brodie (n 192) 166–71. 370 See pp 595–96. 371 Others, though, were sceptical. The engineers did not suffer such poor conditions and did not believe that nationalisation would improve them: Brodie (n 192) 172. 372 PD 20 March 1919, HC, vol 113, col 2346.

334 Labour Relations instituted, and on the recommendation of the Sankey Committee that a Miners’ Welfare Fund should be established, this was done under the Mining Industry Act 1920.373 By 1920 the economy, which had initially boomed in the immediate aftermath of the war, had descended into slump and the miners, incensed by the Government’s duplicity over the Sankey Commission, came out on strike. The possibility loomed of a triple alliance of miners, dockers and railway workers and this was averted only by the Government making some significant (but temporary) concessions on wages and on continuation of the war-time regulation of the industry. In February 1919 the Government set up an Industrial Unrest Committee, which later became the Supply and Transport Committee which drafted the Emergency Powers Act 1920. The Act was designed to deal with actions calculated to deprive the community of the essentials of life’, which included interference with ‘food, water, fuel or light, or with the means of locomotion’. By proclamation the Government acquired wide legal authority to take over economic functioning and to restrain individual liberties – a peacetime version of the Defence of the Realm Act 1914. Although the Bill was rushed through both Houses of Parliament during the course of the 1920 miners’ strike, it was qualified by the fact that the Act did not empower the Government to make regulations introducing any form of industrial conscription nor regulations that would make taking part in a strike or peaceful picketing unlawful.374 Six months later the miners came to the verge of striking, this time with votes from their allies to come out in support. The Government, determined not to concede in a fight which appeared revolutionary, invoked the Act. It became one element, together with the rapidly deteriorating economic condition of the country – the disappearance of profits, the rise in unemployment, the demands for wage cuts – which tested the true resolve of the alliance and found it wanting. On ‘Black Friday’, the railwaymen’s leader, JH Thomas, brought about a reversal of position from within and the Government was able to proceed with its plans to decontrol the mining industry, returning its labour negotiations from the national to the district level, and thus forcing the Miners’ Federation once more to deal with individual owners. Effective union militancy was for the moment at an end.375 In the meantime, in 1921, the Cave Committee had been appointed to examine trade boards and in particular the claim of employers that by setting wages too high in difficult economic circumstances the boards merely reduced competitiveness and increased unemployment. Whilst the report of the Committee in 1922 did not advocate the removal of the existing boards it clearly signalled that further legal intervention in wage setting was undesirable. Such intervention should be confined only to the sweated trades and elsewhere wage levels should be determined by collective bargaining. New boards should be set up only where ‘an unduly low wage prevails … and there is a lack of such organisation among the workers as is required for the effective regulation of wages in the trade.’376 No new ones were in fact established until 1931.

373 For discussion of the fund, see WJ Morgan, ‘The Miners’ Welfare Fund in Britain 1920–1952’ (1990) 24 Social Policy and Administration 199. 374 Emergency Powers Act 1920, s 2. For discussion, see Brodie (n 192) 169–71. 375 In 1921, the Railways Act rationalised the railways into four amalgamations but put them in private hands. A National Wage Board for Railways was established but workers acquired no place in management. 376 Report on the Working and Effects of the Trade Board Acts (Cmd 1645) para 56. See Brodie (n 192) 185.

Part 2: Employment 1875–1950 335 The challenge to government which had subsided after 1921 was resurrected in 1925 by wage cuts in the coal industry – which provoked a resistance supported by a Triple Alliance determined this time to demonstrate mutual solidarity. In the face of the threat the Government was somewhat unnerved.377 The Government conceded another temporary subsidy to the mining industry for the duration of another Royal Commission, this time chaired by the Liberal, Sir Herbert Samuel. The leaders of both sides hoped that this might engineer a compromise, but the report upheld the need for wage cuts and contained only vague suggestions about restructuring for future prosperity. On 1 May 1926, the TUC’s Conference of Executives voted on behalf of their members by some 3.7 million to 50,000 to support a General Strike. Only the National Sailors’ and Firemen’s Union led by Havelock Wilson voted against.378 Workers in the road, rail and maritime industries together with those in printing, iron, steel, chemicals, building, electricity and gas came out at once and a second wave was called out from midnight on 11 May. In the event the General Strike lasted only from 2 May to 11 May 1926. The Government deployed the Emergency Powers Act, and turned to a body of middle-class volunteers, the Organisation for the Maintenance of Supplies.379 There was loud talk of insurrection, particularly in its British Gazette (organised by Churchill).380 In reality, the objectives of the strike leaders were economic, despite the presence of some strikers of revolutionary sentiments, the leaders had no ambitions to overthrow the existing political order. Opponents did not necessarily perceive this at the time and a notable feature of the strike was the successful counter-mobilisation of the middle classes animated by the belief that they were defending the constitution.381 Much against expectations, transport and power were maintained by the OMS volunteers and the military, and the morale of the TUC leaders ebbed. Their capitulation after nine days came as a deep shock to the strikers, who had enjoyed their solidarity and expected major concessions as part of any deal. Instead, they were left with nothing and many had to sign humiliating admissions of their wrongdoing as a condition of getting their jobs back.382 Capitulation was naturally followed by those cuts in wages which Baldwin had declared were necessary throughout industry and by 1928 the average earnings per shift of coal miners had fallen by 26 per cent.383 The law played a busy role throughout the strike. Through the Emergency Powers Act 1920, it authorised the machinery of economic organisation and there were some 2,500 prosecutions for offences as minor as distributing or even simply possessing strike bulletins.

377 In the autumn of 1925, the government prosecuted twelve leading Communist Party members for sedition and under the Incitement to Mutiny Act 1797. They were sentenced to terms of imprisonment after refusing Swift J’s curious offer to let some of them off if they renounced their opinions. It was a sorry relapse into a dangerous style of political censoring. For the role of the Communist Party during this period, see J McIlroy, ‘Revolutionaries’ in J McIlroy et al (eds), Industrial Politics and the 1926 Mining Lockout: The Struggle for Dignity (University of Wales Press, 2004) 269. 378 K Laybourn, ‘Revisiting the General Strike’ (2006) 21 HSIR 109, 115. 379 For a comprehensive survey of the most important works see J McIlroy et al, ‘The General Strike and Mining Lockout of 1926: A Select Bibliography’ (2006) 21 HSIR 183. 380 In the British Gazette, 8 May 1926, Churchill wrote that ‘An organised attempt was being made to starve the people and wreck the state.’ 381 R McKibbin, Classes and Cultures: England 1918–1951 (Oxford University Press, 1998) 58. 382 Sir J Simon, Three Speeches on the General Strike (Macmillan, 1926) xxii, gives the terms required by the railway companies. 383 Q Outram, ‘The General Strike and the Development of British Capitalism’ (2006) 21 HSIR 121, 122.

336 Labour Relations More fundamentally, the strike itself was declared to be ‘utterly illegal’, making it ‘unlawful’ for leaders to order the withdrawal of labour and for workers to comply. This controversial anathema was first pronounced in the Commons by the right-wing Liberal QC, Sir John Simon (on the third day)384 and then echoed on the bench by Astbury J (on the ninth day).385 Simon drew from his major premise the conclusions: (a) that the immunities of the 1906 Act were inapplicable – this despite the express recognition in s 5 that they covered sympathetic strikes; and (b) that a dissident non-striker could have an injunction to prevent his union from depriving him of union benefits – this despite the embargo on ‘direct enforcement’ of union rule books by the 1871 Act. Astbury J supported all this in a wide-ranging judgment which by injunction informed a branch of the National Union of Seamen that it could not lawfully call members out, award them strike pay or refuse benefits to members who remained at work.386 Yet the case for regarding the strike as ‘unlawful’ was extremely thin and Astbury J made no detailed attempt to deal with the technical arguments. The strike was clearly in support of the miners’ wage and other claims and so ‘in contemplation or furtherance of a trade dispute’ – the characteristic which imported the special protections of the Conspiracy and Protection of Property Act 1875 and the immunities given to individuals by the 1906 Act. Because the strike was so widely supported, the element of illegality did not arise through violence and threats towards blacklegs or outside suppliers and there was nothing that could amount to the political offences of sedition or treason. A year later, AL Goodhart could find no legal basis on which such a strike could be ‘unlawful’ merely through its effective pressure on the mine-owners and the Government. He felt compelled to this conclusion, while calling for an alteration in the law which would allow legal action against a strike which produced such a result.387 The Government was not slow in responding to such calls. Outram described the Trade Disputes and Trade Unions Act 1927 as ‘a significant adjustment against civil society in favour of the state and against the organised working-class in favour of capital.’388 This rendered illegal any strike which in addition to its trade objective was ‘designed or calculated to coerce the Government either directly or by inflicting hardship upon the community.’389 Despite repeated declarations, during the course of the Bill, that this was intended only to deal with a general strike, the indefinite terms could undoubtedly cover circumstances that were not so all-embracing. Civil servants were forbidden to join TUC-affiliated unions or unions with non-civil servant members; and local and public authorities were not allowed 384 Simon (n 382) 5–7. 385 National Sailors’ and Firemen’s Union v Reed [1926] Ch 536. 386 In the Reed case, the seamen’s union president, Havelock Wilson, had refused to allow it to join in the General Strike. When a London branch disobeyed this, he brought proceedings to enjoin it, thus providing Astbury J with an admirable opportunity to air his view. Simon and Astbury each claimed a major role in putting the strike down. ‘How many countries are there in the world,’ Kahn-Freund once remarked, ‘in which, in a national crisis of this kind, public opinion could be influenced by the utterances of a lawyer-politician and a judge?’ (Kahn-Freund (n 15) 227). 387 AL Goodhart, ‘The Legality of the General Strike in Britain’ (1927) 36 Yale Law Journal 464; for more extreme calls on the employers’ side, see WA Garside, ‘Management and Men: Aspects of British Industrial Relations in the Interwar Period’ in B Supple (ed), Essays in British Business History (Clarendon, 1977). 388 Outram (n 383) 131. 389 Trade Disputes and Trade Unions Act 1927, s 1. The government disdainfully extended the Act to employers’ lock-outs, when attacked by the Labour party on the matter. A proviso was also added excepting the mere act of coming out on strike.

Part 2: Employment 1875–1950 337 to insist (as some Labour boroughs were doing) upon union membership as a condition of employment. The contracting-out rule for union political funds under the 1913 Act was changed to a rule requiring a ‘contract in’; the initial effect was to reduce union contributions to the Labour Party by more than a third.390 When the Labour Government of 1946 saw to the restoration of the pre-1913 presumption, the contributions rose at once by two-thirds.391 The 1927 Act also gave a dissident member the right to claim damages or reinstatement if he was expelled or penalised for refusing to take part in an ‘illegal’ strike – a provision that was made retrospective to 1 May 1926.392 The opportunity was also taken to revise the general law against picketing, so as to bring it once more to Lindley LJ’s position: that no effective picketing could be legal. For now, it was to be an offence to picket so as to ‘intimidate’ – and intimidating could include causing reasonable apprehension of ‘injury’, including ‘injury to a person in respect of his business, occupation, employment or other source of income.’393 The Labour Government of 1929 naturally explored the possibility of repealing the whole 1927 Act, but they were not able to persuade their Liberal allies to support the move. It therefore remained in effect until its simple renunciation by the Attlee Government in 1946. The 1927 Act was to operate during a period of undoubted industrial peace and to this it perhaps made a shadowy contribution. But as an act of revenge it was carefully muted by Baldwin. It did not reverse the immunities of the 1906 Act which protected individual unionists and union funds from liabilities in tort for industrial action. The General Strike had lessons not only for labour. Industrialists were among those who realised that their own future lay in an accommodation with the moderate forces on the labour side. In 1928, Sir Alfred Mond, head of Imperial Chemical Industries, was able to re-establish talks with the TUC, led by Ben Turner and Ernest Bevin. They boosted the chance of cooperation over essentials, a workable truce that would leave industry and commerce mostly in private hands, without the concession to labour of any real part in management.394 In the event, it was Ramsay Macdonald’s minority Government which would have to grapple with the severest constraint upon the hopes of labour – the descent into the abyss of world recession and massive unemployment. Here more than anything was the force which kept the National Minority Movement and other uncompromising antagonists of capitalism in isolation on or beyond the left-fringe of the Labour Party. For WWII, the Government had available the template cut during WWI. Acting under Defence Regulation powers,395 the Minister of Labour made the Conditions of Employment and National Arbitration Order 1940 (Order 1305). A National Arbitration Tribunal was created with the usual tri-partite structure; it was chaired until 1944 by the redoubtable Simonds J. A trade dispute was to be referred to the Minister, who, if he could not himself secure a settlement, would refer it to the Tribunal. This compulsory arbitration award became binding on employers and workers to whom it related, as an implied term of individual contracts of employment.396 There was a procedure for making a recalcitrant 390 Contributions fell from nearly £39,000 to just over £25,000; but they grew again as new members were signed on – it was easier to get ‘contracting in’ at the outset. 391 From some £55,000 to just over £91,000. 392 Trade Disputes and Trade Unions Act 1927, s 2. 393 ibid s 3. This would apply to the Conspiracy and Protection of Property Act, s 7 and so overrule Gibson v Lawson [1891] 2 QB 545. 394 Fox (n 32) 325–27, 336–40. 395 Defence Regulation 1950, 58A. 396 Part I.

338 Labour Relations employer adhere to the terms of a collective agreement or award affecting his industry: the matter would be referred to the Minister and, if necessary, the Tribunal.397 To participate in a strike (or lockout) became an offence. Prosecutions would occur on 111 occasions involving 2,681 workers and two employers.398 As in WWI, this criminal law sanction could not be used effectively against a determined and united workforce, as a strike at the Betteshanger colliery, Kent, in 1941 was to demonstrate: the imprisoned leaders had to be let out on a pretext, as there was no one else with whom to negotiate a return to work.399 WWI had seen the initiation both of military conscription and of compulsion to stay in essential civilian work (through the system of leaving certificates). By 1939, conscription was accepted as a necessary reality, and as a counterpart, the direction of civilian labour was carried further. A series of Essential Work Orders400 fashioned a system directed by National Service Officers; in the many industries deemed crucial to the war effort, their sanction was needed both for an employee to leave and for an employer to dismiss. At most, the employer was entitled to issue a provisional dismissal to an employee alleging him to be guilty of serious misconduct. This, however, was subject to the employee’s right to proceed before a Local Appeal Board which would reach a finding on the allegation;401 in consequence the National Insurance Officer would either allow the dismissal or order reinstatement. Failure to comply with directions of Officers was a criminal offence for which a fine and imprisonment were penalties. Employers seem only to have been fined but workers were sometimes imprisoned and then expected to comply with the original direction to them. Compulsory labour in peacetime had disappeared in 1875 with the abandonment of the Master and Servant Acts. Its re-introduction was admissible only in the extraordinary circumstances of war. The Essential Work Orders were repealed at its end – before the reinstatement of pre-war industrial practices which the unions had agreed to suspend;402 and well before the termination of compulsory arbitration and the ban on strikes under Order 1305. The last fact is at first glance surprising, given that a Labour Government was brought to power with the return to peace. However, that government was struggling with many things: with the creation of a universal health service, with the development of national insurance and allied schemes on the Beveridge model which relied considerably on employer–employee contributions, and with the nationalisation of mines, docks, railways, gas and electricity, iron and steel. A considerable deflation was expected, as after 1918, and the Government was deeply anxious about how to manage the necessary wage reductions. Even in wartime the power to prescribe maximum wages had not been assumed in Britain (unlike in the United States) and certainly could not be contemplated as a tool of peacetime management. The anti-strike machinery of Order 1305 was kept in position during the hard years of 1946–48 and actually put to use as new room for manoeuvre appeared: leaders of

397 Part II. 398 Maximum penalties were a fine of £100 or three months’ imprisonment. 399 See H Emerson in Royal Commission on Trade Unions, PP 1968 [Cmnd 3623] XXXII, App 6, 340. 400 Consolidated in the Essential Work (No 2) Order 1942. 401 During this period the dismissal was treated as ineffective and the worker was entitled to his wages. 402 By 1947, the EWO, which had applied to eight million people, only affected 185,000 people and was soon to be ended entirely. See also the Restoration of Pre-war Trade Practices Acts 1942 and 1950.

Part 2: Employment 1875–1950 339 dock and gas unions were prosecuted in 1950 and 1951. This the unions considered intolerable and Order 1305 had its teeth pulled.403 In the end, accordingly, labour relations resumed the patterns of the Edwardian settlement. In the general run, rights enforceable in law existed only in the individual worker’s contract with his employer. To this the courts had insisted on annexing conditions which guaranteed liberal virtues: no employee could be compelled to serve, no employer to keep in service; if either broke the contract, the remedy was not an injunction but only damages.404 Neither was entitled to substitute a third party for himself (by assignment of his interest) without the consent of the other. The employee’s right to choose his employer – even a remote, abstract corporation – was said by Lord Atkin to constitute ‘the main difference between a servant and a serf ’.405 More importantly, the courts used their carefully guarded weapon of public policy to insist that an employee should not (save in limited cases) be tied to his present employer by clauses preventing him from leaving to join a competitor or to set up in competition himself; on this the House of Lords had placed new emphasis in the very years when it was most vigorously attacking the effects of collective labour action.406 It was perhaps the common law’s most significant contribution to the processes of competition, for it was in consequence very difficult to prevent business and technical information from leaking to rivals.407 More generally, the courts treated the individual contract as a business deal, giving its explicit terms effect over contrary customs or understandings (even if they had been settled by collective agreement); and they were in general reluctant to add terms into the agreement by way of implication if the argument for doing so was put upon general business efficacy.408 But where the employee was intended to be covered by a collective agreement and his individual terms were silent, it was only realistic to assume that express terms of the former had been ‘incorporated into’ the latter.409 The whole tradition, as we have seen, was to accord no legal status beyond this to collective agreements or arbitration awards, unless quite exceptional steps had been taken.410 The long antipathy towards court processes on the unions’ side made them prefer to submit 403 It was replaced, until 1958, with the Industrial Disputes Order (O 1371), which sought to maintain compulsory arbitration without criminal sanctions. 404 Because ‘no court of law or equity has ever considered it had power to grant’ reinstatement, the King’s Bench Division refused to accept that the National Arbitration Tribunal had been impliedly given such a power under Order 1305: ex parte Horatio Crowthier & Co Ltd [1948] 1 KB 424. 405 Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, 1026. 406 The principles of the Nordenfeldt case (see pp 260–61) were applied only with caution to employment contracts. 407 Specific technical and other secrets were protectable by restrictive covenants (if they were no wider than was reasonable) and also under implied obligations to preserve confidence; but often these obligations proved difficult to enforce. Not until after WWII did the courts show much inclination to develop the scope of the action for breach of confidence: see eg Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; but it was suddenly extended against ‘moonlighting’ technicians: Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169. 408 An approach which would reach its apotheosis only in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 (an employer does not impliedly undertake to refrain from sending an indemnity from the employee, when the latter negligently causes an accident for which the employer is also (vicariously) liable – despite the common practice of the employer insuring against liability). 409 In an increasing number of industries, there had, since the mid-nineteenth century, been a statutory obligation on the employer to give a written ‘ticket’ or other notification of at least the wages or the precise work to be done: this began with the hosiery and silk industries in 1845 and was extended to all textiles in 1891: see FW Tillyard, The Worker and the State, 3rd edn (Routledge & Kegan Paul, 1948) 80–82 and 86–90. 410 See p 311.

340 Labour Relations disputes over the intent or procedures of collective agreements to a fresh negotiation.411 This position was maintainable because, by and large, the unions had won their right to negotiate (often after decades of hostility) out of their membership size and industrial strength.412 On the whole, they had not sought legislation in order to oblige employers to treat with them.413 They had managed by their own strength to eliminate ‘the document’ – an employer’s requirement that his employees forswear union membership.414 In various places and trades they had established closed shops, but they had not succeeded in imposing them through legislative backing.415 Union strength depended on the ability to withdraw labour in a disciplined way. The first important victory in the battle for the ‘right to strike’ had been as early as 1824 and the period to 1906 had seen a succession of advances and retreats in the lifting of criminal and then civil liability from activity in trade disputes, including peaceful picketing. The aftermath of the General Strike saw something of a reversal for trade unions with the 1927 Act, but even this was limited in its scope and did not threaten the immunities granted to them in 1906. In 1946 the Labour Government repealed the 1927 legislation. In the years after 1918, the courts had adopted a more conciliatory attitude to trade union activity. Goddard LJ, for instance, acknowledged collective bargaining as ‘the great benefit of a trade union’;416 and the House of Lords refused any longer to regard the organisation of a strike or boycott as necessarily involving ‘malicious intent’;417 yet this had been the element in Quinn v Leathem which had converted joint action into tortious conspiracy. ‘English law’, said Lord Wright, ‘has for better or worse adopted the test of self-interest or selfishness as being capable of justifying the deliberate doing of lawful acts which inflict harm, so long as the means employed are not wrongful.’418 The events of 1900–20 had led the judges, however wearily, to apply this test to the collective organisation of labour as they already did to business cartels. This acknowledgment of the position of labour in a plural, democratic world would continue to inform the whole character of modern labour relations in Britain. The restoration of legal freedom of organisation and action after 1951 was in its way deeply conservative, the recognition of values evolved through a long historical experience. Embedded within it was an understanding that, by and large, British trade unionism had not been so much about utopian challenges to the entire capitalist system, as about a narrower, often sectional, protection. A broad swathe of political opinion had slowly come to accept that labour should be free to fight for its place in the capitalist world and secure, as best it could, a share of its output. 411 For this characteristic tendency to turn disputes of right into disputes of interest, see Kahn-Freund (n 15) 234–35. 412 For the earlier hostility, it should be recalled that until after the large strike of 1911, most railway companies were able to resist negotiating with rail unions. 413 In the post-war nationalisations, the new employing authorities were in two cases placed under a statutory obligation to seek or enter negotiations: Coal Industry Nationalisation Act 1946, s 46; Transport Act 1947, s 95. 414 In isolated instances, however, forswearing union membership continued to be insisted on – the Scottish printing firm, DC Thomson, did so from the General Strike onwards until the 1950s: see PP 1951–52 [Cmd 8607] XV and DC Thomson & Co Ltd v Deakin [1952] 2 All ER 361. 415 Kahn-Freund (1959) (n 15) 231–32. 416 Evans v National Union of Printing Workers [1938] 4 All ER 51, 54. 417 Reynolds v Shipping Federation Ltd [1924] 1 Ch 28; Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435; see also Sorrell v Smith [1925] AC 700. 418 Crofter case (n 417) 472.

5 The Family The family, it has been noted, ‘is not a naturally occurring fixed phenomenon but a concept which is constructed in a multiplicity of ways and for a variety of purposes.’1 It is also a phenomenon whose meaning has changed over time. At the start of our period servants and apprentices resident under the same roof would often have been regarded as members of the family,2 but over the course of the eighteenth century a shift occurred whereby ‘family’ and ‘household’ were no longer seen as synonymous.3 By contrast, the end of our period sees the first cases involving cohabitants’ claims to be counted as ‘family’ beginning to be heard by the courts, in stark contrast to the eighteenth-century view that such couples were ‘fornicators’ to be punished by the church courts.4 In the years between, though, the focus was very much on the relationships of husband and wife, and parent and child. As in most of north-western Europe, most households consisted of a nuclear family rather than the extended family.5 But over our period much was to change in terms of age at marriage, the likely duration of marriages, and the number of children born and brought up within families.6 Given the extent of such change, it is worth beginning with a brief review of the key demographic changes affecting the family unit.7 Throughout the period the majority of households would have been headed by a married couple. The wherewithal to set up home would be derived either by inheritance or by employment (or by a combination of the two). Aristocratic offspring could afford to marry at a relatively young age, whereas those who were making their money might prefer to defer marriage until later in life.8 Within the lower classes, meanwhile, the young spent the majority of their adolescence in service of some kind, learning a trade, or being hired to

1 G Douglas, An Introduction to Family Law (Oxford University Press, 2001) 2. See also JR Gillis, A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Harvard University Press, 1998). 2 EA Wrigley and RS Schofield, The Population History of England 1541–1871 (E Arnold, 1981); R Wall, Family Forms in Historic Europe (Cambridge University Press, 1983), chs 2, 16; J Bailey, ‘Family Relationships’ in E Foyster and J Marten (eds), A Cultural History of Childhood and Family in the Age of Enlightenment (Bloomsbury, 2010); N Tadmor, Family and Friends in Eighteenth-Century England (Cambridge University Press, 2001). 3 B Griffin, L Delap and A Wills, ‘Introduction’ in L Delap, B Griffin and A Wills (eds), The Politics of Domestic Authority in Britain since 1800 (Palgrave Macmillan, 2009) 7. 4 See R Probert, The Changing Legal Regulation of Cohabitation: From Fornicators to Family, 1600–2010 (Cambridge University Press, 2012). 5 See eg P Laslett, Family Life and Illicit Love in Earlier Generations (Cambridge University Press, 1977) ch 1. Elderly relatives and other kin might, however, come to reside at different times. 6 See eg M Anderson, ‘The Emergence of the Modern Life Cycle in Britain’ (1985) 10 SH 69. 7 The extensive work carried out by historical demographers on parish registers and occasional lists of inhabitants gives us valuable insights into the position in the period before civil registration of births, marriages, and deaths began in 1837 or the systematic collection of data from decennial censuses from 1841. Of course, the way that data is collected and presented in itself reveals much about the underpinning concept of ‘family’: see G Douglas, Obligation and Commitment in Family Law (Hart, 2018). 8 N Rogers, ‘Money, Marriage, Mobility: The Big Bourgeoisie of Hanoverian London’ (1999) 24 JFH 19.

342 The Family carry out agricultural or domestic work. The mean age at first marriage stood at 27.5 years for grooms and 26.2 for brides in the first half of the eighteenth century.9 Not all, of course, were willing to exercise prudence in their choice of spouse or in the timing of the marriage, and the falling age at first marriage over the course of the second half of the eighteenth century, to 26.4 years for grooms and 24.9 for brides,10 may well have been linked to new cultural norms as to the importance of personal freedom and choice.11 The first half of the nineteenth century saw a further fall in the average age at first marriage before it rose again towards its close. Perhaps surprisingly, it was the twentieth century that was to see the age at marriage dip to an historic low: the average age at first marriage in 1950 was lower than it had been in 1750.12 Throughout the period the vast majority of marriages ended only with death, and, while the median duration of marriages at the start of our period was only around 15 to 20 years, those that were terminated abruptly by death should be set against those that lasted many decades.13 Increased longevity led to longer marriages: a woman born in 1860 could expect to marry around the age of 26 and be widowed at around the age of 59; by contrast, her grand-daughter, born in 1921, could expect to marry a little earlier, at around the age of 24, and be widowed at the age of 68. In two generations the average duration of marriage had increased from around 33 years to around 44 years.14 Patterns of child-bearing within marriage also changed considerably over the period. Eighteenth- and nineteenth-century parents might expect to have a family of on average five children; by the mid-twentieth century the average had fallen to two.15 Child-bearing outside marriage also fluctuated, but within a relatively narrow compass: the available figures suggest that between 1750 and 1950 the proportion of children born outside marriage did not exceed seven per cent and was generally considerably lower.16 In some cases the parents of such children married relatively soon after the birth, or as soon as they were free to do so. But most children born outside marriage grew up without a father in the household; some were absorbed by the wider family unit and passed off as legitimate younger children; others were abandoned as foundlings or (after 1834) left to be brought up within the workhouse.17 9 Wrigley and Schofield (n 2) 255. 10 Wrigley and Schofield (n 2) 255. 11 E Griffin, ‘A Conundrum Resolved? Rethinking Courtship, Marriage and Population Growth in EighteenthCentury England’ (2012) 215 P&P 125. 12 R Schoen and V Canudas-Romo, ‘Timing Effects on First Marriage: Twentieth-century Experience in England and Wales and the USA’ (2005) 59 Population Studies 135. 13 See eg R Houlbrooke (ed), Death, Ritual and Bereavement (Routledge, 1989); R Schofield, ‘“Did the M others Really Die?” Three Centuries of Maternal Mortality in “the World We Have Lost”’ in L Bonfield, R Smith and K Wrightson (eds), The World We Have Gained: Histories of Population and Social Structure (Oxford University Press, 1986). 14 C Gibson, Dissolving Wedlock (Routledge, 1994) 117. Today it is around 32 years, increased longevity having been offset by a rising age at marriage and higher rates of divorce: see Office for National Statistics, ‘Divorces in England and Wales, 2012’ (February 2014). 15 Anderson (n 6) 73. 16 Wrigley and Schofield (n 2); S Williams, Unmarried Motherhood in the Metropolis, 1700–1850: Pregnancy, the Poor Law and Provision (Palgrave Macmillan, 2018). 17 See generally R Probert (ed), Cohabitation and Non-marital Births in England and Wales, 1600–2012 (Palgrave Macmillan, 2014); A Levene, T Nutt, and S Williams (eds), Illegitimacy in Britain, 1700–1920 (Palgrave Macmillan, 2005); G Frost, ‘“The Black Lamb of the Black Sheep”: Illegitimacy in the English Working Class’ (2003) 37 JSH 293.

The Family 343 Beyond these statistical trends lies the question of how husbands and wives, or parents and children, actually viewed each other. This is perhaps the most intriguing of all aspects of family history but also the hardest to recapture. Lawrence Stone’s contention that relationships within the family were once characterised by distance, deference and patriarchy but over the course of time progressed towards ‘affective individualism’18 has been much contested.19 Current historiography emphasises the variability of families and how ‘the full spectrum of family relationships from affectionate, close and intimate to violent, brutal, and distant, could be found… in any period.’20 Ideas about the fragility and insecurity of male authority have replaced assumptions of patriarchal dominance.21 It is clear that unions in which the parties saw themselves as equal and valued their retrospective contributions can be found in all periods and across the social spectrum;22 more difficult is the question of whether the prevalence of such marriages varied across time and class. So too we can find examples of playful and loving parents across the period, far removed from the stock figure of the Victorian paterfamilias.23 Nonetheless, changing ideas about family relationships can be seen in print culture, particularly in advice literature, whether high-minded or homely, and in fiction. Love and intimacy between spouses was increasingly idealised from the mideighteenth century,24 while Enlightenment ideas of sensibility and ‘Romanticism’, and early nineteenth-century concepts of ‘domesticity’, shaped the ways in which parents saw their children.25 At the same time the home became increasingly seen as a private space, the domain of women and children.26 Yet how far these changing ideas reflected or influenced the way in which husbands and wives or parents and children actually felt is difficult to ascertain. Identifying the way in which the law governed the family is perhaps an easier task, at least insofar as we can state the legal rules that applied across the period and use the available statistics to obtain some idea of their social impact. We can also trace the emergence of a distinct concept of family law, as opposed to a body of laws affecting the family.27 Early treatises had dealt with the laws relating to the formation of marriage, the duties of husbands

18 L Stone, The Family, Sex and Marriage in England, 1500–1800 (Weidenfeld & Nicolson, 1977). 19 For discussion see H Berry and E Foyster (eds), The Family in Early Modern England (Cambridge University Press, 2007) ch 1; M Ingram, Church Courts, Sex and Marriage in England 1570–1640 (Cambridge University Press, 1987) 142. 20 Foyster and Marten (n 2) 1; see also Berry and Foyster (n 19). 21 J Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge University Press, 2003); J Tosh, Manliness and Masculinities in Nineteenth-century Britain (Pearson Longman, 2004). 22 Griffin, Delap and Wills (n 3) 13; Bailey (2003) (n 21); M Collins, Modern Love: An Intimate History of Men and Women in Twentieth Century Britain (Atlantic Books, 2003) 25; M Lane, ‘Not the Boss of One Another: A Reinterpretation of Working-class Marriage in England, 1900 to 1970’ (2014) 11 Cultural and Social History 441. The term ‘companionate’ has often been used to describe such marriages, but see K Fisher, ‘Marriage and Companionate Ideals Since 1750’ in S Toulalan and K Fisher (eds), The Routledge History of Sex and the Body (Routledge, 2013) for a critique of the indeterminacy of the term and its limited utility as a concept. 23 J Bailey, Parenting in England, 1760–1830: Emotion, Identity, & Generation (Oxford University Press, 2012). See also J Begiato, ‘The History of Mum and Dad: Recent Historical Research on Parenting in England’ (2014) 12 History Compass 489 for a helpful overview of recent scholarship on parenting. 24 Bailey (2010) (n 2). 25 Bailey (2012) (n 23) 8–9. 26 L Davidoff and C Hall, Family Fortunes: Men and Women of the English Middle Classes 1780–1850, 2nd edn (Routledge, 2002). 27 W Müller-Freienfels, ‘The Emergence of Droit de Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England’ (2003) 28 JFH 31.

344 The Family and wives, parental control and guardianship as distinct areas: for example Blackstone’s Commentaries, published in 1765, contained separate sections on each of these topics.28 This reflected the fact that different courts dealt with different aspects of what we would now see as ‘family law’. It was only in 1857 that jurisdiction over marriage, divorce, child custody and property was transferred to a single court,29 and even then other legal issues affecting the family continued to be dealt with by the courts of common law and equity.30 Legal writers subsequently began to attempt to bring the different strands of the law together under the heading ‘the law of domestic relations’,31 and 1857 is widely seen as marking the beginning of family law in its modern form.32 Even then, the focus remained on the ‘private’ law of the family – ie the obligations that family members owed to each other – rather than the ‘public’ law whereby the state made provision for those families which could not sustain themselves,33 or intervened to protect those at risk from harm within the family. The latter was to become an increasingly important element, but only towards the very end of our period. Our account of developments in family law is accordingly in two parts. The first concentrates upon shifts in the century after 1750, the second with the later Victorian, Edwardian and World War periods. While the focus will primarily be on the private law, there is growing recognition of the importance of the public dimension of family law; indeed, a key theme of the chapter will be how the state increasingly intervened in family life, whether through increased regulation or by more direct means.

Part 1: Private Family Law 1750–1850 A. Forming a Family: Marriage At the heart of the family, and of what we would now think of as family law, was the institution of marriage.34 A number of early seventeenth-century developments had laid the 28 W Blackstone, Commentaries on the Laws of England: Volume I, Of the Rights of Persons (Clarendon Press, 1765). 29 For a critical account of this move, see eg D Wright, ‘“Well-Behaved Women Don’t Make History”: Rethinking Family, Law, and History Through an Analysis of the First Nine Years of the English Divorce and Matrimonial Causes Court (1858–1866)’ (2005) Wisconsin Women’s Law Journal 211. 30 For an overview of the different roles of the different courts, see W Cornish, ‘Law of Persons: Family and Other Relationships’ in W Cornish et al, The Oxford History of the Laws of England: Vol XIII (Oxford University Press, 2010) 724–26. 31 See eg WP Eversley’s The Law of Domestic Relations (Stevens and Haynes, 1885) vi. This was also the title of the first university-level course devoted to the subject, established at the LSE in 1951: see R Probert, ‘Family Law – A Modern Concept?’ (2004) Family Law 901. 32 RH Graveson and FR Crane (eds), A Century of Family Law (Sweet & Maxwell, 1957). 33 For an historical distinction between public and private family law, see J ten Broek, ‘California’s Dual System of Family Law’ (1964) 16 Stanford Law Review 257 (Part I). 34 On the various factors that might influence the timing of marriage and choice of a spouse see eg A Macfarlane, Marriage and Love in England: Modes of Reproduction, 1300–1840 (Blackwell, 1986); RB Shoemaker, Gender in English Society 1650–1850: The Emergence of Separate Spheres (Longman, 1998) ch 4; MJ Daunton, Progress and Poverty: An Economic and Social History of Britain 1700–1850 (Oxford University Press, 1995) ch 15; A Vickery, The Gentleman’s Daughter: Women’s Lives in Georgian England (Yale University Press, 2003) ch 2; D Levine, Family Formation in an Age of Nascent Capitalism (Academic Press, 1977); KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge University Press, 2006) ch 4.

Part 1: Private Family Law 1750–1850 345 foundations for the law at the start of our period:35 Parliament had declared bigamy to be a crime punishable by death;36 the courts had confirmed that remarriage following a separation was not permitted;37 and the 1604 canons of the Church of England had set out the way in which marriages should be celebrated.38 The presence of a clergyman was required; in addition, there was a clear expectation that a marriage should be celebrated in church and preceded by either the calling of banns or the obtaining of a licence, with parental consent being granted for those marrying under the age of 21.39 Yet couples might well find themselves committed to each other without such formalities: informal exchanges of vows, either to marry at once (per verba de praesenti), or to marry in the future if this was consolidated by sexual union (per verba de futuro) were recognised as binding; if proved, the parties would be required to solemnise the marriage in church.40 Over the course of the turbulent seventeenth century, however, the formation of marriages had been disrupted by civil war, the brief and apparently unpopular introduction of civil marriage under the Commonwealth, the emergence of new non-conformist sects with different ideas about how marriages should be celebrated, and the ejection of successive waves of parish clergy from their livings as the political climate changed.41 Certain churches developed a reputation as a place where marriages could be celebrated quickly and cheaply, if not exactly in accordance with the canonical requirements, and legislation attempting to enforce those requirements was not noticeably effective.42 In London in particular these attempts had the unfortunate effect of generating a new market for marriage services outside the control of church or state. By the 1740s around half of all marriages in the capital were presided over by clergymen operating out of the disreputable Fleet prison, who were not exactly scrupulous about checking the credentials of those who came to be married, or about altering or concealing the date of the marriage in return for a fee.43 The resulting p roblems – including the subsequent denial of marriages, desertion and bigamy44 – combined 35 See generally Ingram (n 19); D Cressy, Birth, Marriage & Death: Ritual, Religion and the Life-Cycle in Tudor and Stuart England (Oxford University Press, 1999); for accounts of marriage law in earlier periods see EJ Carlson, Marriage and the English Reformation (Blackwell, 1994); R Houlbrooke, The English Family, 1450–1700 (Longman, 1984); S Lettmaier, ‘Marriage Law and the Reformation’ (2017) 35 L&HR 461. 36 Bigamy Act 1603. 37 Rye v Foljambe (1602) Moo KB 942. 38 Constitutions and Canons Ecclesiastical of the Church of England (1604). 39 R Probert, ‘Control Over Marriage in England and Wales, 1753–1823: The Clandestine Marriages Act of 1753 in Context’ (2009) 27 L&HR 413. Marriageable age had been set at or below puberty (14 for men, 12 for women). 40 R Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge University Press, 2009) ch 2. 41 C Durston, ‘“Unhallowed Wedlocks”: The Regulation of Marriage During the English Revolution’ (1988) 31 HJ 45; RB Outhwaite, Clandestine Marriage in England, 1500–1850 (Hambledon Press, 1995); Cressy (n 35); Probert (2009) (n 40) chs 4 and 5. 42 See J Boulton, ‘Itching After Private Marryings? Marriage Customs in Seventeenth-century London’ (1991) 16 London Journal 15 and ‘Clandestine Marriages in London: An Examination of a Neglected Urban Variable’ (1993) 20 Urban History 191; Outhwaite (n 41); KDM Snell, ‘English Rural Societies and Geographical Marital Endogamy, 1700–1837’ (2002) 55 Econ HR 262, 274; Probert (2009) (n 40) ch 5; G Newton, ‘Clandestine Marriage in Early Modern London: When, Where and Why?’ (2014) 29 C&C 151. 43 RL Brown, ‘The Rise and Fall of the Fleet Marriage’ in RB Outhwaite (ed), Marriage and Society (Europa Publications Ltd, 1981); Probert (2009) (n 40). 44 DA Kent, ‘“Gone for a Soldier”: Family Breakdown and the Demography of Desertion in a London Parish, 1750–91’ (1990) 45 Local Population Studies 27; DM Turner, ‘Popular Marriage and the Law: Tales of Bigamy at the Eighteenth-Century Old Bailey’ (2005) 30 London Journal 6; R Probert, ‘The Presumptions in Favour of Marriage’ (2018) 77 CLJ 375.

346 The Family with the perceived risk that young aristocrats would make unsuitable but irreversible matches, led Parliament to pass legislation in 1753 invalidating marriages that did not comply with certain key requirements.45 From 25 March 1754, when this legislation came into force, promises of marriage could no longer be enforced in the church courts, although the jilted party could still maintain an action for breach of promise against the other.46 Any future marriage celebrated without banns or licence, or in any place other than a church, was void.47 Minors marrying by licence needed parental consent,48 and their parents could also forbid the banns and prevent the marriage from going ahead. Clergy who knowingly broke the rules became liable to transportation for 14 years.49 As a result of the Act, the trade in Fleet marriages came to an end, attempts to discover loopholes were strongly discouraged, and, across the country, couples generally married in the parish where at least one of them was resident.50 Some escaped the effect of the Act by travelling outside the jurisdiction, while others complied with the letter but not the spirit and married in a place where they were not known.51 Jews and Quakers, exempted from the 1753 Act, continued to marry according to their own rites, despite the fact that the legislation did not actually specify that their marriages would be valid. Other Protestant Nonconformists, who had in any case not developed their own marriage rites, continued to marry in the Anglican church, while Catholics tended to go through a double ceremony – one before a Catholic priest and the other according to Anglican rites – to satisfy the requirements of both conscience and law.52 Indeed, the first serious challenge to the Act came not from religious minorities but from concern that its provisions were being used strategically to undo marriages of long standing. Despite the fact that the courts generally adopted a purposive approach to the interpretation of the Act – upholding marriages that had family sanction wherever possible but taking a stricter approach to the sorts of elopements that the legislation had been designed to stamp out – there were an increasing number of annulments in the second decade of the nineteenth century. Legislation was accordingly passed to repeal the 1753 Act and substitute a more nuanced test based on the courts’ practice whereby a marriage would only be annulled if the parties had ‘knowingly and wilfully’ failed to comply with the requirements.53 This was to remain the test for validity throughout the period, and indeed until the present day.54 Further and more far-reaching reform occurred in 1836 as a result of campaigns by Nonconformists for the right to celebrate their own marriages, concerns that immigrant Catholics were failing to observe the required legal rites, and a new demand for better 45 Clandestine Marriages Act 1753. 46 On the subsequent history of such actions see G Frost, Promises Broken: Courtship, Class and Gender in Victorian England (University Press of Virginia, 1995); S Lettmaier, Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800–1940 (Oxford University Press, 2010). 47 Probert (2009) (n 40) ch 6. 48 Although subsequent case-law accepted ex post facto consent as sufficient: Probert (2009) (n 40) ch 8. 49 The Act was also important in requiring parish clergy to keep regular records of marriages. 50 Snell (n 42) 274; R Probert and L D’Arcy Brown, ‘The Impact of the Clandestine Marriages Act: Three Case-Studies in Conformity’ (2008) 23 C&C 309; Probert (2009) (n 40) ch 7. 51 Probert (2009) (n 40) ch 7. 52 Probert (2009) (n 40) ch 9. 53 Probert (2009) (n 40) ch 8. 54 R Probert, ‘The Evolving Concept of Non-marriage’ (2013) 25 CFLQ 314.

Part 1: Private Family Law 1750–1850 347 statistical and demographic information.55 Dissenting sects and Catholics were permitted to marry according to their own rites as long as they had their chapels registered for the purpose and a civil registrar was present to validate the proceedings. Those wishing to marry in a purely civil ceremony could do so in the offices of the newly appointed superintendent registrars.56 All non-Anglican marriages, including those of Jews and Quakers, had to be preceded by new civil preliminaries. And for the first time all marriages, including those celebrated in the Anglican church, had to be centrally registered.57 Despite these new options, marriage in the Anglican church continued to be the norm:58 in 1850 86 per cent of marriages were still celebrated according to the rites of the established Church.59 In the meantime, the rules on whom one could marry had sharpened. The postreformation rules on the subject, deriving in the main from biblical authority,60 had continued to prohibit marriages with certain affines – ie those related by a prior marriage – as well as blood relations.61 By the late seventeenth century the common-law courts had begun to prevent the ecclesiastical courts from annulling such marriages after the death of either spouse. In 1835 Lord Lyndhurst sponsored an Act which turned marriages within the prohibited degrees from being voidable during the parties’ lifetimes to being wholly void, while simultaneously validating existing marriages to affines.62 The change was a controversial one, and a later survey revealed that a not insignificant number of marriages had continued to take place between respectable men and their sisters-in-law who evidently felt the relationship to be one of comfort and mutual help, rather than of illicit passion.63 As we shall see, demands to repeal this particular prohibition were to be made at frequent intervals over the second half of the century; first, though, we need to consider the consequences of marriage.

B. Sustaining the Family: Property i. During the Marriage Recent scholarship on household relations has emphasised spousal interdependence rather than male dominance and female submission.64 Spouses ‘pooled their labour, interests, and

55 WO Chadwick, The Victorian Church (Black, 1970) 145–46; Probert (2009) (n 40) ch 9; J Haskey, ‘Marriage Rites – Trends in Marriages by Manner of Solemnisation and Denomination in England and Wales, 1841–2012’ in J Miles, P Mody and R Probert (eds), Marriage Rites and Rights (Hart, 2015). 56 R Probert, ‘State and Law’ in P Puschmann (ed) A Cultural History of Marriage in the Age of Empires (Bloomsbury, forthcoming). 57 Marriage Act 1836. See MJ Cullen, ‘The Making of the Civil Registration Act of 1836’ (1974) 25 Journal of Ecclesiastical History 39. 58 For the possible explanations as to the slow take-up of the other options, and an analysis of their geographical distribution, see O Anderson, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1975) 69 P&P 50; R Floud and P Thane, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1979) 84 P&P 146; O Anderson, ‘A Rejoinder’ (1979) 84 P&P 155. 59 Thirteenth Annual Report of the Registrar-General of Births, Deaths, and Marriages in England (HMSO, 1852) 4. 60 Leviticus 18; given force by Succession to the Crown Act 1533; Succession to the Crown Act 1536. 61 See generally S Wolfram, In-Laws and Outlaws: Kinship and Marriage in England (Palgrave Macmillan, 1987). 62 Marriage Act 1835. Existing marriages to blood relations remained voidable. 63 PP 1847-8 [973] XXVIII. 64 Bailey (2003) (n 21).

348 The Family resources, which prioritised familial interests over individual concerns and united spouses in collaborative – though not necessarily the same – endeavours.’65 The economic contributions of husbands and wives – and the legal mechanisms that determined who had control over what – were determined as much by class than by gender. For those whose wealth grew from landownership, the organisation of interests between the generations had, as we have seen, come to centre in the system of settlements.66 For the first-born inheritor of the main estate, the succession would be organised at his majority or marriage, with the portions of his younger brothers and his sisters being determined as part of the process. For a younger son, marriage would likely bring its own settlement between himself or his family and his bride’s family. These arrangements at the time of marriage – the estate planning that was brought to such sophistication by 1750 – settled the new family’s property from the outset, laying out the succession in the generation to come; providing the wife with her personal spending allowance (pin-money); disposing of the dowry which she brought into the marriage so as to preserve her a separate interest (with perhaps an ultimate reversion to her own family);67 obliging each partner to bring later inheritances and other gifts into the settlement; and determining what provision would be made upon death. In the absence of any arrangement to the contrary, any property that a wife brought to the marriage – whether through her personal fortune as an heiress, her dowry or what she herself had earned – was subject to the rules developed by the common law. These regarded the husband and wife as one, it being the wife’s legal personality that was merged into that of the husband.68 She was therefore deprived during ‘coverture’ of civil capacity to sue or be sued in her own name or to be regarded as the legal owner of property.69 Accordingly, the chattels and money that she brought to the marriage became her husband’s. When it came to interests in land, however, the husband’s entitlement was less absolute. A husband acquired a right to manage any freehold property belonging to his wife and to take the income during their joint lives.70 Leasehold property remained the wife’s; however, the husband acquired not only the right to rents and profits but the right to sell the lease during their joint lives.71

65 J Bailey and L Giese, ‘Marital Cruelty: Reconsidering Lay Attitudes in England, c 1580 to 1850’ (2013) 18 The History of the Family 289, 293. There is now a wealth of literature on women’s roles in and outside the home: see eg Davidoff and Hall (n 26); A Vickery, ‘Golden Age to Separate Spheres: A Review of the Categories and Chronology of English Women’s History’ (1993) 36 HJ 383; RB Shoemaker, Gender in English Society 1650–1850: The Emergence of Separate Spheres? (Longman, 1998); J Hurl-Eamon, ‘The Fiction of Female Dependence and the Makeshift Economy of Soldiers, Sailors, and Their Wives in Eighteenth-century London’ (2008) 49 Labor History 481. 66 See pp 119–28. See also E Spring, Law, Land and Family: Aristocratic Inheritance in England, 1300 to 1800 (University of North Carolina Press, 1993); AL Erickson, Women and Property in Early Modern England (Routledge, 1993); S Staves, Married Women’s Separate Property in England, 1660–1833 (Harvard University Press, 1990); L Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (University of Toronto Press, 1983). 67 See further p 349. 68 J Bailey, ‘Favoured or Oppressed? Married Women, Property and “Coverture” in England, 1660–1800’ (2002) C&C 351. However, as emphasised in FE Dolan, ‘Battered Women, Petty Traitors, and the Legacy of Coverture’ (2003) 29 Feminist Studies 249, the fact that a husband gained access to the wife’s property did not mean that a wife was the property of her husband. 69 Blackstone, Commentaries vol 1, ch 15, s 3, though note that he underplayed, even for his time, the developments in equity discussed below; see further Cornish (n 30) 730–32 on the consequences of the doctrine of unity. 70 Holcombe (n 66) ch 2. 71 ibid.

Part 1: Private Family Law 1750–1850 349 During the marriage the common law treated the husband as the single focus of both rights and duties for the household. While he owned or controlled the family assets, including the property brought in by his wife, he became responsible for her pre- and post-marriage debts, torts and other liabilities. The corollary of this was that a wife could pledge her husband’s credit for necessaries: tradesmen had only to consider the husband’s creditworthiness and looked to him for payment of family bills.72 This both reflected and facilitated the crucial role played by wives in ensuring that there was adequate food and clothing for the household.73 A husband’s implied authority could only be withdrawn by adequate notice to the contrary,74 and even notice was of no avail when he had deserted her without cause.75 An adulterous wife, however, lost the ability to pledge her husband’s credit.76 There were also mechanisms by which wives could retain separate property even during marriage. The rules of equity came to offer a certain independence to propertied brides through the device of the trust.77 Property given by a marriage settlement to trustees78 for the wife’s ‘separate use’ made her, rather than her husband, the beneficiary. But concern that a wife might be ‘kissed or kicked’79 into transferring her property to her husband if she had control over it led to the courts developing what was known as the ‘restraint on alienation’.80 Where her interest in the property was declared to be ‘not by anticipation’,81 she would be unable to require the trustees to transfer the legal interest to her. Such a device naturally appealed to any bride’s father who wanted his contribution to the marriage to have some permanence and to pass to the next generation or, if there were none, then back to such successors as his daughter might choose, rather than to his son-in-law.

72 For discussion see eg M Finn, ‘Women, Consumption and Coverture in England, c 1760–1860’ (1996) 39 HJ 703. Such liability was not dependent on the validity of the marriage, but rather on the public appearance of a marriage, so a man who held out a woman as his wife would also be liable: Probert (2012) (n 4) 85–87. 73 There is a considerable body of scholarship on the role of female consumers in this period: see Bailey (2002) (n 68); A Vickery, ‘His and Hers: Gender Consumption and Household Accounting in Eighteenth-Century England’ (2006) P&P, 1st Supplement 13; M Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2007). The power to pledge a husband’s credit for necessaries survived until it was abolished by the Matrimonial Proceedings and Property Act 1970. 74 See eg Etherington v Parrot (1703) 2 Ld Raym 1006. 75 For examples of litigation over liability for such debts see Finn (n 72) and L Stone, Uncertain Unions and Broken Lives: Marriage and Divorce in England, 1660–1857 (Oxford University Press, 1995) 583. 76 See eg Govier v Hancock (1796) 6 TR 603 (husband not liable even where he had himself previously committed adultery and turned her out of the house); cf Norton v Fazan (1798) 1 Bos & Pul 226 (husband remained liable, having left her and the children in his house; tradesman had no means of knowing of the wife’s adultery). 77 For discussion see Erickson (n 66) ch 6; Holcombe (n 66) ch 3; AA Tait, ‘The Beginning of the End of Coverture: A Reappraisal of the Married Woman’s Separate Estate’ (2014) 26 Yale Journal of Law and Feminism 165. 78 These would likely include the wife’s relations: on the changing identity and expectations of trustees see C Stebbings, The Private Trustee in Victorian England (Cambridge University Press, 2002). 79 This would seem to be a very real concern: E Foyster, ‘At the Limits of Liberty: Married Women and Confinement in Eighteenth-century England’ (2002) 17 C&C 39, has noted that while the eighteenth century saw greater condemnation of wife-beating, confinement emerged as an alternative means to exercise power and in particular to extract concessions relating to property. 80 See Cornish (n 30) 741–42. 81 The phrase is thought to have originated with Lord Thurlow, who was dismayed at the prospect of a wife making over her settled property to her husband ‘while the wax was yet warm on the deed’ (quoted in Pybus v Smith (1791) 3 Bro CC 340). He accordingly included the new phrase in the settlement of a Miss Watson, to whom he was trustee. Not all judges were so paternalistic, however: see Tait (n 77) 195–99 for a review of cases in which the court treated married women ‘as agentic beings possessed of the right to dispose of assets according to personal choice’.

350 The Family In the eighteenth century the Court of Chancery developed these ideas with a degree of enthusiasm. It would accept any clear expression of intent that a wife was to receive property of her own as enough to give rise to a separate use; and if no trustees were appointed, the court would deem the husband, as the owner at common law, to be the trustee.82 In cases of separation, the wife’s pre-marital assets would be regarded as constituting a separate estate that she could draw on for support.83 The concept of the separate estate did not, however, apply to a wife’s earnings, leaving the growing number of women who worked outside the home in the factories spawned by the industrial revolution without any legal control over their wages. The rules doubtless remained because of a preponderance of households in which the wife’s role, while essential, was essentially subordinate. They did not suffice when women conducted quite separate businesses or where they brought in such wealth of their own as to stake a real claim to independence. In these cases patriarchal notions did not invariably dominate; both local custom and rules of equity were used to achieve variations.84 The varied ways in which wives were secured a measure of independence through property were necessarily at variance with any simple unvarying notion of patriarchal dominance. Nineteenth-century judges, however, displayed a distinct reluctance to develop the law further down the same track, leaving further reform to be pursued by legislation in the later part of the century.85

ii. The Distribution of Property on Death For the upper stratum of society, the rights of a surviving spouse would be determined by the settlement made at the time of the marriage and the distribution of property on death under the terms of wills was proportionately of less significance. For middling people with a modicum of wealth, wills assumed more significance: men were expected to make provision for their dependents and were warned that a failure to do so would lead to ‘chaos, disorder and ruin’.86 Wives too might make wills in relation to their separate property.87 It has been estimated that around five to 10 percent of adults dying in the early nineteenth century left a will:88 a small proportion overall, but not when viewed in the context of those who had significant property to leave. In the absence of specific provision, at common law a widower became a ‘tenant by curtesy’ of any freehold land the wife had brought to the marriage, provided that there had

82 Bennet v Davis (1725) 2 P Wms 316. 83 For discussion see eg Tait (n 77). 84 See eg M Hunt, The Middling Sort: Commerce, Gender, and the Family in England, 1680–1780 (University of California Press, 1996) 138–39 on the distinct customs in London that allowed wives to be treated as principals for trading purposes as if they were unmarried, and generally on the differential expectations of men and women in commerce. 85 See p 378. 86 A Owens, ‘Property, Gender and the Life Course: Inheritance and Family Welfare Provision in Early Nineteenth-century England’ (2001) 26 SH 299; see also RJ Morris, Men, Women and Property in England, 1780–1870: A Social and Economic History of Family Strategies amongst the Leeds Middle Classes (Cambridge University Press, 2005). 87 See Tait (n 77) 199–203 on the evolution of the legal rules. 88 JS Anderson, ‘Succession, Inheritance and the Family’ in W Cornish et al, The Oxford History of the Laws of England: Vol XII (Oxford University Press, 2010) 9–10.

Part 1: Private Family Law 1750–1850 351 been at least one child of the marriage.89 This created no more than a life interest: upon his death it would pass to her heir-at-law rather than to his. In relation to any leasehold land that the wife had brought to the marriage, by contrast, a widower had an absolute entitlement. Widows were in principle entitled to dower, a life interest in one-third of all freehold lands owned by the husband at any time during the marriage. Since this attached even to lands that had in the interim been sold, it was antagonistic to the notion of land merely as an asset, and a batch of practices developed to displace its operation. The most straightforward was a marriage settlement giving the widow a jointure instead, but more complex other conveyancing devices were also developed.90 The Dower Act 1833 then finally allowed a husband to bar dower by will, alienation or deed, opening the way to a new period of freedom of testation.91 Similar developments had occurred in the context of chattels and other personal property. Earlier rules allowing a widow and children a fixed proportion of a deceased husband’s personalty had been cut back by the start of our period so that no notion of any community of property at death survived to qualify the power of the husband and father to disown members of his immediate family by his will. No rule illustrates more clearly the deep-felt attachment to patriarchy and individuality of property rights.92

C. Sustaining the Family: Children The eighteenth century saw the emergence of a clearer concept of childhood and greater parental expressiveness.93 There was, however, no substantial incursion into the medieval distinction between legitimate and illegitimate children. Here was the fundamental premise of the succession to titles and to property and it was unlikely to be reviewed in a world built upon a strict notion of primogeniture. A father could not even legitimate his child by subsequently marrying the mother, and no notion existed of adoption, or at least not as a mechanism by which family relationships could be transmuted. The only obligations that could be imposed upon the father of an illegitimate child arose from the poor law. Even in relation to his legitimate children, the law imposed little by way of substantial responsibility. In proclaiming a father to be under the duty to maintain, protect and educate his children, Blackstone had to admit that this was a moral rather than a legal obligation,94

89 AG Guest, ‘Family Provision and the Legitima Portio’ (1957) 73 LQR 74. 90 See Spring (n 66) ch 2 on the way in which the value of the jointure was assessed against the portion that the wife had brought to the marriage, and how the ratio declined to women’s disadvantage; see also Erickson (n 66) ch 7; and Staves (n 66) ch 3 on the more complex conveyancing techniques available. 91 Holcombe (n 66) ch 1; Anderson (2010) (n 88) 9. 92 The testator’s power was also enhanced by the developing law of secret trusts: he might leave property to a person (named or not named as a trustee) for distribution in accordance with private instructions. He thus had the freedom to prefer favourites, assuage conscience or pursue any other motive without showing his relations or the world. 93 LA Pollock, Forgotten Children: Parent-child Relations from 1500 to 1900 (Cambridge University Press, 1983); Bailey (2012) (n 23). 94 Commentaries, vol 1, 451. A child could not pledge his or her father’s credit for necessaries without express authority: Mortimore v Wright (1840) 6 M & W 482; see N Wikeley, Child Support: Law and Policy (Hart, 2006) ch 3.

352 The Family although the courts both assumed and encouraged such provision by a number of means and the social expectation was that men would provide for their families.95 Similarly, fathers were left free to discipline their children as they chose,96 subject only to the ultimate sanctions of the criminal law against homicide and serious assaults.97 Private law was mainly concerned with rights of custody and access. The basic premise of both law and equity in custody disputes over legitimate children was one of strict patriarchy.98 A father could even rule from the grave, since the decisions of any guardian appointed by him would override the wishes of his widow.99 It was the Court of Chancery that exercised supervision over the conduct of such guardians to ensure that they were discharging their trust appropriately.100 Ironically, this supervisory jurisdiction was to be extended in due course to fathers themselves: it was the court, rather than either parent, that had the ultimate right to determine the child’s upbringing.101 In cases of disputes between parents, if the children were living with the father, it was unlikely that anyone else, even the mother of very young children, could recover them from him.102 Habeas corpus proceedings were of little use in this context: the Court of King’s Bench might refuse to enforce existing rights of custody if the child was no longer with the father, but could not change such rights to remove the child from the father’s care. The court refused, for example, to order that a father who had ill-treated his family and had gone bankrupt should have a six-year-old girl back from her mother, even though the ‘natural right’ was with him.103 By contrast, in R v De Manneville104 Margaret De Manneville unsuccessfully applied to the Court of King’s Bench for a writ of habeas corpus for the return of the infant daughter that her husband had seized from her. In equity, too, a mother might be able to prevent the father of her children from interfering with her custody of them, and a father who had permitted his children to be brought up by others would not necessarily find the court receptive if he sought their return.105 The Court of Chancery could exercise its parens patriae jurisdiction over children that it perceived to be in danger to make them wards of the court, and appoint a trustworthy

95 See A Hofri-Winogradow, ‘Parents, Children and Property in Late 18th Century Chancery’ (2012) 32 OJLS 741; Bailey (2012) (n 23) ch 2; Morris (n 86). 96 In Winterburn v Brooks (1846) 2 Car & K 16 bystanders who intervened to prevent a father beating his sons with a strap found themselves faced with an action for assault and ordered to pay damages. 97 H Brewer, By Birth or Consent: Children, Law and the Anglo-American Revolution in Authority (University of North Carolina Press, 2005) suggests that discipline became harsher towards the end of the eighteenth century. Perhaps in response to this, Enlightenment commentators advocated disciplining children through reasoned argument rather than corporal punishment: Bailey (2012) (n 23) ch 3. 98 See generally, PH Pettit, ‘Parental Control and Guardianship’ in Graveson and Crane (n 32). When it came to disputes over children, the ecclesiastical courts were allowed no place. 99 The last traces of the notion that the wife had guardianship over the younger sons and daughters seems to have gone in the seventeenth century with the disappearance of feudal obligation. 100 S Abramowicz, ‘English Child Custody Law, 1660–1839: The Origins of Judicial Intervention in Paternal Custody’ (1999) 99 Columbia Law Review 1344. 101 ibid. 102 Habeas corpus proceedings could be brought not only in King’s Bench but in the other common law courts and, in some circumstances, in Chancery; but in the last, wardship proceedings became the common process from mid-eighteenth century. 103 Blisset’s Case (1767) Lofft 748. See generally DC Wright, ‘The Crisis of Child Custody: A History of the Birth of Family Law in England’ (2002) 11 Columbia Journal of Gender and the Law 175. 104 (1804) 5 East 221. 105 Abramowicz (n 100).

Part 1: Private Family Law 1750–1850 353 guardian for them.106 But again, the court would not exercise its jurisdiction to remove a child from a father. In De Manneville v De Manneville107 Margaret De Manneville’s subsequent petition to the Court of Chancery was also rejected although an order was made preventing the father from taking the child out of the country.108 Subsequent cases cited De Manneville as showing that the courts did not have the authority to interfere with the father’s natural, near-absolute rights to custody of children, that mothers did not have any custodial rights, and that acts constituting forfeiture of paternal rights must be so severe as to threaten the child with harm to life or limb.109

The courts would not treat a father as surrendering his rights just because he could not maintain his family or because he was living in adultery.110 If, however, he clearly intended to educate his children in a way that the courts regarded as immoral, he might well be deemed unsuitable to have care of them.111 Even so, this did not mean that care would be transferred to the wife: if she were living apart from the husband she could not even expect an order of access permitting to visit, save in exceptional circumstances. The perceived harshness of these rules, together with a number of high-profile cases such as R v Greenhill,112 led to a campaign for reform. The author Caroline Norton, locked in combat with her husband over access to her children, published her Plain Letter to the Lord Chancellor (1837) on the subject, and Serjeant Talfourd, a young barrister who had appeared in R v Greenhill, introduced a bill into Parliament. The resulting Custody of Infants Act 1839 allowed the court to make an order permitting the mother to have access, or, if the child was under seven, to award custody; in both cases, however, the mother had to be innocent of adultery.113 The rules on custody and access were, however, very different if the parents had not married. The illegitimate child was deemed a filius nullius, with no rights arising by virtue of its relationship to either parent. The father could assert no superior right to custody; if there were a dispute on the subject with the mother, she would usually be preferred, at least until the child reached seven.114 When it came to the poor law, however, which alone affected the great bulk of those children born outside marriage, the lack of legal relationship between the child and its putative father was overriden by the determination to make him

106 For the decisions of Lord Hardwicke and Lord Thurlow, see Butler v Freeman (1756) Amb 301; Powel v Cleaver (1789) 2 Bro CC 500; Creuze v Hunter (1790) 2 Cox Eq Cas 242. For discussion see DC Wright, ‘Policing Sexual Morality: Percy Shelley and the Expansive Scope of the Parens Patriae in the Law of Custody of Children’ (2012) 8 Nineteenth-Century Gender Studies [online]. 107 (1804) 10 Ves Jun 52. 108 See Abramowicz (n 100); DC Wright, ‘De Manneville v De Manneville: Rethinking the Birth of Custody Law Under Patriarchy’ (1999) 17 L&HR 247. 109 Wright (1999) (n 108), 262. 110 Provided that he kept his mistress away from the children: Ball v Ball (1827) 2 Sim 35. 111 See eg Shelley v Westbrooke (1817) Jac 266 and Wellesley v Duke of Beaufort (1827) 2 Russ 1, for discussion see Wright (2012) (n 106). 112 R v Greenhill (1836) 4 Ad & El 627. 113 See M Lyndon Shanley, Feminism, Marriage and the Law in Victorian England, 1850–1895 (IB Tauris & Co, 1989). 114 But, as ever, property could make a difference for Lord Eldon, who held that a substantial settlement on natural children gave the father the right to appoint a guardian: Courtois v Vincent (1820) Jac 268.

354 The Family provide if at all possible.115 The old Poor Law allowed a pregnant single woman to name a man as father to the overseers of the poor or to any substantial householder. She might then have a justice of the peace arrest the man. He would be committed to prison unless he could give security, or enter into recognisances to indemnify the parish for having to maintain the child. The Poor Law Commissioners of 1833/34, by a nice amalgam of religious prescription and utilitarian calculation, found this procedure wanting.116 They thought that unmarried women could use their pregnancy as a path to support and marriage by an accusation that was easily made and difficult to refute. The Poor Law Amendment Act 1834 accordingly allowed a putative father to be pursued for maintenance only at Quarter Sessions; corroborative evidence of paternity was required; and any maintenance order could go only to the cost of supporting the child up to seven, and not the mother.117 So substantial a change left the payment of maintenance most often on the parish, but it placed the obloquy directly on the shoulders of the mother. The change produced considerable ill-feeling in communities where the social expectation had been that impregnation obliged a man to marry the woman before the birth. Thus the Rebecca Riot Commissioners reported that subsequent marriages were becoming rarer, women were tempted into a life of vice, while ‘the man evades or defies the law, with a confidence which has outraged the moral feeling of the people to a degree that can hardly be described.’118 By 1844, the Poor Law Commissioners felt that the new purity on which the Act tried to insist could not be enforced against pressure of such an opposed morality. The unmarried mother was given back her right to seek maintenance from the father by applying to petty sessions, but subject to a requirement of corroborative evidence of paternity.119 Not till 1868 did the poor law authorities re-acquire the power to recover from the father the cost of relieving a bastard child.120 At all stages, paternity proceedings operated at the margin of the poor law, striving to keep mother and child out of the workhouse and off the rates. Even less fortunate were the foundlings, orphans and runaways, many of whom went off to the servile drudgery of the mills, the mines, or the ships.121 There were a few charities which sought to rescue ‘waifs and strays’, and more were founded as evidence showed how children too readily sank to the prison, the transport ship or even the gallows. Eventually the central state would add its set of institutions – the reformatory and industrial schools – to the mixed array of local and philanthropic effort. But that was to be a relatively late step and belongs, like state intervention in the name of education, very largely to our later period.122

115 See generally URQ Henriques, ‘Bastardy and the New Poor Law’ (1967) 37 P&P 103; I Pinchbeck and M Hewitt, Children in English Society (Routledge and Kegan Paul, 1973) II, 583–87; M Finer and OR McGregor, ‘The History of the Obligation to Maintain’ in Report of the Committee on One-Parent Families, PP 1974 [Cmnd 5629] XVI, App 4, 115–21; S Williams, ‘The Maintenance of Bastard Children in London, 1790–1834’ (2016) 69 Econ HR 945; Williams (2018) (n 16); Wikeley (n 94) ch 2. 116 See their Report, PP 1834 (44) XXVII, 92 and 197–98. 117 Sections 69–76. For discussion see Wikeley (n 94) 52–53. 118 Henriques (n 115) 118. 119 Poor Law Amendment Act 1844, ss 1–9; the maximum was 2s 6d a week until the child reached 13 (increased to 5s until 16 in 1872 and to £1 a week in 1925). 120 Poor Law Amendment Act 1868, s 41. See Wikeley (n 94) 56–57. 121 See further pp 291–96. 122 See further pp 564–65.

Part 1: Private Family Law 1750–1850 355

D. Ending the Family: Marriage Breakdown i. Ecclesiastical Jurisdiction The sacramental and indissoluble nature of marriage, of which the Church of Rome had become convinced by the end of the Middle Ages, was a matter of high controversy in the Reformation. Luther had declared marriage to be no more than a civil contract and claimed biblical authority for its dissolution in favour of one party upon the adultery of the other. Calvin had followed him in this and John Knox had carried the doctrine to Scotland, where the law came to allow full divorce (with the ability to marry another) upon proof of adultery or four years’ desertion. In England the newly established Church had vacillated, but by the start of the seventeenth century, opinion had hardened in favour of treating marriage as indissoluble, if not sacramental.123 This was reflected in the relief granted by the ecclesiastical courts to spouses in conflict. They would grant an order for the restitution of conjugal rights against an errant husband or wife. This would seek to enforce the central obligation in matrimony – co-habitation.124 There might, however, be faults or offences in matrimony too grave for this obligation to be insisted upon. While the courts could not treat these wrongs as justifying termination of the marriage, they could order a suspension of the obligation to cohabit: a divorce a mensa et thoro (from bed and board) could be granted against either husband or wife on the ground of his or her cruelty or adultery.125 This was the forerunner of the modern decree of judicial separation. While both husbands and wives could petition on either ground, in practice it was husbands who tended to cite adultery and wives who tended to cite cruelty, or a combination of adultery and cruelty.126 The test for establishing legal cruelty was set at a high level. In Evans v Evans Sir William Scott, later Lord Stowell, insisted that a divorce a mensa for the husband’s cruelty must, in all save exceptional cases, involve physical harm and not just mental affliction: When the principle is understood that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and wives from the necessity of remaining husbands and wives; for necessity is a … master in teaching the duties it imposes.127

In addition, the order was (in principle) available only to a spouse who was truly aggrieved, and so not to one who had connived at the adultery initially, had condoned it subsequently, had colluded in getting up a faked case or had been equally guilty of a matrimonial wrong. In the years up to 1790, it seems that cases in which such a defence succeeded were a rarity 123 J Witte Jr, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, 2nd edn (Westminster John Knox Press, 2012); L Stone, Road to Divorce: A History of the Making and Breaking of Marriage in England (Oxford University Press, 1990). 124 Of course, ‘whether the suits led to actual reconciliation or to terms of separation cannot be known from the court records’: S Waddams, ‘English Matrimonial Law in the Eve of Reform’ (2000) 21 JLH 59, 69. 125 See Stone (1990) (n 123) ch 8. 126 For a discussion of the anachronism of referring to ‘domestic violence’ in the eighteenth century, see J Bailey, ‘“I Dye [Sic] by Inches”: Locating Wife Beating in the Concept of a Privatization of Marriage and Violence in Eighteenth-century England’ (2006) 31 SH 273. 127 Evans v Evans (1790) 1 Hag Con 35 at 36–7. However, individuals tended to define cruelty more widely: see Bailey and Giese (n 65).

356 The Family in the London Consistory Court.128 From the late eighteenth century, however, the defence of connivance in particular acquired new force.129 An adulterous wife might resist a decree against her by showing her husband’s ‘extreme negligence’ to her condition.130 If a divorce a mensa et thoro were granted, its principal effects were upon the duty of the husband to maintain his wife.131 If the husband was the guilty party, he would normally be ordered to pay her alimony, which was commonly reckoned at about a third of his income, or even a half, if his conduct had been peculiarly offensive and the wife had brought considerable wealth.132 If the wife was guilty, she would be left without recourse against her husband and would have to look to a lover, her separate property, or her own earning capacity, for her support. The alternative for couples whose union had broken down was to seek a decree of nullity from the ecclesiastical court, contending that the marriage had never been valid in the first place. The medieval church, for all its veneration of indissolubility, had accepted a wide range of relationships of consanguinity and affinity between the parties as invalidating a marriage.133 This had been one source of Luther’s contempt and the reformed church in England had stripped the substantial causes of nullity back to the Levitical degrees of relationship,134 together with grounds such as lack of age, force, fraud, idiocy, lunacy and impotence.135 In the wake of the 1753 Act, procedural defects in marriage could also be relied upon, but the scope for doing this was limited by the amending legislation passed in 1823.136

ii. Divorce Extraordinary: Private Acts Meanwhile, a procedure had been developed whereby an existing valid marriage could be brought to an end and the parties permitted to remarry. In the decade after the Restoration, Lord Roos had secured for himself a full divorce by Act of Parliament.137 There were high protestations but he met them with the most urgent of reasons, the need to replace his adulterous wife with one who might secure his line. A trickle of imitations, similarly motivated by dynastic concerns, followed from the 1690s.138 By the second half

128 Sir William Wynne could recall only the case of the actor, Colley Cibber, in which connivance had been made out: Hodges v Hodges (1795) 3 Hag Ecc 118. 129 See eg Timmings v Timmings (1792) 3 Hag Ecc 76; Lovering v Lovering (1792) 3 Hagg Ecc 85. 130 Gilpin v Gilpin (1804) 3 Hag Ecc 150. 131 The Court of Common Pleas eventually refused to hold that the sentence turned the wife into a feme sole: Lewis v Lee (1824) 3 B & C 291. 132 Stone (1990) (n 123) 210–11. Only ecclesiastical penalties lay to enforce payment until 1813, when imprisonment became available (Ecclesiastical Courts Act 1813 (also known as Lord Stowell’s Act), s l). 133 For the suggestion that such suits were in fact rare, see RH Helmholz, Marriage Litigation in Medieval England (Cambridge University Press, 1974) 77–87. 134 Although Henry VIII’s need to confer legitimacy on his successive remarriages led to bewilderingly swift changes in precisely which persons one could not validly marry: see M Harding, ‘The Curious Incident of the Marriage Act (No 2) 1537 and the Irish Statute Book’ (2012) 32 LS 78. 135 See J Jackson, The Formation and Annulment of Marriage, 2nd edn (Butterworths, 1969). 136 See p 346. 137 See R Probert, ‘The Roos Case and Modern Family Law’ in S Gilmore, J Herring and R Probert (eds), Landmark Cases in Family Law (Hart, 2011). 138 See Stone (1990) (n 123) 317–22.

Part 1: Private Family Law 1750–1850 357 of the eighteenth century, however, the numbers were increasing, if only to two or three per year,139 and the focus was shifting to the husband’s right to rid himself of an erring wife and regain the ‘comforts of matrimony’ with a new spouse.140 The procedure for a divorce by private Act of Parliament became increasingly standardised as the numbers increased. It was designedly elaborate.141 Normally the petitioning husband was expected first to establish his wife’s guilt in an action at common law against the adulterer for criminal conversation (thus proving the matter to the satisfaction of a jury).142 The action was a curious amalgam of compensation, consolation and condemnation, and one only to be contemplated between men. The size of the damages, which took account of the wife’s economic value, the injury to the husband’s feelings and the means and conduct of the co-respondent, might fund the later stages of the proceedings. A husband then had to seek a divorce a mensa et thoro in the ecclesiastical courts (following the largely documentary process of the civilians that drew such common law disdain). The records of both proceedings then went with the Bill, first to the Lords, then to the Commons and back again to the Lords. Given the main object at stake, this became a use of private legislation that was peculiarly ‘judicial’, regularised by precedent into a normative regimen.143 Even so, there remained a residue of discretion natural to a legislative process. Certainly there was a flux in attitudes that was, if anything, more marked than that relating to separation arrangements and the like. As Anderson has suggested, the dominant role played by the Lord Chancellor in the Lords made his personal predelictions a crucial factor in the outcome of petitions. Under Thurlow in the 1780s, under Eldon (for the first quarter of the next century) and later under Brougham, Parliamentary divorce was made difficult by an insistence not only on the clearest proof of the adultery but also that the husband be truly aggrieved; he must in no way have colluded in the proceedings or have allowed his wife’s liaison to carry on without protest.144 Wives, meanwhile, had an even higher threshold to satisfy if they wished to petition for a divorce. Not until 1801 did a woman, Jane Campbell Addison, succeed in obtaining a divorce: given that her husband had run away with her sister, and that the latter’s husband had already been granted a divorce, it would have been difficult to have refused her petition.145 The circumstances of the case did, however, allow Parliament to confine the remedy to cases of ‘incestuous’ adultery. Thirty-nine years were to elapse before the case of 139 See S Wolfram, ‘Divorce in England 1700–1857’ (1985) 5 OJLS 155, 157. 140 See Stone (1977) (n 18); R Trumbach, The Rise of the Egalitarian Family (Academic Press, 1978); see also J Shaffer, ‘Bastardy and Divorce Trials, 1780–1809’ in Probert (2014) (n 17) on the inclusion of bastardisation clauses. 141 A succession of Bills after 1770 sought to remove the right of the couple to re-marry after the Divorce Act (witness, eg, Lord Auckland’s optimistically titled Adultery Prevention Bill 1800). These were one expression of the severer morality which attracted the judges, but they never commanded a Parliamentary majority: S Anderson, ‘Legislative Divorce – Law for the Aristocracy?’ in GR Rubin and D Sugarman (eds), Law, Economy and Society (Professional Books Ltd, 1984) 423–24. 142 On the action for criminal conversation see S Staves, ‘Money for Honor: Damages for Criminal Conversation’ (1982) 11 Studies in Eighteenth-Century Culture 279; Stone (1990) (n 123) ch 9. 143 The foundation became Lord Loughborough’s Standing Orders of 1798 (for the Lords) under which the petitioner could be required to attend for examination; in the Commons Labouchere’s motion of 1840 secured a hearing before a Committee instead of the whole House, so increasing the ‘judicial’ character. See Stone (n 123) 322–24. 144 Anderson (1984) (n 141) 424ff. 145 Wright (n 29).

358 The Family Mrs Battersby, whose husband had compounded his adultery by committing bigamy, added a further ‘aggravating’ factor sufficient for the grant of a divorce to a wife.146 Indeed, in the period to 1857, only two other women succeeded in securing a divorce.147 In the same period there were 193 divorces granted to men.148 Parliamentary divorce was no longer a class privilege reserved for aristocrats with an entry into legislative circles: there were applications from the service, professional, merchant and even lower ranks. Nor did their success or failure depend on the status of the applicant: in this context, as James has noted, ‘No group was entirely debarred, no group automatically admitted.’149 Nor was the common claim justified (for all that it was to be repeated by the Campbell Royal Commission in 1853) that even an undefended process would cost in the order of £700–800, with the amount running into thousands if the wife or co-respondent resisted at any stage. As typical figures, these amounts were somewhat exaggerated and in any case failed to distinguish the cases where the husband was left to pay everything from those in which the criminal conversation damages against the co-respondent would shift some or all the burden to him.150 Parliamentary divorce depended not so much on absolute wealth (though it certainly needed some resources) as upon resilient determination to persist through time-consuming and wearing processes.151 A divorce did not, however, end the obligations of marriage altogether. It was the practice of Parliament to provide maintenance for even a guilty wife.152 This attracted some controversy, with some inveighing against what they saw as rewarding a wife for committing adultery and others equally passionately arguing for provision that would protect her from falling ‘into a course that would cut off hopes of contrition’.153

iii. Separations by Negotiation As mutual affection came to be expected within marriage, so too the decline of such affection might result in the parties choosing to separate. Some sought to formalise the terms of their separation in a written agreement, and the courts were faced with the question of how such contracts should be regarded.154 Different courts took different views, and even different judges within the same courts took different views at different times. The story of the legal treatment of such separation agreements is one of constant fluctuations, and only the key points are sketched here.155 For the ecclesiastical courts, the matter was simple: a contract for separation was void as contrary to public policy. The Court of Chancery, however, had a slightly more complex

146 See Wolfram (n 139) 174. 147 Seven tried; more obtained divorces a mensa: see eg the list in the Campbell Report, PP 1852–53 [1604] XL, 29–31. 148 Wolfram (n 139) 157. 149 D James, ‘Parliamentary Divorce, 1700–1857’ (2012) 31 Parl Hist 169. 150 Anderson (1984) (n 141) 436–42; Wolfram (n 139) 166–72. 151 See further p 363. 152 Stone (1990) (n 123). 153 This was the argument advanced by Charles James Fox, reported in the General Evening Post, 2–4 June 1791. For discussion see R Probert, J Shaffer and J Bailey, A Noble Affair: The Remarkable True Story of the Runaway Wife, the Bigamous Earl, and the Farmer’s Daughter (Brandram, 2013). 154 See Stone (1990) (n 123) ch 7; M Parker, ‘The Draft Nuptial Agreements Bill and the Abolition of the Common Law Rule: “Swept Away” or Swept Under the Carpet?’ (2015) 27 CFLQ 63. 155 For further detail see Cornish (n 30) 769–74.

Part 1: Private Family Law 1750–1850 359 approach: eighteenth- and early nineteenth-century judges deferred to the right of the ecclesiastical courts to determine the issue of separation, but were nonetheless prepared to enforce the practical terms of the separation agreement.156 So just as Chancery had used its trust device to give the wife and her family a separate property, so on separation it became possible to have trustees secure her a separate position on whatever terms the husband would admit: his promise to pay or provide maintenance might be conditioned upon her remaining chaste;157 the trustees might undertake to indemnify the husband for debts incurred by her,158 and property in the marriage settlement might be redistributed, if there was power to do so.159 In 1792 Pepper Arden MR even went so far as to decree specific performance of a separation agreement whereby the husband was to pay his estranged wife the £100 per annum which he had agreed to pay on condition that she undertake to remain living abroad;160 the husband’s expressed willingness to take his wife back was not deemed to be material to the outcome. At common law, meanwhile, in the late eighteenth century Lord Mansfield and Buller J had initially led the King’s Bench into the view that when husband and wife had separated it did not necessarily follow that she lacked all capacity to contract. If the husband were living out of England, or if the wife had separate property, she might pledge her own credit with traders and be made liable to them.161 By the end of the century, however, a change of view was observable. In 1800 the three benches sat en bloc to reject the idea that a wife separated from her husband could be deemed to be a feme sole and sued as such even if the spouses had entered into a separation agreement.162 Likewise, in Chancery doubts about the wisdom of the direction taken in the eighteenth century were expressed at length, above all by Lord Eldon. He regretted that agreements for separate maintenance had been treated as valid and was restrained only by his sense that dicta and decision had too clearly settled the law for him now to reverse it.163 He did, however, insist that equity would intervene over separation agreements only where there were ‘special’ circumstances (ie where there was a trust or the wife acquired a fortune after separation). Pepper Arden’s order to a husband to pay maintenance to his wife at her suit was disapproved.164 And both in Chancery and at common law judges came to refuse to countenance any suit upon an arrangement for future separation.165

156 Where the wife had brought assets to the marriage, an alternative would be to recognise the wife’s own separate property: see Tait (n 77) 189. 157 But if he did not make such a stipulation, the court would not imply it: see Seagrave v Seagrave (1807) 13 Ves Jun 439; Jee v Thurlow (1824) 2 B & C 547. 158 This was necessary, if the maintenance agreement was to affect his creditors: Worrall v Jacob (1817) 3 Mer 256. 159 Chancery might help in adjustments that reflected the spirit of property transactions: in Ball v Montgomery (1793) 2 Ves Jun 191, the husband had a life interest under a marriage settlement. Upon separation, Lord Loughborough refused to order that the interest on the settled property should be paid to him until he agreed to a proper separation arrangement, because the property had originally been the wife’s and had been intended partly to support her. 160 Guth v Guth (1792) 3 Bro CC 614. 161 Ringsted v Lady Lanesborough (1783) 3 Doug KB 197; Barwell v Brooks (1784) 3 Doug KB 373; Corbett v Poelnitz (1785) 1 TR 5. For commentary see J Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century: Vol 2 (The University of North Carolina Press, 1992). 162 Marshall v Rutton (1800) 8 TR 545. Even the wife’s customary right in the City of London was confined to actions in the City Courts rather than at common law: Beard v Webb (1800) 2 Bos & Pul 93. 163 St John v St John (1805) 11 Ves Jun 526. He also refused to order that moneys be paid over to a separated wife from her separate estate without an ecclesiastical decree of alimony. 164 Legard v Johnson (1797) 3 Ves Jun 352. 165 See Parker (n 154).

360 The Family Yet by the mid-nineteenth century there was a final shift in policy when the existence of a separation agreement was held to prevent the parties from bringing a suit in the ecclesiastical courts. The House of Lords further held that a promise not to proceed further in the ecclesiastical courts was itself consideration upon which equity would decree specific performance of the articles of separation.166 Separation agreements might have become undeniable necessities of life, but the same submissiveness was not to be shown to a father’s agreement to surrender custody of his children, whether to his wife, to grandparents or to anyone else. Lord Eldon set in train a refusal to treat custody agreements as binding that was to have a long endurance.167 The father could lose custody only by intervention of Chancery itself and it would require proof against him of peculiar neglect or viciousness.

iv. Wife-sale At a lower social level, the practice of wife-selling was sometimes used to signify the end of a marriage, and the start of a new liaison.168 Some such sales seem to have been the regularisation of an established relationship between a wife and her lover, putting into documentary form terms by which the husband would undertake not to apply for restitution of conjugal rights and would at the same time be declared free from liability to meet his wife’s debts. As such they were no great remove from the separation agreements of the propertied. Others were more raucous affairs, involving the wife being exhibited at a market with a halter around her neck, a part of the rowdy, drink-sodden, sexually charged end of hiring and agricultural fairs that went with rough music, cruel sports and ‘friendly’ demands for money. Regularly denounced in newspapers, such sales were regarded as an offence against public morals,169 while those who sought to go through a ceremony of marriage to validate the second union might find themselves prosecuted for bigamy.170 While the informality of such processes means that we cannot know exactly how often such sales occurred, there is at least sufficient supporting evidence from written documents, parish registers and, in the nineteenth century, the decennial census, to confirm that such sales were not merely the figment of feverish journalistic speculation. It is in the century after 1750 that most reports survive, but this is what one would expect from the expanding number of newspapers. Yet even an assiduous trawl through newspapers and other sources suggests that the practice was never very widespread – to be compared indeed with the sparse incidence of Parliamentary divorces through just the same period. Both were exceptional. Neither Parliamentary divorce nor wife-sale, then, made much impact on the number of marriages that broke down. Yet while we cannot know the true extent of marital breakdown

166 Wilson v Wilson (1848) 1 HLC 538. 167 See St John (n 163). For the position – essentially unchanged – in mid-century, see Vansittart v Vansittart (1858) 4 K & J 62. 168 See SP Menefee, Wives for Sale (Blackwell, 1981); EP Thompson, Customs in Common (Merlin, 1991) ch 7; R Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge University Press, 1988) 294–96. 169 In R v Delaval (1763) 3 Burr 1434, Lord Mansfield recalled that Lord Hardwicke had directed a prosecution of a man for assigning his wife over to another man ‘as being notoriously and grossly against public decency and good manners.’ 170 See eg Lincoln, Rutland and Stamford Mercury, 3 January 1845.

Part 2: New Pressures on Family Law: 1850–1950 361 in the past, it would be a mistake to project current rates of separation back into earlier centuries and assume that informal methods of divorce must have been common in the absence of any accessible legal remedy. Sometimes a spouse deserted, sometimes there was a mutual agreement to separate. But it does not seem to have been as easy to contract a bigamous marriage as has sometimes been suggested – or at least, not without a very real risk of detection and prosecution.171 The fact that conviction could lead to transportation to the other side of the world must have been something of a disincentive to those who might otherwise have been tempted. Nonetheless, there was sufficient dissatisfaction with the available remedies for there to be increasing pressure for reform, which was to bear fruit in the second part of the period.

Part 2: New Pressures on Family Law: 1850–1950 The increasing resort to legislation as a tool of governance in the nineteenth century has led many commentators to assume that social controls originated with the Victorians.172 A better view, however, is that the state was gradually taking over the role of the church: as Levine has noted, ‘it was as much a moral governing body as religions had been in other ages or as they were in other cultures.’173 By 1850 the system of presenting and punishing offenders in the ecclesiastical courts had virtually died out and it formally came to an end in 1855.174 While informal admonishments continued, both within the established church and within the multitude of chapels that had sprung up,175 and while moral codes underpinned by religious precepts continued to exert considerable force,176 as a whole the period saw a shift ‘to an essentially “modern” conception of religion as a personal choice’, as compared to the earlier conception of it as necessitating ‘submission to moral and civil authority’.177 Religious faith itself was under attack,178 and religious justifications for legal rules began to be ‘gradually replaced by citing the findings of experts, notably scientists.’179 The Victorian passion for statistics and classification did not necessarily make policy-making any easier, or indeed any more objective,180 but it did at least generate a centralised body of knowledge about the population as a whole, at a time when urbanisation and greater mobility meant

171 R Probert, ‘Double Trouble: The Rise and Fall of the Crime of Bigamy’ (Selden Society, 2015). 172 See eg J Donzelot, The Policing of Families (Random House, 1979, trans Robert Hurley). 173 P Levine, Victorian Feminism, 1850–1900 (University Press of Florida, 1994) 131. 174 M Hinton, The Anglican Parochial Clergy: A Celebration (SCM Press, 1994) 306. 175 CG Brown, The Death of Christian Britain: Understanding Secularism, 1800–2000 (Routledge, 2001); Davidoff and Hall (n 26) 82, 88. 176 FML Thompson, The Rise of Respectable Society: A Social History of Victorian Britain, 1830–1900 (Fontana Press, 1988) 307. 177 Brown (n 175) 37. 178 E Trudgill, Madonnas and Magdalens: The Origin and Development of Victorian Sexual Attitudes (Heinemann, 1976) 25. 179 Wolfram (n 61) 5. 180 See eg K Callan Martin, Hard and Unreal Advice: Mothers, Social Science and the Victorian Poverty Experts (Palgrave Macmillan, 2008) 69, noting how the statistical movement was pulled ‘in two different directions by the underlying moralistic assumptions of its practitioners and the environmentalism inherent in large statistical surveys.’ See also P Abrams, ‘The Uses of British Sociology, 1831–1981’ in M Bulmer (ed), Essays on the History of British Sociological Research (Cambridge University Press, 1985) 186 on the challenges of using the new data.

362 The Family the loss of much existing local knowledge and control.181 The broader concept of ‘morality’ that began to be invoked was better able to serve as a unifying force, accommodating as it did both varying shades of religious belief with agnosticism and atheism.182 Nor should the increasing body of legislation be seen as a matter of top-down regulation. Much activity was the result of campaigns by those who did not have a voice within Parliament: early feminists lobbied for reforms to married women’s property, and highlighted concerns about violence within the family; voluntary organisations concerned about moral welfare ‘challenged the rights of unrestrained male carnality’,183 and newly formed charities such as the NSPCC called for greater intervention within the family. The reforms enacted in the second half of the nineteenth century nonetheless marked a break with what had gone before. Legislation introduced judicial divorce and a distinct legal status for married women. These were changes which mainly benefited the propertied middle of the population, but the development of a matrimonial jurisdiction in the magistrates’ courts provided legal machinery for the resolution of family breakdowns for those with less resources.184 The law affecting children, in both its private and public aspects, also became both more elaborate and in some measure more flexible.

A. The Movement for Judicial Divorce The early nineteenth century had seen a few calls for reform of divorce law. In the utilitarian precepts developed by Bentham and his associates, for example, marriage could be nothing more than a consensual transaction, and it followed that divorce should be likewise.185 Reformers drew inspiration in particular from revolutionary France where divorce had briefly been introduced for various matrimonial offences and even by mutual consent.186 Divorce reform also became a secondary theme in the debates over the future of the ecclesiastical courts. Leading civilians argued that full divorce was on occasion justified and should be made available through a simpler procedure than by Act of Parliament. Dr Phillimore promoted a general Bill for judicial divorce after the scandal of the second

181 See H Perkin, The Origins of Modern English Society, 1780–1880 (Routledge & Kegan Paul, 1969) 117, on the ‘revolutionary rise in the scale of the community in which most people lived’; G Stedman Jones, Outcast London: A Study in the Relationship Between Classes in Victorian Society (Clarendon Press, 1971; Penguin, 1992) 14, on the consequent loss of ‘face to face relations, deference, and paternalism’; and H Cook, The Long Sexual Revolution: English Women, Sex, and Contraception 1800–1975 (Oxford University Press, 2004) 64, on the reduction in the ‘surveillance of both sexes that made community pressure effective as well as the means by which it could be applied.’ 182 Davidoff and Hall (n 26) 185; G Himmelfarb, Marriage and Morals Among the Victorians and Other Essays (IB Tauris & Co, 1989) 21 and The De-moralization of Society: From Victorian Virtues to Modern Values (IEA Health and Welfare Unit, 1995) 26; A Briggs, Victorian People: A Reassessment of Persons and Themes, 1851–67 (Odhams Press, 1954; Penguin, 1965) 11; Stedman Jones (n 181) 5. 183 See P Levine, Feminist Lives in Victorian England: Private Roles and Public Commitment (Basil Blackwell, 1990) 87; see also J Tosh, A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (Yale University Press, 1999) 154. 184 See eg G Behlmer, ‘Summary Justice and Working-Class Marriage in England, 1870–1940’ (1994) 12 L&HR 229. 185 For discussion of the proposals for reform in his manuscripts see M Sokol, Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (Continuum, 2011) ch 7. 186 Phillips (n 168). These provisions were repealed on the restoration of the monarchy in 1816. Their impact became a matter of constant dispute between divorce reformers and opponents everywhere.

Part 2: New Pressures on Family Law: 1850–1950 363 Lord Ellenborough’s own private Divorce Act in 1830.187 Dr Lushington added his support for reform on a number of occasions.188 The issue receded once the ecclesiastical courts survived investigation in 1832,189 but was soon revived in the 1840s under the championship of Brougham’s Society for the Promotion of Amendment of the Law.190 The radically minded lawyers who were its mainstay criticised parliamentary divorce as being a special privilege of the very rich who were able and willing to lay out several hundred pounds, or perhaps thousands.191 The injustice of the system was highlighted by the case of Thomas Hall, convicted of bigamy at Warwick Assizes in 1845. In a heavily ironic and much-quoted statement, Maule J was reported as setting out the steps he should have followed to obtain a divorce and remarry, and as noting that Hall ‘might perhaps object to this that he had not the money to pay the expenses, which would amount to about £500 or £600 – perhaps he had not so many pence – but this did not exempt him from paying the penalty of committing a felony.’192 Hall was sentenced to imprisonment for four months with hard labour.193 The press, led by The Times, took up the reformist cause. In 1850 Russell’s Government, responsive to the Low-church Whiggery which sought to sever Church from state, was moved to appoint a Royal Commission under the chairmanship of Lord Campbell. The Commission proposed to transfer the procedure to a single new tribunal but without changing the ground for divorce: husbands might use the court to divorce their wives for adultery, but save in cases of ‘incest, bigamy and the like’, wives would have to continue to resort to Parliament and show exceptional aggravation.194 By contrast, the one High-Church figure on the Commission, Lord Redesdale, would have preferred to abandon even Parliamentary divorce, fearing that its availability would lead ultimately to ‘extreme facility’ in obtaining divorces.195 The majority’s moderation nonetheless appealed to influential lawyers of a generally conservative bias. Lord Cranworth’s 1854 Bill followed its proposals, but failed to become law, partly because it sought to transfer the jurisdiction to the unpopular Court of Chancery. Lord Lyndhurst indicated his intention to introduce a divorce system on Scots lines into England; and when Cranworth tried another, very narrow Bill in 1856, Lyndhurst sought to broaden the grounds for divorce included in it.196 Only after Palmerston’s electoral victory in 1857 was reform finally achieved.197 The processing of the Government’s Bill proved

187 Ellenborough’s proceedings succeeded despite the evident taint of connivance and collusion. For a very readable account of his wife’s affairs, see MS Lovell, A Scandalous Life: The Biography of Jane Digby (Fourth Estate, 1996). 188 S Waddams, Law, Politics and the Church of England: The Career of Stephen Lushington (Cambridge University Press, 1992). 189 See p 54. 190 Legal protagonists kept up their fire: see esp the report of the Society for the Promotion of Amendment of the Law (1848) 8 Law Review 347; Brougham’s speech on law reform, PD 1848 CXVIII899. 191 See p 358. 192 The Times, 3 April 1845. Whether or not Maule J actually uttered the words attributed to him is open to doubt: see R Probert, ‘R v Hall and the Changing Perceptions of the Crime of Bigamy’ (2019) 39 LS 1. 193 Various accounts of the case claim that a lighter sentence was handed down, but the original criminal registers confirm this: National Archives, HO27/77, 254. 194 PP 1852–53 [1604] XL, 12–22. 195 ibid 26. 196 A Horstmann, Victorian Divorce (Croom Helm, 1985) 72–73. 197 See Stone (1990) (n 123) 378–79.

364 The Family laborious because Gladstone’s conscience demanded that he oppose the measure clause by clause; and in the Lords the energetic Bishop of Oxford, Samuel Wilberforce, did likewise.198 The resulting legislation was far from the root-and-branch reappraisal that had been proposed by Bentham in an earlier era. Those who spoke in Parliament were almost exclusively concerned with the spiritual justification for, and the wisdom of, extending divorce to a limited new class. It was taken that the basis for a new jurisdiction would be much the same as in Parliament and the ecclesiastical courts. Bethell, the Attorney-General, pointed out that it was essentially a procedural measure.199 Adultery alone was to ground relief; Lyndhurst’s attempt to introduce the Scottish notion of desertion for a period of years found few supporters.200 Moreover, the double standard of the patriarchal dynasty was to continue; a husband could petition on the basis of his wife’s adultery alone, but a petitioning wife had in addition to prove her husband’s incest, bigamy, cruelty or desertion for two years, as factors ‘aggravating’ his adultery, or else his commission of bestiality, sodomy or rape.201 Various individuals sought to propose amendments to the Bill during its passage. The Archbishop of Canterbury was amongst those who sought to prevent the ‘guilty’ from having the right to remarry. ‘Could any stronger inducement be offered to an incipient passion than the prospect that in the end it might legitimately be indulged?’,202 he demanded. The Attorney General, however, argued that there were ‘dissolute and depraved men’, who were in any case ‘exulting over the licence which they expect to receive at the hands of the legislature’;203 nothing could please them better than that they could not be compelled by their mistresses to marry again. The matter was accordingly dropped.204 So also was a proposal that a criminal sanction be substituted for the action of criminal conversation against the wife’s lover. The Lords did pass an amendment, strongly supported by Bishop Wilberforce, giving the divorce judge a discretion to fine or imprison a (male) co-respondent.205 But in the end the essence of ‘crim con’ was preserved instead: the husband was given the right (either as part of, or even independently of, divorce proceedings) to claim damages from the wife’s seducer.206 As before, the action was not available to a wife to claim damages from her husband’s lover. The Church and state question was settled in favour of a new secular tribunal, the Divorce Court. The ecclesiastical courts were finally stripped of their lay jurisdiction, and their jurisdiction to grant a divorce a mensa et thoro passed to the Divorce Court in

198 See MK Woodhouse, ‘The Marriage and Divorce Bill of 1857’ (1959) 3 AJLH 273; Stone (1990) (n 123); H Kha and W Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’ (2016) JLH 303. 199 For the enactment in general, see S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003) ch 6. 200 For the debate over the scriptural authority for this, see Chadwick (n 55) I 482–483; II 438–39. 201 Matrimonial Causes Act 1857, s 27; R Probert, ‘The Double Standard of Morality in the Divorce and Matrimonial Causes Act 1857’ (1999) 28 Anglo-American Law Review 73. Despite this, about 40% of petitions would be by wives, rising to some 45%, before WWI: G Rowntree and NH Carrier, ‘The Resort to Divorce in England and Wales, 1858–1957’ (1958) 11 Population Studies 188. 202 Hansard, HL Deb, 25 May 1857, vol 145, col 828. 203 Hansard, HC Deb, 30 July 1857, vol 147, col 742. 204 The same arguments had been rehearsed over Lord Auckland’s Bill of 1800; see n 141. 205 Again the proposal was by no means novel. Lord Auckland’s Bill (n 141) had at one stage contained the same proposal. 206 Matrimonial Causes Act 1857, ss 33, 34. The action was to survive until 1970.

Part 2: New Pressures on Family Law: 1850–1950 365 its modern guise as an order for judicial separation.207 Clergy of the established church, who had not in the past shown any noticeable disinclination to remarry those divorced by Parliament, now found their consciences sorely troubled, a condition exacerbated by their legal obligation to marry any couple not subject to a known incapacity. Their scruples were respected, after long argument: they were excused from having themselves to marry the guilty parties to divorce suits, but they could not object to the use of their churches for ceremonies performed by others.208 The compromise was symptomatic of a deeper uncertainty. The Church had been able to find no united conviction upon the acceptability or otherwise of divorce. So it temporised and hoped that the measure would in practice prove restricted in its effect. This hope was to be swiftly dashed.

B. Divorce by Judicial Decree Viewed in terms of the percentage increase in the number of divorces, the 1857 Act ‘has a claim to be the watershed it was believed to be by many of its contemporaries’.209 The expectation had been that the new court would not be inundated with business.210 In fact, there were 253 petitions in the first year, and new arrangements were hurriedly made to ease the burden on the court.211 Yet the overall numbers remained low, simply because so many pressures ensured that judicial divorce would be a difficult, and in some respects perilous, course. Most formidable perhaps was the great wall of social displeasure. A divorced man, and even more a divorced woman, had to reckon with total or virtual ostracism from drawing rooms and dinner tables. Those who had a public position could expect to lose it, and those who had a public profile could expect the details of the divorce to be raked over by the press.212 Nor were such considerations absent further down the social scale: when further reform was considered at the start of the twentieth century, the Women’s Co-operative Guild gave evidence that ‘the disgrace’ was dreaded, and might hinder the woman’s employment prospects.213 In addition, the cost of divorce, while considerably reduced, still put it out of the reach of many. In addition to court and legal fees, there was the cost of bringing witnesses to London

207 ibid s 16. 208 ibid ss 57 and 58. Ironically, one of the first remarriages following a divorce under the Act involved a clergyman who had been named as the co-respondent in the divorce proceedings. His bride claimed to be a spinster, and the marriage was duly solemnised in church: see R Probert, Divorced, Bigamist, Bereaved? The Family Historian’s Guide to Marital Breakdown, Separation, Widowhood, and Remarriage: from 1600 to the 1970s (Takeaway, 2015) 58. 209 Wolfram (n 139) 158. 210 Wright (n 29). 211 It had initially been provided that the Divorce Court had to comprise three judges to hear divorce petitions, one being the Judge Ordinary, specially appointed to preside over this and the new Probate Court, and the others being drawn from a pool of superior judges. In the light of the extent of the demand for divorce, the Judge Ordinary was given sole jurisdiction by virtue of An Act to amend the Procedure and Powers of the Court for Divorce and Matrimonial Causes 1860. In contested cases, juries were quite commonly used. 212 See G Savage, ‘They Would If They Could: Class, Gender, and Popular Representation of English Divorce Litigation, 1858–1908’ (2011) 36 JFH 173. 213 Women’s Co-operative Guild, Working Women and Divorce: An Account of the Evidence Given on Behalf of the Women’s Co-operative Guild Before the Royal Commission on Divorce (David Nutt, 1911).

366 The Family to give evidence before the Divorce Court.214 As a result, petitioners were disproportionately likely to be drawn from the upper- and middle-classes; they were also more likely to come from London or the Home Counties.215 Nonetheless, as Savage has pointed out, litigants ‘comprised a more socially varied group than realised at the time or later.’216 Wives might rely on either their own resources or those of their husbands to bring their case to court.217 Those with few resources might save up in order to afford a divorce, and those with no resources could invoke the poor person’s procedure.218 Even assuming that a spouse could afford to petition for divorce, he or she would not necessarily be able to satisfy the court that there were grounds to award one. The 1857 Act had directed the new court to give relief on the basis of principles that were as ‘nearly as may be’ those previously applied by the ecclesiastical courts,219 but before long the new court began to develop its own jurisprudence. The concept of ‘cruelty’ was widened to include mental as well as physical cruelty,220 although only where the abusive, threatening, or dictatorial conduct was so gross as to endanger the other partner’s health of mind. It could also potentially be established by adultery within the matrimonial home or sexual demands made of the wife that were deemed excessive, unnatural or improper.221 Legislation also widened the concept of desertion to include a refusal to comply with a decree of restitution of conjugal rights;222 in such a case it was possible to bring a petition based on desertion immediately rather than waiting for two years.223 The narrative of the petition also had to depict the petitioner’s innocence.224 Connivance, condonation and collusion by the petitioner were all absolute bars to a divorce. Connivance, by consenting to or acquiescing in the other spouse’s adultery before it took place, had an enduring effect, no matter how often the guilty party indulged him or herself again with the

214 The figure usually quoted is £40–£45 for an undefended divorce and £70–£500 for a defended one: this, however, was merely an estimate made by one of the Registrars of the Principal Probate and Divorce Registry when giving evidence to the Gorell Commission in the 1900s (Report of the Royal Commission on Divorce and Matrimonial Causes, PP 1912–13 [Cd 6478], para 69) and it is difficult to ascertain how far it reflected the position in previous decades. 215 GL Savage, ‘Intended Only for the Husband’: Gender, Class, and the Provision for Divorce in England, 1858–1868’ in K Ottesen Garrigen (ed), Victorian Scandals: Representations of Gender and Class (Ohio University Press, 1992). 216 Savage (n 212) 185. 217 On the particular problems faced by the wives of working men see Women’s Co-operative Guild (n 213). 218 Until 1882, it was necessary for an applicant to show that his capital assets were worth no more than £5 (in that year the sum was raised to £25). In addition, the in forma pauperis procedure only exempted applicants from the court fees, not from the ancillary costs: see Wright (n 29). For discussion of the profile of litigants see Savage (n 212) 181–84. 219 Matrimonial Causes Act 1857, s 22. 220 See eg Kelly v Kelly (1869) LR 2 P & D 31; cf Smallwood v Smallwood (1861) 2 Sw & Tr 397, disregarding a single act of cruelty. In an 1859 amendment, wives were made competent witnesses against their husbands in divorce proceedings, thus allowing them to give evidence of cruelty that might otherwise have been impossible to prove: Matrimonial Causes Act 1859, s 6. 221 R Probert, ‘The Controversy of Equality and the Matrimonial Causes Act 1923’ (1999) 11 CFLQ 33; G Savage, ‘“The Instrument of an Animal Function”: Marital Rape and Sexual Cruelty in the Divorce Court, 1858–1908’ in Delap, Griffin and Wills (n 3). 222 Such decrees were, following the 1857 Act, also granted by the new Divorce Court rather than by the ecclesiastical courts. 223 Matrimonial Causes Act 1884. For the colourful history of the case that prompted this Act, which also removed the threat of imprisonment for a spouse who refused to comply with the decree, see Douglas (n 7). 224 Wright (n 29) 268.

Part 2: New Pressures on Family Law: 1850–1950 367 same or another person. ‘It would be a disgrace to the law,’ said Lord Westbury in 1864, ‘to suppose that a husband may connive at the adultery of his wife on Monday, and yet be at liberty to complain of a repetition of the adultery on Tuesday.’225 Condonation of adultery after the event, by reinstating the guilty spouse with an intention to forgive, would also wipe the slate clean.226 As regards collusion, the civilian notion had been confined to the agreed faking of evidence, for example where one spouse arranged to commit adultery in order to provide the other with the evidence to obtain a remedy.227 But the Divorce Court held that there was collusion in any agreement to initiate or continue a suit in return for some benefit, such as an undertaking to pay the petitioner’s costs or to provide evidence of adultery in return for not enforcing a judgment for damages against a co-respondent. By 1895, it was settled that such financial agreements about divorce proceedings, even if openly declared to the court, barred the decree.228 In addition to the absolute bars, the court in its discretion might refuse a divorce either because the petitioner had been guilty of adultery, cruelty, desertion, or neglect or misconduct conducive to the respondent’s adultery; or because the presentation of the petition had been unduly delayed. The discretion to grant the decree was exercised on narrow grounds: adultery on the part of the petitioner might be excused if he or she had remarried believing the other spouse was dead, or if it had been condoned by the respondent and had not been the cause of the respondent’s own adultery, or if committed by a wife compelled by her husband to lead a life of prostitution.229 The risk of a divorce being barred was a very real one. It did not depend merely on whether the respondent chose to defend the divorce. Legislation in 1860 made the obtaining of a divorce a two-stage process: the court would first grant a decree nisi and then, after a lapse of time, a decree absolute. The period in between230 was to allow an officer of the court, the Queen’s Proctor, to investigate collusion or the other bars, and consider whether there were points of law to be raised against undefended petitions.231 As Savage has noted, such investigation was ‘both an unwelcome and a real possibility’:232 while intervention occurred in fewer than 10 per cent of cases, it often resulted in the decree being rescinded. The largest opportunities to emphasise the punitive, quasi-criminal aspects of the new divorce came with the consequential issues of alimony and rights over children.233 The new Divorce Court was initially given powers in the matter of maintenance which reflected the social position of those who had previously sought a divorce or separation: it might require a husband to secure to the wife such capital sum or annual payment ‘as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem 225 Gipps v Gipps (1864) 11 HLC 1 at 14. 226 Resumption of sexual intercourse was taken as conclusive proof of condonation by an innocent husband, but not by an innocent wife, on the basis that a wife ‘is hardly her own mistress; she may not have the option of going away; she may have no place to go; no person to receive her; no funds to support her …’ Keats v Keats (1859) 1 Sw & Tr 334 at 347. 227 Crewe v Crewe (1800) 3 Hag Ecc 123. 228 Churchward v Churchward [1895] P 7, where the earlier law is reviewed. 229 Morgan v Morgan (1869) LR 1 P & D 644. 230 Originally three months, it was enlarged to six months in 1866. 231 Matrimonial Causes Act 1860, s 7. 232 G Savage, ‘Divorce and the Law in England and France Prior to the First World War’ (1988) 21 JSH 499, 506. 233 For a detailed discussion see Cretney (2003) (n 199) chs 10 (ancillary relief) and 16 (legal authority over children).

368 The Family reasonable.’234 When it became apparent that the court was also having to deal with husbands whose resources could not provide capital or annual sums, weekly or monthly payments without security had to be permitted; and the court had also to be allowed to modify or suspend its order temporarily if the husband should be unable to comply with it.235 How, then, was this power to be exercised? The first judge of the Divorce Court, Sir Cresswell Cresswell, adopted a policy of awarding no more than a bare maintenance even to a petitioning wife.236 This his successor disparaged as ‘starving a wife into preferring judicial separation to divorce’, and as giving a husband ‘a pecuniary interest in adding cruelty and desertion to his adultery.’237 Thereafter, the innocent wife would usually be awarded maintenance equivalent to a third of her husband’s income, following the former practice of the ecclesiastical courts.238 Towards ‘guilty’ wives a different approach was adopted.239 The initial practice of the Divorce Court, as counsel informed the Court of Appeal in 1883,240 was to refuse her any maintenance at all unless there were special circumstances.241 Sir George Jessel expressed some concern with this, opining that the court had a discretion whether or not to award maintenance, whatever the guilt or innocence of the wife, and suggesting that where the husband had ample means the courts should follow Parliament’s practice of awarding maintenance even to a guilty wife. He clearly felt that the key consideration was whether the wife would be able to support herself without such maintenance, noting that ‘When a working man who has married a washerwoman obtains a divorce, she can very well go back to washing again.’242 In 1902 the Court of Appeal confirmed that their discretion to award maintenance was unlimited, and ordered an ‘unimpeachable’ husband to provide maintenance for his wife on the basis of her delicate health and inability to support herself.243 The law was just beginning to turn from condemnation of the past towards provision for the future, a revolution that would take many decades to complete.244 Over children, the attitude of the courts changed even more gradually. Established principles gave predominance to the wishes of the father, save in cases of extreme misconduct, when the welfare of the child categorically dictated some other course.245 Full divorce was thought to raise new considerations, and the Act of 1857 gave the courts a general discretion to make ‘just and proper’ provision for the custody, maintenance and education of children

234 Matrimonial Causes Act 1857, s 32. 235 Matrimonial Causes Act 1866. 236 Fisher v Fisher (1861) 2 Sw & Tr 410. 237 Sir James Wilde (later Lord Penzance) in Sidney v Sidney (1865) 4 Sw & Tr 178, 180. 238 This rule of thumb did not begin to be abandoned until the inter-war years; and it has shown a tendency to revive from time to time ever since: see JL Barton, ‘The Enforcement of Financial Provisions’ in Graveson and Crane (n 32) 361. It was intended to ensure that the wife was maintained at a level suitable to her station in life, rather than to enjoy the same standard of living as her former husband: Douglas (n 7). 239 The court was positively empowered to rewrite the marriage settlement of a guilty wife for the benefit of her husband and children: Matrimonial Causes Act 1857, s 45. 240 Robertson v Robertson and Favagrossa (1883) 8 PD 94. 241 The most she could hope for would be that damages recovered from a co-respondent would be settled on her, under the Matrimonial Causes Act 1857, s 33. 242 Robertson v Robertson and Favagrossa (1883) 8 PD 94, 96–97. 243 Ashcroft v Ashcroft and Roberts [1902] P 270. 244 See eg Cretney (2003) (n 199); Douglas (n 7). 245 See pp 352–53.

Part 2: New Pressures on Family Law: 1850–1950 369 of the marriage being terminated.246 In the event custody went almost invariably to the innocent party; and ‘guilty’ wives, though not always ‘guilty’ husbands, were deprived even of a right of access. As Cresswell J announced: It will probably have a salutary effect on the interests of public morality, that it should be known that a woman, if found guilty of adultery, will forfeit, as far as this court is concerned, all rights to the custody of or access to her children.247

Occasionally the child’s own well-being was emphasised.248 The Guardianship of Infants Act 1886, indeed, enjoined courts to adopt this as the prime consideration in all matters relating (amongst other things) to the custody or upbringing of an infant.249 But this was scarcely allowed to produce much variation. Even in 1910 grave severity marked the attitude of the first-instance judge in Mozley Stark v Mozley Stark.250 A husband had divorced his wife and had been awarded custody of his 12-year-old daughter. Four years later the daughter telegraphed her mother, who had remarried, saying that she was arriving penniless at a certain railway station. For meeting her and taking her home, Bargrave Deane J declared the mother to be in contempt of court and awarded costs against her present husband. Fortunately the Court of Appeal discharged these orders, declaring that ‘the matrimonial offence which justified the divorce ought not to be regarded for all time and under all circumstances as sufficient to disentitle the mother to access to her daughter or even to custody.’251 Yet even in the inter-war years, judges of the Divorce Division were still refusing access to mothers in cases where there was substantial reason for taking a more sympathetic attitude towards their claims,252 and not until the very end of our period, after WWII, did it ‘become fairly generally accepted that the fact that a mother had committed adultery was not necessarily inconsistent with her being a good parent to her children.’253

C. Protection Against Violence Throughout the period the courts had the power to make orders to protect family members against violence. Justices could bind spouses to keep the peace, with the threat of fines and imprisonment for disobedience, as well as dealing with assaults; more serious attacks could be sent for trial on indictment at Quarter Sessions or Assizes. Violence was also a reason for orders permitting the spouses to live apart. It was not until the second half of the nineteenth century, however, that demands began to be made for specific protection for family members to be provided within the context of the criminal law. 246 Matrimonial Causes Act 1857, s 35. 247 Seddon v Seddon and Doyle (1862) 2 Sw & Tr 640. 248 See in particular, Lord Cairns in Symington v Symington (1875) LR 2 HL (Sc) 415, who stressed the importance of affording access to both parents where other circumstances allowed. 249 For its application in divorce proceedings see eg Handley v Handley [1891] P 124; Re A and B (Infants) [1897] 1 Ch 786. 250 [1910] P 190. 251 At 193. 252 See eg the decisions of Duke J (later Lord Merivale P) in B v B and T (1921) 37 TLR 868; B v B [1924] P 176 (where Duke was reversed by the Court of Appeal). 253 Cretney (2003) (n 199) 577.

370 The Family Wife-battering was perceived as a particular danger for the working classes.254 Francis Power Cobbe’s powerful pamphlet, The Truth about Wife Torture, drew attention to the horrors that wives might face and the Matrimonial Causes Act 1878 subsequently made provision for a wife to obtain a separation order from a magistrates’ court, once her husband had been convicted of aggravated assault on her. The court might, moreover, require him to pay her a weekly sum of maintenance. Conceived primarily as a legal means of helping the wife to secure physical protection, the provisions relating to finances soon began to develop their own function. By an Act of 1886, a husband who wilfully refused or neglected to maintain his wife and children, and deserted her, might be ordered to pay maintenance of up to £2 per week.255 By 1895 these different provisions were consolidated and broadened by allowing orders for separation, custody of children or limited maintenance, on the grounds of conviction of aggravated assault, desertion, persistent cruelty or wilful neglect to maintain.256 This was the poor wife’s judicial separation, and it applied with an unbending moral rigour; no husband could be obliged to maintain a wife who had already committed adultery or did so subsequently.257 The respectable classes who could raise the money and face the social hostilities of a decree of divorce could bring their marriages completely to an end. But, as was wellunderstood at the time, the mass of people now had a second-class system which could at most condemn them to the ‘living death’ of a separation.258 Deserted, battered and neglected wives no longer had the poor-law authorities as their only recourse, leaving it to the public system to seek reimbursement from the husband. Instead they might, to a limited extent, act for themselves. Many of them did so: even in 1893 there were 3,482 applications, which by 1900 had grown to 9,553 and in the period 1910–13 averaged 10,765 a year (about 70 per cent succeeding against the husband).259 The close of the nineteenth century had also seen the courts rejecting the idea that a husband had the right to confine his wife in the high-profile case of R v Jackson.260 After Emily Jackson had refused to live with her husband he obtained a decree for restitution 254 See ME Doggett, Marriage, Wife-Beating and the Law in Victorian England (Weidenfeld and Nicholson, 1992); AJ Hammerton, Cruelty and Companionship in Nineteenth-Century Married Life (Routledge, 1992); N Tomes, ‘A “Torrent of Abuse”: Crimes of Violence Between Working-Class Men and Women in London’ (1978) 11 JSH 328; E Ross, ‘“Fierce Questions and Taunts”: Married Life in Working-Class London Before World War 1’ (1983) 15 Feminist Studies 575. 255 Married Women (Maintenance in Case of Desertion) Act 1886. The £2 limit was to remain until 1949; the possibility of claiming an additional 10s per week for each child under 16 was added by the Married Women (Maintenance) Act 1920. 256 Summary Jurisdiction (Married Women) Act 1895. These grounds were further extended by the Licensing Act 1902 (adding habitual drunkenness by either the wife or the husband), the Summary Jurisdiction (Separation and Maintenance) Act 1925 (adding the husband’s persistent cruelty to the children, insisting on having sexual intercourse with the wife when he knew he was suffering from a venereal disease, and compelling the wife to submit herself to prostitution) and the Matrimonial Causes Act 1937 (which at last added adultery). On the motivations for the 1895 Act, see G Behlmer, Friends of the Family: The English Home and Its Guardians, 1850–1940 (Stanford University Press, 1998) 194; Cretney (2003) (n 199) 447–49. 257 Summary Jurisdiction (Married Women) Act 1895, ss 6 and 7. Only condonation would excuse her. 258 So described to the Gorell Commission (Report of the Royal Commission on Divorce and Matrimonial Causes, PP 1912–13 [Cd 6478] XVIII) para 228, by the divorce judge, Bargrave Deane J. 259 For full statistics see O McGregor, L Blom-Cooper and C Gibson, Separated Spouses (Duckworth & Co, 1970) 33. 260 [1891] 1 QB 671; see Doggett (n 254); G Frost, ‘A Shock to Marriage? The Clitheroe Case and the Victorians’ in G Robb and N Erber (eds), Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century (Palgrave Macmillan, 1999); L Bibbings, Binding Men: Stories About Violence and Law in Late Victorian England (Routledge, 2014).

Part 2: New Pressures on Family Law: 1850–1950 371 of conjugal rights; when she refused to comply with the order he took matters into his own hands and kidnapped her. Her family then applied for a writ of habeas corpus, which was initially rejected by the Queen’s Bench Division but granted on appeal to the Court of Appeal. The Lord Chancellor, Lord Halsbury, consigned earlier precedents to history, commenting that ‘such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilized country.’261

D. Marriage and Divorce for All? Over the course of the nineteenth century there had been a few minor changes to the laws regulating how couples could marry. Posting up notices of intended marriages replaced the practice of reading them out at meetings of the Poor Law Guardians.262 Such notices were to be displayed at the register office regardless of where the marriage was taking place, unless the parties were marrying according to Anglican rites. Those marrying in registered places of worship were, after 1898, able to dispense with the services of a civil registrar as long as an authorised person had been appointed for the building in question.263 Other than that, the structure established by the Marriage Act 1836 remained in place throughout the period (and beyond), the more radical proposals of a Royal Commission of 1868 having come to naught.264 There were, however, more fundamental changes to whom one could marry. Ever since the passage of legislation in 1835 rendering future marriages between former in-laws void, there had been fairly constant attempts to change the law.265 The efforts of reformers focused on marriages between a widower and his deceased wife’s sister, this being seen as the most likely relationship to occur within the prohibited degrees, the most desirable in terms of the provision of care for children who had lost their mother,266 and the one with the most ambiguous biblical prohibition.267 It was not until 1907, however, that a combination of increasing secularism and decreasing optimism about the power of the law to prescribe behaviour brought about change.268 The Deceased Wife’s Sister’s Marriage Act 1907 both permitted future marriages to a deceased wife’s sister and validated those that had already taken place. Marriage with a deceased husband’s brother, always a less prominent concern, was

261 [1891] 1 QB 671, 679 (Lord Halsbury LC). 262 Marriage and Registration Act 1856. 263 By virtue of the Marriage Act 1898. 264 The Commission proposed a common framework for England, Wales, Scotland and Ireland: see R Probert, M Harding and B Dempsey, ‘A Uniform Law of Marriage? The 1868 Royal Commission Reconsidered’ (2018) 30 CFLQ 217. 265 Cretney (2003) (n 199) pp 41–46. 266 Unmarried sisters might already be part of the household; others would move in to provide care for the children upon the death of their mother. 267 For discussion of the issues see NF Anderson, ‘The “Marriage with a Deceased Wife’s Sister” Controversy: Incest Anxiety and the Defense of Family Purity in Victorian England’ (1982) 21 JBS 67; M Morganroth Gullette, ‘The Puzzling Case of the Deceased Wife’s Sister: Nineteenth-Century England Deals with a Second-Chance Plot’ (1990) 31 Representations 142; ER Gruner, ‘Born and Made: Sisters, Brothers, and the Deceased Wife’s Sister Bill’ (1999) 24 Signs 423, 434. 268 Wolfram (n 61); Cretney (2003) (n 199) 41–56; Probert (2012) (n 4) 115–16.

372 The Family permitted in 1921,269 while further legislation removing the bars on marrying a deceased spouse’s aunt, uncle, niece or nephew occurred in 1931.270 Permission to marry the relatives of one’s divorced spouse, by contrast, had to wait until the second half of the twentieth century.271 There were also changes to when one could marry. The Age of Marriage Act 1929 somewhat belatedly raised the minimum age of marriage to 16. There had, however, been very few marriages under this age prior to this date, at least in England and Wales; the legislation was part of a campaign against child marriage in other parts of the empire.272 Meanwhile, the second Earl Russell273 was convicted of bigamy, having remarried after obtaining a divorce in Nevada.274 Thereafter he took up the cause of radical reform, advocating divorce after a period of separation (one year if both parties agreed, and three if they did not). His 1902 bill to this effect did not win favour, being described by an outraged Lord Halsbury as being ‘for the abolition of the institution of marriage’.275 But he was not alone in proposing change. In 1892 a Scots back-bencher, WA Hunter, had secured a second-reading debate on the desirability of following Scotland’s lead in allowing either spouse to rely on adultery or desertion for four years.276 While his bill was also defeated, in 1906 a Divorce Law Reform Union was set up to campaign for change.277 That year also saw trenchant judicial criticism of the law. In Dodd v Dodd,278 Gorell Barnes J held that a wife who secured a separation order from the magistrates thereby brought to an end any desertion by her husband that would otherwise accumulate (if the husband was also adulterous) towards a divorce. His judgment deliberately emphasised all the ‘inconsistencies, anomalies, and inequalities almost amounting to absurdities’ in the current law of divorce and separation.279 Two years later, he presided over a committee recommending that selected county courts should be given a divorce jurisdiction, where the petitioner’s assets did not exceed £50 and the joint income of the spouses did not exceed £150. Subsequently ennobled as Lord Gorell, he proceeded to raise these proposals in the Lords. The Government replied by instituting a Royal Commission on Divorce, and appointing him chairman of it. The Gorell Commission’s Report in 1912 has been described as being ‘of remarkable clarity and intellectual distinction’.280 The voluminous evidence made plain how directly the

269 Deceased Brother’s Widow’s Marriage Act 1921. 270 Marriage (Prohibited Degrees of Relationship) Act 1931. 271 Marriage (Enabling) Act 1960. 272 For an account of the passage of the 1929 Act see Cretney (2003) (n 199) 57–61; on other related changes see M Waites, The Age of Consent: Young People, Sexuality and Citizenship (Palgrave Macmillan, 2005). 273 For his first matrimonial difficulties, see A Sumner Holmes, ‘“Don’t Frighten the Horses”: The Russell Divorce Case’ in Robb and Erber (n 260). 274 [1901] AC 446. The question of when English courts should recognise foreign divorces, which lay behind this prosecution, was becoming more difficult with the introduction of ‘easy’ divorce in certain jurisdictions. In 1895, the Privy Council had held that divorce could be granted only in the jurisdiction where the husband (and therefore the wife) was domiciled, in the strict sense of that term: Le Mesurier v Le Mesurier [1895] AC 517. 275 Hansard, HL Deb 1 May 10–2, vol 107 col 408. Russell tried again in 1903 and 1908, as did Horatio Bottomley in the latter year, without any real hope of success. 276 Hansard, HC Deb, 26 April 1892, vol 3 cols 1437–19. 277 See ESP Haynes, Divorce Problems of Today (Heffer, 1910). 278 [1906] P 189. 279 Subsequently endorsed by the Court of Appeal: Harriman v Harriman [1909] P 123. 280 OR McGregor, Divorce in England (Heinemann, 1957) 26.

Part 2: New Pressures on Family Law: 1850–1950 373 Commission’s writ went to the role of the state in the maintenance of family morality. As the Majority Report of the Commission set out with admirable objectivity, most of the community derived its beliefs about divorce from the teaching of the different Christian churches; and these had long given rise to keen disputation, as well as to important legal variations between different parts of the kingdom. There was indeed support for the propositions that either all marriages or all Christian marriages were indissoluble; or that marriages were dissoluble for adultery alone, for adultery and desertion, or for these and other serious grounds based upon the necessities of human life.281 But there was also a great deal of utilitarian evidence. The Women’s Cooperative Guild282 attacked anomalies and hardships in the law by reference to individual cases: thousands of women were said to endure bad marriages because they had no reliable means of securing maintenance for themselves and their children if they left their husbands, and the Guild thus supported a radical extension of divorce to include the grounds of persistent refusal to maintain, mutual consent and incompatibility.283 Within the Commission there was agreement that there should be some extension of the grounds on which a marriage could be ended.284 The majority took the temperate position that ‘the State must deal with all its citizens, whether Christian, nominally Christian, or non-Christian’ and accordingly proceeded ‘to recommend the legislature to act upon an unfettered consideration of what is best for the interest of the state, society, and morality, and for that of the parties to suits and their families.’ In their view, the grounds for divorce should be moderately extended to include desertion for more than three years, cruelty, insanity, incurable drunkenness, and imprisonment under commuted death sentence.285 The Commission had among its members three who espoused the view of the upper ranks of the Anglican church286 and took the view that divorce, if not totally avoidable, was highly undesirable. This minority opposed any extension of the grounds for divorce and proposed some restrictions. They conceded only that a very few local courts ought to have divorce jurisdiction and contended that the ‘wholesale facilities’ proposed by the majority would be ‘likely to have a gravely unsettling influence on large classes of the people who would otherwise never contemplate, and who ought not to contemplate, divorce.’287 On its appearance, the majority report excited considerable hostility among the influential.288 The faltering Liberal Government could afford to do nothing and the cause

281 Report of the Royal Commission on Divorce and Matrimonial Causes, PP 1912–13 [Cd 6478] XVIII, para 40, where summaries of individual evidence are set out. 282 The Guild, an off-shoot of the cooperative movement, had nearly 25,000 members. Its views were singled out for attack by the minority, which accused members of the majority of undervaluing evidence of that other large organisation of women, the Mothers Union. The latter, a powerful organisation, operating largely under the auspices of the established church, had as its primary object ‘to uphold the sanctity of marriage’ and had been a vociferous opponent of extensions to the divorce laws: see Chadwick (n 55) II, 192–93; CA Moyse, ‘Reform of Marriage and Divorce Law in England and Wales, 1909–37’ (PhD thesis, University of Cambridge, 1996). 283 The Guild also wanted custody of children to be governed by their best interests, and proceedings to be in County Courts in camera. 284 So also on the presumption of death: Report (n 281), paras 350–64. 285 ibid paras 50 and 236–329. 286 Cosmo Lang, Archbishop of York; Sir William Anson, law don and staunch conservative; and Sir Lewis Dibdin, Dean of Arches. 287 Report (n 281) 189–90. 288 The Times, for instance, printed the minority report in full.

374 The Family of reform suffered a substantial setback by the death of Lord Gorell in 1913.289 However, in 1914, the limits on aid under the Poor Persons Procedure were increased so as to encompass anyone with capital of less than £100.290 The war provided a respite in the twin campaigns of the reformers for more accessible divorce courts, and for broader grounds of relief. But war on such a scale brought great upheaval to family ties and put very considerable pressure upon such legal provision as there was for divorce.291 Indeed, it was the sheer problem of access to courts that seemed the greater difficulty in the years immediately after the war. One or other of the pre-war plans to make divorces available in assize or in county courts, or else further to extend the poor person’s procedure, had to be conceded. The professional organisations argued for solutions that would be to their own advantage. In 1920, Lord Birkenhead promoted a successful bill to give effect to the compromise formula accepted by the Gorell Commission and divorce became available at a limited number of assize towns.292 The preliminary stages, however, continued to be handled by the London registry, to the advantage of metropolitan solicitors. This scarcely eliminated the need for poor persons’ assistance and the Law Society, disturbed already by the Poor Persons Department of the Supreme Court,293 persuaded a Committee under Lawrence J that it should organise a revised scheme of voluntary aid.294 In return, it sought the transfer of jurisdiction to the county courts but secured only an increase in the assize towns for hearing poor persons’ divorces.295 The effort that maintaining this scheme cost the solicitors was intense and detracted from other legal services to the poor, such as advice and criminal legal aid. But in this one field, where access to civil courts was vital to secure a financially viable change of matrimonial relationships, the system was at last made somewhat more open. At the same time, the basis for divorce was also reformed. As WWI came to a close, the Divorce Law Reform Union had begun once more to press the views of the Gorell Majority, finding a Parliamentary champion in Lord Buckmaster. From 1918 he presented a series of bills which more or less completely adopted the majority solution. But on each occasion he had to meet the total opposition of Catholic spokesmen, antagonism from the Anglican bishops, who were at least agreed that there should be no move beyond the minority compromise, and the hostility of such well-supported organisations as the Marriage Defence League. Governments refused to supply Commons time and so killed each bill. By 1923, the persistent Buckmaster was reduced to introducing a single-clause bill allowing wives, like husbands, to divorce for adultery alone.296 This at least could be presented

289 His son promoted a Bill covering the minor, non-controversial recommendations of the Commission, but even this made no progress. 290 Poor Persons Rules 1913–1914, confirmed by the Administration of Justice Act 1920, with the addition of an earnings limit of £4 a week. The aid was administered by the Poor Persons’ Department, within the Office of the Supreme Court, but suffered from a lack of volunteer barristers and solicitors: Gibson (n 14) 87. 291 Rowntree and Carrier (n 201) 205, estimate that the 90% increase in the divorce rate between 1913 and 1922 was due to the war and the improved Poor Persons’ Procedure in roughly equal proportions. 292 For details, see Gibson (n 14) 87. 293 See p 101. 294 But with administrative expenses met by the Treasury: Report of the Poor Persons’ Rules Committee PP 1924–1925 [Cmd 2358] XV. 295 District registries for divorce were also established. 296 Matrimonial Causes Act 1923. If a wife was petitioning on the basis of adultery alone, however, that adultery had to have occurred after the passage of the Act.

Part 2: New Pressures on Family Law: 1850–1950 375 as bringing the law on the statute book into line with what was already happening in the courts,297 as well as reflecting other contemporary moves to give women equality with men in political and professional life.298 Following the passage of the Act, wives for the first time constituted the majority of petitioners, a pattern that was to continue throughout the period save in wartime.299 Buckmaster’s friends feared that the removal of the pressing injustice of the double standard would blunt the case for wider reform, and so it proved. He tried once more to secure a wider bill but without success. The only other achievement of reformers in the period was the severe curtailment of press reports of divorce hearings,300 thus suppressing chronicles which Queen Victoria, for one, had supposed to be more ‘pernicious to the public morals of the country’ than ‘the worst French novels’.301 The 1930s saw growing criticism of the continued reliance on adultery as the sole ground for divorce, and continued pressure for reform.302 It was, however, a single, deft publicist who did more than anyone to procure legal change. AP Herbert’s series of Misleading Cases and his novel, Holy Deadlock, demonstrated the duplicity provoked by the law, under which so many consensual divorces were arranged by proof of ‘hotel adultery’.303 As a novice, non-party member of parliament, he steered through an Act which embodied most of the proposals of the Gorell Commission majority, 25 years after their publication.304 In consequence, divorce became available on three new grounds in addition to the existing ground of adultery: three years’ desertion, cruelty and incurable insanity.305 The number of divorces at once rose sharply, with over a third being granted on the new ground of desertion. But before time could elapse which would have shown whether the Act’s effect was only temporary, another war intervened. The demand for the dissolution of marriages accelerated far more rapidly than ever before.306 The armed services were obliged to set up their own legal aid scheme for divorce, which was run for them by Law Society staff, thanks to a Treasury grant. Aid was afforded to many outside the poor persons’ procedure

297 See Probert (1999) (n 221). 298 On this period, see D Stetson, A Woman’s Issue: The Politics of Family Law Reform in England (Greenwood Press, 1982) ch 3. 299 Rowntree and Carrier (n 201). 300 Judicial Proceedings (Regulation of Reports) Act 1926. In 1913 the House of Lords had preferred the interests of the public to the feelings of the parties in holding that there was no inherent power to order that divorce proceedings be heard in camera: Scott v Scott [1913] AC 417. 301 AC Benson and Viscount Esher (eds), Letters of Queen Victoria: A Selection from Her Majesty’s Correspondence between the years 1837 and 1861 (John Murray, 1907) vol 3, 482. For discussion see G Savage, ‘Erotic Stories and Public Decency: Newspaper Reporting of Divorce Proceedings in England’ (1998) 41 HJ 511; SM Cretney, Law, Law Reform and the Family (Oxford University Press, 1998). 302 See Moyse (n 282) for a review of the range of views and pressure groups at the time. 303 Evidence from a maid or someone else that she had discovered the lovers abed was a convenient means of providing the necessary corroboration of adultery. On hotel divorces, see S Jenkinson, ‘The Co-Respondent’s Role in Divorce Reform After 1923’ in R Probert and C Barton (eds), Fifty Years in Family Law: Essays for Stephen Cretney (Intersentia, 2012). 304 Matrimonial Causes Act 1937; see S Redmayne, ‘The Matrimonial Causes Act 1937: A Lesson in the Art of Compromise’ (1993) 13 OJLS 183. 305 ibid s 2. Rape, bestiality and sodomy remained grounds on which a wife could petition for divorce. The grounds of nullity were also extended to include the respondent’s wilful refusal to consummate the marriage, pregnancy by a third party at the time of the marriage, suffering from a communicable venereal disease, or suffering from a mental illness such as to unfit them from marriage (s 7). 306 R Egerton, Legal Aid (Kegan Paul, Trench, Trubner & Co Ltd, 1945) 18.

376 The Family and it would have been extremely difficult to go back to former parsimony once peace was restored. Instead, the positions which both the Bar and the solicitors had done so much to cement during the inter-war period would be enhanced. Having won its right to administer a voluntary scheme, mainly for divorce, the Law Society would now, through its central office and local committees, run a government-funded scheme in which professional legal aid (and advice) would be paid for at something approaching private rates.307 The Bar, as well as sharing in this new opportunity, would retain its exclusive right of audience in divorce matters since jurisdiction would remain in the High Court. To provide the judicial manpower, special commissioners would be brought in, most of them county court judges changing gowns for the day.308 Divorce was in demand as never before, partly because formal marriage itself had become more popular. Couples married younger as they acquired greater independence.309 At the same time an increasing life expectancy added to the prospect of a marriage lasting beyond the growing up of the children.310 The professions were able to maintain their positions in divorce administration partly because of a wider determination to conserve the dam against flood.311 Thus the Archbishop of Canterbury would join the President of the Probate Divorce and Admiralty Division in insisting that due High Court solemnity must continue to surround the process of accusation and award, and that only the professional rectitude of the Bar could withstand a deluge of trumped-up cases.312 It was a powerful resistance that was to hold through the 1950s.313 It would put off until 1970 the decisive shifts that are embodied in the relatively open divorce law of the present.

E. Married Women’s Property In the meantime, there had also been radical changes to the rules on ownership of property within marriage. In 1850, the doctrine of unity had remained in full force, with a husband acquiring ownership or effective control of his wife’s property.314 Eve, the rib of Adam, was an image that suited the swelling patriarchy, whether in the world of the propertied great (whose position allowed them the special advantages of equity) or in the middling ranks (whose modest wealth might preclude any aspiration of marrying by settlement). It was a vision in comfortable harmony with the wider idealisation of woman in her separate sphere: pure, ladylike, adorable – and in consequence unfitted to the affairs of the world,

307 On the evolution of the Legal Aid and Advice Act 1949, see B Abel-Smith and R Stevens, Lawyers and the Courts (Heinemann, 1967) ch 12. 308 The Denning Committee at this juncture proposed some moderate stream-lining of divorce procedure, PP 1945–46 [Cmd 6881, 6945] XIII. 309 In 1925 the average age at marriage had been 23.8 for women and 25.6 for men; it was to fall to 21.7 for women and 24.2 for men in 1940: Schoen and Canudas-Romo (n 12) table 1a. 310 See Gibson (n 14) table 8.1. 311 Even as it was, the post-war peak was 48,501 petitions in 1947 and this would settle to a figure of just under 30,000 a year in the early 1950s. The bumper year of 1938 had produced only 10,233: Rowntree and Carrier (n 201) 201–02. 312 Abel-Smith and Stevens (n 307) 323–25. 313 Fortified by the Report of the Morton Royal Commission of 1956 [Cmnd 9678]; on which see McGregor (n 280) chs 5 and 6. 314 See p 350.

Part 2: New Pressures on Family Law: 1850–1950 377 the management of wealth or the life of the mind. Yet with a Queen once more on the throne – and married – a very different vision of female abilities and roles was beginning to surface. In radical and literary circles, the possibilities of marriage as a partnership, education in the universities and entry into closed professions were all explored.315 By 1854, Barbara Leigh-Smith could take the reform of married women’s property law as the representative issue on which to stage a first political fight. Her own sympathies were drawn to the subject by a vitriolic encounter between Caroline Norton and her husband in the Westminster County Court over his liability to pay for repairs to her coach.316 With an active committee and some famous support317 she organised a widespread campaign in 1855, which drew the attention among others of the Law Amendment Society.318 This connection would provide Parliamentary advocacy from Brougham, Sir Erskine Perry and Matthew Davenport Hill. Despite such support, progress was slow. When Perry introduced a Commons motion on the subject in 1856, he provoked an outraged astonishment: ‘If a woman had not full confidence in a man,’ pronounced Malins QC, ‘let her refrain from marrying him.’319 But the following year, just as the Government’s Matrimonial Causes Bill was making its way, Perry introduced a Bill which did pass its second reading.320 It sought to declare a married woman capable of ‘holding, acquiring, alienating, devising and bequeathing Real and Personal Estate and of suing and being sued as if she were a Feme Sole.’321 In the event, however, the more pressing need for the protection of the deserted or separated wife took priority.322 An amendment to the Matrimonial Causes Bill was made to allow a deserted wife to apply to the Divorce Court, a justice of the peace or a police magistrate for an order to protect her earnings and property from seizure by her husband; in addition, a wife who had obtained a decree of judicial separation would be treated as a feme sole.323 Less positively, the resulting Act also enabled the Divorce Court to order that any property to which a respondent wife was entitled could be settled for the benefit of her husband or children.324 The Women’s Committee disbanded, and the issue of married women’s property was not revived for another decade, when the Manchester-based Married Women’s Property 315 See eg Shanley (n 109); Levine (n 173); P Jalland, Women, Marriage and Politics, 1860–1914 (Oxford University Press, 1986). 316 See The Times, 19 and 20 August 1853; C Norton, English Laws for Women in the Nineteenth Century (privately printed, 1854) and A Letter to the Queen on Lord Cranworth’s Marriage and Divorce Bill (Longman, Brown, Green and Longmans, 1855); B Leigh-Smith (later Bodichon), A Brief Summary in Plain Language of the Most Important Laws concerning Women (J Chapman, 1854); Stetson (n 298) ch 1; Holcombe (n 66) 50–58; J Perkin, Women and Marriage in Nineteenth-Century England (Routledge, 1989). 317 The petition calling for reform was signed by prominent female authors such as Elizabeth Barrett Browning, Elizabeth Gaskell, Jane Carlyle, Harriet Martineau and (her name discreetly some way down the list, on account of her unconventional private life) George Eliot. 318 The LAS, with its broader reach, collected 24,000 signatures to its own petition, as compared to the 3,000 collected by the Women’s Committee: see MC Bradbrook, ‘Barbara Bodichon, George Eliot and the Limits of Feminism’ (James Bryce Memorial Lecture, 6 March 1975). 319 PD 1856 CXLII 1278. 320 It was preceded by one introduced by Brougham. 321 For the debates, see Holcombe (n 66) ch 5. 322 For a challenge to the view that the provisions in the 1857 Act were deliberately inserted to stave off any demand for reform of women’s property rights, see O Anderson, ‘Hansard’s Hazards: An Illustration from Recent Interpretations of the Married Women’s Property Law and the 1857 Divorce Act’ (1997) 108 EHR 1202. 323 Matrimonial Causes Act 1857, ss 21 and 25 respectively. 324 Cretney (2003) (n 199) pp 395–96.

378 The Family Committee, led by Elizabeth Wolstenholme and Josephine Butler, took up the issue. Bills were introduced in 1868 and 1869 and garnered considerable support. At the same time the case for Parliamentary franchise was put by John Stuart Mill in the Reform Bill Debates of 1867 and, though it did not succeed, the borough franchise was extended to female householders in 1869.325 In the changed political atmosphere of the late 1860s, the Select Committee to which the issue of married women’s property was referred heard a great deal about workingclass conditions. On the one hand, there were the lazy, drunken and dissolute husbands who were said to live on the earnings of their wives, and yet had well-nigh absolute power to drive them from house and home. On the other, the Rochdale Equitable Pioneer Co-operative Society, doyen of the great distribution cooperatives, said that it always treated a wife’s account as separate and would not allow her husband to draw on it without her consent. In the Committee’s view, this practice had to be treated as of ‘doubtful legality’; but, if so, the law was in need of amendment, for disaster would strike the town if the wives’ savings were open to predation by their husbands.326 Nothing was achieved until the session of 1870, when a new bill was introduced by Russell Gurney, Recorder of London. It was emasculated during its passage by Lords’ amendments, with the result that it was only ‘a pale shadow of what even the most moderate reformers had wanted’.327 But it did at least reach the statute book and did give married women some rights.328 It did not adopt the simple principle of treating a married woman as if unmarried; instead, certain of her property would be treated as if settled to her separate use within the technical meaning of equity: earnings, personal property and income from real property coming to her on an intestacy, legacies up to £200, and, if she so requested, certain investments.329 This limited and notional expansion of separate property in equity was a conservative ploy to concede only a minimum of ground. Possibly as a counterweight, a husband was no longer to be liable for his wife’s antenuptial debts, her own separate property becoming the only source from which satisfaction might be secured. But in the absence of a settlement, much of the wife’s property on marriage still passed to her husband. On the anguished plea of traders that women had only to marry in order in effect to cancel their debts, the new law was amended to make the husband liable for pre-nuptial debts to the extent that he received her property.330 More far-reaching reform had to wait until 1882.331 Not that this delay was due to any lack of trying: Bills were introduced almost annually but it was not until 1880 that the then Lord Chancellor, Lord Selborne, ‘at last adopted the women’s bills as government measures

325 See p 18. 326 Report, PP 1867–68 (441) VII; Holcombe (n 66) ch 7. 327 Cretney (2003) (n 199) 96. 328 See generally Holcombe (n 66) ch 8. However, an empirical study holding of property within marriage suggests that the legislation did lead to an increase in the proportion of property owned by wives: MB Combs, ‘Cui Bono? The 1870 British Married Women’s Property Act, Bargaining Power and the Distribution of Resources Within Marriage’ (2006) 12 Feminist Economics 51. 329 Married Women’s Property Act 1870, ss 1–8. Section 9 (now s 17 of the 1882 Act) created a summary procedure for matrimonial disputes over property. 330 Married Women’s Property Act (1870) Amendment Act 1874; Holcombe (n 66) 156–91; Stetson (n 298) ch 3. 331 This section draws on R Probert, ‘Family Law Reform and the Women’s Movement in England and Wales, 1830–1914’ in S Meder and C-E Mecke (eds), Family Law in Early Women’s Rights Debates (Böhlau Verlag, 2012).

Part 2: New Pressures on Family Law: 1850–1950 379 and ensured their success’.332 The reported debates over what became the Married Women’s Property Act 1882 were minimal, Lord Selborne presenting it to the House of Lords as an enactment to ‘consolidate’ earlier laws, as well as introducing ‘some innovations and new provisions’.333 Once again, reform was facilitated by emphasizing the minimalist and gradualist nature of the changes proposed. The 1882 Act gave a married woman complete power to acquire and dispose of all kinds of property ‘as if she were a feme sole without the intervention of any trustee.’334 In other words, all married women acquired the same rights as the daughters of the propertied had enjoyed for centuries under the mechanism of the trust.335 At the same time, express settlements continued to have their old effects and restraints on alienation could still put in trustees of the wife’s family as protectors. As O’Donovan has noted, nineteenth-century reformers concentrated on reforms that would give a married woman the same legal rights as an unmarried woman, rather than attempting to put her on the same footing as a married man.336 The Act failed to treat married women as wholly independent persons. The Act also bound a married woman to a contract entered into by her ‘in respect of and to the extent of, her separate property’, including property acquired after the contract was made. There were two consequences of this: first, a wife was only capable of entering into a contract if she possessed her own separate property; second, even if she was liable, she could not be committed to prison for failing to pay.337 So complex a requirement could render the enforceability of married women’s contracts a thing of chance. Again at the behest of traders, Parliament intervened in 1893 to remove these refinements.338 In tort, the Act relieved the husband of liability for his wife’s antenuptial wrongs but was less explicit concerning her torts after marriage, stating, rather ambiguously, that the husband ‘need not be joined’ in any proceedings by or against his wife. The judges struggled to decide whether her separate property placed tort liability exclusively on the wife’s shoulders, whether the separate property made her primarily, and the husband secondarily, liable, or whether the old responsibility of the husband survived. In the end the House of Lords, by a bare majority, held that it remained possible for a husband to be held liable for his wife’s torts.339 Only in 1935, following the recommendation of the newly formed Law Revision Committee, did a wife acquire complete individuality in matters of contract and tort.340

332 Holcombe (n 66) 198. 333 Hansard, HL Deb 7 March 1882, vol 267, col 316. 334 Married Women’s Property Act 1882, s l. 335 Cretney (2003) (n 199) 97. 336 K O’Donovan, ‘The Male Appendage – Legal Definitions of Women’ in S Burman (ed), Fit Work for Women (Croom Helm, 1979). 337 Scott v Morley (1887) 20 QBD 120; Cretney (2003) (n 199) 99. 338 Married Women’s Property Act 1893. Once the wife acquired some capacity to purchase, she might buy the household assets from her husband, and the courts held that such a transaction did not require the receipt for the purchase money to be registered as a bill of sale, despite the fact that creditors would commonly think that the goods remained the husband’s: Ramsay v Margrett [1894] 2 QB 18; French v Gething [1922] 1 KB 236. A gift, however, would not serve this purpose, unless there was ‘delivery’: 1882 Act, s 10; Cochrane v Moore (1890) 25 QBD 57. Executory agreements between husband and wife would not be enforceable if they were ‘not intended to create legal relations’: Balfour v Balfour [1919] 2 KB 571. 339 Edwards v Porter [1925] AC 1. 340 Law Reform (Married Women and Tortfeasors) Act 1935. The wife’s powers, in the interests of the household, to pledge her husband’s credit (see p 349) continued unchanged (until 1970).

380 The Family Even this Act left untouched one practical consequence of the old fictional amalgamation of husband and wife: that one could not sue the other in tort.341 The artificiality that this might produce became more apparent with the advent of the family car and its propensity to injure. The judges adhered to the rule that a wife could not sue her negligent husband, even though he would normally be indemnified against any liability by his insurers.342 To some extent, insurance policies were revised to take account of this legal hiatus; but the principle itself would not be abolished until 1962.343 The campaign to secure independent private rights for married women stood surrogate for the claim of all women to political, professional and educational rights.344 As property ownership was fragmented within the family it ceased to be so evident that the head of household should be the sole bearer of the franchise; indeed as property lost its paternal attribution, its entire abandonment as a necessary condition for the Parliamentary vote was presaged. 1918 would bring votes, not just for women, but for adult men still at home and for lodgers. But the concession of separate private rights to married women, as with the admission of women to universities and professions, was a victory more symbolic than real. The wife who remained at home and depended on her husband for the family’s upkeep, or whose own earnings were absorbed into the cost of day-to-day living, would have nothing that she could call her own. Even her savings out of housekeeping provided by the husband in law belonged to him.345 The separation achieved by the married women’s property legislation was a crude device for an institution that, so long as it survived, was inherently communal. If the main assets of the household were clearly placed in joint ownership, then the wife might look forward to her equal share upon a parting or her husband’s death. With the growing desire for home ownership, associated between the wars with the advance of the building societies, the practice of conveying the house into their joint names became more common. But if the property remained the husband’s, then a wife’s rights were limited indeed. Only in 1938 did wives acquire some protection against a husband’s whim, dislike or revenge: in that year the Inheritance (Family Provision) Act 1938 allowed a widow to challenge her husband’s will if he used it to cut her out of any share in his estate on his death. Even then, the courts were nervous of overriding the principle of freedom of testation and some wives were left with nothing.346

341 On the evolution of the principle see K Pearlston, ‘Male Violence, Marital Unity, and the History of the Interspousal Tort Immunity’ (2015) 36 JLH 260. 342 The rule was even extended to the case where the pair married only after the accident: Gottliffe v Edelston [1930] 2 KB 378. 343 Law Reform (Husband and Wife) Act 1962. See further P Mitchell, A History of Tort Law 1900–1950 (Cambridge University Press, 2015) ch 12. 344 See further R Auchmuty, ‘Whatever Happened to Miss Bebb? Bebb v The Law Society and Women’s Legal History’ (2011) 31 LS 175; J Robinson, Bluestockings: The Remarkable Story of the First Women to Fight for an Education (Viking, 2009). 345 This remained the case until the Married Women’s Property Act 1964. 346 See eg R Probert, ‘Disquieting Thoughts: Who Will Benefit When We Are Gone?’ in B Häcker and C Mitchell (eds), Current Issues in Succession Law (Hart, 2016).

Part 2: New Pressures on Family Law: 1850–1950 381

F. Children: Private Rights Determining the custody of children upon a divorce or judicial separation was not the only occasion upon which parents might seek the aid of courts of law over the custody, education or religion of their children, or access to them. Conflicts might arise between couples who were living apart, or who had religious differences incapable of compromise. Equally there were conflicts between a parent and other relatives, and between persons neither of whom were parents. In such tussles one or other parent might be clearly in the wrong, or neither might be definitely to blame. In the general jurisdiction of Chancery as parens patriae the conflict was rarely between wrongdoer and victim, as was the assumption in divorce. As we have seen, the wishes of the father prevailed in that context unless there were the strongest reasons for displacing them.347 Here also the law was gradually changed so as to give more importance to the likely happiness of the child in future. As so often this utilitarian aim was borne in upon an a priori claim: that the wife should be treated as having a right to custody equal to that of her husband. To the campaigners for women’s rights, and to liberals generally, there seemed nothing untoward in this argument. The judges, however, showed little inclination to vary their established position on the matter.348 Accordingly a series of statutes attempted to induce the change. Legislation in 1873 broadened Talfourd’s Act of 1839 by allowing a court to award the mother custody of, or access to, any child under 16,349 while in 1886 it was established that orders of custody and access were to be determined by ‘having regard to the welfare of the infant and to the conduct of the parents and to the wishes as well of the mother as of the father.’350 The 1886 Act, directed as it was towards conflicts between spouses rather than with strangers, produced a somewhat uncertain weakening of the earlier robust preference shown by the courts for the father’s wishes.351 It was not, however, until 1925 that, in all proceedings involving custody or upbringing, or in administering trust property for an infant, the court was obliged to treat ‘as the first and paramount consideration’ the welfare of the child; and the father’s claim was not to be regarded as superior to the mother’s. Each parent was to have an equal right in the appointment of testamentary guardians and in consenting to the marriage of an infant.352 Yet even so, there were ways in which judges could express a preference for the ‘innocent’ spouse and for parents against non-parents. Eve J noted that since the rule ‘does not state that the welfare of the infant is to be the sole consideration but the paramount consideration,

347 See pp 353–55. But the acknowledgment that the benefit to the child should be considered made the rule of equity at least in form less strict than at common law. In the resolution of conflicting rules under the Supreme Court of Judicature Act 1873 (s 25(10)), it was expressly provided that equity’s principle should prevail: see eg Thomasset v Thomasset [1894] P 295, 300. 348 See eg Re Agar-Ellis (No 2) (1883) 24 Ch D 317. 349 Custody of Infants Act 1873. The wife’s adultery ceased to be an automatic bar, but it remained an influential factor. The Act also overrode equity’s former refusal to treat as binding a husband’s undertaking in a separation deed to surrender custody of children to his wife. But the courts were left with an ultimate discretion, as the women’s rights activist Annie Besant found to her cost: Re Besant (1879) 11 Ch D 508. 350 Guardianship of Infants Act 1886. Wives were also given limited and provisional powers to appoint a testamentary guardian. 351 eg Re McGrath (Infants) [1893] 1 Ch 143; Re A and B (Infants) [1897] 1 Ch 786; R v New (1904) 20 TLR 583. 352 Guardianship of Infants Act 1925. The Act also extended jurisdiction in guardianship to magistrates’ courts.

382 The Family it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first.’353 That there were still judges prepared to use such ideas to subvert the principle of the infant’s welfare, however ‘paramount’, was demonstrated by a majority of the Court of Appeal (overruling two courts below) in Re Carroll (No 2). The Court refused to consider anything but the wishes of an unmarried mother who wanted her child placed in a Catholic institution; accordingly the child was removed from a Protestant couple who wished to adopt her. The only exception, according to Scrutton LJ, arose where ‘the mother is of so bad a character that her wishes as to religion and education may be disregarded.’354

G. Children: The Underprivileged The history of communal help for poor and deprived children is a drab, slow-moving tale. From the late eighteenth century, the propertied had come to recognise that juvenile delinquency posed its special threat to the condition of the towns. By mid-nineteenth century, experimentation in the treatment of criminal adolescents could be fashioned into a system of reformatories for the convicted and industrial schools for the refractory. Once the poor law began to be institutionalised with the spread of workhouses after 1834, the guardians of the poor were likewise obliged to face the problems of bringing up their young charges with rather more attention than a rapid despatch into some murky corner of the labour market.355 After 1870, the schooling of pauper children became part of a larger responsibility, as governments promoted a modicum of education for all.356 The dangers for children in the lowest social strata were constant. They were born to mothers who had limited knowledge of contraception, an ignorance which their betters thought it right to conserve.357 While abortion was available throughout the country from those midwives and doctors prepared to act outside the law,358 it was also costly, which meant most poor mothers would require the help of a moneyed accomplice to seek escape from an unwanted pregnancy.359 Many babies died at birth or within their earliest weeks of natural causes, and, while the extent is immeasurable, it is clear that many pregnancies were kept secret so that the babies could be killed or allowed to die through neglect. Shame and economic necessity drove many to such a course – particularly those mothers who were on their own by virtue of being unmarried, deserted, or widowed by the father. The radical overhaul of the poor law in 1834 briefly made it more difficult for mothers to obtain maintenance by requiring that their evidence as to the identity of the father be ‘corroborated in some material Particular by other Testimony to the Satisfaction of such Court’.360 Despite the repeal of this particular provision in 1844, many mothers remained unable or reluctant 353 In re Thain [1926] Ch 676, 684. 354 [1931] 1 KB 317, 335. 355 See pp 417–18. 356 See esp the Report of the Departmental Committee (chaired by AJ Mundella) on the Maintenance and Education of Pauper Children in the Metropolis, PP 1896 [C 8027] XLIII. 357 See Cook (n 181) on the slow spread of knowledge about contraception. 358 L Rose, The Massacre of the Innocents, Infanticide in Britain 1800–1939 (Routledge & Kegan Paul, 1986) 87. 359 Behlmer (n 256) 281. 360 Poor Law Amendment Act 1834, s 72.

Part 2: New Pressures on Family Law: 1850–1950 383 to bring proceedings and the widespread problem of infant deaths due to ‘failure to thrive’ continued. Unfortunately the absence of any strict enforcement of the rules of birth registration361 meant the criminal law provided limited redress because it was too easy for the births and deaths of ‘fostered’ and ‘nursed’ children to simply be left unrecorded.362 If there was a little money, an unwanted child might be left with a ‘baby-farmer’. In some instances, the baby would be found a new home. But high-profile cases such as Margaret Waters, who had advertised to ‘adopt’ babies for £10 and was found to have allowed up to 19 children to die in her care, and Annie Took, who had smothered and dismembered an illegitimate physically disabled child that she was paid £12 to ‘adopt’, led to an official inquiry being carried out in 1871.363 The chilling evidence was that many ‘farmed’ children met an early death through abandonment, neglect, underfeeding, lack of natural milk, and opiates; indeed, it was estimated that between 40 and 60 per cent of ‘farmed children’ in rural areas died, rising to 70 and 90 per cent in urban areas, as compared with a national death rate among children of about 16 per cent.364 But any statistical assessment was acknowledged to be a guess since ‘nobody except the owners of these houses knows anything more about them; their births are not registered, nor are their deaths; some are buried as stillborn children, some are secretly disposed of, many are dropped about the streets.’365 The Committee considered that the largest number of cases where there was criminal disregard for children’s lives occurred in the metropolis and some of the larger Scottish towns; in Yorkshire and Lancashire, by contrast, ‘carelessness, and not crime’ was the principal cause of mortality.366 Even in the face of such evidence, Parliament did no more than require persons receiving more than one child under the age of one ‘for hire or reward’ to register with the local authority or suffer a fine.367 However, local authorities did little to enforce it and the registration process was riddled with so many loopholes that it could be abused to facilitate infanticide under different guises.368 Registered ‘farmers’ could simply pass their charges on to unregistered and untraceable foster carers. Tales of horror still burst forth from time to time. It was not until 1897 that local authorities were obliged either to appoint inspectors of baby farms or to make use of authorised women visitors.369 Further convictions of baby-farmers, some for murder, were in part responsible for the provisions of the Liberals’ Children Act 1908.370

361 Registration of Births, Deaths and Marriages Act 1836; Births and Deaths Registration Act 1874. 362 There were some 40 prosecutions each year for concealing births in the years 1834–37: see Criminal Tables, PP 1838 [115] XL111 116; H Hendrick, Child Welfare: England 1872–1989 (Routledge 1994) 44. 363 On the perception of a ‘moral panic’ see C Smart, ‘Disruptive Bodies and Unruly Sex: The Regulation of Reproduction and Sexuality in the Nineteenth Century’ in C Smart (ed), Regulating Womanhood: Historical Essays on Marriage, Motherhood and Sexuality (Routledge, 1992). 364 Select Committee on the Protection of Infant Life, PP 1871 (372) iv. 365 ibid iii. 366 ibid iii. 367 Infant Life Protection Act 1872, s 2. The local authority could refuse to register the house unless satisfied that it was suitable, and that the applicant was of good character and able to maintain the children. The practice of insuring the lives of such children was restricted by the Friendly Societies Act 1875, s 28. 368 Rose (n 358) 122–35. 369 Infant Life Protection Act 1897, s 3. 370 For information about ill-treatment, see the Report of the Select Committee on Infant Life Protection, PP 1908 (99) IX; esp the evidence of RJ Parr, Director of the NSPCC, QQ 184 ff.

384 The Family The attempts to prevent infanticide occurred in tandem with a rise in a more childcentred philanthropy. Child welfare reformers aimed to help neglected and maltreated children by setting up orphanages and other homes, in parallel with the existing state-run reformatories, industrial schools, and Poor Law institutions that also dealt with underprivileged children. It was strongly felt by reformers, within both the voluntary and public sectors, that one of the advantages of rehabilitating and educating children away from their home environments was that such objectives could be pursued in relatively ‘uncontaminated’ surroundings. There was also a greater willingness to intervene in the family. Parents could be prosecuted for wilful neglect under the Poor Law Amendment Act 1868, although the legislation stopped short of allowing the guardians to remove children at risk. In 1884 the aged Lord Shaftesbury, England’s premier philanthropist, presided over the inaugural meeting of the London Society for the Prevention of Cruelty to Children, which five years later converted into the present National Society (NSPCC). In 1889, the Society convinced Parliament that their kind of work could only be carried on with much broader powers of intervention and that year the Prevention of Cruelty to, and Protection of, Children Act 1889 was passed. This made it an offence wilfully to ill-treat, neglect, abandon or expose a child in a manner likely to cause it suffering or injury to health.371 Constables were given powers to arrest people charged with these offences and magistrates could place their child victims with a ‘fit person’ (if possible of the same religious persuasion) notwithstanding the claims of the natural parent.372 This empowered the voluntary sector to intervene within families where cruelty was suspected and refer the parents to the authorities. Simultaneously the Poor Law guardians were also granted powers to intervene such that they could assume all the ‘powers and rights of a parent’ in cases where a child was deserted or an orphan.373 Limiting the guardians’ control to parentless children was intended to protect the sanctity of the family home and parental authority. In practice the guardians applied these powers to the children of widowed mothers, workhouse inmates, and unmarried women in order to remove them into public care.374 By the close of the century, these powers were expanded to catch even more types of ‘unfit parents’ and reduced parents’ rights to reclaim their children by requiring a court order to reverse custody in their favour.375 In the meantime, other voluntary organisations had also begun to play a significant role.376 Dr Barnardo had opened his first Home in 1867, also with Shaftesbury’s support, and had proceeded to build up a network of institutions designed to equip rescued children with the training to lead a successful adult life, either in England or abroad. He was determined to ensure that previously neglectful parents did not suddenly reclaim their children when they were of an age to contribute to the family finances: parents would be asked to sign away their rights at the outset (an arrangement without legal effect), or the children might 371 Prevention of Cruelty to, and Protection of Children Act, 1889, s 1. 372 Prevention of Cruelty to, and Protection of, Children Act 1889, ss 4 (arrest) and 5 (placement of children). 373 Poor Law Act 1889, s 1. 374 V George, Foster Care, Theory and Practice (Routledge, 1970) 26. 375 The Poor Law Act 1899, s 1 provided for removal of a child based on parental unfitness due to mental deficiency, vicious habit or mode of life, imprisonment, disability, or living in the workhouse. 376 One perhaps overlooked dimension of this was the prosecution of abusers: see eg K Stevenson, ‘Fulfilling Their Mission: The Intervention of Voluntary Societies in Cases of Sexual Assault in the Victorian Criminal Process’ (2004) 8 Crime, History & Societies 93.

Part 2: New Pressures on Family Law: 1850–1950 385 be sent to Canada before their parents could object in a practice that became known as ‘philanthropic abduction’.377 His skirmishes were not without interdenominational bigotry: as a Protestant Irishman he did not care to surrender his charges into the arms of a Catholic church, which in his view did precious little to rescue neglected children. His defiance of the law on parental rights resulted in him twice being ordered to return a child to its mother following much publicised habeas corpus proceedings.378 Despite these setbacks, even some of the judges who ruled against him expressed a measure of admiration and the cases helped to change public attitudes towards parental rights. The Custody of Children Act 1891 empowered courts in habeas corpus proceedings to refuse custody to a parent who had abandoned or deserted a child, had ‘otherwise so conducted himself that the court should refuse to endorse his right to the custody of the child’.379 It also stipulated that a court should not make an order for the delivery of a child to a parent who had ‘allowed the child to be brought up by another person at that other’s expense … for such length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties’, unless that parent had managed to satisfy the court that he was a fit person to have custody.380 The law thus allowed not only private institutions and poor law guardians, but also foster-parents and ‘adopters’, some chance of keeping children away from the least desirable parents. The relationship between the child welfare movement and reforms for under-privileged children strengthened throughout the end of the nineteenth century and culminated in the creation of the Liberals’ Children Act 1908. This so-called Children’s Charter consolidated and extended previous legislation, extending registration to child-minders of any child under the age of seven, and introducing juvenile courts and penalties for death of a child by neglect. The state was gradually assuming a greater responsibility for the health and welfare of children and their carers.381 The twentieth century also saw the state finally assuming control over the care of children within families not their own. Although the practice of taking children into one’s family – from poor or deceased relations, or servants, through other connections, or simply because the child needed a home – had a long history, it had remained a private transaction beyond the reach of the state. At the lower social levels, organisations such as Dr Barnardo’s and the Poor Law Guardians had been content to place children out in families upon an informal basis of fostering or ‘boarding out’. While some attempts had been made to introduce legislation preventing parents from removing their children at will, the importance attached to parental rights meant that these had been defeated.382 It was WWI that brought the debate on formal adoption into the public domain.383 New charitable agencies such as the National Adoption Society and the National Children’s

377 H Cunningham, The Children of the Poor (Blackwell, 1991) 145. 378 R v Barnardo (1890) 24 QBD 283; Barnardo v McHugh [1891] AC 388. 379 Custody of Children Act 1891, s 1. 380 Custody of Children Act 1891, s 3. 381 See further ch 6; see also J Lewis, ‘The Problem of Lone-Mother Families in Twentieth-century Britain’ (1998) 20 JSWFL 251. 382 NV Lowe, ‘English Adoption Law: Past, Present and Future’ in SN Katz, J Eekelaar and M Maclean (eds), Cross Currents: Family Law and Policy in the US and England (Oxford University Press, 2000). 383 J-F Mignot, ‘Full Adoption in England and Wales and France: A Comparative History of Law and Practice (1926–2015)’ (2017) 41 Adoption & Fostering 142.

386 The Family Adoption Association sought to place illegitimate and abandoned children with adopting parents who would assume full responsibility for their upbringing. These agencies had different objectives from those of their nineteenth-century counterparts, operating in a post-war society in which they saw two needy parties – on the one hand, unwanted children, orphaned or illegitimate, deprived of a satisfactory family life; on the other, bereaved parents, childless couples, and lonely spinsters and widows in need of child companionship. All that was necessary was to bring the two groups together.384 It quickly became clear that there was a demand to adopt, particularly from middle-class, childless couples who were ready to support pressure for legal reform. Nonetheless, opposition to the idea of adoption remained strong, being expressed in the evidence given to two Select Committees and reflected in the failure of reform bills between 1920 and 1926.385 The stigma of illegitimacy was, to many among the respectable, a necessary visitation in the interests of discouraging extra-marital intercourse, particularly among the poor. The notion of wiping it away by substituting an artificial parentage remained deeply disturbing, the more so if a child would thereby move into a class for which genetically it was assumed to be unfit. The approach taken in the Adoption of Children Act 1926 was accordingly cautious. Adoptive parents would assume the usual duties of parents of legitimate children for ‘custody, maintenance and education’, but their adopted child would not inherit from them upon an intestacy;386 and adoption had no effect on the prohibited degrees of marriage. The adoption process required the intervention of a court, which would normally act only with the consent of the parent, parents or guardian with rights of custody.387 The child’s own interests would be represented by a guardian ad litem, who would generally be a local authority worker, concerned with social circumstances rather than legal pre-conditions.388 The same year saw the passage of the Legitimacy Act 1926, which permitted the stigma of bastardy to be lifted by the subsequent marriage of the child’s parents – as long as they had been free to marry at the time of either the child’s conception or birth. Both adoption and legitimation proved useful means of regularising family r elationships. 1927 saw 5,495 children being reregistered as legitimate, and just under 3,000 adoptions.389 In a substantial proportion of cases a natural parent was one of the adopters.390 But in rather more instances the child went to unrelated adopters and the societies found that there was a regular flow of couples, many of them childless, who were eager to adopt. A further committee found that there was not always much investigation of the circumstances of would-be adopters.391 As a result further legislation passed in 1939 required 384 J Keating, A Child for Keeps: The History of Adoption in England, 1918–45 (Palgrave Macmillan, 2008) 42. For the alternatives available to unmarried mothers, see P Thane and T Evans, Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth-Century England (Oxford University Press, 2012). 385 Hopkinson Committee, PP 1921 [Cmd 1254] IX; Tomlin Committee, PP 1924–1925 [Cmd 2401,2469] IX; six private members’ bills were presented altogether. See Lowe (n 382) 309–12. 386 Adoption of Children Act 1926, s 5(2), following recommendations of the Tomlin Committee favouring caution. 387 Adoption of Children Act 1926, s 3, also requiring that the adopter receive no payment for adopting; the same was required of adoption societies by the Adoption of Children (Regulation) Act 1939. 388 Adoption of Children Act 1926, s 8(3). 389 See The Registrar-General’s Statistical Review of England and Wales for the years 1927–36. 390 Lowe (n 382) 315. 391 Departmental Committee on Adoption Societies and Agencies, PP 1936–1937 (Cmd 5499,1937) IX.

Part 2: New Pressures on Family Law: 1850–1950 387 adoption societies and agencies to take up references, conduct a personal interview and home visit, and to follow up the adoption during a three-month probation.392 Despite such additional regulation, the number of adoptions swelled steadily and reached a post-war peak of 23,564 in 1946.393 Three years later, the Adoption of Children Act 1949 finally introduced the principle that an adopted child would be treated for all purposes as the child as the adoptive parents.394 In one sense, a formal procedure for adoption represented a break with the past: the judicial system of the state, aided by the investigatory abilities of local authorities, had acquired power to transfer a familial relationship from natural to adoptive parents. Yet from another, and probably more significant, perspective, adoption was only a further point along a line of intervention by which the state increased its power to regulate the creation, maintenance and dissolution of families.395 And right at the end of our period, the state assumed still further responsibilities for child care in the Children Act 1948, as part of the new post-war welfare state.396 This chapter has traced how, over the preceding two centuries, the state had come to determine what should constitute marriage, and what should be the consequences in terms of property rights and other obligations – between husband and wife and in their relation with their children. The introduction of adoption coincided with a period in which divorce was becoming rather more usual. But both still operated within a frame of thought set by the standard Victorian perception of the family – that it would be established by legally effective, heterosexual marriage and would function under conditions in which the husband and father, the sole or primary breadwinner in many cases, would be the centre of power and authority within each nucleus. Family relationships, in accordance with Christian teaching, were to be permanent – between the couple until the parting of death, with the children until adulthood. Not conforming to this pattern was liable to be adjudged a moral failure, an attitude supported at various points by the law – for instance in the grounds for, and consequences of, divorce and in questions over the custody, maintenance and education of children. In 1950, as we leave the story, we are looking at a conformist world, distanced from a present in which the freedom to enter, maintain and sever personal relationships has advanced to the status of a prime virtue.

392 Adoption of Children (Regulation) Act 1939, in operation in 1943. The counties and county boroughs, which were the poor law authorities after 1929, became involved informally in organising adoptions but only acquired power to act as agencies in 1950. 393 For the statistics, see Report of the Houghton Committee on the Adoption of Children, PP 1971–172 [Cmnd 5107] XXXVIII, App B. 394 This included the right to inherit upon the intestacy of the adoptive parent: see Cretney (2003) (n 199) 614. 395 See eg the Children and Young Persons Act 1933. 396 See eg S Cretney, ‘The State as a Parent: The Children Act 1948 in Retrospect’ (1998) 114 LQR 419.

6 Poverty and Education The organisation of social provision in Britain was naturally much influenced by prevailing ideologies. In the Victorian period the liberal virtue of self-sufficiency was foremost, though over time there was a growing acceptance that there should be collective action to ensure a basic level of social support. The modern ‘welfare state’, with its complex mechanisms of social security, supplementary benefit, compulsory education and the like, began to approach completeness only in the aftermath of WWII. By this time society had become industrial, urban and far wealthier than before. This posed its own challenges – for example, a much larger proportion of the population was now surviving into advanced old age – but our period begins with a close-knit, mainly agricultural society in which most people lived short lives on a bare subsistence. Such people were highly vulnerable to the vicissitudes of life: they had few resources with which to ride out harvest failures, economic downturns and periods of sickness, and few opportunities to advance their individual situations through education. In the short term, industrialisation, when it came, did little to improve their general lot. Nor did the state, such as it was. It was left to the propertied classes to decide what steps should be taken to alleviate the very worst destitution and ignorance in their local communities. Individual benevolence often led to the establishment of charities which became communal resources managed by the respectable. Over time, charitable works were supplemented, and in time substantially supplanted, by direct interventions by communities and the state itself. But progress in the areas that concern us here, the relief of poverty and advancement of education, was erratic, not least because the decision-making classes were subject to contradictory impulses. A desire to assist the genuinely unfortunate was often nullified by the fear of merely encouraging the indolence of the allegedly undeserving poor. Self-interest was often as persuasive in inducing interventions as abstract appeals to compassion. Some saw the establishment of elementary social provision as a hedge against popular violence; perhaps the right thing to do in any case, but also shrewd insofar as it secured one’s own interests. On the other hand, there were also those who feared that gratifying the poor would simply stimulate an appetite for more and more indulgence. The welfare measures that emerged were closely linked to social control: one had to control what was given and those who received it. So for much of our period it was the Poor Laws which marshalled and disciplined the destitute, the vagrant and the work-searcher, the criminal law being employed as a secondary but useful adjunct. Equally, the cause of popular education was advanced not so much for the economically useful skills it would provide, as for the opportunity it would afford to inculcate a sense of religious and moral obligation in a world of increasing expectation.

Part 1: Destitution in Country and Town 1750–1890 389 The first two parts of this chapter will survey provision for the relief of destitution, and provision for education, in the period to 1890. The latter two parts of the chapter will then deal with these topics during the years running from 1890 to 1950.

Part 1: Destitution in Country and Town 1750–1890 A. The Inherited Structure Lorie Charlesworth observes that pre-Reformation systems of poor relief were ‘ancient, complex and multi-jurisdictional’,1 and that there was in place ‘a complex system of aid and support provided by a mix of manorial custom and ecclesiastical duty with strictures against those who “wander about”.’2 Many of the doles to the poor derived from customary rights upheld in manorial courts. The churches and the monasteries also provided substantial relief partly funded by the tithes on land that were originally intended for the care of the aged, sick and destitute, as well as for the upkeep of the priest and the church.3 For the most part customary relief and charity from the rates were, from the start, tied to locality and thus it was logical that a statute of 1388,4 succeeded by further statutes of 14945 and 1503,6 required the needy poor to return to where they had been born or where they had resided for at least seven years. The Reformation put an end to monastic giving, but the new Church of England which succeeded it was an active propagandist for benevolence as a Christian virtue, and indeed a considerable flow of charitable giving was directed towards the establishment of poorhouses, the provision of pauper doles, the founding of schools for poor children and a range of other religious and public objects.7 In support of all this activity, a secular law of charities became centred upon the Lord Chancellor’s enforcement of endowed trusts. Thus, Georgian England eventually inherited both a series of duties laid upon its parishes to support the poor (of which there was a great re-instatement at the end of the Elizabethan period) and a web of charitable endeavours, some of which were of very ancient foundation.

i. Endowed Charities: The Legal Frame If a charitable gift was simple and immediate, say, a gift of food for beggars, it sufficed for the law to decide whether the gift had in fact been made and to control any contest among recipients. However, where the intention was that a gift be indefinitely sustained – and in particular if there was to be an endowment of land or a fund so that only its income would

1 L Charlesworth, Welfare’s Forgotten Past: A Socio-Legal History of the Poor Law (Routledge, 2010) 37. 2 ibid. 3 NS Rushton, ‘Monastic Charities in Tudor England’ (2001) 16 C&C 9. 4 Confinement of Impotent Beggars Act 1388. 5 Return of Impotent Beggars Act 1494. 6 Return of Impotent Beggars Act 1504. 7 MR Chesterman, Charities, Trusts and Social Welfare (Weidenfeld and Nicolson, 1979) 17. For a recent study, see JP Ward, Culture, Faith, and Philanthropy: Londoners and Provincial Reform in Early Modern England (Palgrave Macmillan, 2013).

390 Poverty and Education be used for the object – much greater sophistication was called for. The medieval church had received many endowments to maintain its fabric, support the conduct of religious office, and provide for the material needs of its people. The ecclesiastical courts had provided a measure of supervision over such endowments. But equally the Court of Chancery had come to recognise and enforce gifts upon charitable ‘uses’,8 and by the end of the sixteenth century, Chancery was the main source of the legal regulation of charitable ‘trusts’ (as they were coming to be called) for all endowments save some of the grander foundations that were regulated by their own visitor.9 Although the medieval church was broken up, the Lord Chancellor thereafter drew upon the older practices of the ecclesiastical courts with respect to charities. It was accepted that there was no objection to the perpetual dedication of property to its purpose; and that the beneficiaries might be left for selection by the trustees from time to time.10 It was the very permanence of a foundation and its ability to meet need as it recurred in each generation that secured charity a position which was not allowed to trusts for private beneficiaries. If the specified purpose should for any reason fail, Chancery would assist by directing an application cy-près – to another similar purpose.11 And beyond this, the court, sustained at some points by statutory provisions, would rectify defects in conveyancing and other matters, in order to ensure that charitable trusts were not lost through formal errors.12 Royal government, moreover, strove to see that charity trustees were active in pursuing the prescribed objects of their trust. The Statutes of Charitable Uses 1597 and 1601 provided for investigations into the charitable holdings of parishes for the poor, the sick and others in need.13 These were to be instigated by Chancery through commissions to the bishop, and could lead to wide-ranging orders to rectify maladministration, loss of property and other neglect.14 They began with a spate – over 1,000 commissioners’ decrees being recorded in the period to 1625 – and the flow continued until 1688.15 After that, however, a new procedure became more frequent, one which reflected a general slackening in the urge towards charitable endeavour. On behalf of the Crown, in its role as protector of the people, the Attorney-General began to bring Chancery informations to secure the due enforcement of charitable trusts; but he acted only on the instigation of an individual relator, who bore the 8 Charitable uses were not affected by the Statute of Uses 1536, since there were no specific beneficiaries in whose favour that statute could transfer the legal estate in question. This was one crucial factor in fostering the concept of a distinct estate in equity for the beneficiaries of a trust. 9 Visitors were appointed to charities of particular splendour, such as schools and colleges of royal or noble foundation. 10 For the additional importance of informal doling customs to the poor and the sometime uneasy relationship between giver and receiver, see S Banks, Informal Justice in England and Wales: The Courts of Popular Opinion (Boydell and Brewer, 2014) ch 3. 11 For the emergence and development of this doctrine, see EL Fisch, ‘Cy Près Doctrine and Changing Philosophies’ (1953) 51 Michigan Law Review 375; H Gray, ‘The History and Development in England of the Cy-Près Principle in Charities’ (1953) 33 Boston University Law Review 30; LA Sheridan and VTH Delany, The Cy-Près Doctrine (Sweet & Maxwell, 1959); GH Jones, History of the Law of Charity 1532–1827 (Cambridge University Press, 1969) 72–77; C Mitchell, ‘Charitable Endowment and Social Change: Cy-Près Orders and Schemes, 1837– 1901’ (2020) 41 JLH (forthcoming). 12 See Jones (n 11) 59–72; Chesterman (n 7) 22–24. 13 The preamble to the 1601 Act contained an extensive list of the types of charity to which it applied, which would later be used as a focus for defining ‘charity’ for all purposes. 14 For the scope of the statutes and legal powers of the commissions, see Jones (n 11) ch 4. 15 Jones (n 11) App 1 lists the number by county.

Part 1: Destitution in Country and Town 1750–1890 391 risk of costs. This was a significant development in the legal supervision of public affairs, and so far as concerned charities it had a directness about it, in getting at real cases of neglect and dishonesty. But occasional informations were no substitute for the periodic survey of the range of available charities, which the commissions had provided.16 In the course of the eighteenth century, many charities would simply be lost, others would be transferred to doubtful ends (such as simply reducing the poor rate), and others again would be milked by trustees and their friends for their own benefit. Another indication of changing attitudes came over the question of perpetuity, which bore so fundamentally upon the balance of power within the landed interest. The freedom to tie up land in a charitable endowment received a sharp check with the Mortmain and Charitable Uses Act 1736.17 Devises of land by will upon charitable trusts were declared invalid, as were settlements inter vivos to the same end if made within 12 months of death. Other gifts during life were permissible but required enrolment in Chancery within six months.18 Those who passed the Act – members of a landowning class, many of whom also expected to inherit more land – had a number of interests in the matter. They eyed with concern the Church of England and its main instrument of property holding, Queen Anne’s Bounty, and they feared that without some check upon its expansion it might swallow up ever more of the nation’s land. In addition, there was a distaste for a wholly individualistic law of wills which provided ample opportunities for death-bed benevolence depriving heirs of their expected entitlements.19 There was, in short, a desire to preserve the interests of heirs as against the interests of charitable endeavours.20 Judges in later generations expressed their sympathy for the objectives of the Act by extending its effect. They did so by adopting broad understandings of what was defined as a charitable object21 and liberal definitions of what constituted a devise of land, both of which extended the range of activities falling foul of the Act.22 In time, deserving exceptions

16 Commissions did not entirely die out until the late eighteenth century, the last being established in 1787: Jones (n 11) 52 and App I. 17 The medieval use of the term ‘mortmain’ had been for the prohibition upon transfers of land without royal licence to corporations (including the corporations sole of ecclesiastical office); their perpetual existence undermined the feudal obligations arising on succession. Now the term was being fitted to a hazard of a more commercial age. 18 There were about 30 enrolments per annum during the rest of the eighteenth century, a figure which would increase with the flood of Victorian benefaction to over 1,200 per annum in 1857–1865: RS Tompson, The Charity Commission and the Age of Reform (Routledge & Kegan Paul, 1979) 58. Oxford, Cambridge, Eton, Westminster and Winchester were exempted from the Act; Queen Anne’s Bounty was not. 19 CS Kenny, The True Principles of Legislation with regard to Charitable Uses (Reeves & Turner, 1880) 59–69; D Owen, English Philanthropy, 1660–1960 (Harvard University Press, 1964) 87–88; Jones (n 11) 107–13; AH Oosterhoff, ‘The Law of Mortmain: An Historical and Comparative Review’ (1977) 27 University of Toronto Law Journal 257, 277–88. 20 Jones (n 11) 113–19 shows that the Act was interpreted with a certain circumspection by one of its progenitors, Lord Hardwicke LC; but that during the regime of his successor, Lord Northington, it became the instrument of a veritable witch hunt against charity. 21 eg Thornton v Howe (1862) 31 Beav 14, where a trust to propagate the eccentric Messianism of Joanna Southcote was held charitable, as being for the advancement of religion, only to strike it down as void; see generally Jones (n 11) ch 9; Chesterman (n 7) 55–56. 22 Thus, gifts of money to purchase land, railway and canal shares, mortgages of turnpike trust shares and land held upon trust for sale were all brought within the purview of the Act: Giblett v Hobson (1834) 3 My & K 517; Att-Gen v Wilson (1838) 2 Keen 680; Att-Gen v Ackland (1830) 1 Russ & My 243; Harrison v Harrison (1829) 1 Russ & My 71; Jones (n 11) 118–19.

392 Poverty and Education were admitted, but Parliament clung to the basic rule of 1736.23 It would remain until the power and sanctity of land was truly on the wane.24 In respect of the aims of charity, the Statute of 1601 had listed in its preamble a miscellany of objects which its scheme for commissions from Chancery to the bishops might cover, and these placed a strong, but not exclusive, emphasis on providing the needy with subsistence, financial support and education. Eighteenth-century Chancellors, referring sometimes to its ‘spirit and intendment’, were content to treat any ‘gift to a general public use, which extends to the poor as well as the rich’ as attracting the advantages in equity of a charity.25 Not only could this further the range of mortmain, but it could bring aid to ratepayers in paying for local services and in allowing them their own benefits such as schools for their children. Later, particularly under Lord Eldon, there would be signs of retrenchment on this, as on other aspects of charity law. He refused to uphold a bequest on trust to the Bishop of Durham for ‘such objects of benevolence and liberality as he should most approve of.’26 But still it was accepted, following Sir Samuel Romilly’s argument in the case, that charity encompassed a broad range of four objects: ‘the relief of the indigent; … the advancement of learning; … the advancement of religion; and … the advancement of objects of general public utility.’ Arden MR also took a scrupulous view of the cy-près jurisdiction to redirect charitable trusts whose purposes were outmoded. If the difficulty arose at the outset, the court was to intervene only if some intention to make a charitable benefaction generally could be discerned in addition to the nominated purpose; otherwise the gift failed and the donor or his estate kept the property.27 Where the trust had been in effect it was not enough that its given purposes were becoming obsolescent through changes in need or an increase in income. In Lord Eldon’s words, ‘If the Legislature thinks proper to give the power of leaving property to charitable purposes, recognised by law as such, however prejudicial, the Court must administer it’; so the Jarvis Charity – £100,000 invested for the poor of three small parishes – remained unalterable.28 Even when a new scheme was necessary because of impossibility, it had to be for the ‘next nearest’ purpose, not for some appropriate local need. Every possible attention was to be paid to the ‘dead hand’ of the original founder.29 The vagaries of individual choice were rarely trimmed to meet larger policies aiming at overall efficacy. This was an important, long-surviving attitude in the court, but its debilitating effects were probably minor compared with the increasing cost and slowness of applying to Chancery for any form of assistance in administration. Because of their indefinite duration endowments

23 An unsuccessful bill in 1773 had attempted to divert charitable investment from land by creating a ‘mortmain’ fund: Tompson (n 18) 58, n 2. 24 The complex law on the subject was consolidated in 1888 and somewhat relaxed in 1891; but it would not be until the Charities Act 1960, s 38, that it finally disappeared: Chesterman (n 7) 62. 25 Jones v Williams (1767) Amb 651, 652 (Lord Camden LC). 26 Morice v Bishop of Durham (1804) 9 Ves Jun 399. The case concerned a bequest of personality and so avoided mortmain. See J Getzler, ‘Morice v Bishop of Durham (1805)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). The question of what counted as a charitable trust did not always coincide with popular perceptions, but was rather a matter of law and subject to the emerging principle of stare decisis. 27 Corbyn v French (1799) 4 Ves Jun 418; the rule grew out of attempts to avoid the Mortmain Act 1736: as in eg A tt-Gen v Goulding (1786) 2 Bro C C 428. 28 Bishop of Hereford v Adams (1802) 7 Ves Jun 324, 329. For the later history of the cy-près doctrine see pp 398–99. 29 Kenny (n 19) 213.

Part 1: Destitution in Country and Town 1750–1890 393 might need periodic help – to appoint new trustees,30 to protect property and to direct its investment, as well as to revise its purposes cy-près. Chancery was ready enough to put trust funds under its own cumbrous administration,31 but that process, like everything else before the court by Lord Eldon’s time, had become debilitating.32 Many charities remained effective by ignoring the law’s requirements;33 others, of course, were mismanaged with impunity. In the eighteenth century, there was only one real attempt to assess nationally what charitable resources were available for poor relief. Thomas Gilbert, the well-known Poor Law reformer, finally persuaded Parliament in 1786 to institute an inquiry in each parish, into donations for the benefit of the poor. Incomplete as the returns were (even after 4,000 supplementary inquiries), they indicated that charity income at least equalled that being expended on the Poor Law and also that a considerable measure of abuse lay illconcealed. But this information was left unconsidered for another quarter-century.34 There are indications that benevolent giving was on the increase by the end of the eighteenth century and this was probably a reflection of both a growing concern over the misery of the poor and an increasing fear of the lengths to which their poverty might drive them. In response to bad harvests, high food prices and consequent food riots, there came new outpourings of relief and in time these would become a prominent characteristic of Victorian benevolence. In addition, forms of charitable giving that were based neither upon simple gifts nor upon the setting up of endowed trusts were becoming more important. New types of institution and association were emerging which were mainly supported by subscriptions or collections. The respectable were increasingly engaged with humane activities, such as hospitals and schools, missionary work and slavery abolition, as well as in preserving their own interests through societies for the prosecution of felons and the abolition of vice. The leisured class was growing in number and charity engaged their sympathies while affirming their sense of self-importance.35 The nineteenth-century forms of paternal supervision were starting to take shape.

ii. The Elizabethan Poor Law Whilst the influence of genuine philanthropic concern about the poor should not be underestimated, a desire to assist them was (and is) often connected to an apprehension that should nothing be done to assist them, the security of the propertied interests might in turn be endangered. Such was certainly the case in Tudor England. The dislocations caused by the dissolution of the monasteries, the effects of the early enclosure movements and a series of poor harvests in 1555/56, 1586 and 1595–97 all served to set masterless 30 One of the earliest applications of incorporation – for bishoprics and other ecclesiastical holdings, bodies such as Oxford and Cambridge colleges, livery companies and boroughs – was to provide a legal entity in which property could be perpetually vested for charitable and like purposes, so avoiding the need for regular transfers to new trustees. 31 Tompson (n 18) 67–68. 32 In the late eighteenth and early nineteenth century, the Attorney-General instituted an average 18 suits to protect charities each year. There were two or three private Acts a year to resolve charity problems: Tompson (1979) (n 18) 59–68. 33 On ‘self–help’ by trustees, see Tompson (n 18) 72–77. 34 Owen (n 19) 86–87; Tompson (n 18) 83–84. 35 For the patterns of eighteenth-century philanthropy, see Owen (n 19) chs 1–3.

394 Poverty and Education men on the road. Authorities believed that such men were inclined to villainies, small and large. One response was the attempt to bind labour, most notably through the Statute of Artificers 1563.36 The regulation of apprenticeships, the setting of wages, the forcing of men into service and the powers of oversight granted to the justices of the peace were all in pursuit of a labour policy designed to pacify society within a self-replicating system of settlement and production conducive to the continuance of the status quo.37 Problems of vagrancy and unemployment were not, however, so easily subdued. A statute in 1572 provided for the whipping or incarceration of incorrigible vagrants38 and another in 1576 required that bridewells, or houses of correction, be established in every county to set the idle to work.39 The 1572 statute had, however, served not merely to chastise but also to define, those able-bodied persons who might legitimately be without employment – for instance, servants discharged for less than six months, migrant farm workers and former mariners or soldiers licensed to beg. Furthermore, it had established a mandatory poor rate in every parish either to provide money or to offer employment to the legitimately idle.40 The Elizabethan Poor Law, however, took its final form with statutes in 159741 and 1601.42 Churchwardens in each parish were obliged to appoint four overseers of the poor to raise a rate for poor relief and, through those parishioners appointed as overseers, to put children out as apprentices; to provide relief for the ‘lame, impotent, old, blind and such other being poor and not able to work’; and, above all, to secure a set of materials upon which the ablebodied poor should be put to work. One consequence of Poor Law legislation was that it reinforced the extreme parochialism of parish communities. Governance of the parish lay in an assembly of incumbent, churchwardens and parishioners – the open vestry – unless, by immemorial custom, bishop’s faculty or statute, there had been established some form of closed or select vestry.43 These latter were to become relatively common in parts of the metropolis and other towns where destitution pressed. A select vestry replaced the popular assembly with a self-perpetuating enclave of the propertied, closely resembling the borough corporation. Whatever their form, parish authorities were required to offer relief to their own paupers but to remove paupers whose legal settlement was in another parish.44 Cash-strapped parishes were thereafter very keen to formalise the distinction, generally acknowledged within the community, between those who genuinely belonged and those who did not. For example, by the mid-eighteenth century parishes in Wales were behaving as though they were under siege with ‘resolutions refusing to allow strangers to settle in the parish, condemning collections for “foreigners”, and obliging migrant workers to carry “passports” noting their place of legal settlement.’45 Between parishes there was constant skirmishing

36 See pp 268–69. 37 PA Fideler, Social Welfare in Pre-Industrial England: The Old Poor Law Tradition (Macmillan, 2006) 96–99. 38 Vagabonds Act 1572. 39 Poor Relief Act 1575. 40 Fideler (n 37) 97–98. 41 Poor Relief Act 1597. 42 Poor Relief Act 1601. 43 For a general history of the parish see KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales (Cambridge University Press 2006). 44 Poor Relief Act 1662. 45 R Suggett, ‘Festivals and Social Structure in Early Modern Wales’ (1996) 152 P&P 79, 104.

Part 1: Destitution in Country and Town 1750–1890 395 over liability. Under the 1662 Act and its surrounding case law, a wife was treated as settled in her husband’s parish, and a legitimate child in its father’s parish; but given the mobility of much of the population, determining settlement could require a tortuous climb up the family tree. By contrast, an illegitimate child, filius nullius, took settlement where he or she was born.46 However, the Act also gave settlement on the basis of 40 days’ residence,47 thus committing the overseers to remove newcomers at once or put up with their later claims for relief. Later enactments were more restrictive, requiring, for instance, completion of an apprenticeship or a yearly hiring in order to give a new settlement.48 It remained the case, though, that newcomers, even if gainfully employed, were often looked on as a potential liability and this reinforced the hostility to ‘foreigners’ observable in rural society into the twentieth century. Snell observes that in the parochial discourse, outsiders were often characterised as habitual drunkards, irremediably stupid, morally lapsed, invariably lazy and so on. Such a person was ‘looked upon as a kind of foreigner or interloper, who had no right there. We have known persons both insulted and assaulted for a long time till they got initiated or naturalised.’49 It became a regular practice, particularly in places worried by the itinerant poor, to examine new arrivals in order to decide whether they should be removed – since the overseers were entitled to haul them off to their parish of settlement even before they made any claim.50 Under three Acts of Parliament in 1700, 1714 and 1744, the list of those classified as mere vagrants ever expanded to include entertainers such as minstrels and jugglers and even collectors for prisons or hospitals.51 Rewards of 2s were available for the detention of vagrants and an important part of local policing became the duty of determining whether those on the roads were ‘sturdy beggars and incorrigible rogues’ or respectable people travelling in the course of work or seeking to find it. The consequences of being classified as a vagrant became steadily more severe.52 In bad years there could be many thousands of removals around localities and some even to great distances.53 A vagrant contractor for Middlesex, Henry Adams, dealt with 14,789 vagrant removals during the period between 1776 and 1786 alone.54 Through the first half of the eighteenth century, it was regular practice not only to ‘badge’ those in receipt of relief (as a mark of shame) but to issue them with a certificate acknowledging liability to other parishes.55

46 See eg M Nolan, Laws of Relief and Settlement of the Poor, 4th edn (Butterworth, 1825); GA Lewin, Summary of the Law of Settlement (Sweet, 1827). 47 Or paying an annual rent of £10 – a form of tenancy beyond the prospects of an ordinary labourer. See Fideler (n 37) 37 and generally, P Slack, ‘Vagrants and Vagrancy in England, 1598–1664’ (1974) 27 Econ HR 360. 48 See, in particular, the Poor Relief Act 1691 – other bases were paying parish rates (after 1795, of an annual value of £10 or more) or serving in an annual parish office. 49 J Lawson, Letters to the Young on Progress in Pudsey during the last Sixty Years (JW Birdsall, 1887); cited in Snell (n 43) 51–52. 50 Until 1814, however, the overseers were supposed to accompany them personally. 51 T Hitchcock, A Crymble and L Falcini, ‘Loose, Idle and Disorderly: Vagrant Removal in Late Eighteenthcentury Middlesex’ (2014) 39 SH 509, 510. 52 The Vagrancy Act 1744 added conscription into the army or navy to a list of sanctions which stretched from whipping and incarceration in houses of correction to mutilation, transportation and death for the habitual ‘offender’. The Vagrancy Act 1824 modified these somewhat but extended the range of liability. 53 The surviving records not unexpectedly suggest that that removal was used most aggressively against those likely to become long-term burdens – large families, the old, single mothers and their children. 54 Hitchcock et al (n 51) 510. 55 Certification was given regular backing by the Poor Relief Act 1696.

396 Poverty and Education Even where one was entitled to assistance, gaining it might be no easy task where the overseers were themselves ratepayers and thus incentivised to keep the poor rate as low as possible. Individual justices and Quarter Sessions had the power to order overseers (not necessarily of their own parish) to grant assistance. The appeal to Quarter Sessions permitted the airing of issues at county or borough level; the application to an individual justice allowed for some playing on the sentiment of those who might not themselves be obliged to pay. In practice, those who sought the assistance of the overseers were rarely in a position to dispute an unfavourable decision formally, though sometimes they would have the help of more substantial ‘friends’; and, particularly after 1782, the law permitted them to appeal to any justice, who might order their relief.56 The ratepayers in their turn were entitled to challenge the poor rate, first at Quarter Sessions and occasionally thereafter before King’s Bench. The liability to be rated was imposed upon tenants rather than landlords and upon those with premises even if they were not residents. Whilst the law of settlement may at first appear to be an attempt to perpetually fix people in their own community, in fact it could operate to opposite effect. Parishes with a surplus of labour had every incentive to induce the surplus to travel outside the parish to seek employment elsewhere. The key to making the system operable lay in finessing the law of settlement such that those communities that received the incoming labour did not in fact incur an indefinite obligation to support those men and women when the period of their employment ended. The judges recognised this by deciding that the workforce at an industrial project (say a factory or a mine) would not acquire rights of settlement even if their employment contracts ran for more than a year, because they were only hired in the parish for a set number of hours or days a week.57 Thus labour could be imported into a parish without unduly onerous obligations ensuing. The rules of settlement did, though, create tensions between parishes, especially where a landowner exploited his position in a ‘closed’ parish. Such a parish was one dominated by a great landlord and his tenants, often the product of a successful enclosure. The landowner could reduce the population within the parish by clearing squatters and cottagers away to less resistant, ‘open’ parishes where eventually they or their descendants would become settled.58 The closed parish could then employ them but without having to take on any responsibility for poor relief, due to unemployment, sickness or old age. Under such circumstances, and with a labour force to maintain, it often cost nothing for the landowner to appear benign. If he was a justice of the peace he could order the overseers in the open parish to grant poor relief and then take up labour from that parish when he needed it.59

56 Justices and overseers were both explicitly given the power to grant poor relief by the Poor Relief Act 1782 (also called Gilbert’s Act), under which ‘Gilbert’s Unions’ were created. But the practice was older and occasionally gave rise to arguments for mandamus before King’s Bench; see eg R v Inhabitants of North Shields (1780) 1 Doug KB 331. 57 Even if these amounted to 13 hours a day (less meal times), six days a week: see eg R v Inhabitants of Kingswinford (1791) 4 TR 219; Nolan (n 46) vol 1, 375–85. For a study of practices in Yorkshire, see JW Ely, ‘The Eighteenth-century Poor Laws in the West Riding of Yorkshire’ (1986) 30 AJLH 1. 58 Short of threats or fraud, it was not unlawful to secure a settlement for a pauper elsewhere – by getting a woman to marry, or arranging an apprenticeship: R v Seward (1834) Ad & E 706. 59 A Brundage, The Making of the New Poor Law: The Politics of Inquiry, Enactment and Implementation, 1832–39 (Hutchinson, 1978) 3–4, contrasts ‘closed’ Compton Winyates (poor relief in 1785, £9) with ‘open’ neighbour Tysoe (poor relief in the same year, £469), the population in the latter per acre being five times that in the former.

Part 1: Destitution in Country and Town 1750–1890 397 When, in the name of humanity and freedom of movement, overseers were prevented from removing the poor in advance of claims upon them,60 this only increased the ease with which the unwanted could be encouraged to live in surrounding parishes.61 Parishes primarily maintained their own poor through systems of subsidy known as outdoor relief, whilst they dealt with vagrants through corporal punishment or incarceration. The obligation to discipline vagrants was often met by merging their houses of correction with the county or borough gaol. For the general poor, the Poor Relief Act 172362 allowed parishes to purchase or hire workhouses and to stipulate that those who refused to enter them were no longer entitled to outdoor relief. In response, some 600 new parish workhouses were built by 1750.63 In addition, between 1753 and 1771, East Suffolk built eleven huge houses of industry with the aim of providing paid work for those without it. However, they could not be made profitable and soon proved unmanageable. Conditions in the workhouses generally were extremely unpleasant with the horrendous over-crowding kept in check only by the very high mortality. In the 1760s Jonas Hanway revealed the terrible death rate of children in London parish workhouses; after a Parliamentary investigation, an Act was passed to limit their stay in such places to three weeks.64 In 1782, the reformer Thomas Gilbert promoted an Act that allowed parishes to combine into unions for the building and maintaining a poorhouse for the sick and aged while supporting the able-bodied by outdoor relief.65 In the first wave of popularity, about sixty Gilbert Unions were established to build poorhouses. Moreover, the Act explicitly blessed the growing practice (with or without a union) of giving money doles to the industrious poor as a substitute for, or supplement to, wages. But conditions of grave economic uncertainty were approaching which would place the various provisions against destitution under unexampled strain.

B. The Crises of Pauperism i. Charity As the eighteenth century drew to its close, the typical patterns of early industrialisation were beginning to emerge: prosperity and wages were advancing in the developing areas (mainly in the north), while stagnation and decline affected much of the south. Agriculture, particularly in the wheat-growing areas, which had long provided sporadic employment for much of the labouring population, was moving to a condition of endemic under-employment. Enclosure of land and rationalisation of production meant that fewer labourers were required. The trend was exacerbated by the further decline in the demand for labour consequent upon a series of bad harvests in the 1790s and upon the general

60 Poor Removal Act 1795. 61 The person being examined might, contest a removal order at Quarter Sessions. Parishes in dispute with one another would often resort to the common law courts. 62 Also known as Knatchbull’s Act. 63 D Green, Pauper Capital: London and the Poor Law, 1790–1870 (Ashgate, 2010) 57–59. 64 Poor Law Act 1767. See also the Poor Law Act 1762; and see S Webb and B Webb, English Poor Law History, Part I: The Old Poor Law (Longman, 1927) 298–300. 65 Poor Relief Act 1782 (also known as Gilbert’s Act). See Webb and Webb (n 64) 272–76.

398 Poverty and Education disruption to the agricultural sector occasioned by the war with France. In addition, in a few places proto-industrial out-work was being displaced by factory production on new machines which naturally rendered some home workers redundant. Charitable trusts had an important role to play in assuaging many needs, but whether trusts were indeed for charitable purposes was determined by reference to previous cases and the Preamble to the Statute of Charitable Uses 1601.66 The Preamble enumerated what might be called the core charitable purposes, but reasoning by analogy also allowed for new charitable purposes deemed to be within the spirit of the Preamble.67 Moreover, where a trust failed its funds might be applied cy-près towards the fulfilment of a similar charitable objective. In practice, however, deciding what was ‘as near as possible’ to the purpose of the settlor could be a matter of some difficulty and decisions were somewhat inconsistent. Some courts took the view that the new purpose had indeed to be as close as possible to the original purpose, no matter what the court’s view of the value of that objective. Courts taking this narrow view were more likely to refuse to approve schemes which were distant from the original purpose.68 Others, taking a broader view, asserted that it was legitimate to consider the social value of the proposed application of property cy-près in addition to the original intention of the settlor.69 The cy-près doctrine was not applicable in all circumstances where a charitable trust failed. Where a trust failed immediately, the funds might only be applied elsewhere under the cy-près doctrine if the settlor had declared a general charitable intention when the trust was declared.70 But where the trust was valid but subsequently failed in its objectives then the monies might be applied cy-près regardless of whether the settlor had declared any general charitable intention.71 The exception to this was where the settlor had expressly specified that, in the event of the trust failing, the property of the trust should return to his estate.72 In 1860, the Charity Commissioners were given power to sanction cy-près schemes for application of funds to new purposes (subject to an appeal to Chancery).73 However, where a trust had been validly created and the fund could still be applied to carrying out the settlor’s intention, the fund could not be diverted to another purpose merely because it was thought more beneficial or because the type of benefit conferred by the trust was now believed to be redundant, useless or inappropriate. Thus, in Philpott v St George’s Hospital, Romilly MR said that:74 If the testator has, by his will pointed out clearly what he intends to be done, and his directions are not contrary to the law, this court is bound to carry that intention into effect, and has no right and

66 The key case which determined that charitable status was to be determined by past cases and the Preamble was Morice v Bishop of Durham (1804) 9 Ves Jun 399, (1805) 10 Ves Jun 522; see Getzler (2012) (n 26). 67 eg Att-Gen v Heelis (1824) 2 Sim & St 67, 77; Trustees of the British Museum v White (1826) 2 Sim & St 594. See further Mitchell (n 11). 68 So in Att-Gen v Whiteley (1805) 11 Ves Jun 241, Lord Eldon would not allow a gift to a grammar school to be used to teach languages other than Greek and Latin. 69 In Att-Gen v Ironmongers’ Co (1844) 10 Cl & F 908, a gift for the ransom of Barbary captives was instead applied to education in England. 70 Att-Gen v Boultbee (1794) 2 Ves Jun 380, 387–88. 71 Att-Gen v Mayor of Bristol (1820) 2 J & W 295. 72 Re Randell (1888) 38 Ch D 213. 73 Charitable Trusts Act 1860. Discussion in Mitchell (n 11). 74 (1859) 27 Beav 107, 111–12.

Part 1: Destitution in Country and Town 1750–1890 399 is not at liberty to speculate upon whether it would have been more expedient for the community that a different mode of application of the funds in charity should have occurred to the mind of the testator … instance of charities of the most useless description have come before the court, but which it has considered itself bound to carry into effect.

It was a characteristic of the Victorian propertied classes that they were animated by a sense of duty, often religiously inspired, both to give to charity and to participate in its organisation and delivery. The result was that many causes attracted their attention – sick and maltreated animals, battered and abandoned children, a national lifeboat service, Sunday observance, temperance, preservation of the countryside and amenities in the cities, the distressed in every guise, and gentlefolk fallen on hard times. Through all the fundraising, committee-work and visiting could be expressed a genuine feeling for suffering, the desire to maintain social order, a distaste for drawing-room tedium, a determination to mix and climb socially, or a penchant for simple eccentricity.75 For these reasons, charitable trusts could subsist that were quite at odds with official wisdom as to how to address social needs. There was much radical criticism – notably of the operation of dole charities. Trusts providing handouts of money, food, clothes, blankets or coals for the parish poor had been accumulating in an uneven sprinkling over the country and in many places trustees were one port of call in a round that would also include the Poor Law authorities. One general objection to both charitable and customary doles was that the gratitude of the recipients might readily progress to a sense that they were entitled to demand them as of right.76 Much doubt was expressed as to whether the parties selected for the bounty were indeed deserving of it. Nothing was more disconcerting than to find that aid graciously bestowed on the needy had in fact fallen to sharp-eyed scroungers. This was indulgence of idle profligacy. It received short shrift, for instance, in the 1834 Report on the Poor Law,77 and complaints about the ill-consequences of doles continued to rise with the level of gifts.78 These criticisms had some impact on charity work and visiting societies began to appear which would give only after investigating family circumstances.79 At the same time, however, the courts also began to disapprove the older practice (still accepted by Lord Eldon)80 of using charitable endowment to reduce the poor rate, reasoning that this would lead to application of the funds ‘in aid of the rich, as well as of the poor, and in a much larger proportion in favour of the former than of the latter’.81

75 On the character of Victorian philanthropy, see Owen (n 19) chs 4 and 5; FK Prochaska, Women and Philanthropy in Nineteenth Century England (Oxford University Press, 1980); F Prochaska, ‘Philanthropy’ in FML Thompson (ed), Cambridge Social History of Britain, 1750–1950, vol 3: Social Agencies and Institutions (Cambridge University Press, 1990); G Himmelfarb, Poverty and Compassion: The Moral Imagination of the Late Victorians (Knopf, 1991); MB Simey, Charity Rediscovered: A Study of Philanthropic Effort in Nineteenth Century Liverpool (Liverpool University Press, 1992). 76 Banks (n 10) 64–71. 77 PP 1834 [44] XXVII–XXX 204–205: ‘In some cases [dole charities] have a quality of evil peculiar to themselves’ (namely of attracting a pauper host). 78 For a study of Victorian attitudes to the allegedly morally debilitating effects of charitable handouts, see R Whelan, The Corrosion of Charity. From Moral Renewal to Contract Culture (IEA, 1996). 79 See pp 408–09. 80 Att-Gen v Exeter Corp (1827) 2 Russ 45. 81 Att-Gen v Exeter Corp (1828) 3 Russ 395 (Lyndhurst LC). See too Att-Gen v Wilkinson (1839) 1 Beav 370; Att-Gen v Bovill (1840) 1 Ph 762.

400 Poverty and Education There were of course many charities whose aims were unobjectionable, but at the beginning of the nineteenth century, radicals began to question once again whether such charitable endowments were actually being applied to their proper purposes.82 Criticism of this kind faced formidable opposition, for institutions of high position – the colleges of Oxford and Cambridge, the London hospitals and livery companies – were leading administrators of such funds; and above all, the Court of Chancery stood as the law’s appointed supervisor of the whole multifarious activity.83 Nevertheless the spreading unease led to Brougham and his associates procuring a new investigation by Commission in 1818. In this they were helped by the long tradition of such investigations,84 as even Eldon had to temper his hostility when it was settled that the Commission would report misapplications of funds to the Attorney-General for his reference to Chancery.85 Half of the twenty Commissioners were to be salaried and were to undertake the long labour of touring the parishes to take evidence, compile returns and make references.86 The other Honorary Commissioners were there essentially to monitor the twice-yearly reports and so to temper the stridency of criticism. The whole survey, which would take more than 20 years to complete, established the ‘briefless Whig barrister’ as the new instrument of social investigation.87 He was in harness for the great commissions of policy innovation – on factories, boroughs and the Poor Law – which were to follow the Reform Act 1832. At the end of their long years of ‘legal drudgery’, the Commissioners had reviewed more than 29,000 endowments,88 with an annual income of about £1.2 million per annum. Because many of the richer, more powerful charities were excluded from the inquiry,89 this amounted to perhaps a fifth of that available to charity as a whole. Up to half of that sum was directed once more to proper ends, thanks to the Commissioners’ intervention; in the majority of cases the trustees proving ready enough to collaborate in changes. Only 400 cases were referred to the Attorney-General; these would include some notorious tussles with borough corporations and bishops that would end in Chancery condemnation.90 As the work drew to a close, there were moves to establish a permanent body which would provide a regular supervision of, and assistance to, charities. This was one 82 An oft cited case was that of St Cross Hospital, Winchester, where the cleric in charge of the alms house leased out the trust property on long leases at below economic rates in return for payments to himself. He lost the case against him in Chancery in 1849 and the trust was reformed. For a regional study of the use (and abuse) of charity see M Baker and M Collins, ‘The Governance of Charitable Trusts in the Nineteenth Century: The West Riding of Yorkshire’ (2002) 27 SH 162. 83 Romilly managed to secure two pieces of reforming legislation – the Charities Procedure Act 1812 and the Charitable Donations Registration Act 1812 – but neither had an appreciable effect. 84 See Owen (n 19) 183–88 and Tompson (n 18) ch 4, for details of the Commission’s establishment; it was renewed in 1831 and, with enhanced powers, in 1835. 85 See the powers given in the Charity Estates Act 1819. Towards the end, in 1832, the Commissioners were given power to appoint the incumbent and churchwardens to be recipients for the time being of annuities and rentcharges for charity, when the trustees had died or disappeared: Charities Procedure Act 1832. 86 The 1818 Act required them to act in groups of three, but in 1819 this was reduced to two, as Brougham had originally proposed. 87 The taunt was scarcely applicable to the salaried Charity Commissioners, who were mostly barristers with several years of practice; their problem was to find time in between cases to do Commission work: Tompson (n 18) 118–20. 88 Eventually an Analytical Digest of them all was published in 1842. For procedure before the Commissioners: Tompson (n 18) ch 6. 89 For which, the Charities Inquiry Act 1819, ss 7 and 8. 90 Bishop Tomline of Lincoln’s insistence on preferring his son as warden of the Meer Hospital (where the latter made £13,000 from renewed leases) was a grotesque example: Att-Gen v Pretyman (1845) 8 Beav 316. Some charitable funds were sorely depleted by the expense of Chancery proceedings: Owen (n 19) 198.

Part 1: Destitution in Country and Town 1750–1890 401 r ecommendation of a rather curious Select Committee in 1835,91 and Brougham (by now the Chairman of the Charities Commission) promoted the same plan. But as so often, his advocacy only roused opposition. Every Lord Chancellor from Lyndhurst (in 1844) brought forward a proposal on the subject, until eventually, in 1853, Cranworth procured the creation of a permanent Charity Commission of three salaried members, together with a fourth member who was to be in the Government and so answerable in Parliament.92 The early Commissioners tried manfully to make something of their responsibilities. They had two inspectors to investigate maladministration, and charities were under a duty to file their annual accounts with the Commission, but there were no penalties for noncompliance and the Commissioners were given no power of audit. Nor did their limited powers of enquiry extend to the ancient universities, City guilds, old schools such as Eton, or the Church of England. Official Trusteeships were instigated into which charities could put their lands and funds if they wanted assistance with administration and a permanent body in place of changing trustees, but the Commissioners could not force charities to avail themselves of these services. They did manage to divert quite a high proportion of the property held on defunct trusts to new purposes, for instance into educational schemes under the City of London Parochial Charities Act 1883.93 Ultimately, however, the question whether the charitable efforts of the nineteenth century did much to address the needs of the time is a political one. Those shading to the left tend to believe that effective solutions to social welfare problems can and could only come through state intervention whilst those on the right take a more optimistic view of the effectiveness of charitable endeavour.

ii. Parish Support: Towards a New Poor Law From around 1760 onwards, the cost of poor relief escalated sharply along with the frequency with which justices and overseers were obliged to support seasonal labour by paying outdoor relief out of the poor rate. In effect the ratepayers as a whole were obliged to act to subsidise the subset amongst them who employed agricultural labour. Grain farmers, whose activities were particularly seasonal, benefitted the most. Outdoor relief payments supported slack labour, maintaining it and making it available in times of farming need, without the farmers having to adopt what would have, for them, have been the more expensive model of employing labour all year round.94 Of the various outdoor schemes, the best-known was the Speenhamland scale adopted by the Berkshire justices in 1795 and taken up in numerous places beyond.95 The scale tied the amount that a labourer should receive (from wages, poor relief, or both) to the cost of the ‘gallon’ loaf and the number of dependants – wife and 91 Its chairman was Daniel Whittle Harvey, who had campaigned against the feebleness of the Commissioners, some of them suspecting him of unscrupulous self-interest in doing so: Tompson (n 18) 168–70. Its report (PP 1835 (449) VII) did lead to an increase in the size of the Commission in order to bring its work to an end. 92 Charitable Trusts Act 1853. 93 This statute gave them greater scope for action than the cy-près doctrine. For many years they lobbied for an expansion of their general powers: eg Sixth Report PP 1859 (HC No 2484) 5; Seventeenth Report PP 1870 (HC No 73) 5; Twenty-eighth Report PP 1881 (HC No 2862) 10–12. This was not forthcoming, and by the late 1800s they had run out of steam: Owen (n 19) 213; Chesterman (n 7) 62–75. 94 GR Boyer, An Economic History of the English Poor Law, 1750–1850 (Cambridge University Press, 1990) 270. 95 The justices met at the Pelican Inn, Speenhamland, outside Newbury. Their scheme was effectively sanctioned by the Poor Relief Act 1795, which also reaffirmed the power of a single justice to order any form of relief. The scale became general in some counties, mainly in the south and east. See P Jones, ‘Swing, Speenhamland and Rural Social Relations: The “Moral Economy” of the English Crowd in the Nineteenth Century’ (2007) 32 SH 271.

402 Poverty and Education children – that he supported. Other schemes paid a family allowance of some kind (in many parishes only for the fourth child or more) or introduced a scheme for roundsmen,96 or occasionally for labour on a parish project such as road-building.97 The costs of such systems were considerable. Average annual costs for poor relief between 1748 and 1750 had been about £690,000 per annum, but by 1783–85 they had grown to about £1.9 million. By 1803 the sum had grown to £4 million, by 1813 it was £7 million, and, adjusted for deflation, by 1834 it was about £10 million. Of course, society generated more wealth over this period, but the share of the national product expended upon poor relief rose from about 1.5 per cent in the middle of the eighteenth century to about two per cent at its end.98 The numbers dependent upon this relief fluctuated according to the harvests. The one in 1803 was particularly poor and almost 20 per cent of the population of Oxfordshire99 and 30 per cent of that of parts of Bedfordshire100 received poor relief that year. Even in normal times there was considerable geographic variation, with around 11 per cent of the population of London and the south-east, nine–ten per cent of the Midlands, and six–seven per cent of the population of the north, receiving poor relief in the first decade of the nineteenth century.101 Interest in the problem of the poor ebbed and flowed according to crisis, but a strong sense was developing that their number was growing and that they were consuming an increasing proportion of national resources. David Davies, in The Case of the Labourers in Husbandry (1795), attributed increasing poverty to the death of independent cottage industry and the enclosure of those commons whose resources were vital to sustaining small-scale agriculture. Thomas Malthus, however, in Essay on the Principle of Population (1798), claimed to have identified a different cause: the very provision of poor relief had encouraged an increase in the family size of paupers who were thereby reduced to an even greater state of dependence. ‘In the long run he concluded it was the Poor Laws that therefore created the poor.’102 In 1797, the social reformer Samuel Whitbread argued that the answer lay with wage regulation so that the labouring poor could be guaranteed receipt of at least the minimum necessary for subsistence; his proposals, however, failed to make headway in Parliament. David Davies, in his study of rural poverty written in 1795, argued that the problem of seasonal unemployment had grown worse in the second half of the eighteenth century, as the number of labourers who had access to subsistence plots or could find non-agricultural winter employment had declined.103 Faced with ever increasing costs, some parishes began to move away from Speenhamland systems prior

96 This obliged farmers to take on and pay a proportion of the surplus labour force. A variant – the labour rate – gave them the option of additional workers or an additional rate. 97 For all these variants, see Webb and Webb (1927) (n 64) 168–96; URQ Henriques, Before the Welfare State: Social Administration in Early Victorian Britain (Longman, 1979) 27–28; CJ Griffiths, ‘Parish Farms and the Poor Law: A Response to Unemployment in Rural Southern England c 1815–1835’ (2011) 59 Ag HR 176. 98 Green (n 63) 26–29. 99 D Eastwood, Governing Rural England: Tradition and Transformation in Local Government, 1780–1840 (Clarendon Press, 1994) 143–45. 100 S Williams, ‘Poor Relief, Labourers’ Households and Living Standards in Rural England, c 1770–1834: A Bedfordshire Case Study’ (2005) 58 Econ HR 485, 495–16. 101 Green (n 63) 31, Table 1.1. 102 Green (n 63) 7. 103 D Davies, The Case of Labourers in Husbandry Stated and Considered (GG and J Robinson, 1795), discussed in Boyer (n 94).

Part 1: Destitution in Country and Town 1750–1890 403 to the adoption of the new Poor Law. There was an apprehension that something must be done about the costs, but this was mixed with an apprehension that an unregulated poor left without any resource might resort to desperate acts. In 1817, a Select Committee reviewing the existing Poor Law was particularly critical of the laws of settlement, and of the oligarchic nature of the select vestries, and this resulted in legislation providing for elective vestries: the Vestries Act 1818 and the Poor Relief Act 1819 (also known as Sturges Bourne’s Acts). A Royal Commission to inquire into the Poor Laws was then appointed by Grey’s Government in February 1832, primarily inspired by Edwin Chadwick in alliance with the economist Nassau Senior and George Nicholls, who had used a disciplinary workhouse in Southwell to dramatically reduce its poor rate. Senior was appointed a member and Chadwick one of the salaried assistants.104 The pressure on the Government to produce results allowed Chadwick to write up a preliminary version of his ideas in an interim Survey of 1833,105 and then, when the assistants’ reports were ready, to be largely responsible, with Senior, for the Commission’s Report.106 Both documents were widely acclaimed for their promise of reduced expenditure.107 The Poor Law Amendment Act 1834 which emerged from the report instructed every parish to join with others in Poor Law Unions, usually based upon the Hundred divisions of the counties. Each Union was to be governed by a Board of Guardians elected from each of the Union Parishes. The franchise was given to landowners as well as occupiers, under a plural voting system taken from Sturges Bourne’s Acts, which reflected their proportional responsibility to pay.108 The guardians had themselves to meet a substantial property qualification.109 At the same time, each parish remained bound to contribute for its own poor; and so the old law of settlement and removal continued in operation with modifications only at particular points.110 At the centre, a three-man Poor Law Commission was established with considerable powers. In the hope of distancing it from the ordinary toils of patronage, Senior insisted that the Commissioners should not be Members of Parliament111 – though this would leave them fatefully exposed to political

104 For its membership and operation, see Brundage (n 59) ch 2. 105 E Chadwick, Extracts from the Information received by His Majesty’s Commissioners, as to the Administration and Operation of the Poor-Laws (1883); Chadwick was then promoted to be a Commissioner. 106 PP 1834 [44] XXVII–XXX. 107 The Times, however, was critical, its proprietor, John Walter, having clashed with Chadwick; and so were other Tory voices: Brundage (n 59) 42–44. There is a very large literature on the Commission and on the 1834 Act which was enacted on its recommendations. See eg F Driver, Power and Pauperism: The Workhouse System, 1834–1884 (Cambridge Unversity Press, 1993); D Englander, Poverty and Poor Law Reform in Nineteenth-Century Britain, 1834–1914 (Longman, 1998); SA Shave, Pauper Policies: Poor Law Practice in England, 1780–1850 (Manchester University Press, 2017). 108 Section 40: occupiers had one vote for every £200 annual value, up to a maximum of three votes. 109 The Commissioners set the qualification for guardians in each union, the minimum required being a £40 annual value for poor rate: s 38. 110 Sections 64–68. Senior and Chadwick themselves were opposed to the concept of settlement as they believed that it did restrict labour mobility. However, some 11,000 Removal Orders were issued in England and Wales in 1840 rising to 13,867 in 1849. The number of such orders declined thereafter, and within a union the introduction of a common fund in 1865 (by the Union Chargeability Act) reduced the problem. By 1867 only 4,600 Orders were made although the concept of settlement endured until 1948. See Charlesworth (n 1) 58 and JS Taylor, ‘The Impact of Pauper Settlement, 1691–1834’ (1976) 73 P&P 42, 53–54. 111 Section 8; the Home Secretary in general spoke on their behalf, but not as minister responsible for their behaviour.

404 Poverty and Education storms. Lorie Charlesworth has characterised the 1834 reform as ‘a triumph of parliamentary sovereignty over t raditional rights, a feature of emergent modernism’.112 It was indeed a very modern piece of legislation, centralising at a time when government interventions in local affairs were generally resisted, and containing as it did provisions for the Poor Law Commissioners to create delegated legislation with supervisory mechanisms and punishments for non-compliance.113 They were to make rules, orders and regulations over the entire field, which were subject only to disallowance by the Privy Council and laying before each House of Parliament.114 The accounts of local administrators were to be the subject of quarterly audit, as a result of which improper expenditure could be disallowed and recovered from the individuals concerned.115 According to the Act all inmates of the workhouse were to be divided into eight classes, with men separated from women and children from their parents. The principle of ‘less eligibility’ was to be rigorously enforced, in accordance with which the conditions of those in the workhouse were to be less desirable than those of the poorest free labourer. This meant the imposition of a monotonous diet, uniform dress, restrictions on association, and so on – no one would wish to enter save at extreme need. The threat of the workhouse would thus stimulate and incentivise a class who were supposed to be otherwise inherently incapable of abstinence, saving and self-help. It was supposed that outdoor relief induced insolence and idleness in employees, whereas in every instance in which the able-bodied labourers have been rendered independent of relief otherwise than in a well-regulated workhouse … their industry has been restored and improved … frugal habits have been created or strengthened … their discontent has been abated, and their moral and social condition in every way improved.116

That employment sufficient to maintain body and soul might not be available to the poor was a premise not to be countenanced. Outdoor relief was to be abolished. Absent the incentives to indolence, a healthier, more vigorous economy would emerge, whilst as a kind of backstop, workhouse institutions would remain which would provide a basic provision for the young and the aged, the sick, the mentally ill and those with intellectual disabilities. One, often unremarked upon, consequence of the drive towards indoor relief was the selling off of properties owned by the parishes. The Old Poor Law authorities had not only accumulated parish houses over time (which they had let to the deserving at advantageous

112 Charlesworth (n 1) 61. 113 Section 15, ss 42–3. 114 Section 15. 115 Section 44. It was not until 1868 that the central authority acquired the unequivocal power to appoint the auditor, thus ensuring that the task could not be put in the friendly hands of the guardians’ nominee. In 1878 it was possible to institute a single staff of district auditors over the financial aspects of all local government: S Webb and B Webb, English Poor Law History: Part II: The Last Hundred Years (Longman, 1929) 210–15; Charlesworth (n 1) 59–68. 116 Royal Commission 1834, 261 cited in Boyer (n 94) 203. For regional studies of the system in practice, see BK Song, ‘Continuity and Change in English Rural Society: The Formation of Poor Law Unions in Oxfordshire’ (1999) 114 EHR 314; P Carter (ed), ‘Bradford Poor Law Union: Papers and Correspondence with the Poor Law Commission, October 1834–January 1839’ (2004) Yorkshire Archaeological Society, Record series 157; D Jones, ‘The Fate of the Paupers: Life in the Bangor and Beaumaris Union Workhouse 1845–71’ (2005) 66 Transactions of the Caernarvonshire Historical Society 94.

Part 1: Destitution in Country and Town 1750–1890 405 terms); they had also intervened in local commercial rental markets to subsidise tenants’ rents, and even rented properties themselves from private proprietors in order to meet need. Vestries were now invited to agree to the sale of parish-owned dwellings, and these sales were to be legitimated by the Parish Property Act 1835, and conducted under the auspices of the Poor Law Commission. Stocks varied but in some places they were substantial and offered one convenient way of funding development of the envisaged new workhouses.117 Despite an energetic building programme, the complete embargo on outdoor relief that Chadwick and Senior had sought did not materialise. A House of Lords amendment allowed the Poor Law Commissioners to allow the distribution of outdoor relief in special circumstances by Order or Regulation.118 Theoretically, outdoor relief to the able-bodied was otherwise unlawful, and in December 1844 the Commissioners issued an Outdoor Relief Prohibitory Order to all the unions. It was not generally effectual. Some unions, for example, in spite of the Commission, either paid money to paupers who were not legally settled within them, in order to forestall the costs of their removal, or else paid pauper parishioners who were actually living elsewhere in order to prevent their return. In 1847 the Commission was forced to issue the General Consolidated Order of 24 July 1847, which recognised and set out regulations by which payments might be made. In practice, many northern towns seem to have preferred monetary payments to supporting paupers within the workhouse. In Bradford by 1845, 68 unions were making such payments and the situation was similar in Leeds.119 Gilbert and Local Act Unions and statutory vestries could go their own way, because the 1834 Act gave the Commissioners no power to supersede them compulsorily.120 Where attempts were made to enforce residence in the union workhouses of the north, there was much resistance, notably expressed in the Chartist movement.121 Influential opponents such as the factory owner, John Fielden, the minister, JR Stevens, and the rousing journalist, Feargus O’Connor, joined the opposition campaign and found common cause.122 The sudden onset of economic depression with massive unemployment striking town after town made workhouse incarceration impracticable and a compromise had to be brokered around the concept of a labour test – outdoor relief on condition of some drudging work in a union yard. Resistance was not centred solely on northern towns. In 1834, Assistant Commissioner JW Cowell remarked that ‘farmers find that labour is cheaper to them when the labourers are paid partly by the rates and partly by wages, and therefore they will not permit the allowance system to be superseded.’123 The Commissioners might have power to impose rules 117 R Wells, ‘The Poor Law Commission and the Disposal of Parochially-owned Housing Accommodation, 1834–1847’ (2007) 55 Ag HR 181. 118 Section 52. 119 Charlesworth (n 1) 66. 120 There were of course legal issues about ultimate powers to enforce compliance with workhouse and labour tests. On their side the authorities were given certain powers to discipline the refractory within the workhouse, and ultimately they might prosecute them under the vagrancy laws: Cranston (n 61) 43. 121 See generally, EC Midwinter, Social Administration in Lancashire 1830–1860: Poor Law, Public Health, Police (Manchester University Press, 1969); NC Edsall, The Anti–Poor Law Movement 1834–1844 (Manchester University Press, 1971); R Wells, ‘Southern Chartism’ in J Rule and R Wells (eds), Crime, Protest and Popular Politics in Southern England (Hambledon Continuum, 1997). 122 The disintegration of the situation into rioting and distress for rates was preceded by various arguments about the proper constitution of Boards of Guardians and authority over them: Edsall (n 121) ch 7. 123 PP 1834 XXVIII, 297, 595–96 cited in Boyer (n 94) 195. See especially, R Wells, ‘Resistance to the New Poor Law in the Rural South’ in Rule and Wells (n 121).

406 Poverty and Education upon unions, but for their first decade they could exercise it only case-by-case, mainly after persuasion and agreement with the guardians. The results were eventually reduced to a sort of system by placing unions within one or other of a series of General Orders. The first of these grouped the unions applying the Outdoor Labour Test, the next listed those under an Outdoor Relief Prohibition. In the end, there had also to be an order merely regulating outdoor relief, and it proved impossible even to lay down that a third of this should be provided in kind. By 1854, 84 per cent of recipients were on outdoor relief.124 However, the 1834 Act did see an expansion of the workhouse state, and it also had the effect of moving the power in the administration of poor relief away from individual parishes to large unions more easily dominated by major landowners.125 Notwithstanding much justified criticism of them as a class, some justices and local overseers were disposed to be lenient in respect of grants of relief, since they might know the individuals or families concerned. Unionisation made this less likely and in country areas, the new boards quickly cut into the lists of those dependent upon outdoor relief, often encouraged by the Assistant Commissioners of their districts.126 Originally, it was imagined that the more punitive aspects of the workhouse would fall upon the able-bodied alone, with separate institutions providing somewhat more charitably for the young, the old, the sick and the lunatics who were, it was conceded, not necessarily as morally delinquent as their able-bodied kin. On occasion, however, this was merely wishful thinking. Many single mixed workhouses were dominated by a deterrent regimen managed by a salaried master who was expected to follow a dietary plan prescribed by the Commissioners, on a budget that the guardians kept as frugal as they could. In such cases all the inmates were subjected to the same regime, although this had originally been intended for the able-bodied alone. The workhouse was intended to be ‘an uninviting place of wholesome restraint … thus making the parish fund the last resource for the pauper, and rendering the person who administers the relief the hardest taskmaster that the idle and dissolute can apply to’.127 So many cruelties were institutionalised in the General Workhouse Regulations previously issued by the Poor Law Commissioners in 1842. Examples are the requirement of silence at meals and the splitting up of families. Unsurprisingly, regimes in excess of the envisaged harshness soon materialised. The editor of The Times published over 100 accounts of cruelty in the workhouse in the 1830s and 1840s, detailing floggings, inadequate diet and other instances.128 In 1845 a scandal erupted after it was reported that 124 Outdoor Labour Test Order 1843; Outdoor Relief Prohibitory Order 1844; Outdoor Relief Regulation Order 1852. The governance of workhouses was eventually covered by the General Consolidated Workhouse Order 1847. For a detailed description of the law embodied in these Orders, see Charlesworth (n 1) 65–67. 125 The influence of leading aristocrats, during the enactment of the bill and in the early stages of its implementation, was considerable: Brundage (n 59) ch 5; cf P Dunkley, ‘The Landed Interest and the New Poor Law: A Critical Note’ (1973) 88 EHR 836; A Digby, Pauper Palaces (Routledge, 1978) 207–14. But the policy of 1834 nonetheless amounted to a very real shift of direction: W Apfel and P Dunkley, ‘English Rural Society and the New Poor Law: Bedfordshire, 1834–47’ (1985) 10 SH 37. 126 In some places, however, a relatively kindly attitude continued at least until the economic pressures of the 1840s: P Dunkley, ‘The Hungry Forties and the Poor Law: A Case Study’ (1974) 17 HJ 329; A Tanner, ‘The Casual Poor and the City of London Poor Law Union, 1837–1869’ (1999) 42 HJ 183. Webb and Webb (n 115) 226 detail the steps by which exceptions were gradually suppressed. 127 Report from the Commissioners for inquiring into the administration and practical reform of the Poor Laws, PP 1834, XXVIII Appendix A, part 3, 29. For the moral attitudes that justified the tough approach taken towards the able-bodied poor, see generally Humphreys (n 82). 128 B Harris, The Origins of the British Welfare State: Social Welfare in England and Wales, 1800–1945 (Palgrave Macmillan, 2004) 50.

Part 1: Destitution in Country and Town 1750–1890 407 paupers in the Andover workhouse were eating the bones which they had been sent to crush.129 In fairness, though, it should be observed that not all overseers of the poor were inveterate monsters, and there were attempts to set up cleanly, decent and reasonably wellresourced institutions. In London such places were handicapped by the activities of those unscrupulous Poor Law unions who readily passed on their own casual paupers to such places. In addition to institutional buck-passing, casual paupers themselves added to the problem by their understandable efforts to lodge themselves in places of somewhat better repute.130 More generally, workhouse regimes varied greatly according to the traditions of the locality, the resources available, the punitive or sympathetic dispositions of those who oversaw them, the particular character of the inmates they accommodated, the degree of scrutiny they received from magistrates, and so on. Nor did they remain static for the rest of the nineteenth century. A recent study of West Yorkshire poor unions reveals a diversity of practice and circumstance. Some workhouses were consciously constructed in remote locations while others stood in the very centre of towns. Some, such as Bradford, maintained strict segregation with high walls, internal partitioning, separate staircases and the like. Others allowed association between elderly inmates and children. As the century progressed, so did the development of separate facilities for vagrants, for the sick and, above all, the elderly. This last reflected the fact that only a small proportion of workhouse inmates were able-bodied. Again, there was variation: some unions, such as Great Ouseburn and Wharfedale, seem to have supported all of their able-bodied paupers at home; others were more determined to maintain the deterrent effect of the stay in the workhouse. In practice, though, all supported some form of outdoor relief. There was, over time, an increasing recognition that the elderly were not to be held accountable for any moral delinquency. By the end of the century, unions in Leeds and North Bierley permitted inmates to visit relatives, attend local festivities, and receive occasional gifts and treats.131 None of the above, however, should detract from the observation that conditions in the workhouses were generally austere and frequently severe. Naturally, the poor did not always submit to whatsoever was imposed upon them, but resistance could result in a reduction in diet, temporary confinement, and finally committal to prison – there were some 10,500 such committals between 1837 and 1842. The committals themselves evidence the fact that ‘the Poor Law institution was a deeply contested institution and resistance did not cease when paupers entered the workhouse. They fought, stole, broke property, threatened officials, wrote letters, organised petitions, and took out summonses against arbitrary authority.’132 The poor were, it seems, not unaware that in establishing their rules the Commission had intended to restrain not only the poor but also the workhouse staff. Accordingly, there were many complaints to both the Poor Law Commissioners and the

129 SC Report PP 1846 (663) V; I Anstruther, The Scandal of the Andover Workhouse (G Bles, 1973); R Wells, ‘Andover Antecedents: Hampshire New Poor–Law Scandals, 1834–1842’ (2002) 24 Southern History 91. 130 For a study of the initially rather humane provisions for the poor adopted by the City of London and the consequent damage to those arrangements done by the opportunism of other unions, see A Tanner, ‘The Casual Poor and the City of London Poor Law Union, 1837–1869’ (1999) 42 HJ 183. 131 C Newman, ‘To Punish or Protect: The New Poor Law and the English Workhouse’ (2014) 18 International Journal of Historical Archaeology 122. 132 Green (n 63) 159.

408 Poverty and Education relevant magistrates, the latter in particular being quite vocal in their criticism of overseers who had exceeded their authority. Amidst those who passively endured their situation as best they could, there were those who stood by their ‘rights’, and those too who adopted opportunistic strategies to improve their situation. In 1847 the Poor Law Commission was replaced by a Poor Law Board comprising a minister and two secretaries, one of whom would also be an MP.133 In essence the whole business was to be once more put under the more direct control of the Government and the scrutiny of Parliament. In 1871 the Board was merged with public health branches into the Local Government Board. Henceforth the Local Government Board was the authority for sanctioning building projects and loans, as well as authorising deviations from the standard systems of relief administration prescribed in the Orders. If something of the proselytising zeal of the earlier reformers had faded away by the middle of the century, a renewed determination to tackle outdoor relief was sparked in the 1860s by the increase in the national cost of poor relief occasioned by a trade slump and a number of industrial crises.134 Expenditure rose by some 20 per cent, in part due to the particularly dire situation in Lancashire where some 500,000 were employed in the mills. Over-production and then the loss of American cotton consequent upon the outbreak of the Civil War in April 1861 led to mass unemployment. More than 300 mills closed permanently, and by December 1862 one-fifth of the entire population of Lancashire were in receipt of parochial support.135 Under such circumstances there was no practicable alternative to outdoor relief, but it was much begrudged and the scale of it occasioned alarm. The Union Chargeability Act 1865 compelled parishes to pool their monies in the Poor Law unions to further finance an expansion of workhouses.136 All the costs of poor relief were now placed upon the Poor Law unions rather than the parishes within them. This provided assistance to those working-class parishes that had a low tax base but a large number of paupers. However, it also increased the taxes upon those wealthier parishes (which had traditionally escaped rather lightly) since they were now obliged to contribute more to maintain paupers from poorer places. Boards of Guardians, mainly from wealthier parishes, began to consider that since indoor relief was so reluctantly sought, the abolition of outdoor provision might result in a reduction in the numbers of those pleading poverty.137 Cost-cutting became the order of the day. A series of reports thereafter advocated that unions work much more closely with charitable bodies, such as the Charity Organisation Society (COS), founded in 1869, to reduce outdoor relief and whittle out the undeserving. Between 1873 and 1893, some 41 ‘model’ Poor Law unions, covering about 16 per cent of the population of England and Wales, took up the challenge – primarily by visiting those on outdoor relief to assess their condition.138 Those deemed worthy would be referred to private charity for the assistance 133 Poor Law Board Act 1847. 134 For a case study of the renewed campaign Against outdoor relief in Northamptonshire see ET Hurren, ‘Agricultural Trade Unionism and a Crusade Against Outdoor Relief: Poor Law Politics in the Brixworth Union, Northamptonshire, 1870–75’ (2000) 48 Ag HR 200. 135 G Boyer, ‘Poor Relief, Informal Assistance and Short Time During the Lancaster Cotton Famine’ (1997) 34 EEH 56; R Hall ‘A Poor Cotton Weyver. Poverty and the Cotton Famine in Clitheroe’ (2003) 28 SH 227. 136 Hurren (n 134) 201. 137 GR Boyer, ‘The Evolution of Unemployment Relief in Great Britain’ (2004) 34 JIH 393. 138 K Williams, From Pauperism to Poverty (Routledge, 1981) 102–05; Hurren (n 134) 202.

Part 1: Destitution in Country and Town 1750–1890 409 needed to establish themselves in a decent independence, while the undeserving would be subjected to the stern tests of less eligibility by the guardians.139 The Brixworth Union in Northamptonshire became notorious for the rigour of its procedures, and to give but one illustration of its operations, when it began its assessments in January 1873 it had some 1872 outdoor relief claimants on its lists (out of a population of some 14,000), but it almost immediately struck 241 off.140 By 1880 the union had reduced its annual expenditure on poor relief from some £6,000 to £1,600.141 The COS was much employed in these activities and there was no legal redress where they remarked adversely upon claimants; their reports were not actionable as a libel since, being given in all honesty, they attracted qualified privilege.142 How were such dramatic reductions accomplished? Perhaps by adopting the attitudes of the Regius Professor of Civil Law at Oxford, who observed at a Northamptonshire conference on the Poor Law in 1876 that ‘What the law directs a guardian to relieve is not poverty, however great the compassion he may feel for poverty, but destitution – absolute want of the bare necessities of life.’ The purpose of relief could only be for ‘keeping a fellow-creature from perishing.’143 Even that was not accomplished in all cases, but naturally, the success of such unions in reducing expenditure reinforced the views of those who believed that the poor were predominantly composed of the feckless, the foolish and the self-indulgent. Although no attempt was made to impose the visiting system by law, it had considerable appeal within the Local Government Board, which urged it on Boards of Guardians. Many charity trustees and organisers were attracted by the idea. For a time at least, they were able to get the Charity Commissioners (backed by an important decision of the Court of Appeal) to approve cy-près schemes altering dole charities, for instance, into trusts for pauper education or pensions for the aged.144 But this shift in legal attitude lasted only 30 years before the Court of Appeal reverted to the older view, that a direction to give doles was to be followed even though ‘according to modern views, they are productive of more harm than good’.145 Whether the Court of Appeal disagreed with those modern views or whether they simply wished to insist on the following of legal precedent is unclear – although the latter is perhaps more likely. This ebb and flow of attitude corresponded with the fortunes of the COS’s campaign as a whole. Its plan was never sufficiently adopted in London for it to have real effect. All too soon, experience bred doubt: the causes of poverty seemed too complex for a simple divide to be cut between the deserving and the undeserving. 139 The concept of ‘visiting’ paupers in order to assess their needs already had a history in the world of charity administration as a means of lowering the evils of indiscriminate doles. But it was the Charity Organisation Society that would give real impetus to the system: B Harris, ‘Charity and Poor Relief in England and Wales, circa 1750–1914’ in B Harris and P Bridgen (eds), Charity and Mutual Aid in Europe and North America Since 1800 (Routledge, 2007); and on the COS generally, see J Lewis, The Voluntary Sector, the State and Social Work in Britain: The Charity Organisation Society / Family Welfare Association Since 1869 (Edward Elgar, 1995). 140 Hurren (n 134) 213. 141 ibid 220. 142 Waller v Loch (1881) 7 QBD 619. Another manifestation of the new rigour was the tendency of unions to introduce rules excluding outdoor relief to the elderly who had relatives able to support them: D Thompson, ‘I Am Not My Father’s Keeper: Families and the Elderly in Nineteenth Century England’ (1984) 2 L&HR 265. 143 Report of the first annual Poor Law conference of the South Midlands district, held at the Town Hall, Northampton, on 27 January 1876, 7–37 cited in A Gillie, ‘Identifying the Poor in the 1870s and 1880s’ (2008) 61 Econ HR 302. 144 The case was Re Campden Charities (1881) 18 Ch D 310, which built on the HL’s earlier judgment in Clephane v Lord Provost of Edinburgh (1869) LR 1 Sc 417 – detailed means could be altered provided the end was preserved. 145 Re Weir Hospital [1910] 2 Ch 124, 131 (Cozens Hardy MR).

410 Poverty and Education The case for abolition of outdoor relief was also beginning to be undermined by a general increase in the wages of employed workers, although progress in this direction was slow. Charles Booth estimated in 1890 that 30 per cent of working-class households in London were in poverty, with barely enough to get by and no possibility of saving for crises such as spells without a job. Booth’s work in London had already been foreshadowed by a series of maps published by Abraham Hume in 1858, detailing the social and religious structure of Liverpool. Booth’s Descriptive Map of London Poverty 1889, however, was much more ambitious in its scope. Not the least important part of his work was that in his meticulous mapping of London poverty he demonstrated that underemployment, unemployment and low wage rates were responsible for the condition of the very poor rather than their own moral defects.146 Nonetheless, notwithstanding the dreadful conditions in many city districts, real weekly wages doubled between 1854–86 and 1904–06 and, alongside this, rates of pauperism fell, according to government statistics, from about 5.1 per cent of the population in 1850–56 to 2.5 per cent in 1900–06.147 By the end of the century, then, provision for the very poor was much less of a burden. Furthermore, attempts to control expenditure were increasingly defeated by a recognition that a significant proportion of those needing support were either elderly, disabled or sick, with the result that they could not be pressurised into gainful employment. By 1891 there were almost 1.4 million persons aged 65 or over in England and Wales – about 4.7 per cent of the population – but such persons amounted to as much as 30 per cent of all those in receipt of poor relief in the 1890s, for the obvious reason that without pension provision many of the elderly eventually ran out of savings.148 From the outset, it was recognised that the condition of the sick and disabled was different from that of the feckless able-bodied, and guardians used their power to appoint medical officers. Indeed, they were soon providing a wholly novel service: in 1840 vaccination against smallpox was made available for free to anyone (without pauperising them),149 and in 1853 it became compulsory for infants.150 The quality of the medical care provided varied considerably depending upon the competence of the officers and upon the willingness of the Poor Law Guardians to fund their activities and follow their recommendations.151 Very slowly the remit of the medical service expanded until it

146 L Vaughan, Mapping Society: The Spatial Dimensions of Social Cartography (UCL Press, 2018) ch 3. For a critical analysis of the methodologies adopted by Booth and two other important investigators, see CA Linsley and CL Linsley, ‘Booth, Rowntree, and Llewelyn-Smith: A Reassessment of Interwar Poverty’ (1993) 46 Econ HR 88. 147 GR Boyer and TP Schmidle, ‘Poverty Among the Elderly in Late Victorian England’ (2009) 62 Econ HR 249. 148 Boyer and Schmidle (ibid) 249–54. For a technical analysis of the data, suggesting a significant increase in real wages between 1880 and 1913, see C Feinstein ‘New Estimates of Average Earnings in the United Kingdom, 1880–1913’ (1990) 43 Econ HR 595. 149 For the establishment of the vaccination service, see RJ Lambert, Sir John Simon (MacGibbon & Kee, 1963) 249–58, 322–28, 356–65, 391–94, and 563–67. 150 Victorian Parliaments did not hesitate to override personal scruples in the name of the public good; but this led to a fiercely pitched and ultimately successful counter-campaign: RM McLeod, ‘Law, Medicine and Public Opinion: The Resistance to Compulsory Health Legislation, 1870–1907’ [1967] PL 107. See too N Durbach, Bodily Matters: The Anti-Vaccination Movement in England, 1853–1907 (Duke University Press, 2005); and cf G Mooney, Intrusive Interventions: Public Health, Domestic Space, and Infectious Disease Surveillance in England, 1840–1914 (University of Rochester Press, 2015) esp ch 2. 151 R Richardson and B Hurwitz, ‘Joseph Rogers and the Reform of Workhouse Medicine’ (1997) 43 HWJ 218; DR Green, ‘Medical Relief and the New Poor Law in London’, in OP Grell, A Cunningham and R Jütte (eds), Health Care and Poor Relief in Eighteenth and Nineteenth Century Northern Europe (Ashgate 2002); K Price, Medical Negligence in Victorian Britain: The Crisis of Care Under the English Poor Law, c 1834–1900 (Bloomsbury, 2015).

Part 2: Schools: Learning and Mass Literacy to 1890 411 offered treatment to those outside the workhouse, who would otherwise have had only folk remedies to fall back on.152 In the 1870s and 1880s the sick were coming to be dealt with separately, just as the young were beginning, more regularly, to be moved away to ‘scattered homes’ and fostering families, and the aged were being given separate wards.153 Belatedly the local boards, despite a governing concern to keep down their rates, were coming to perceive that these categories of people were the major recipients of in-house relief, rather than the able-bodied.

Part 2: Schools: Learning and Mass Literacy to 1890 At the beginning of the nineteenth century, central and local government played no significant role in the running of schools. The bulk of educational provision had been built up over the centuries by charitable endeavour and private initiative. In some places there were foundations for elementary schools, and the early eighteenth century had seen a determined effort, especially through the Society for the Promotion of Christian Knowledge, to extend the number of such schools as a means of inculcating religious feeling, a sense of duty and a modicum of knowledge.154 If we associate the degree of education generally with literacy rates, there are different opinions as to the accomplishment of the existing educational provision. Lawrence Stone argued that the increasing number of marriage partners able to sign their names in marriage registers during the second half of the eighteenth century (and into the nineteenth) demonstrated that literacy rates were steadily rising.155 On the other hand, Michael Sanderson has asserted that in industrial areas at least, literacy rates were declining from about 1770 onwards.156 For a long time, it was still very much a matter of open debate as to whether attempts to educate the bulk of the population, ie the poor, were of themselves a good thing. When in 1807 Samuel Whitbread introduced a bill for the education of pauper children, the MP for Bodmin opposed it, because it would teach the lower classes ‘to despise their lot in life … render them factitious and refractory … [and] insolent to their superiors.’157 Others saw education, however, as a method of taming the savage characteristics of the common people: one factory inspector described it as

152 In 1853, a Poor Law Board Order allowed medical relief to those who could not afford a doctor’s fee, even where the head of the family was earning. In London, the hospital services were placed under the Metropolitan Asylums Board and paid for from a common fund from all the unions: Metropolitan Poor Law Act 1867. 153 The incarceration of the mentally sick in asylums raised major issues of personal liberty in respect of both public and private institutions: P Bartlett, The Poor Law of Lunacy: The Administration of Pauper Lunatics in MidNineteenth-Century England (Leicester University Press, 1999); P Bartlett, ‘The Asylum and the Poor Law: The Productive Alliance’ in J Melling and B Forsythe (eds), Insanity, Institutions and Society, 1800–1914: A Social History of Madness in Comparative Perspective (Routledge, 1999); R Ellis, ‘The Asylum, the Poor Law and the Growth of County Asylums in Nineteenth-Century Yorkshire’ (2008) 45 Northern History 279. 154 MG Jones, The Charity School Movement (Cambridge University Press, 1938) chs 1 and 2. (Pt II studies the spread of the movement in the differing conditions of Scotland, Ireland and Wales). 155 L Stone, ‘Literacy and Education in England, 1640–1900’ (1969) 42 P&P 69. 156 M Sanderson, Education, Economic Change and Society in England 1780–1870 (Palgrave Macmillan, 1991) 11–13. 157 Parliamentary Debates, First series (1807), vol 9, col 798.

412 Poverty and Education a matter of police, to prevent a multitude of immoral and vicious beings, the offspring of ignorance, from growing up around us, to be a pest and nuisance to society; it is necessary to render the great body of the working-class governable by reason.158

In time, the cause of education would win through, and by the late Victorian period all classes would be compelled into a modicum of schooling.

A. Elementary Teaching The pattern of basic educational provision in the early nineteenth century and prior to government intervention was rather complex. The private demand for at least basic tuition was met by ‘dame’ or ‘private venture’ schools. The former were generally run by women and offered the basics in reading, and to a lesser degree writing, to children up to about the age of seven. Venture schools educated older children to a somewhat higher standard, including in their curriculum arithmetic and skills considered appropriate to females, such as knitting and sewing. The distinctions between the two types of establishments became blurred, they were unregulated, and the quality of the education very much depended upon the dame or the headmaster in question. A better education was more generally obtained in the charity schools that had begun to be established at the end of the seventeenth century. There were some 1,500 of these, many offering not only reading, writing and arithmetic to those over the age of seven, but also occupational or vocational training. Such schools were particularly attractive to the more ambitious and skilled working class, but the number of such schools was entirely insufficient to meet the educational demands of the nineteenth century.159 That demand was partly met by the establishment of voluntary day schools – usually based upon the monitorial system, ie using older pupils to inculcate learning by rote. Two key figures in the development of such schools were the Quaker Dr Joseph Lancaster, and Dr Andrew Bell, both of whom pioneered their own forms of monitorial education. Lancaster set up his own school in 1798 to provide non-denominational education, and his methods were promoted after 1808 by the Royal Lancastrian Society.160 Bell for his part had been inspired by a period as superintendent at the Madras Asylum, and upon his return to take up the living of Swanage in 1801, he set up a number of Anglican Sunday and day schools. It was Lancaster’s ideas, however, that made the early running and secured the support of George III. His success, though, alarmed Anglicans, who were fearful that a non-denominational model would undermine the Established Church. Lancaster’s work was attacked in print and Bell was turned to in order to provide the counterblast. In 1808 he published a ‘Sketch of a National Institution for training up the children of the poor in

158 L Horner to NW Senior, 23 May 1837 in NW Senior, Letters on the Factory Act (B Fellowes, 1837) 30, cited in D Fraser, The Evolution of the British Welfare State: A History of Social Policy Since the Industrial Revolution, 4th edn (Palgrave Macmillan, 2009) 97. 159 WB Stephens, Education in Britain, 1750–1914 (Palgrave Macmillan, 1998) 2. 160 L Louden, Distinctive and Inclusive: The National Society and Church of England Schools, 1811–2011 (The National Society, 2012) 12.

Part 2: Schools: Learning and Mass Literacy to 1890 413 moral and religious principles and in habits of useful industry’.161 In 1811, inspired by Bell and by the Clapham Sect, the National Society for Promoting the Poor in the Principles of the Established Church was founded with the Archbishop of Canterbury as President and the diocesan bishops as vice-presidents. Lancaster’s school in the meantime had been severely damaged by the criticisms levied against it and he himself had become deeply indebted. The attacks upon him, though, had rather increased the attractions of his model to Nonconformists. He became an influential figure in the eyes of many reformers, including Bentham and Brougham. In 1814, the British and Foreign Schools Society was formed out of the Royal Lancastrian Society, to support ‘the Education of the Labouring and Manufacturing Classes of Society of Every Religious Persuasion’.162 It took on Lancaster’s debts, promoted his work, and soon came to be dominated by Nonconformity.163 Thus were advances at the start of the nineteenth century dominated by religious rivalry. Aside from their professed Christian morality, both societies were also united in their suspicion of state interference. A complex picture emerged. There were those who did not believe that the poor should be educated at all and those who believed that they should. Amongst the latter, a vanishingly small number could envisage state provision. For the majority, education had to be based upon voluntarism. However, many were so committed to their own denominational interests that they would prefer to have no educational provision at all than have provision that was dominated by denominational rivals.164 The resistance was formidable. Sir Robert Peel (the elder) managed to pass an Act in 1802 requiring masters to provide factory apprentices with instruction during ‘some part’ of each working day, but without any system of enforcement it soon became a dead letter.165 In 1807 Samuel Whitbread attempted to pass a bill requiring each parish to levy a rate to provide a school for at least two years of education, but it was defeated by a combination of arch-conservatives led by Eldon and the Archbishop of Canterbury. In 1818 a committee of inquiry into the education of the Metropolitan poor headed by Brougham found that only seven per cent of children were attending day schools. In response in 1820 he tried to set up parochial schools to be led by a schoolmaster chosen by each parish vestry.166 Anticipating opposition, his plan proposed to limit religious education to the scriptures alone, to avoid the subject of Church doctrine. Even this, though, aroused such Nonconformist ire as to cause the withdrawal of the proposal. In 1833, there came some progress in the form of a grant of £20,000 (which was increased to £30,000 the following year) to support the construction of school building. All applications for funds had to be channelled through the two societies mentioned above, and

161 ibid. 162 Louden (n 160) 12. 163 See further GF Bartle, ‘The Role of the British and Foreign Schools Society in the Education of the Poor Children of the Metropolis During the First Half of the Nineteenth Century’ (1992) 24 Journal of Educational Administration and History 74; GF Bartle, ‘The Impact of the British and Foreign Schools Society on Elementary Education in the Main Textile Areas of the Industrial North’ (1993) 22 History of Education 33. 164 Fraser (n 158) 98–99. For a detailed study of the Anglican position see K Harris, Evangelicals and Education: Evangelical Anglicans and Middle-Class Education in Nineteenth-Century England (Paternoster Press, 2004). 165 The Health and Morals of Apprentices Act 1802; see pp 290–91. There were, of course, some factory owners who felt it their paternal duty to set up schooling. 166 For the Reports, see PP 1816 (427, 469, 495, 497) IV; 1818 (356) IV.

414 Poverty and Education at least half the cost of the building in question had to have been raised by private subscription. Thus was the principle of voluntarism upheld and the thorny issue of denomination avoided.167 The need for some permanent supervision of this grant, however, led to a distinctive experiment in bureaucracy building. In 1839 Lord John Russell announced the establishment of an Education Committee of the Privy Council.168 Russell at first proposed that one of the duties of the Committee would be to establish and supervise non-denominational training colleges. Anglicans, alarmed that this might put Dissenters on the same level as the Established Church, thwarted the plan. However, the Committee was successful in imposing school inspection as a prerequisite of aid. The Church tried to insist that it should inspect its own schools, but only managed (by an administrative Concordat of 1840) to secure the right to instruct the Committee’s inspectors in the assessment of religious teaching. The inspectorate became a strongly progressive force, working to replace monitors with teenage pupil-teachers, who were effectively apprentices in a rising profession.169 In 1843, the Home Secretary, Sir James Graham, stepped into the lion’s den with a bill requiring factory children to be given three hours’ teaching a day, where necessary in grantsupported schools. These would mostly fall under Anglican auspices, with no more than a conscience clause for Dissenters. This time it was the Dissenters who were outraged and, allied to Roman Catholics and Methodists, they managed to secure the withdrawal of the educational clauses in the bill. All that Graham could secure in the Factories Act of the following year was that a child should spend three whole days a week, or six half-days, at school. The factory master might deduct 2d a week from wages as a contribution to the cost, but the nature of the school was left undefined.170 Nonetheless, there was some progress. In 1843 grants were made available for the purchase of school equipment, and in 1846 Dr Kay-Shuttleworth, the Education Committee’s secretary, developed a pupil-teacher training scheme. This involved a five-year apprenticeship from the age of 13, which would culminate in a scholarship at a training college. Anglicans, Catholics, Wesleyans and Unitarians supported the scheme, which by the end of the 1850s had some 15,000 teachers in training.171 In 1853 capitation grants became available to fund the education of individual pupils. In 1856, the Education Committee took over from the Board of Trade, the Education Department for schools and the Science and Art Department. Government expenditure upon education was growing rapidly; in 1841 it was only £31,000, but by 1851 this had risen to £164,000 and by 1861 it was some £813,000.172 About four-fifths of the money went to the Church of England’s National Society. In the meantime, tensions were rising over religion. The terms of union of the National Society required that every school should have religious instruction under the guidance of the local vicar, that all children were to be taught Anglican dogma and that all should attend the parish church. The extent to which this was enforced varied from area to area and there was no system of national enforcement. However, with the rise of the Oxford Movement

167 B

Harris (2004) (n 128) 140. Barnard, A History of English Education from 1760 (Hodder & Stoughton, 1961) 69–70. 169 N Ball, Her Majesty’s Inspectorate 1839–1849 (Oliver & Boyd, 1963). 170 Factories Act 1844, ss 39, 40. 171 Fraser (n 158) 101–03. 172 B Harris (2004) (n 128) 141, table. 10.2. 168 HC

Part 2: Schools: Learning and Mass Literacy to 1890 415 there were new demands that measures be taken to ensure that Anglican doctrine was taught in all schools. The Education Committee resisted this, not unaware of Nonconformist arguments that their taxes were being used to support the National Society’s schools. In 1852, the Committee tried to impose a conscience clause, giving parents the right to withdraw children from religious instruction, as a condition of grant,173 but local groups of schools continued to determine their own practices and the matter was never entirely resolved.174 Anglicans grumbled, of course, the more so when they observed developments at the ancient universities. The university colleges in London and Durham, and the colleges for medical teaching elsewhere, now provided a potential challenge to Oxford and Cambridge, whose procedures and practices came in for some criticism. Despite protests, both universities were obliged to submit to legislation which lifted the religious tests and other forms of preference for members of the Established Church.175 The Nonconformists by this time were split. Some had entirely repudiated state aid, and by 1851 over 350 wholly independent Dissenter schools had been established.176 Many others, together with all but the most obdurate Anglicans and Catholics, had come, rather grudgingly, to accept that the state must be responsible for the provision of at least an elementary education. As the worst fears about state intervention slowly subsided, a constituency was slowly building which could contemplate a great leap forward.

B. Grammar Schools Apart from the ancient universities of Oxford and Cambridge, England’s main institutions of serious learning were the grammar schools. In 1818 over 550 grammar foundations were recorded, some 130 having been established in the preceding century, the rest earlier.177 By the beginning of the nineteenth century, their respective fortunes had been very different. Some few had risen to become the boarding schools from which new public schools were to emerge. Others had declined to mere parish schools teaching the elementary subjects.178 In 1860 James Bryce, Assistant Commissioner to the Taunton Commission, surveyed the endowed schools in Lancashire and divided them into three types: grammar schools in large cities which provided a combined commercial and classical education; those in small towns which were smaller but derived a reasonable income from the sons of farmers and shopkeepers; and schools in other country areas which had an altogether inadequate income and were used by the labouring classes.179 He observed that ‘Of the numerous country schools there is

173 Minute of 1852. 174 Louden (n 160) 33. 175 On the abolition of religious tests, see AV Dicey, Law and Opinion in England in the 19th Century, 2nd edn (Macmillan & Co, 1914) Appendix. 176 Fraser (n 158) 102. 177 N Carlisle, A concise description of the endowed Grammar Schools in England and Wales (Baldwin et al, 1818). 178 J Roach, A History of Secondary Education in England 1800–1870 (Longman, 1986) 3. 179 Report by J Bryce (Schools Inquiry Commission, vol IX, General Reports by Assistant Commissioners: Northern Counties) 429, cited in G McCulloch, Cyril Norwood and the Idea of Secondary Education (Palgrave Macmillan, 2007) 28–29.

416 Poverty and Education hardly one which his trustees ought not to feel ashamed of.’180 The problem was indeed one of governance. The Church of England retained a general hold over these schools because there was a requirement that any teacher appointed to a foundation should have an archbishop’s licence.181 This meant that most of the places were filled with graduates of the universities, whose colleges often held the power of appointment. Once appointed, the master of a school was normally conveyed a life interest in the school-house and left to his own devices during his tenure. In some cases the master might work without any assistance and in some instances he might do nothing at all to attract students.182 However, a more entrepreneurial master might enliven a school and turn a profit. Two ways suggested themselves: taking in boarders; and adding to the traditional curriculum of Latin and Greek new, and perhaps more relevant, subjects, for which he might charge additional fees.183 However, a number of Chancery suits revealed the difficulties in educational innovation in schools governed by trusts subject to the investigation and determination of judges who had very particular ideas as to what such a school should be engaged in. It was questioned whether the master of such a school could introduce new subjects. Lord Eldon ruled against the governors of Leeds Grammar School (led by the mayor), who had sought the addition of modern languages, writing and arithmetic to the master’s Latin, Greek and divinity. Following Dr Johnson’s definition of ‘grammar school’, the Lord Chancellor held that the trust had been established only for the latter, and there could be no cy-près order just because the endowment might be put to better use.184 In any case, he had no taste for converting the Leeds school into a ‘commercial academy’, where ‘the clerks and riders of the merchants are to be taught French and German, to enable them to carry on trade’; indeed, the classical scholars might be turned out altogether.185 By way of reaction to such unprogressive ideas, reformers, including James Mill, Bentham and Romilly, led an indignant campaign for more modern curricula. But their Bill seeking to reverse the outcome of the Leeds case was defeated.186 As it was, the teaching at Leeds was somewhat altered on the accession of the next master, and it is clear that many grammar schools at some stage followed a similar course.187 Eventually, in 1840, Chancery was given somewhat larger powers to alter 180 ibid 491. 181 But it applied only to grammar schools, according to Cox’s case (1700) 1 P Wms 29; R v Douse (1701) 1 Ld Raym 672. In R v Archbishop of York (1795) 6 TR 490, Lord Kenyon warmly upheld the Archbishop’s power to test the sufficiency of an applicant for a licence. 182 The Brougham Commissioners found the problem of removing inactive masters one of the most intractable facing them. 183 Accordingly, as much as in proprietary schools, relationships between master and parents became a matter of contract. See eg the minor cause célèbre, Fitzgerald v Northcote (1865) 4 F&F 656: son of Irish judge held improperly expelled; the allegation against him was that he ran a secret society to stir up trouble between fee-paying pupils and ‘church boys’ of lower caste. 184 Att-Gen v Whiteley (1805) 11 Ves Jun 241. See generally RS Tompson, Classics or Charity: Dilemma of the Eighteenth Century Grammar School (Manchester University Press, 1971) 116–26. And on the law of cy-près, see pp 392–93 and 398–99. 185 The numbers in attendance had already sunk to 44; Eldon also refused to make the master’s and usher’s salaries dependent upon the number of pupils. In Att-Gen v Earl of Mansfield (1827) 2 Russ 501, he disapproved the action of the Highgate School trustees in allowing it to become purely an elementary school. 186 B Simon, Studies in the History of Education 1780–1870 (Lawrence and Wishart, 1960) ch 2. 187 According to the anonymous author of ‘A Letter to Henry Brougham on the best Method of restoring Decayed Grammar Schools’ (1818) 13 The Pamphleteer, about half of 500 grammar schools were teaching every variety of subject, or only ‘English’ subjects, or a choice of English and classical. Some modification is apparent in Att-Gen v Dixie (1825) 3 Russ 534n; Att-Gen v Haberdashers’ Co (1828) 3 Russ 530.

Part 2: Schools: Learning and Mass Literacy to 1890 417 grammar school endowments by introducing new subjects, although the court remained reluctant to intervene with any vigour.188 A question of some importance to schools was whether it was possible to admit boarders to those schools which had been established to educate poor boys of the parish or town. The restriction to a classical curriculum was here used for an unequivocal piece of class preference. A few of the best-known schools were developing from local institutions towards being ‘public’ schools in the Victorian and present-day sense. In 1807, Lord Eldon ruled that the foundation of Rugby need not be preserved entirely as a free school for local boys; Sir William Grant MR then held likewise of Harrow,189 where only six locals were attending, because, in his view, parents did not want classical education for their sons.190 The Whig aristocracy and gentry could accordingly continue to send their sons there; trust funds were held to have been properly spent on building a new boarding house because the original deed allowed the admission of ‘foreigners’.191 Under later Chancellors, somewhat lesser schools were required to pay rather greater respect to the local interest, but attitudes varied: Lord Cottenham wanted to oblige the trustees of Manchester Grammar School to cut back their intake of boarders; but when the case came to Lord Lyndhurst he would not accept the new regulations that Cottenham had caused to be drafted,192 stating that it was in the interests of the community as a whole that boys from all classes should receive a classical education together.193 Shadwell V-C banished boarders from Tiverton; but Turner V-C allowed them to remain at Kidderminster.194 By 1860, Bethell, the A ttorney-General, put the case against re-admitting boarders to Bristol Grammar School, and Lord Romilly MR accepted it. The school did not belong to the class of superior boarding schools (such as Eton, Harrow and Rugby) which had emerged as leading establishments for the education of gentlemen and so it was ‘governed by another set of principles’ and should remain a separate school for ‘intelligent humbler boys’ who (pace Lord Lyndhurst) were better treated thus.195 In general, though, financial pressure meant that many schools tried, and succeeded, in introducing boarding.196 A further controversial issue was that of the right of dissenting parents to withdraw their children from religious instruction at a grammar school (which would necessarily be in Anglican doctrine). This did not emerge in the courts until the 1840s, when Nonconformists were locked in other educational battles with the government and the Established Church.197 In 1842, Knight-Bruce V-C was prepared to insert a ‘conscience clause’ allowing withdrawal in a new scheme for Bury St Edmunds School; but Lord Lyndhurst refused, in the case of Warwick, to bind the master with any such fetter.198 Subsequently it seems that 188 Grammar Schools Act 1840. Classical studies could be abandoned altogether only if there was insufficient finance. The application had to be within six months of appointing a new master, which caught out some trustees. For the Court’s attitude, see Evidence to the Taunton Commission QQ 13451–52 and 12840–44. 189 For both cases, Att-Gen v Earl of Clarendon (1810) 17 Ves Jun 491. 190 The parishioners said this was the result of upper-class bullying. 191 For the later exclusion of locals, see Simon (n 186) 312–18. 192 He purported to follow Lord Eldon’s view in Att-Gen v Coopers’ Co (1812) 19 Ves Jun 187. 193 Att-Gen v Earl of Stamford (1842) 1 Ph 737. 194 Att-Gen v Earl of Devon (1846) 15 Sim. 193; Att-Gen v Bishop of Worcester (1851) 9 Hare 328. 195 Re Bristol Free Grammar School (1860) 28 Beav 161. 196 K Harris (2004) (n 164) 81–82. 197 See pp 414–15. 198 Att-Gen v Cullum (1842) Y & CCC 411; Re Warwick Grammar School (1845) 1 Ph 564.

418 Poverty and Education conscience clauses became usual in any case where the foundation document did not positively require the teaching of a particular dogma.199 But Nonconformist, Catholic, Jewish and other parents still had to brave the displeasure of determined headmasters, so that the right might mean little in practice. The Church of England did not relax its hold over the power to appoint headmasters, and in 1858 the Lords Justices refused to admit Dissenters as trustees of Ilminster Free School.200 In 1861 a Commission chaired by the Earl of Clarendon reported on the nine leading public schools,201 which together educated some 3,000 upper-class boys and received £65,000 in annual income.202 The Commission had no criticism of the essential ethos of these schools, but it urged a broadening of curricula from the dominant, stereotyped study of classical languages and, in some cases, a greater devotion of funds to teaching.203 The governing bodies of many of these schools were not representative of the upper classes of society that they served and many governors had a financial interest in the foundations. In 1868, the Public Schools Act provided the legal machinery to establish governors as more neutral overseers of the establishments, requiring management schemes to be submitted for Privy Council approval.204 This was a temporary intervention, leaving the schools completely self-governing and subject to no element of inspection. A second Commission led by the Earl of Taunton considered the 3,000 or so other endowed schools, 705 of them ‘grammar’ schools, a further 70 to 80 providing more than elementary education.205 Many were poorly resourced, inadequate in both furniture and staffing, poorly lit, heated and ventilated.206 Many of the schools were under-resourced and the commissioners recommended not only a major refurbishing of existing endowments, which would include the adaptation of trusts by vigorous cy-près intervention, but also the marshalling of public resources, drawing both central Commissioners and local Poor Law Guardians into the process of assessing local needs and organising the building of new schools, if necessary by means of a local rate. Endowments and rates would together provide and maintain buildings, while parents would meet teaching costs out of fees.207 Education to these levels was to remain an advantage that must be purchased. The major novelty would be the rejuvenation of charitable endowments under bureaucratic rather than judicial supervision. The Endowed Schools Act 1869 gave a three-man Commission power to alter existing educational endowments (not only for grammar schools) by schemes that would be ‘more conducive to the advancement of education of boys and girls or either of them’.208

199 See further p 422. 200 Re Ilminster Free School (1858) 2 De G & J 535. 201 PP 1864 [C 3288] XX, XXI. 202 They were: Eton and Winchester (old ecclesiastical foundations linked to university colleges); Shrewsbury, Harrow and Rugby (originally grammar schools); Westminster and Charterhouse (London foundations); and St Paul’s and Merchant Taylors’ (City livery foundations). 203 The finding that the schools were sending out too many ‘men of idle habits and empty and uncultivated minds’ rather undermined the earlier statements of approval. 204 St Paul’s and Merchant Taylors’ did not need to be dealt with by this machinery. 205 PP 1867–1868 [3966] XXVIII (in 19 parts). See generally, Owen (n 19) ch 9. 206 McCulloch (n 177) 28–30. 207 For teacher training, the Commission refused to countenance state-run écoles normales of the French type, preferring the system of government grants to efficient private establishments on the lines already operating for elementary schoolteachers: Owen (n 19) 611–17. 208 Section 9. There were various exceptions: see s 14; and also the Elementary Education Act 1870, s 75.

Part 2: Schools: Learning and Mass Literacy to 1890 419 In addition it was made possible to divert charities from other purposes (loans and doles, marriage portions, apprenticeships, imprisoned debtors, etc) which had failed or outgrown their object, even in some cases ignoring the ‘next-nearest’ requirement of the cy-près rule, but in this case only with the trustees’ consent.209 Chancery was side-stepped: schemes were to be approved by the Education Department (with appeal to the Privy Council itself) and laid before Parliament as a final endorsement.210 The first Commissioners were very active and within four years they published 317 schemes.211 However these were not always successful as there was much r esistance.212 Headmasters and governors did not always welcome outside interference in their sinecures, and founded a defence association which developed into the Headmasters’ Conference. Evangelicals were also alarmed with the Editor of the Record, complaining that ‘The Endowed Schools Act practically severed the connection which up to that time had more or less directly existed between the grammar schools throughout the country and the Church of England.’213 When Disraeli took over in 1874, his Government refused to renew the Commission, transferring its role to the Charity Commissioners. Under their more accommodating regime, slow progress continued, something under half the 1,200 or so schools within the Act having received new schemes by 1884 and about 100 other trusts (with annual incomes of £16,000) having been diverted to education. It was a record of useful, but limited, achievement.214 However, the mid-Victorian settlement, leaving more advanced education strictly within the voluntary sphere, could not hold. The pressures, to which the Taunton Commission had responded, would continue to grow until government was finally obliged to intervene, but this would not happen for another 30 years.

C. The Newcastle Commission In 1861 the Newcastle Commission on popular education reported, and in so doing provided a useful snapshot of the relative importance of the different school sectors and the state of education generally.215 The estimated total number of children at ‘public schools’, that is to say in receipt of philanthropic or government funds, was some 1,675,000 of which 1,549,000 were in schools supported by religious denominations. There were, in addition, 43,000 students at schools not connected to any religious denomination, almost 48,000 at schools supported almost wholly by taxation, and 35,000 at what were described as ‘collegiate, and superior or richer endowed schools’. In addition, based upon

209 The endowment had to have been created before 1800. Chancery judges had sometimes been prepared to act in the same way in non-contentious cases: Evidence to the Taunton Commission (n 80) Q 13,197; cf Q 13,310. 210 Two Commissioners, Lord Lyttelton and Arthur Hobhouse QC, were well-known advocates of rigorous redirection. 211 K Harris (2004) (n 164) 86. 212 The House of Lords threw out their scheme for the Emanuel Hospital, Westminster: Owen (n 20) 257–59. 213 The Record, 1 March 1882, 2, cited in K Harris (2004) (n 164) 87. 214 Owen (n 19) 259–68. A Select Committee, whipped up by Chamberlain and Collings’ Birmingham Education League, nonetheless refused to make major criticisms of the Commission’s activities in the educational field: PP 1886 (191) IX. 215 PP 1861 (2794) XXI (part I) 1.

420 Poverty and Education a survey of the ‘private’ schools in ten specimen districts, the Commission estimated that 574,000 students were at working-class dame or private venture schools and 287,000 at middle- or upper-class schools.216 One should perhaps say ‘on the books of ’ rather than ‘at’ schools, because many children attended only irregularly. The Committee estimated that attendance rates at public schools were only about 76 per cent and at private schools 85 per cent, and that the average length of attendance was 5.7 years.217 Legislation had done something to swell the numbers being educated, especially the requirement imposed on factory proprietors in 1844 to furnish opportunities for parttime learning, which had reduced what had hitherto been an almost complete absence of schools in some industrial districts. The most startling expansion in educational provision, however, can be attributed to the rapid growth of Sunday schools. In 1788 there had been 60,000 Sunday school pupils in England, but by 1851 this had risen to 2.1 million.218 About three-quarters of all working-class children were by this time registered in Sunday schools run by both Anglicans and Dissenters.219 The Newcastle Commission estimated that by 1861 the number had grown further to about 2.4 million (both children and adults) and by 1911 membership was over six million.220 There is some contention as to the degree to which Sunday schools should be ascribed to working-class or middle-class initiatives. Keith Snell argues that the picture was rather mixed, but that it was in closed and paternalistic parishes that the highest proportion of the population were registered in the Sunday schools. Institutional support for the schools owed much to the desire to exert denominational control and the awareness that Sunday education legitimised child labour in the week.221 The schools provided an elementary religious education and the general consensus is that they were very important in improving reading skills in the period up until the Elementary Education Act 1870. What they did to improve writing is more difficult to ascertain since some groups such as Evangelicals were doubtful that it was proper to teach such an activity on the Sabbath.222 Denominational interests were understandably opposed to state direction. A minority on the Commission maintained that the state should not intervene at all in education and that educational provision should be based on a combination of private contract and benevolent aid.223 However, in the report the majority moved to an uneasy compromise, which rejected radical plans for compulsory state education (on the Prussian model); but it proposed an increase in the central grant on the existing basis of average attendance,

216 B Harris (2004) (n 128) 139. 217 PP 1861 (2794) XXI (part I) 1, 84–5; B Harris (2004) (n 128) 139. 218 T Laqueur, Religion and Respectability: Sunday Schools and Working Class Culture, 1780–1850 (Yale University Press, 1976) 44. 219 KDM Snell, ‘The Sunday School Movement in England and Wales: Child Labour, Denominational Control and Working-Class Culture’ (1999) 164 P&P 122, 126. It is noteworthy that there was little Catholic involvement in Sunday schools. For a study of their rather independent educational trajectory see EG Tenbus, ‘“We Fight for the Cause of God”: English Catholics, the Education of the Poor, and the Transformation of Catholic Identity in Victorian Britain’ (2007) 46 JBS 861. 220 PP 1861 (2794) XXI (part I), 1, 82. 221 Snell (n 219) 164–65. 222 Sanderson (n 156) 13; Snell (1999) (n 219) 129. 223 A leading voluntarist figure was the Congregationalist, Edward Baines, editor of the Leeds Mercury. He was to lead the Minority on the Commission.

Part 2: Schools: Learning and Mass Literacy to 1890 421 and the introduction of rate assistance to private schools on the basis of examinations conducted by the Department’s inspectors.224 The Government rejected the proposal for a local authority or country rate, and so the central grant remained the sole source of aid, but upon a different version of liberal principle from the voluntarists’: this was largely the brain-child of Robert Lowe, who had become Vice-President of the Education Department in 1859, and his friend, Lingen, who had succeeded Kay-Shuttleworth as the Secretary. In addition to building grants, the state would henceforth pay schools 4s per child based on regular attendance and 8s more if the child passed examinations at six levels in reading, writing and a rithmetic.225 The ‘payment-by-results’ scheme of Lowe’s Revised Code of 1862 was intended to incentivise teachers insofar as their salaries would be dependent upon exam performance. Lowe remarked to the House, I cannot promise the House that his system will be an economical one and I cannot promise that it will be an efficient one but I can promise that it shall be either one or the other. If it is not cheap it shall be efficient, if it is not efficient it shall be cheap.226

The outcome, in the short term, was a substantial saving, as many schools and their students failed the tests set for them. Government expenditure fell from £813,000 in 1861 to £637,000 in 1865, although the number of enrolments had risen. Thereafter, expenditure rose again to reach £895,000 in 1870.227

D. Compulsion The Elementary Education Act 1870, promoted by Gladstone’s Education Vice-President, WE Forster, has often been connected with the Second Reform Act of 1867. The argument goes that an extension of the franchise to the ignorant classes necessarily induced responsible men to think how to educate them. This interpretation is not uncontested. Marcham criticised the supposed connection between the two reforms as ‘the centrepiece of one of the curious but persistent legends of educational history’.228 Morris has more generally asserted that almost all educational reform from 1833 to 1870 was driven by public order issues and a fear of juvenile crime – education was to be seen as a system of both moral development and policing.229 And Fraser has pointed out that there had been a period of economic growth up to 1870 which, on a purely practical level, meant that the state could afford more. Perhaps equally germane was the fact that, economic growth notwithstanding, Britain was beginning to be eclipsed by a nascent Germany. This was to arouse many anxieties about the educational capacities of the domestic poor, about their physical suitability for military service and their allegedly enervated condition. In many

224 PP 1861 [2794] XXI – in six Parts. 225 B Harris (2004) (n 128) 141–42; Fraser (n 158) 103–04. 226 Hansard, 13 February 1862 CLXV 229. 227 B Harris (2004) (n 128) 141, Table 10.2. See further H Midgley, ‘Payment by Results in Nineteenth-Century British Education: A Study in How Priorities Change’ (2016) 28 Journal of Policy History 680. 228 AJ Marcham, ‘The Myth of Benthamism, the Second Reform Act and the Extension of Popular Education’ (1970) 2 Journal of Educational Administration and History 20, 23. 229 N Morris, The Politics of English Elementary School Finance, 1833–1870 (EMP, 2003).

422 Poverty and Education large industrial British cities, very few attended school, and in 1870 only around onethird of 5–13-year-olds in England and Wales were registered and in regular education. In contrast, compulsory systems in the German states had ensured that in Germany the figure was nearer two-thirds. In a modernising economy this was troubling and not the least of the 1870 Act’s eventual successes was that by 1900 the level in England and Wales had risen to meet that of Germany at around three-quarters.230 The Act required new local authorities – the school boards – to provide schools for education to the age of 13 where the denominations and charities had not done so. Thus the Act saw a move from state subsidy of voluntary education to state supplementation of voluntary education.231 It only foreshadowed compulsory attendance and it did not make provision free (save for the very poor); but it was the crucial precursor of both these steps. The passage of the Bill was dominated by the question of religious teaching in the new schools, but the new sense of urgency prevented it from foundering. In the end it was left, by the ‘Cowper-Temple clause’, that there should be no teaching of any ‘catechism or religious formulary distinctive of any particular denomination’.232 Thus did the radicals of the Birmingham Education League and their Nonconformist allies secure the exclusion of Anglican priests from the board school classroom.233 The churches were given a period of grace within which to set up further denominational schools under the existing system,234 but once this had elapsed, the radical new machinery began to turn. The Education Department surveyed each district, leaving out of account non-elementary schools, those which charged more than 9d per week and denominational schools which would not accept a conscience clause.235 If, on its estimate of children requiring schooling, it found a shortfall of places, it would establish a local school board for the area, with the duty of making up the deficiency. The necessary finance would comprise pupils’ fees of up to 9d a week, a central grant from the Education Department under the ‘payment by results’ conditions of the revised Code, and – for any additional expenditure – a local rate.236 Local government, then, acquired a new responsibility and one that would soon impose a considerable burden on local ratepayers. A difficulty from the first was that the respective

230 KH O’Rourke, A Rahman and A Taylor, ‘Luddites, the Industrial Revolution and the Demographic Transition’ (2013) 18 Journal of Economic Growth 373. 231 Fraser (n 158) 105. 232 Section 14(2). 233 The denominational schools in receipt of the Privy Council grant continued under the obligation of a ‘conscience clause’. As further support against domineering Anglicanism, they were required to restrict religious instruction to the first and last periods of the school day: s 7. So great was hostility on the subject that the Government could do no less. 234 The churches responded vigorously to this stimulus: over 10 years the National Society made more than a million school places available. 235 This followed from the definition of ‘elementary school’ in the 1870 Act, s 3. While this amounted to ‘a euphemism for “Education of the Children of the Poor”’ (EJR Eaglesham, From School Board to Local Authority (Routledge, 1956) 7), the better-off were not prevented from sending their children to board schools, a proposal for doing so having been dropped from the Bill. 236 If the Board of Education found a school board to be in default it could take control by appointing nominees, and it had power to block applications for loans. A school board, once established, became the primary provider, with voluntary schools being the first to lose grant if a surplus of places arose; numerous bitter contests accordingly continued into the next decades.

Part 2: Schools: Learning and Mass Literacy to 1890 423 areas of authority of local and central government were not clearly defined and over time this was to bring them into serious conflict. The establishment of the boards was, however, a considerable achievement. In 1880 only a sixth of all children were in board schools, whereas by 1900 it was some 54 per cent. By this time there were more than 2,500 school boards with the largest in London employing some 13,500 teachers.237 Altogether, the proportion of the school-age population in adequate schools improved from 7.7 per cent (1:13) in 1870 to 16 per cent in 1885 (1:6).238 Once the schools were established, a necessary next step was to make sure that pupils attended them. Resistance to schooling on the part of parents and pupils alike is welldocumented. Some hard-pressed families resented the potential disruption to the family’s earning potential and they complained in rural areas that the school calendar paid insufficient regard to the need to mobilise everyone for agricultural tasks such as harvesting. The imposition of unaccustomed authority and the sometimes excessive discipline led to objections everywhere.239 However, the extent of the resistance can be overstated, and if conditions in the schoolroom were austere, still they have to be compared to conditions in the average home. One oral history project, involving 444 interviewees born between 1870 and 1908, found that two-thirds of interviewees professed to have enjoyed their elementary education and two-thirds to have generally liked the teachers.240 However, the myth that all Victorian schoolmasters and mistresses were monsters is too well-entrenched not to endure. In respect of those pupils that did not appreciate education, the Elementary Education Act 1876 set up School Attendance Committees for districts that lacked school boards, and imposed on parents the duty of seeing that their children received efficient elementary instruction, with criminal penalties for failure. In 1880, AJ Mundella – like Forster, a Radical Vice-President of the Board – secured an Act requiring children to attend school between the ages of five and 10, though local authorities could extend this and also create exemptions. Basic education had become a responsibility of the state and with it a set of correlative duties emerged, which the state could impose on parents. With the arrival of the truancy officer came a complex of legal powers – to prosecute those who would not comply, to take children into care, and so forth. The continual press of new children into the schools made it difficult to keep up the requirement of fees and a central grant in lieu was introduced in 1891, rendering the board schools effectively free.241 The strict Standards of the Revised Code proved less and less appropriate to the range of children in the schools, and so they were modified and then in 1890 very largely dropped as a basis of financing. One of the root arguments about the nature of the protective state – whether its benefits should be universal or means-tested – had been resolved for elementary e ducation in favour of the former. It was to be a significant precedent. 237 Fraser (n 158) 106. 238 According to the Cross Commission average attendances improved from 68% to 76%. 239 S Humphries, Hooligans or Rebels? An Oral History of Working Class Childhood and Youth, 1889–1939 (Blackwell, 1981). 240 J Rose, ‘Willingly to School: The Working-Class Response to Elementary Education in Britain, 1875–1918’ (1993) 32 JBS 114, 119, Table 4. See also C Heward, ‘The Class Relations of Compulsory School Attendance: The Birmingham Jewellery Quarter, 1851–86’ (1989) 29 History of Education Quarterly 215. 241 The elaborate structure in the Conservatives’ Act allowed individual schools to charge fees and many voluntary schools continued to do so. The cost to the Treasury was £2 million per annum, making education the largest home spending department.

424 Poverty and Education

Part 3: Poor Relief and Its Alternatives A. Edwardian Initiatives i. Analysing Poverty The moral view that self-reliant endeavour alone could solve the long-term problems of the poor had reached its greatest strength in the buoyant mid-century years. Those who did not succeed were by definition shiftless; those who did not save risked the consequences of sickness and old age. People could not be left entirely to starve, but short of that they should be given little quarter; hence the whole policy of the Charity Organisation Society. The same perception was expressed by orthodox economists in their own terms: there could be no ultimate imbalance between supply and demand for labour; unemployment demonstrated the unwillingness of labour to accept lower wages in times of falling demand; the market must be left to teach its lesson. Only in the 1890s did ‘poverty’ and ‘unemployment’ begin to be perceived by many policy-makers as distinct problems of the economy which might not be explicable in terms of individual lack of responsiveness, and which might accordingly justify state intervention by way of corrective.242

ii. Tackling Unemployment The prospect of unemployment was a persistent source of anxiety throughout the nineteenth century, with business cycles turning down every five to eight years.243 Towards the end of the century the trade unions in some occupations, notably metal working, engineering, ship-building, printing and mining were able to offer unemployment insurance paid for by weekly contribution. By 1908 almost 1.5 million workers (about two-thirds of the total union membership and almost all men) were eligible for such support. However, they amounted to only 12 per cent of the male workforce.244 The majority of unemployed workers were dependent upon ad hoc schemes by local governments and charities and they suffered in consequence of the crusade from the 1870s onwards against outdoor relief. In times of particular hardship, emergency funds, such as the Mansion House Fund established in 1886, offered some respite. That same year Joseph Chamberlain, President of the Local Government Board, sent a circular to Boards of Guardians and municipalities, urging the setting up of local works to which, upon the recommendation of the guardians, respectable but unemployed workers might be set. However, it was a condition that the wages paid be lower than was ordinarily paid for similar work. The circular was reissued in 1887, 1891, 1892, 1893 and 1895. In 1894 the Government set up a Select Committee on Distress from Want of Employment, but with an improving economic cycle the impulse to tackle the issue faded. In 1904 it then returned with a vengeance with mass demonstrations in London, Liverpool and Manchester led by the Social Democratic Federation.

242 Fraser

(n 158) ch 5. (2004) (n 137) 393. 244 Boyer (2004) (n 137) 414. 243 Boyer

Part 3: Poor Relief and Its Alternatives 425 The Government’s response, the Unemployed Workmen Act 1905, established distress committees in all London boroughs and all municipal boroughs and districts with populations of over 50,000. The committees were to organise the relief of distress by work provision, labour exchanges, labour colonies in the country and emigration assistance.245 The Act, though, represented but a modest step away from dependence upon charitable endeavour. Although provision was made for the levying of a special rate of ½d in the pound to pay administrative expenses, the relief projects were intended to be wholly funded by voluntary contributions. Furthermore, the committees themselves were dominated by representatives of charities and Boards of Guardians and were to act very much on COS principles: scrutinising the worth of applications and giving aid only where they were found deserving. Although an appeal by Queen Alexandra raised £154,000 in 1905, it soon became clear that this could not be repeated, and despite the Committees’ best intentions the Government found itself obliged to make them ever-increasing grants. By 1909/10 the parliamentary grant provided 57 per cent of their funding.246 The Act had only ever been intended as a stop-gap measure, and in 1909 the Royal Commission on the Poor Law, which had been established by the Balfour Government in 1905, finally reported.247 It concluded that the Municipal Relief Works, encouraged by Mr Chamberlain’s circular in 1886, have been in operation for twenty years, and must, we think, be pronounced a complete failure – a failure accentuated by the attempt to organise them by the Unemployed Workman’s Act of 1905.

There were, though, some lasting gains. In the metropolis and elsewhere, the labour exchanges continued in existence and were seen by Beveridge and others (and eventually both Royal Commission Reports) as vital instruments for the future. Churchill brought Beveridge into the Labour Department of the Board of Trade to prepare for their introduction as a national network and a corollary of his proposed unemployment insurance. By 1909, it was possible to institute them by central funding without division between the major parties.248 The only real concern came from trade unionists who feared, behind the exchanges, the prospects of compulsory labour and the undermining of strike action.249 In consequence, the exchanges became a voluntary service, without any requirement that jobs should be filled exclusively through their auspices, and with an explicit acknowledgment that no disqualification or prejudice should follow from refusing a job under strike conditions or at a rate below that prevailing in a district.250 This went part of the way to meet the trade unionists’ objections. By 1914 there were 423 main exchanges, filling over 3,000 positions a day. But only one in four applicants found work through them, and many employers continued to fill jobs from those who presented themselves at the works. All the members of the Royal Commission favoured greater provision for the destitute and the unemployed, but the means divided them. In an echo of the past, 245 The Local Government Board was empowered to extend the arrangements to other areas where they were needed: s 2(l). 246 Boyer (2004) (n 137) 426, table. 6. 247 PP 1909 [Cd 4499] XXXVII; [Cd 4630, 4922] XXXVIII (Scotland and Ireland). 248 The Labour Exchanges Act 1909 was skeletal in form, leaving details to be worked out in regulations and orders of the Labour Department. Sixty-one exchanges from the 1905 Act were taken into the new scheme. 249 The Webbs, particularly in the Minority Report of the Royal Commission, were leading advocates of a compulsory role for the exchanges. 250 Section 2(2).

426 Poverty and Education large-scale public works were to be undertaken during periods of economic downturn, but these were to be centrally funded and coordinated. Major state initiatives would lead to Keynesian style interventions to reflate the economy when required. A minority report, authored by Beatrice Webb and three others, also recommended the break-up of the Poor Law and a guarantee of a minimum subsistence income for all.251 The majority, however, were still loyal to the 1834 New Poor Law. To be sure, they wanted to make the regime more efficient, but they believed the best hope for further amelioration of the conditions of the poor lay in private charitable endeavour. This was perhaps to be expected, given that six of the members of the 20-strong Commission, including Octavia Hill, came from the Charity Organisation Society. The majority on the Commission were suspicious of state interference and concentrated on the danger of indiscriminate doles which would, in their minds, merely swell the ranks of the underserving poor. Rather, they envisaged the creation of public assistance authorities who would work hand-in-hand with voluntary aid committees run, naturally enough, by the members of leading charities. Means tests would be applied, which would be accompanied by assessments of moral worthiness. They similarly recommended that there be some elements of compulsion, with compulsory attendance at the labour exchanges and relief to be conditional upon retraining schemes. Above all, they were concerned not to undermine thrift and to emphasise self-help. Octavia Hill, for example, by now a rather aged embodiment of the mid-Victorian consensus on self-help, opposed the notion of non-contributory pensions since they would undermine the friendly societies operating on the basis of members’ contributions. Hill and Sir Edward Brabrook, the Chief Registrar of Friendly Societies, deprecated ‘the general habit which is growing among the more careless of the working people of rather hoping that something will turn up from the Government, or the municipality, or somebody else.’252 Ideologically, then, Hill and others in the majority had little in common with the minority, and in particular with Beatrice Webb who, together with her husband Sydney, formed a National Committee for the Promotion of the Break-Up of the Poor Law, in 1909. The Committee’s two-year campaign was unsuccessful, however.253 On the Commission itself, the majority and minority were both in favour of the extension of unemployment insurance, but here it was Beatrice Webb who had her doubts, concerned that a state-run scheme would have a detrimental effect upon trade union membership.254 It was Beveridge in 1907 who first raised the real possibility of unemployment insurance as a complement to labour exchanges. Once the plan for the latter had taken shape, he and Llewellyn-Smith,255 with Churchill’s backing, could turn to the insurance prospect. The unions argued that state subsidy of unemployment should be administered by them, and that it should be funded by the Treasury out of general revenues. But the Government was kept to a contributory scheme by its own predilections and by the grave uncertainties underlying the whole venture, since there were no adequate statistics of unemployment on which to make projections.256 To secure union cooperation it proved sufficient to add a 251 The chairman was Lord George Hamilton; the Minority Report was written by Beatrice (and Sidney) Webb; its other signatories were George Lansbury, Francis Chandler (a trade unionist) and the Rev Russell Wakefield. 252 RCPL, 35308-12, cited in E Baigen and B Cowell, Octavia Hill, Social Activism and the Remaking of British Society (IHR, 2016) 268. 253 Baigen and Cowell (ibid) 262. 254 Boyer (2004) (n 137) 431. 255 Permanent Secretary, Board of Trade, 1907–1919. 256 For a modern study of the Act see TT Hellwig, ‘The Origins of Unemployment Insurance in Britain’ (2005) 29 Social Science History 107.

Part 3: Poor Relief and Its Alternatives 427 Treasury grant (initially 1⅔d per man per week) to contributions (initially 2½d each) from employer and employee.257 However, the major decision to reduce a risk – a significant piece of experimentalism – was to confine the scheme to selected industries: building and construction, shipbuilding, engineering and vehicle construction, iron-founding and sawmilling. Some 2.25 million workers, almost all male and amounting to about 20 per cent of the male workforce, were covered by the Act.258 All employed a substantial proportion of skilled workers and so had a considerable measure of unionisation; and they tended to be subject to short-term fluctuations in demand for labour which was dealt with by termination of jobs rather than short-time working. The scheme was meant only for alleviating such conditions, its model being the typical conditions on which unions provided for unemployment: the benefit of 7s per week was to be available only after seven days out of work and to last for a maximum of 15 weeks in any one year.259 To qualify, a worker must have contributed for 26 weeks. Under all these conditions, the scheme was calculated to cost the Treasury just over £1 million per annum.260 The scheme had been largely worked out in 1909, but its enactment was arrested by the House of Lords’ rejection of Lloyd George’s Budget. Since unemployment insurance was a counterpart not only to labour exchanges but also to the workers’ health insurance which the Chancellor himself was planning, it had to await the clearing of the constitutional storm. It did not in itself produce political counter-offensives on the scale that engulfed health insurance.261 Inevitably, however, the question arose whether the work-shy should be disqualified from benefit, and if so how they should be identified. Within the Board of Trade, Llewellyn-Smith thought it essential. But Churchill maintained that the conditions for obtaining benefit were in themselves strict enough to confine the problem, and that in any case, once a man had qualified by making contributions he must be given his entitlement.262 The delay in legislating meant that Llewellyn-Smith was left to get his way from Churchill’s successor, Sidney Buxton. The claimant had to be capable of work but unable to obtain suitable employment.263 He would be disqualified if he voluntarily left his job, or if he was out of work because a trade dispute at his place of work had caused a stoppage.264 While none of this undermined the ‘neutrality’ of the labour exchanges, they became the institution through which claims were made and they were at least in some position to test whether a person was refusing work.

257 In addition, unions which provided their members with better unemployment benefit could reclaim threequarters from the insurance fund (up to its own rate of benefit) and a Treasury subsidy of one-sixth: s 106. 258 Boyer (2004) (n 137) 432, n 63. 259 As had been the case for friendly society pensions since 1904, the first 5s of benefit was to be discounted in assessing a claim to poor relief. 260 Much less than the old age pension of 1908 had been expected to cost. By 1914 the scheme was £3 million in credit and by 1920, £20 million; but this was soon to be wiped out. A refund scheme for substantial contributions (s 95) proved unworkable. 261 See pp 429–31. 262 In a characteristic memorandum, his final shot was ‘I do not like mixing up moralities and mathematics’: BB Gilbert, The Evolution of National Insurance in Great Britain (Michael Joseph, 1966) 272. It was an issue of central significance for the future of social provision. 263 Section 86(3). cf the later requirement that he be ‘genuinely seeking work’. 264 Section 87. For the system of tribunals, see pp 438–39.

428 Poverty and Education

iii. Old Age Pensions By the end of the nineteenth century there was an understanding that a substantial proportion of those on poor relief were simply too old to work and were not moral delinquents. This inspired pressure for a state pension scheme. Conservative and Unionist candidates pledged such a scheme during the elections in 1895 and seem to have won many rural areas on the strength of it. By 1898, however, no such scheme had been introduced – despite petitions from Conservative rural MPs in its favour.265 Austin Chamberlain had proposed that such a scheme might be financed by tariffs, but opinion was divided over whether any introduced scheme should be contributory or non-contributory. In Germany (1888), Bismarck had attached compulsory contributions towards a pension to his scheme of sickness and other social insurance. However, in Denmark (1891), and then in New Zealand (1898) and the Australian states (from 1900), non-contributory pensions were made available to those who satisfied a lack-of-income test.266 Insofar as there was a domestic model, it was contributory – in England, Wales and Scotland, nearly half the adult male population belonged to a friendly society or benefit union. But these were in some trouble by the end of the nineteenth century, as their financial viability was endangered by increasing life expectancy. Organisations such as the National Committee of Organised Labour for the Promotion of Old Age Pensions and the Labour Representation Committee were accordingly agitating for a non-contributory scheme, and this was supported by Charles Booth whilst Joseph Chamberlain advocated a contributory scheme on German lines. The Boer War distracted both sides, but in 1908 Asquith, as Chancellor, introduced a non-contributory scheme for men and women aged 70 and over. Payment was meanstested, with 5s paid weekly through the Post Office to those whose annual income was not over £21 a year. Critics were troubled by the lack of moral supervision which accompanied these payments. Hitherto, contributors to friendly societies, never mind applicants for poor relief, had been forced to accept an inquisition as to their behaviour before their eligibility was determined. There was some moral component to the new scheme, insofar as anyone who had been imprisoned for any offence was disqualified from the scheme for 10 years. Also disqualified were those who were judged not to have worked whilst they had been able to maintain themselves and their dependants. Finally, recipients of poor relief were not eligible.267 However, those outside the restricting categories received their pensions as of right. This seemed to undermine established methods of disciplining the poor and William Beveridge complained that the system ‘sets up the state in the eyes of the individual as a source of free gifts’.268 In the first year of operation, 1909–10, some 647,000 were in receipt of this gift at a cost of £8.6 million, and by 1913–14 this had grown to 947,000 at a cost of £12.5 million.269 By that time some three-fifths of the population over 70 were getting the pension, with

265 M Pugh, ‘Working-Class Experience and State Social Welfare, 1908–1914: Old Age Pensions Reconsidered’ (2002) 45 HJ 775, 793–94. 266 For these comparative developments, see P Thane, The Foundations of the Welfare State, 2nd edn (Longman, 1996) 96–98; EP Hennock, The Origin of the Welfare State in England and Germany, 1850–1914: Social Policies Compared (Cambridge University Press, 2007) chs 10 and 11. 267 Pugh (n 266) 777. 268 Times, 21 July 1908. 269 Pugh (n 265) 783.

Part 3: Poor Relief and Its Alternatives 429 93.6 per cent of that number receiving the full 5s and the rest a reduced amount according to their means.270 The speed and apparent generosity271 with which the local pensions committees implemented the scheme may owe much to its effect in transferring the burden of caring for the very aged from the localities to the central government. With outdoor relief amounting to 2s 6d, there was every incentive for aged recipients to move, and be moved, by their Poor Law unions into the pension scheme. Consequently, those over 70 in receipt of outdoor relief fell from 168,000 to 8,500 by 1914. But the numbers of the aged in the workhouses fell much less since, a pension notwithstanding, many of them were incapable of caring for themselves. In 1906 there had been 61,000 such persons and in 1913 the number was still 49,000.272

iv. Health Insurance Although living standards were rising towards the end of the nineteenth century, there was also an increasing discourse to the effect that the industrialisation that had made this possible was having a detrimental effect on public health. Credence was given by some to extravagant claims that urban populations were degenerating, indeed dying out.273 The Inspector-General of Recruiting reported during the Boer War that 40 per cent of those willing to serve were medically unfit and the comparatively poor performance of the army during that conflict caused much reflection.274 When Lloyd George adopted the idea of a health insurance scheme after a visit to Germany in 1908, social justice (and political advantage) were doubtless at the forefront of his mind. However, his arguments were given new urgency by the sense that the nation was being eclipsed both socially and economically, notably by Germany, and that something must be done to restore national vigour. In framing a scheme, a number of important questions had to be addressed, notably: whether the scheme was to include everyone; whether it was to be compulsory; and whether it was to receive some form of state subsidy. In the event, the scheme that was introduced into Parliament in May 1911 excluded civil servants, railwaymen, and the spouses of the employed, but it included almost all others.275 It was both compulsory and included a state subsidy. Each man was to contribute 4d a week, each woman 3d. His or her employer had to contribute 3d and the state would further add another 2d.276 There were two main forms of benefit: the first was medical benefit – treatment which was available as soon as contribution started. It is important to appreciate, however, that the scheme covered only the services of a GP: it did not offer hospital or any other forms of specialist treatment.277 The second benefit was sickness benefit – a weekly payment for up to six months of 10s for a man or 7s 6d for a woman during incapacity for work through sickness (starting from the fourth day of absence). For this, at least 26 contributions were necessary. After the six months, and with 270 Pugh (n 265) 790–91. 271 P Thane, Old Age in English History (Oxford University Press, 2000) 223–31. 272 Pugh (n 265) 792. 273 See J Cantlie, Degeneration Amongst Londoners: The Parkes Museum of Hygiene Lecture for 1885 (Field and Tuer, 1885). 274 B Harris (2004) (n 128) 156. 275 National Insurance Act 1911, sch I, pt II. That masters – and even more, that mistresses – should have to contribute to the insurance of their domestic servants induced a sense of class outrage and this was fanned by The Daily Mail. Further discussion in L Schwartz, Feminism and the Servant Problem: Class and Domestic Labour in the Women’s Suffrage Movement (Cambridge University Press, 2019) pp 174 ff. 276 See ss 3–7. 277 The exception was that free care in sanatoriums was made available for tuberculosis patients.

430 Poverty and Education at least 104 contributions, there was permanent disablement benefit of 5s per week, for both men and women.278 The bill was only able to proceed because of compromises reached with various sets of vested interests, each of whose businesses were potentially threatened by the scheme. Doctors were allowed to continue to have free rein with their more affluent private clients, since non-manual workers earning more than £160 were excluded from the scheme. Furthermore, the doctors were able to insist that they help to administer medical benefit, which they did by membership of local Insurance Committees. They also gained independence from the friendly societies who had so often employed only one single contract doctor and upon, in the doctors’ view, a not very generous contract at that. Much was heard of the consumer’s new freedom to choose his own doctor by way of justification for this spreading of work among general practitioners.279 Although many doctors opposed the 1911 Act, the resources that it made available for GP consultations in fact played a major part in the expansion of general practice up until WWII.280 For their part, the trade unions, the friendly societies and the large assurance companies had all feared that subscriptions would decline if a state-subsidised scheme became available. They were compensated by the fact that they secured the right, as ‘approved societies’, to administer the financial benefits (sickness, permanent disablement, etc) for those who insured through them. Each person on their books entitled them to an annual sum out of the fund being built up by the central Insurance Commissioners.281 So it lay in their interest to avoid paying unnecessary benefits and to insure only the better risks. They could use surpluses to offer benefits additional to the state cover. Those workers who did not find their way to a trade union, friendly society or assurance company, could insure through the Post Office. This complex administrative net preserved elements of competition and free choice, as well as adhering to the strict insurance principle of building a reserve fund to cover all future claims. Under all the circumstances, the passage of the bill was no small accomplishment, but it was more limited than Lloyd George had originally intended. One particular difficulty was that the employee’s contribution was not means-tested and it therefore amounted to a somewhat regressive taxation, taking a far greater proportion of the incomes of the poorest manual workers than their skilled brethren. Furthermore, Lloyd George could only secure the support of the insurance companies by abandoning proposals for a benefits scheme for widows and orphans. Nor were dependents provided for: the scheme offered medical benefit only to those in employment (mainly men) and not their families. Medical treatment, as Derek Fraser remarks, was intended ‘to get the worker back into harness again’: in its final form it was a measure against destitution and not a provision to improve the 278 There were special provisions for tuberculosis treatment and a maternity benefit of 30s to the wives of insured men. 279 The British Medical Association, dominated by specialists, tried to stage a revolt, but GPs were induced by the rates offered for treatment (compared with their previous earnings) to join the insurance panels in large numbers. The BMA lost a great deal of prestige from the debacle: H Eckstein, ‘The Politics of the British Medical Association’ (1955) 26 Political Quarterly 345, 347. 280 A Digby, The Evolution of British General Practice, 1850–1948 (Clarendon Press, 1999) 27, 67, 99 and 149; Fraser (n 158) 223; A Digby and N Bosanquet, ‘Doctors and Patients in an Era of National Health Insurance and Private Practice, 1913–1938’ (1988) 41 Econ HR 74. 281 The Government was to make no demands on existing friendly society funds for the liabilities that they were taking over, thus providing a prop for the finances of those which were ailing: see s 72. On the role played by approved societies, see also N Whiteside, ‘Private Agencies for Public Purposes: Some New Perspectives on Policy Making in Health Insurance Between the Wars’ (1983) 12 Journal of Social Policy 165; M Heller, ‘The National Insurance Acts 1911–1947, the Approved Societies and the Prudential Assurance Company’ (2008) 19 TCBH 1.

Part 3: Poor Relief and Its Alternatives 431 ell-being of the general populace. As government actuaries put it in 1910, ‘Married women w living with their husbands need not be included since where the unit is the family, it is the husband’s and not the wife’s health which it is important to insure.’282

v. Settling Disputes The three main benefit schemes of the new deal – old age pensions and the two distinct forms of national insurance – were notable in adding to the array of special tribunals for government departments. Each benefit was conceived in terms of a right granted on the fulfilment of conditions, and avoided, to a substantial degree, any assessment of general worthiness that was a crucial part of poor relief. Even so, there was scope for differences over who satisfied the basic requirements for benefit and who were disqualified by the various grounds specified. Each scheme had its own administrative structure – pensions through the Post Office, the local pensions committees and the Local Government Board; unemployment insurance through the labour exchanges and the Board of Trade; health insurance through the local Insurance Committees (for medical benefit), the approved societies and the Post Office (for other benefits), with the central Insurance Commissioners above them (and ultimately the Local Government Board). The dispute mechanisms reflected these differences. In the case of pensions, the initial power of decision lay with the local pensions committee, which was to use the pension officer attached to each labour exchange (a central appointee) to investigate and report to it. From the Committees either the pensions officer or the claimant might appeal to the Local Government Board, whose decision was to be final and conclusive.283 The pensions officer was thus an embodiment of the system, defending it as need be both against undue claims and against wayward local bureaucracy. For unemployment insurance, the local element was provided not through channels of the counties and county boroughs, but through Boards of Referees for each labour exchange. These comprised nominees chosen by employers and workmen in each district (in equal numbers on any board), together with an independent chairman appointed by the Board of Trade. The insurance officer at the labour exchange could decide a disputed question himself. If he did so and the decision went against a claimant, then the claimant might appeal to the Board of Referees. On the other hand, if the decision went against an official then that official might appeal, with the Board’s assent, to the Umpire appointed by the Board of Trade. Alternatively, the officer might refer the dispute without decision to the Board of Referees, in which case their decision was final.284 In the case of health insurance, decisions regarding disputes with Insurance Committees or approved societies lay with the Insurance Commissioners alone; certain matters (notably the definition of insurable employments) were for the Commissioners themselves to decide, and in such cases an aggrieved claimant might appeal to a county court and thence to a judge of the High Court.285 282 Cited in Fraser (n 158) 198. On the 1911 Act, see also P Thane, ‘The Making of National Insurance, 1911’ (2011) 19 Journal of Poverty and Social Justice 211. 283 Old Age Pensions Act 1908, s 7. 284 National Insurance Act 1911, ss 88–90. 285 ibid ss 66–68. Appeals to the Commissioners are analysed in J Gulland, ‘“Fitting Themselves to Become Wage-earners”: Conditionality and Incapacity for Work in the Early 20th Century’ (2012) 19 Journal of Social Security Law 54.

432 Poverty and Education More generally, legislative statements that a decision of any of these bodies was ‘final’ did not preclude the ordinary courts from reviewing the basic equities of the procedure by which it was reached. But courts were allowed no regular part in day-to-day decisionmaking. The disputes procedures were allowed to take a bureaucratic turn with scarcely a hesitation because of the unsettling experience of giving over the workmen’s compensation scheme to adjudication in the county courts and those above. Equally, the civil servants involved wanted to control the course of their experiments, not only through their very considerable powers to make regulations, but also by bringing in nominees for the business of settling disputed claims.286 By this combination of means, administrative rules were generated in abundance with a minimum of outside engagement. So far as decisions were concerned, only some of the more important – notably those of the unemployment insurance Umpire – were systematically published.287 This allocating of authority within the collectivising state established permanent patterns; it merits comparison with the manner in which, in earlier times, the magistrates had acquired administrative-cum-judicial powers in their Quarter and Petty Sessions.288 Lawyers would be given a certain place: in particular, the Umpire and chairmen of Courts of Referees were normally legal practitioners.289 But it was made difficult or impossible for claimants to have their own legal representation, particularly before those tribunals which were involved in implementing unpopular, contentious policies.290 Many observers would find their mixture of dispatch, informality, dignity and fairness decidedly preferable to the atmosphere and proceedings of ordinary courts.291 It was important that they should command some confidence as they had to handle considerable caseloads.292

B. Tribulations of the Inter-War Period i. Health Insurance, Pensions and Poor Relief The inter-war period was one of very mixed fortunes for the general populace. For those in work, living standards increased. There were new industries and new opportunities in the workplace, particularly for women. On the other hand, the period began with a society scarred and economically dilapidated by war, and although it steadily recovered, unemployment rates remained stubbornly high. The sudden downturn in 1929 stretched the 286 J Fulbrook, Administrative Justice and the Unemployed (Mansell, 1978) 138–41. 287 For an analysis of some of the more important, see E Wight Bakke, Insurance or Dole! (Yale University Press, 1935) 31–35 and 44–55; HC Emmerson and ECP Lascelles, Guide to the Unemployment Insurance Acts, 5th edn (Longman, 1939). 288 See pp 19–20 and 36–7. According to Horridge J, a Court of Referees discharged only administrative duties; hence, communications to it were not entitled to absolute privilege against libel proceedings: Collins v Henry Whiteway & Co Ltd [1927] 2 KB 378. 289 Report of the Morris Committee on the Determination of Claims for Unemployment Insurance Benefit PP 1929 [Cmd 3415] XVII; D Scott Stokes, ‘The Administration in 1945 of Some Tribunals Appointed by the Minister of Labour’ in RSW Pollard (ed), Administrative Tribunals at Work (Stevens & Sons, 1950) 19–21. 290 Originally, for instance, courts of referees were left to settle their procedure, but then representation by barrister or solicitor was specifically debarred: Unemployment Insurance Regs 1921, reg 4(2); similarly, the Unemployment Assistance (Appeal Tribunals) Rules 1934, reg 4(1). 291 See eg J Millett, The Unemployment Assistance Board (Allen & Unwin, 1940) 278, quoting A Robson. 292 In the first year of operation of unemployment insurance, for instance, nearly 9% of the 420,802 claims were disallowed by an Insurance Officer or a Court of Referees: JL Cohen, Insurance against Unemployment (King & Son, 1921) 246.

Part 3: Poor Relief and Its Alternatives 433 existing social provision to the limit, and generally we can say that throughout the period real poverty remained a seemingly irreducible problem. Measuring poverty precisely was (and is) a difficult enterprise, however, and the subject of frequent contention. Much depends of course upon how one defines poverty. Using his own definition, Sir Hubert Llewellyn-Smith’s New Survey of London Life and Labour (1929–31) calculated that 12 per cent of London households were in poverty at that time. On the other hand, using the same information available to Llewellyn-Smith but applying his own tests, Sir Joseph Rowntree calculated that the true figure was 22 per cent.293 The surveys are fairly clear in respect of certain things, however – namely that there was a lot of poverty about and that the people most likely to suffer from it were children, the elderly and the unemployed. The fact of poverty affronted some social consciences and it alarmed those who were aware of developments abroad and potential strife at home. In varying degrees, the schemes of 1908–11 were responses to the new social, political and economic climate. Of the aforementioned schemes, that which changed the least was national health insurance. In 1919 the earnings limit for non-manual workers was lifted to £250 per annum, and in 1920 the contributions were raised from 4d to 5d for men and from 3d to 5d for women. Interestingly, whilst the standard rate of sickness benefit was raised from 10s to 15s for men, it was increased to only 12s for women, even though they now contributed at the same rate. In 1931 the May Committee on Public Expenditure considered cutting health insurance benefits but the Government did not proceed with the proposals. However, in 1933 the Government reduced the benefit paid to married women down to just 10s.294 A more positive step came with the National Health Insurance (Juvenile Contributors and Young Persons) Act 1937, which extended medical benefits to young workers between the age of 14 and 16. By 1938 21 million workers and pensioners were in the scheme, out of a total population (including children) of 47 million. The male preponderance in the workplace, however, was reflected in the coverage of the scheme. By 1938 63 per cent of adult males were covered but only about 30 per cent of women.295 Dependants still acquired no entitlement or other place in the benefits. Medical provision remained limited, there being in general no hospital treatment, consultation with specialists, use of adequate diagnostic aids, or nursing assistance. For almost everything except access to a general practitioner, even the contributor was thrown back on his private resources, or the Poor Law and charitable medical services, such as they were.296 It would take another war for a truly national health service to seem a necessity. Developments in respect of old age pensions were more progressive. The Old Age Pensions Act 1919 relaxed residency requirements, removed the ban on payments of pensions to those already in receipt of outdoor relief, and raised the limits for pension entitlements.297 It was certainly not intended at this point, however, that the pension should be sufficient of itself to support a pensioner, merely that it should supplement other 293 For a comprehensive study of social surveys and poverty indices during this period see TJ Hatton and RE Bailey ‘Poverty and the Welfare State’ (1998) 50 Interwar London: Oxford Economic Papers 574. 294 B Harris (2004) (n 128) 211. 295 Fraser (n 158) 224, Table 15.1. 296 The Government had given the voluntary hospitals £500,000 in 1921 as some recognition of their increasing difficulties, but had refused any permanent subvention. The public hospitals came to be aided by a 50% central grant. 297 See B Harris (2004) (n 218) 215. The Act also removed restrictions upon ex-convicts claiming pensions and those deemed not to have sought gainful employment whilst they were able.

434 Poverty and Education income, even if that was outdoor relief. Under the Old Age Pensions Act 1924, however, pensioners were allowed to receive up to 15s a week from other sources before their pension entitlement was reduced. A much more radical change came with Neville Chamberlain’s Widows’, Orphans’ and Old Age Contributory Pensions Act 1925, which introduced a contributory scheme for the first time.298 The original pension for those over 70, paid through Post Offices, would remain, with its means test. Those already within the health insurance scheme would (with their employers) become liable for additional contributions; through their approved society (or the deposit scheme of the Post Office) they then became entitled to a pension of 10s a week between 65 and 70, and their pension after 70 would not be means-tested; their widows became entitled to a pension of 10s a week and their orphaned children 5s a week to the age of 14. It was expected that the original, non-contributory pension would be phased out, and indeed the million recipients in 1926 had fallen to under 600,000 in 1938, while the numbers receiving contributory pensions was continuing to grow.

ii. Unemployment Unemployment was a perennial problem throughout the inter-war years.299 The period began with the discharge of service personnel and by 1921 there were 1.84 million insured and 372,000 uninsured workers out of work. By 1927 an expanding economy had reduced the total to about 1.25 million but this still meant that the unemployment rate amongst insured workers was around 10 per cent. The downturn in 1929 then led to an immediate and sharp rise in unemployment which peaked in 1932 at 22.1 per cent of insured workers. It did not decline to below 15 per cent until 1936 and by 1938 was on the rise again.300 Those in work experienced rising standards of living over the same period but unemployment was one reason why levels of poverty remained persistently high. During the war the Government had agreed that ex-servicemen discharged and out of work would be paid a non-contributory benefit, an ‘out of work donation’.301 At the same time, Beveridge and Llewellyn-Smith had worked at increasing the range of those in the contributory insurance scheme. Eventually, some quarter of the workforce was covered, but there was considerable resistance to programmes for the decasualisation of labour in the docks and elsewhere, which were a necessary pre-condition of further extension. With the cessation of hostilities, the ‘out of work donation’ had to be extended to include all those civilian workers who had worked for at least three months during the war period. The scheme was in fact comparatively generous and the costs on the Treasury were c onsiderable.302 The Unemployment Act 1920 extended the insurance scheme to all manual workers and non-manual workers earning less than £250, with certain exceptions.303 It soon became 298 Fraser (n 158) 204. 299 On the relations between the state and voluntary agencies which sought to address this problem, see B Harris, ‘Responding to Adversity: Government-Charity Relations and the Relief of Unemployment in Interwar Britain’ (1995) 9 Contemporary Record 529. 300 Fraser (n 158) 198. 301 Harris (n 128) 204. 302 Men received 29s, women 24s with 6s for a first and 3s for each subsequent child. The Donation lasted until May 1921, by which time it had cost £62 million. 303 The main exceptions were: domestic servants, agricultural workers, civil servants and teachers. Benefit had become: 15s for men and 12s for women over 18, which could be claimed for a maximum of 15 weeks a year.

Part 3: Poor Relief and Its Alternatives 435 apparent that under the prevailing economic circumstances the scheme would pay out more than it received in contributions and that further Treasury subsidy would be required. Employment prospects were so poor that many contributors would outrun the 15 weeks’ benefit to which they were entitled without finding work, leaving them to the mercies of charity or the Poor Law. The coalition Government was concerned about the prospects of serious political disorder, and consequently three more Unemployment Insurance Acts were introduced in 1921. The first raised the level of employer and employee contributions, raised the standard level of benefit from 15s to 20s and, most importantly, introduced a new ‘uncovenanted’ or ‘extended benefit’ for those actively seeking full-time work who had otherwise exhausted their entitlements.304 A second act found it necessary to reduce the level of payments back to 15s, but the third, the Unemployed Worker’s Dependents (Temporary Provisions) Act 1921, introduced separate allowances of 5s per dependent adult and 1s for each child.305 The notion of paying benefits for which there had been no contribution was particularly disliked by those committed to the principle of insurance. It was proposed to recover the cost of unconvenanted benefits both by higher contributions and by demanding repayments once the recipient had returned to work. Labour exchange officers were told that ‘Uncovenanted benefit is confined to persons who are normally employed in insurable employment and who may be expected by the repayment of contributions in respect of such employment in future to assist in extinguishing the deficit.’306 Applicants then had to make a convincing case that they were genuinely seeking work307 – and the Rota Sub-Committees of the Local Insurance Committees tended to take a severe line on the question; but in addition to this, the Conservatives introduced family means-testing which particularly affected single persons living with relatives, married couples one of whom was working, and short-time workers.308 It was deeply resented and was abolished by the first Labour Government in 1924, only to have the Conservatives reinstate it in the following year.309 In 1927 the Unemployment Insurance Act implemented recommendations from the Blanesburgh Committee. A key component of the 1911 scheme had been that the length of benefit claimable was proportional to the amount of contributions. Henceforth, a new standard benefit was to be introduced which was unlimited in its duration so long as a worker had made 30 contributions over a two-year period. For those who could not meet this criterion, a new transitional benefit was introduced which was available as of right. Politically it had been difficult to secure support for these measures of increased generosity without an assurance that the Government would crack down on perceived malingerers. The aftermath of the Act saw the ‘genuinely seeking work’ test applied with increased rigour.

304 Unemployment Insurance Act 1921, s 3. The Act of 1922 sought to spread this benefit over three five-week periods with equal gaps in between (with resort if necessary to the guardians). It proved unpopular with both claimants and Poor Law authorities and was later discontinued. 305 B Harris (2004) (n 128) 205. 306 ‘General Memo for Guidance of Local Committees and Officers of the Ministry of Labour’ (1923/4), Beveridge Papers, D 030 cited in Fraser (n 158) 219. 307 1921 Act, s 3(3). 308 Unemployment Insurance Act 1922, s l. 309 Unemployment Insurance (No 2) Act 1924, s 3; Unemployment Insurance Act 1925, s l.

436 Poverty and Education Married women in particular were liable to fall foul of this test, and during its lifetime (from March 1921 to March 1930) almost three million claims were disallowed.310 The Labour party came back into office in June 1929 and in 1930 relieved the claimant of the onus of proving that he was ‘genuinely seeking work’. Only those who positively refused a job offer, or would not comply with a direction from the labour exchange, would lose entitlement.311 That same year, the Government made transitional benefits a charge on the Treasury rather than the insurance fund. The result was that the number on transitional benefit jumped from around 140,000 to 300,000 and cost the Treasury £19 million in the first year.312 Faced with the Great Depression and consequent financial crisis, the Government responded by trying to take specific groups out of benefit altogether. The Anomalies Act 1931 required married women to show that they had normally been employed and had a reasonable prospect of securing a job before they could be eligible for benefit. Over 70 per cent of such claimants found themselves excluded.313 It was not enough and in August 1931 Ramsay MacDonald demanded that the Cabinet agree a 10 per cent cut in unemployment benefits or resign. Nine cabinet members refused to agree. The Labour party fell from office and a National Government was formed, with MacDonald retaining his position as Prime Minister in an all-party government which included Snowden but which was mainly composed of Conservatives. The immediate results included not only cuts and other restrictions on all benefits, but also the re-imposition of a means test for the transitional benefit.314 This ‘transitional payment’, as it became called, remained a central charge, but it was given over to the Public Assistance Committees (the new Poor Law bodies315) to administer at county level until 1934. Part 1 of the Unemployment Act 1934 extended the compulsory insurance scheme such that by 1937 14.5 million workers were included.316 The scheme was to be managed by an Unemployment Insurance Statutory Committee (UISC). The cuts of 1931 were rescinded and workers were entitled to claim unemployment benefit for 26 weeks. Contributions were henceforth levied on the basis of a third from each of the state, the employers, and the employees themselves. Part II established the Unemployment Assistance Board (UAB), tasked to take over the responsibility of dealing with those on transitional benefits and later those in receipt of poor relief from the Public Assistance Committees. The overall effect of the Act was that the 1834 Poor Law virtually disappeared. Henceforth,

310 See Fraser (n 158) 221–22. 311 In the previous year, the Government had tried informal Boards of Assessors without decision making powers, but they were a failure: W Hannington, Ten Lean Years (Gollancz, 1940) 16. The Morris Committee recommended reversal of the burden of proof. In the year 1928/29, four million people made 10 million claims, of which 340,045 were refused by Officers or Courts of Referees for ‘not genuinely seeking work’; and 37,568 for being ‘able to obtain suitable employment’. 312 Fraser (n 158) 226. 313 ibid. 314 Unemployment Insurance (National Economy) Orders, October 1931, supplemented by the Transitional Payments (Determination of Need) Act 1932: EM Burns, British Unemployment Programs 1920–1938 (Social Science Research Council, 1941) Pt III; Fraser (n 158) 206; S Ward, Unemployment and the State in Britain: The Means Test and Protest in 1930s South Wales and North-East England (Manchester University Press, 2014). 315 B Rodgers, The Battle Against Poverty, vol 2: Towards a Welfare State, 2nd edn (Routledge, 2006) 11–14. 316 B Harris (2004) (n 128) 231.

Part 3: Poor Relief and Its Alternatives 437 able-bodied adults fell almost entirely under the auspices of either the UISC or UAB, and the Public Assistance Committees (PACs) became ‘a generalised relief agency meeting a variety of residual conditions’.317 Indoor relief under the auspices of the PACs remained for those elderly, sick or young people who required it, and they continued to supervise the payment of outdoor relief to those able to live outside of institutions. The preference was very much for relief at home and almost 90 per cent of persons under the eye of the PACs were assisted in this way.318

iii. The Authorities If we turn now to administrative structures, the growing significance of social provision to central government was marked at the end of the war by the creation, first, of a Ministry of Labour from the Labour Department of the Board of Trade; and, secondly, in place of the Local Government Board and the Health Insurance Commissioners, of a Ministry of Health.319 At the local level, both reports of the Poor Law Commission had envisaged that the administration of services to those in poverty would be transferred to the largest units: the counties and county boroughs where poverty administration could be more efficiently organised. A Reconstruction Sub-Committee at the end of the war had concurred but nothing was done immediately.320 The Conservatives, however, became attracted to the idea of replacing the Poor Law Guardians, because they were concerned about the disparity between the programmes adopted by different boards. Some thought the overly generous (in the view of the critics) approach to poor relief adopted in some places opened other boards up to censure.321 For their part, Poor Law Guardians in the poorer unions complained that there needed to be some redistribution of burdens between themselves and the unions in areas that were both wealthier to start with and less burdened with need. In 1921, George Lansbury led the Poplar Borough Council, representing a deprived area, in a well-calculated act of civil disobedience; this obliged the Government to introduce an equalising scheme between the rich and poor unions of the metropolis.322 In the strikes of 1918 to 1921, and in the General Strike, some boards took a more helpful attitude towards strikers’ families than others. Increasingly, the Ministry of Health sought to curb the enthusiasm of the more generous, mainly through its power over sanctioning loans;323 this led in 1926 to special legislation allowing the 317 B Harris (2004) (n 128) 232. 318 ibid. 319 The latter step met some spirited resistance from the approved societies and the Local Government Board, which feared that it heralded a break-up of the Poor Law on Webbian lines: BB Gilbert, British Social Policy, 1914–1939 (BT Batsford Ltd, 1970) 98–137. 320 The McLean Committee Report (PP 1918 [Cd. 9151] XI) was an influential statement of the case for a Ministry of Health. 321 In particular some boards allowed reasonable outdoor relief to able-bodied applicants who elsewhere would still be subjected to a labour test. 322 Poplar refused to pay the precept (financial levy) of the London County Council upon it until an equalising measure was introduced. Their action was duly held illegal and they spent a tumultuous six weeks in prison for contempt of court, but were let out without ever purging their contempt: PA Ryan, ‘Poplarism, 1894–1930’ in P Thane (ed), The Origins of British Social Policy (Croom Helm, 1978) 56; N Branson, Poplarism 1919–1925 (Lawrence & Wishart, 1979); J Booth, ‘Guilty and Proud of It’ – Poplar’s Rebel Councillors and Guardians 1919–1925 (Merlin, 2009). 323 Tightened by the Local Authorities (Financial Provisions) Act 1921 (amended in 1923).

438 Poverty and Education Ministry to put in commissioners to replace the guardians, a power actually used against three boards.324 In 1929 Neville Chamberlain finally pushed through a wholesale reorganisation, giving the administration of the poor relief (by a new name) to those capable of working to PACs of the county authorities. The functions of looking after the young, sick and aged in institutions were to be dispersed among other committees of the local authorities.325 Resistance was bought off by introducing a central contribution to the cost of these social services, and the reorganisation brought a measure of rate equalisation to areas outside London. It was an intervention that ended a crucial element in local autonomy and one that heralded the transformation of social support into a central function. PACs in general followed the line that had still been pursued by many Boards of Guardians: those applying for outdoor relief were to be treated with great suspicion, since the deserving prima facie could turn to unemployment or sickness benefit or a pension and be expected to manage on it. There was, however, resistance in some areas to government policies. In 1932 the PACs of Rotherham and Durham County Councils were replaced by commissioners appointed by the Government, because they had refused to implement the means test with the rigour that it required.326 Uniformity, and a desire to make poor relief as apolitical as possible, were the aspirations of the time, and when the Unemployment Assistance Board (UAB) and the Unemployment Insurance Statutory Committee (UISC) were created in 1934, MPs were not permitted to sit on either. The UISC was chaired by Beveridge and his judicious management of the contributory scheme helped to restore the original 1911 insurance fund to order. By the outbreak of war, thanks to the economic turnabout, it was in robust surplus.327 The funds to be distributed by UAB, however, were a direct charge on the Treasury, and the board was under considerable pressure to achieve economies. When it first laid down its scheme of national benefits for the destitute, the rates were below those that were currently being paid by the PACs in over half the country.328 A political row resulted, and until 1937 the Government was forced to allow applicants the choice of being paid on either the UAB or the PAC scales.329 UAB scales were improved somewhat – though for obvious reasons they were set below both national wage rates and the benefits paid under the contributory scheme. One element in the ‘de-politicisation’ of the UAB was the creation of Appeal Tribunals to which disappointed applicants might proceed for a re-hearing of their case.330 Betterton, the Minister of Labour, argued that they were a necessary absorbent in making the scheme accept 324 Board of Guardians (Default) Act 1926. The three unions dealt with were West Ham, Chester-le-Street and Bedwellty, all in areas of severe distress. Under the Audit (Local Authorities) Act 1927 those who spent money without legal authority could be charged with that money as a personal debt and in some circumstances they could be disqualified from local authority office for five years. 325 Local Government Act 1929. It was preceded by a consolidation of legislation in the Poor Law Act 1927, and by consolidated Public Assistance Orders and Relief Regulation Orders. 326 D Cooper, ‘Institutional Illegality and Disobedience: Local Government Narratives’ (1996)16 OJLS 255, 265. 327 Under his chairmanship it became not only a manager but the generator of policy ideas for the future. See Gilbert (n 322) 179–80; J Harris, William Beveridge (Clarendon Press, 1977) 357–61. 328 For examples of the deprivations which resulted, see Gilbert (1970) (n 322) 186–87. 329 Fraser (n 158) 231–32. 330 T Lynes, ‘Unemployment Assistance Tribunals in the 1930s’ in M Adler and A Bradley (eds), Justice, Discretion and Poverty: Supplementary Benefit Appeal Tribunals in Britain (Professional Books, 1978) 5; Fulbrook (n 289) 164–70.

Part 3: Poor Relief and Its Alternatives 439 able; and Neville Chamberlain, the Chancellor of the Exchequer, agreed, subject to the filter of leave from the Chairman. In subtle ways, the Tribunals were closer to the administrators than were, for instance, the Courts of Referees. They consisted of a chairman appointed by the Minister of Labour, a workpeople’s representative from a list nominated by the UAB and a UAB nominee.331 The UAB itself and outside commentators saw their functions as ‘quasi-judicial’ (in the Donoughmore-Scott conception),332 directly involved in enunciating the UAB’s own policy, and retaining some measure of discretion in determining individual cases;333 this was said to justify the political influence over their constitution.334 The UAB’s policy was, however, elucidated in detailed instructions, which were initially (though never subsequently) published.335 Accordingly, the tribunals’ functions were in reality not easily distinguishable from those of courts of referees, and indeed from magistrates and courts more generally. True, not all of their ground rules had been embodied in delegated legislation and so they could be changed informally; otherwise the degree of individual judgment that went into deciding particular cases did not seem exceptional. The insistence upon ‘discretion’ could spell confusion: when, for instance, the UAB instigated a ‘doctrine’ of the constructive household (ie that those who left a household were to be considered still a part of it unless compelled to go), it was not clear whether individual chairmen and appeal tribunals had to apply it.336 But a certain ambiguity in matters of authority and role seemed to suit an institution which was meant to parry discontents. When relief was refused to the Jarrow hunger-marchers on the ground that marchers were not available for work, it was undoubtedly useful to ministers to have decisions of appeal tribunals in support.337 The machinery would become part of the transference of the Poor Law from a local to a national charge and administration. In 1940, the UAB would become the Assistance Board, in order by then to take on the pressing task of supplementing pensions;338 and in 1948, it became the National Assistance Board, in each case with appeal tribunals on the model established in 1934.

C. The ‘Welfare State’ Programme i. The Beveridge Report The development of the welfare state in Britain has been much mythologised and the National Health Service in particular occupies a prominent place in the affections of many British people. Opportunists in the hurly-burly of contemporary political life lean not a little upon supposition that there once was a golden age of the welfare state when benefits 331 Unemployment Act 1934, sch VII. The Board nominee could even be a district officer of the Board, though this was not usual in practice. See generally Lynes (ibid) 8–15 and 23–28. 332 See p 95. 333 Lynes (n 330) 7–8. 334 Note the exclusion of legal representation: see p 432, n 290. 335 Memorandum PP 1934–35 [Cmd 4791] XIV. From these instructions would evolve a detailed code which, in 1948, would form the basis for assessing claims for national assistance. It became known as the A Code and was for long assiduously kept secret. 336 Lynes (n 331) 19–23. 337 HC Deb CCCXVII 1024, 1895; JD Millett, The Unemployment Assistance Board (Allen & Unwin, 1940). 338 Old Age and Widows’ Pension Act 1940. Despite controls, wartime inflation made this essential.

440 Poverty and Education were fair, healthcare was evenly distributed and never rationed, and so on. This enables them to accuse the Government in power (of whichever hue) of being intent on destroying that which was built on the foundations of the Beveridge report.339 There is no little irony in the fact that William Beveridge himself disliked the term ‘welfare state’, because it seemed to suggest endless bounty whereas he was keen to incorporate ideas of personal responsibility into his scheme of social insurance.340 As WWII approached, there were many departments of government that wished to see reform, whether it be in workmen’s compensation, unemployment benefits or healthcare. However, even to disinterested thinkers it was not necessarily apparent that further government interference was desirable. The debate over whether government programmes better serve the needs of the general populace than schemes of private insurance has (in this country) long been decided by the public in favour of the former. At the time, however, this was not so certain. Furthermore, there were powerful vested interests that had to be overcome. The Treasury was against any further strain upon the national budget and employers were against any further strain upon themselves. Trade unions might be thought to have welcomed a national welfare ‘safety net’ and many did. However, one of the attractions of trade union membership was that it made one eligible to contribute to their voluntary welfare schemes: if the state took on this function what would happen to the membership of the trade unions? The war, though, both necessitated and proved the worth of national mobilisation. The Government interfered with normal life on an unprecedented scale and as the conflict turned decisively in the Allies’ favour, the time came to reflect on the mistakes that had been made in the management of the post-conflict period after the last war. A conservative approach, favoured by Churchill at least until the war was won, and, as a longer strategy, by the Treasury, was to continue with the inherited structure until the prospects of peace could be realistically assessed. In June 1941, however, a committee had been set up to review and ‘tidy up’ the coordination of social insurance. Its chairman, Beveridge, had established subcommittees which had reported on many different types of need.341 The Treasury seems to have viewed the committee as essentially harmless and one reason for the appointment of Beveridge may well have been that Ernest Bevin, the Minister of Labour, wanted to get him out of his department. No great initiatives were expected.342 However, when Beveridge’s celebrated report, ‘Social Insurance and Allied Services’ ,343 was published, in December 1942, it generated immense interest. The final presentation was a brilliant synthesis and simplification and it was largely to be responsible for the social security arrangements of the coming ‘welfare state’.344 339 For the mirage of the ‘Golden Age’, see D Wincott, ‘Images of Welfare in Law and Society: The British Welfare State in Comparative Perspective’ (2011) 38 Journal of Law and Society 343; and more generally, C Pierson, Beyond the Welfare State (Polity, 1991). 340 For the origins of the term see P Hennessy, Never Again: Britain 1945–1951, 2nd rev edn (Penguin, 2006) 9. 341 The Report was published under Beveridge’s signature alone because the Cabinet wished to avoid any suggestion of official acceptance. 342 See J Hills, J Ditch and H Glennerster, Beveridge and Social Security: An International Retrospective (Clarendon Press, 1994) 10–18. 343 PP 1942-3 [Cmd 6404] VI. 344 For the evolution of Beveridge’s ideas, including those which he had to drop from the final Report (among which were plans to improve the position of women), see J Harris (n 331) ch 16; and on the Report’s general impact and importance see the sources cited in the present work at p 113, n 743.

Part 3: Poor Relief and Its Alternatives 441 Whilst Beveridge called for a revolution, the plans were in fact substantially based on an enlargement of what had gone before, building on the foundations that he had helped to lay from 1907 onwards. There was by now substantial support for his proposition that there should be a national health service for all and a child allowance payable to all large families. Further benefits, however, would depend upon contributions, paid mainly by employees in work and their employers.345 A compelling novelty of the report, though, was its proposal that the contributory schemes should be universal in their application, ie applicable in the same ways to all employees. Hitherto, there had been a myriad of different benefits schemes applicable to different occupations. These new universal schemes were to be funded by fixed contributions. Paying these fixed sums would obviously be more burdensome for the poorer than for the richer members of society, and in this sense the schemes would have a regressive effect upon the distribution of income through society. In Beveridge’s view, however, there were important psychological benefits in making everyone participate in contribution to the schemes. The benefits they were to offer would be the same for all and would seek to provide no more than subsistence; anything better was to be left to private thrift. This left the question of what would happen to those who had not made any contributions; and it was determined that for them a vestige of the old poor relief, now called public assistance, was to provide.

ii. Financial Benefits The plans for contributory benefits at the heart of Beveridge’s report had to face some influential scepticism, understandable in the light of the previous 20 years’ experience. The Coalition Government did not respond in any definite way for two years and its White Paper, ‘Social Insurance’,346 was wary of expensive elements in the proposals, such as the principle that pensions and other benefits should reach a level of real subsistence. But for the Labour Government of July 1945, social security was a prime field for state intervention. Its legislation, taken as a whole, drew on an administrative tradition that had its roots in the world of Senior and Chadwick: operation in the hands of a centralised, expert bureaucracy, and a structure of entitlement which largely avoided administrators having to assess the ‘worthiness’ of individual applicants. A new Ministry of Social Security was put in charge of the contributory schemes;347 the ‘long stop’ of national assistance went to a board that was effectively the successor of the UAB and continued its measure of ‘detachment’ from politics.348 The administration of unemployment insurance in the Ministry of Labour, and of sickness insurance and pensions in the Ministry of Health, was taken over in a single department; the participation of the commercial and mutual interests in health insurance – the insurance companies, friendly societies and trade unions as ‘approved societies’ – was terminated.349 Above all, the ancient association of local ratepayers with relief to those in need came to its end.

345 The self-employed would contribute at a rate which entitled them to some of the benefits; working wives would be offered a choice of benefit from their husband’s insurance or their own. 346 PP 1943–44 [Cmd 6550] VIII. 347 National Insurance Act 1946; National Insurance (Industrial Injuries) Act 1946. 348 National Assistance Act 1948. 349 See pp 430–31.

442 Poverty and Education Thanks to the plan for national health services, national insurance no longer had to provide medical attention and would be confined to financial support. It would provide, at a single rate (initially 26s a week, plus 16s for an adult dependant and 7s 6d for each child) for the unemployed, those incapable of working through sickness350 and those of pensionable age or entitlement.351 In addition, a novel scheme was introduced to assist the parents of large families. A weekly family allowance of 5s was now payable to all for each dependent child after the first.352 The entitlement was universal in the full sense, depending neither upon contribution nor upon tested need. Even the unions, initially suspicious of the plan as a cheap substitute for wage increases, had come to accept that the problem posed by large families was too acute to be left to the gradual course of improved earnings.353 As a whole, these benefits were thought sufficient for a frugal subsistence anywhere in the country, despite evident differences in rent, food costs and other variables between districts. Whether the proposals would indeed prove adequate was unknown, but two optimistic assumptions were made. First, it was believed that in the future any threat of widespread unemployment could be averted by the judicious intervention of the Government. Such interventions would help to attract new industrial investment to those areas that suffered from long-term unemployment, and the Government more broadly would intervene throughout the country to supply short-term employment when there were periodic downturns in the economy. Secondly, it was assumed that real incomes would increase over time, ie that wages would rise faster than living costs. As the standard of living rose, so the differential between the conditions of the average employee and those on benefits or national assistance would grow wider. Thus whilst the unemployed would be maintained at bare subsistence, the incentive for them to seek employment would grow ever greater. This supposition depended much on Keynes and the younger generation of economists, who had argued that it was quite possible for there to be full employment at more than bare subsistence wages.354 Beveridge shared that belief and the optimism sustained in the Labour victory in 1945. Fortunately for the future of social security, the predictions would gradually come to be realised as the country regained its peace-time momentum. As with all great expressions of social aspiration, the Beveridge plan and the manner of its implementation were informed by their environment and by the history of the inter-war years. A feature of those years had been low inflation. In time, inflation in the post-war period was to undermine the contributory base of the schemes, but fortunately rising income from general taxation made it possible to sustain them. Social insurance, though, continued to feature prominently upon political agendas, for Beveridge’s scheme of flat-rate, fixed benefits was constantly under attack for falling behind real costs and rising expectations. Means-tested but non-contributory national assistance remained more important than had been anticipated, with it being regularly called upon to supplement 350 But for historical reasons, victims of industrial accidents were allowed a higher rate. 351 Beveridge had expected a 20-year transition period to bring retirement pensions up to this level, but the Government boldly initiated them from the outset. 352 Family Allowances Act 1945. Beveridge had proposed a rate of 8s. 353 On the convoluted campaign for family allowances, see P Hall et al, Change, Choice and Conflict in Social Policy (Heinemann, 1975) 179–230; J MacNicol, The Movement for Family Allowances 1918–1945 (Heinemann, 1980). 354 For the place of Keynes’ proposals in the evolution of social provision, see Thane (n 266) ch 7.

Part 3: Poor Relief and Its Alternatives 443 contributory benefits. The principle of contributions paid as an insurance for the future survived, however. It was liked by Chancellors of the Exchequer as an employment poll tax that could be kept somewhat apart from arguments over rates of income taxation. Beveridge had keenly perceived that contributions which earn benefits – or which appear to do so – would have an enduring appeal in a society which retains powerful elements of economic self-determination in its make-up.

iii. National Health By 1938 there were 3,137 hospitals in England and Wales of which 40 per cent were in the voluntary sector. In the voluntary hospitals, surgeons and physicians often gave their time for free, deriving their reputations from their positions at such hospitals whilst their income came from private practice.355 Patients normally gained entry through a subscriber group that would write a recommendation on their behalf. The voluntary hospitals themselves relied on charitable donations, bequests and the like, but also increasingly on patient payment through the contributory schemes for hospital care. By 1938 there were some ten million members of such schemes.356 The public hospitals derived from the old workhouse infirmaries and hospitals for infectious diseases. Together they made up a service which the Nuffield Hospital Survey identified as having many geographic disparities,357 a proliferation of small and inefficient hospitals, inadequate Victorian wards, and insufficient staff.358 There was a general failure to rationalise services, and public hospitals in particular were overcrowded despite still being tainted with the attitudes and atmosphere of the workhouse.359 Some improvement came in 1938 with the establishment of the Emergency Hospital Service, which ran through the war coordinating services for armed forces personnel and war workers. Many of the public regarded the state of health provision through its patchwork of contributory schemes, free and private hospitals as unsatisfactory.360 In consequence, campaigning by the Socialist Medical Association for reform has been said to have contributed significantly to the scale of the Labour victory in 1945.361 In fact, the concept of a national health service had already been accepted before by Ministry of Health officials and approved by an influential Commission of doctors even

355 For an overview of medical care prior to the war see N Hayes, ‘Did We Really Want a National Health Service? Hospitals, Patients and Public Opinions Before 1948’ (2012) 127 EHR 621, 625–29. 356 S Cherry, ‘Beyond National Health Insurance: The Voluntary Hospitals and Hospital Contributory Schemes’ (1993) 5 Social History of Medicine 455. See also S Cherry, ‘Before the National Health Service: Financing the Voluntary Hospitals, 1900–39’ (1997) 50 Econ HR 305; M Gorsky, J Mohan and M Powell, ‘The Financial Health of Voluntary Hospitals in Inter-War Britain’ (2002) 55 Econ HR 533. 357 Powell suggests that there were considerable disparities between the availability and quality of institutions in different towns and regions. One is tempted to say ‘plus ça change …’. See M Powell, ‘Hospital Provision Before the National Health Service: A Geographic Study of the 1945 Hospital Surveys’ (1992) 5 Social History of Medicine 483. 358 TNA MH 80/34, ‘Hospital Surveys’ cited in Hayes (n 355) 631. 359 A Levene, ‘Between Less Eligibility and the NHS: The Changing Face of Poor Law Hospitals in England and Wales, 1929–39’ (2009) 20 TCBH 322, 339. 360 CR Lowe, The Welfare State in Britain Since 1945, 3rd edn (Palgrave Macmillan, 2005) 175. However, Hayes (n 355) shows that there was no clear consensus as to what should supersede the established system. Middling groups in particular were still attracted to voluntary contributory schemes and there remained considerable affection for small cottage hospitals maintained by such schemes. 361 J Stewart, The Battle for Health: The Political History of the Socialist Medical Association (Ashgate, 1999) 146.

444 Poverty and Education before the Beveridge Report.362 During the war, however, the Coalition moved away from so radical a step and considered the potential of more piecemeal reforms.363 It was the energy of Aneurin Bevan, Minister of Health in the Attlee Cabinet, which ensured that Britain would indeed emerge as the one country among those immediately comparable, in which medical attention for individuals would shift from an incomplete, contributory scheme, run in conjunction with commercial and mutual organisations outside government, to a truly collective responsibility. In his vision, the scheme would be led and financed from the centre, but local authority contributions would continue in the field of public health (including school health services) and in creating and maintaining health centres for medical practice throughout the country. The legislative foundation for this was laid in the National Health Service Act 1946, to come into effect two years later. The service was to be free, save where specific charges were prescribed;364 and no upper income limit was to be imposed, so that all could benefit from the provision. None of this could have been accomplished without the cooperation of the doctors. Polled in 1944, 60 per cent of doctors were in favour of a universal health service and 69 per cent believed that hospital services should be free of charge.365 That is not to say, however, that even those in favour of a national service would have remained so well disposed if practical implementation had meant a nationalisation of the medical professions. What emerged in 1946 was a national system which nevertheless managed to recognise the autonomy of the medical professions within it. The consultant specialists secured arrangements by which they could do part-time work for the NHS and keep a private practice as well, which indeed might make use (on a paying basis) of beds in NHS hospitals.366 They were to be supervised by 20 Regional Hospital Boards appointed by the Minister (after consultation with interest groups); each was to be run by its own management committee.367 The GPs also had to be wooed. They were concerned that they would be subsumed into a health bureaucracy which would undermine the close trust of the doctor–patient relationship. In the event there was no attempt to make them salaried employees. Rather, they were to be allowed lists of patients (to a maximum of 3,500, or 5,000 in partnership) for which they would receive a fee per head per annum.368 They could also have private patients and normally they could refuse to accept particular individuals, just as patients might seek to be transferred to another doctor’s list.369 Thus were the essential freedoms of the doctor– patient relationship preserved. One important new limitation was that GP practices could 362 Influential support for, and knowledge in, establishing the National Health Service was gleaned by the involvement of leading specialists in planning the wartime Emergency Medical Service. See generally: F Honigsbaum, Health, Happiness and Security: The Creation of the National Health Service (Routledge, 1989); C Webster, The National Health Service: A Political History, 2nd edn (Oxford University Press, 2002); C Mulholland, A Socialist History of the NHS: The Economic and Social Forces that Have Shaped the National Health Service (VDM Verlag, 2009). 363 White Paper, ‘A National Health Service’, PP 1943–44 [Cmd 6502] VIII. 364 National Health Service Act 1946, s 44; charges were to be levied for spectacles and apparatus, dental services and drugs. 365 British Medical Journal, 5 August 1944, Supplement 25–29, cited in Hayes (n 355) 641. For a full discussion of the response of the doctors’ professional organisations, see M Rintala, Creating the National Health Service: Aneurin Bevan and the Medical Lords (Cass, 2003) Part II. 366 Bevan thought this arrangement preferable to causing an upsurge of private hospitals. 367 National Health Service Act 1946, Part II. The influential teaching hospitals were left with their own boards of governors and allowed to keep their endowments: s 8. 368 Dentists, however, negotiated rates for work performed; with them the danger was unnecessary, rather than skimpy, work. 369 Subject to an ultimate power given to the Executive Council to allocate the unacceptable: s 33.

Part 3: Poor Relief and Its Alternatives 445 no longer be sold commercially. However, £66 million was allocated as compensation for affected GPs. A Medical Practices Committee was established to review the provision of practices. It could not force GPs to relocate to areas of need, but it could restrict the opening of new practices in over-supplied neighbourhoods, and this of course was generally regarded favourably by those in established practices.370 Partly because of their experience with national health insurance and Poor Law services, the medical profession harboured considerable suspicion of local authority control. The supervision of GP services was accordingly not awarded to counties and county boroughs, but to Executive Committees covering the same areas but composed half of representatives of central and local government and half of the medical, dental and pharmacist professions, with a Chairman appointed by the Minister. Local authorities would continue to employ medical officers and other staff for their own services in the field of public health.371 Although they were no longer to provide GP or hospital services to the poor, a number of ancillary supports – maternity, childcare, health-visiting, ambulances – would remain with them and would in some cases be made mandatory for the first time.372 But the local authority health centres, for all their place in Bevan’s Act, had to be abandoned as the essential link between GPs, hospitals and local authority services.373 Financial constraints and professional hostility ensured that only a few were set up.

iv. The Future of Charity The taking-over by the state of social provision naturally had effects upon charitable endeavours. Not that they were to become redundant. Beveridge and others argued that charities should take up new roles in complementing state services by pioneering new types of provision and demonstrating where further state help would be efficacious.374 Whilst the NHS were operating the nationalised hospitals, charitable groups did valuable work for the mentally handicapped and those suffering from particular conditions such as cerebral palsy, and they also financed medical research and experimental health centres.375 Furthermore, over time Beveridge’s flat-rate state benefits fell below the levels of inflation and there remained plenty in need of charitable support. In the difficult economic period between the wars, charities had been largely left to their own devices. The Charity Commission had continued in existence but only as a marginal 370 Whilst the majority of doctors were in favour of a national service, the leadership of the BMA were inclined towards an extension of contributory schemes and were fearful that the establishment of a proposed salaried medical service staffing health centres would undermine the autonomy of the profession. It was only at the very end of the war that they were persuaded. See I Loudon, J Horder, and C Webster (eds), General Practice Under the National Health Service 1948–1997: The First Fifty Years (Oxford University Press, 1998) ch 1. 371 On the rise and fall of Medical Officers of Health, see J Lewis, What Price Community Medicine? The P hilosophy, Practice and Politics of Public Health Since 1919 (Wheatsheaf, 1986). 372 Part III. 373 Section 21 imposed a duty on local authorities to provide them. 374 Voluntary Action (Allen & Unwin, 1948). Then, as now, there was a continually evolving ‘mixed economy’ of health provision (and indeed of welfare provision more generally). For discussion, see G Finlayson, ‘A Moving Frontier: Voluntarism and the State in British Social Welfare, 1911–1949’ (1990) 1 TCBH 183; J Lewis, ‘Family Provision of Health and Welfare in the Mixed Economy of Care in the Late Nineteenth and Twentieth Centuries’ (1995) 8 Social History of Medicine 1; J Stewart, ‘The Mixed Economy of Welfare in Social Context’ in M Powell (ed), Understanding the Mixed Economy of Welfare 2nd edn (Policy Press, 2019). 375 Owen (n 19) 544–47 and more generally, ch 19.

446 Poverty and Education agency, sometimes able to help bodies out of difficulties but otherwise rather ineffectual.376 One feature of that period had, however, been rising taxation, and it was this which was to give the state a new reason to consider the usefulness and effectiveness of voluntary organisations. Over the course of time, charities had been granted a series of reliefs in respect of rates and taxes, for instance during the introduction of Pitt’s first income tax in 1799. Such reliefs generally went to all charitable bodies and the wide range of purposes they served gave rise, in financially strapped times, to concerns about whether relief should be granted so liberally. In 1863 Gladstone had sought, as Chancellor of the Exchequer, to do away with the income tax exemption. In 1920, the Colwyn Commission on Income Tax had wanted a more limited definition of the objects that would qualify.377 Parliament, however, was not prepared to take such a stand.378 The House of Lords, equally, had refused to hold that tax legislation referring to ‘charitable purposes’ was in fact referring to purposes that were more narrowly defined than the courts had allowed in their interpretation of the rough four-fold classification of objects drawn from the preamble of the Statute of Charitable Uses 1601.379 However, by the end of WWII the courts were taking a rather more scrupulous view of what would qualify as charitable status. They were insisting that there should be a public benefit element in educational and other charities; the beneficiaries could not be confined to the members of one family or the employees of one firm.380 The purposes, moreover, had to be exclusively charitable,381 and this could not include as a substantial object the securing of law reforms,382 or the provision of merely recreational facilities.383 The novel severity of this litigation helped to make inevitable a political review of the ground rules for charitable donation and administration. The Attlee Government would appoint a Committee under Lord Nathan which would in essence accept Beveridge’s case for the crucial supplementative role of voluntary action; and from this eventually would come legislation designed to put the Charity Commission on a more effective footing as registrar, supervisor and assistant

376 Accordingly they attracted a good deal of criticism before the Nathan Committee: Owen (n 19) 584–86. 377 Owen (1960) (n 19) 330–36 (noting a further recommendation to the same effect from the Royal Commission on Taxation of 1955). 378 A provision of the Finance Act 1922 (s 20) ended the device of effectively transferring income from one (highrated) taxpayer to another (low-rated) by the device of a covenanted gift; but an exception was still allowed for such a gift if it extended for seven years or more. This was picked up by charities in the 1920s as a means of attracting donors and became standard fund-raising practice: see Owen (n 19) 336–38. 379 In Baird’s Trustees v Lord Advocate (1888) 15 R 682, the Scottish Court of Session had agreed with the Revenue’s view that, for tax exemption, there must be an element of poverty relief in the charity’s object. But, following English precedents on other aspects of charitable status, the majority of the HL adhered to the broader view in Special Commissioners of Income Tax v Pemsel [1891] AC 531. See Chesterman (n 7) 58–61. 380 Wernher’s Trustees v IRC [1937] 2 All ER 488; Re Compton [1945] Ch 123; Gilmour v Coats [1949] AC 426; Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297. See also Chesterman (n 7) 153–57, 160–63, 170–71; and for the special exception traditionally allowed to ‘poor relations’ charities, 144–47. For the history of the modern law, see M Synge, ‘Poverty: An Essential Element in Charity after All?’ (2011) 70 CLJ 649; J Garton, Public Benefit in Charity Law (Oxford University Press, 2013). 381 Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341; Oxford Group v IRC [1949] 2 All ER 537; Ellis v IRC (1949) 93 SJ 678. 382 National Anti-Vivisection Society v IRC [1948] AC 31; discussed in J Garton, ‘National Anti-Vivisection Society v Inland Revenue Commissioners (1948)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). 383 IRC v Baddeley [1955] AC 572; this however was to be reversed by the Recreational Charities Act 1958; see Chesterman (n 7) 171–74; P Smith, ‘Charity and a Question of Sport’ (1998) 5 Charity Law and Practice Review 135.

Part 4: Education – The Modern Structure 447 of charities. The subsequent report led to the re-affirmation of the broad powers to redirect funds cy-près, which had earlier been exercised by some of the Victorian judges.384

Part 4: Education – The Modern Structure A. The Education Act 1902 The Elementary Education Act 1870 had created democratic local school boards empowered to provide elementary education in places where the voluntary provision organised by religious societies, was inadequate. However, the Act had been extremely vague as to what constituted merely elementary education, and the question of whether local voluntary provision was adequate was open to dispute. Initially, the emphasis of the legislators had been upon teaching reading, writing and arithmetic to the standards required in Lowe’s Revised Code; but soon teachers, especially those in the larger urban board areas, were striving to add subjects that would satisfy the abler pupils and be more stimulating to teach. The Education Department sought to regulate this pressure by claiming the standards in its Code to be the determinant, but in 1875 it admitted English, History, Geography and Elementary Science as ‘class’ subjects. The list was further expanded in 1882 by the addition of subjects such as French, Physiology and Drawing. Buoyed up by demand, many board schools added higher-grade classes so that pupils could stay on after finishing the elementary aspects of their education. In some places, separate higher-grade schools were established for those who had completed the elementary system. Evening continuation schools appeared (often running courses funded by the Government’s Science and Art Departments) and also pupil-teacher centres designed to train the next generation of elementary school teachers. The need for technical education, inspired by envy of, and anxiety at the success of, schools for the lower middle-class in France, Germany, Switzerland and Austria resulted in a Royal Commission on Technical Instruction.385 In 1889 Salisbury’s Government empowered the county and county borough councils, which it had just created, to raise a rate of up to one penny in the pound for establishing their own technical schools, making grants to existing institutions, or providing scholarships, for technical education.386 Educational provision appeared to be blossoming, and these ‘upthrusts from the elementary system all began to emerge under school board control as workable, affordable and occupationally relevant alternative forms of secondary education which were not exclusive on the grounds of fees, social class and culture.’387 This was not viewed with universal enthusiasm, however. The 1870 Act had failed to make any financial provision for voluntary, mainly denominational, schools. At an elementary level, these schools began to struggle to match the educational provision of the subsidised board schools. At the senior level, the establishment and success of higher grade schools 384 Report, PP 1952–53 [Cmd 8710] VIII. Implementation had to wait until the Charities Act 1960. 385 PP 1884 [3981] XXIX, XXX. 386 Technical Instruction Act 1889. 387 W Robinson, ‘Historiographical Reflections on the 1902 Education Act’ (2002) 28 Oxford Review of Education 159, 160.

448 Poverty and Education began to threaten the weaker grammar and public schools, and potentially even the universities. There was still a strong constituency that wished education to be voluntary and under the direction of appropriate religious authority. Similarly, there were those who distrusted the consequences of an over-educated working class managing their own educational provision. RH Tawney remarked that ‘the elementary schools of 1870 were intended in the main to produce an orderly, civil population with sufficient education to understand a command.’388 The vested interests of Conservatism, Anglicanism and voluntarism had every incentive to challenge the development of a pseudo-secondary school sector. Their opportunity was provided by the fact that the Elementary Education Act 1870 had placed school boards under the same arrangements for the audit of their activities as were provided for the Poor Law and sanitary authorities.389 School boards which had spent money in excess of permitted expenditure under the Act could be surcharged for that expenditure – if, that is, an appeal to the Local Government Board had gone against them, or if their activities had been declared unlawful by the Divisional Court of the Queen’s Bench Division. Regular appeals were made to the Local Government Board by those seeking to resist the expansionist policies of school boards, and in the 1880s it was through this administrative machinery that the boards were disallowed rate-supported nursery schools and separate science schools. In 1895 the Conservative party returned to government and its policy, hitherto fairly indulgent as to the activities of school boards, then changed decisively.390 The Bryce Commission reported that there was no hope of meeting the demand for secondary education on the basis of purely voluntary provision. It therefore proposed that a rated element should be introduced into the financing of secondary schools, and that there should be publicly financed scholarships and exhibitions for pupils from the local elementary and higher grade schools to charitable and proprietary schools recognised as efficient. It also recommended that the authority in charge at local level should be the county council, able to plan upon a substantial scale, rather than the school board.391 However, an attempt to transfer authority to the councils failed in 1896. In 1898 Robert Morant (who would become Permanent Secretary of the Board of Education in 1902) issued a report on education in Switzerland in which he strongly urged the creation of a centralised structure for elementary and secondary education, as opposed to the system of school boards.392 Morant was to be a formidable opponent of the quasi-official secondary system that the school boards had created. In 1899 a new clause was added (Clause VII) to the conditions for grants from the Science and Art Department, which meant that local boards were no longer eligible to receive the department’s grants. The following year, a system of Higher Elementary Schools was established in which pupils could remain until the age of 15. However, the curriculum was much narrower than in many of the existing higher grade schools. Those existing schools were, for the most part, not recognised as Higher Elementary Schools 388 RH Tawney, Education: The Socialist Policy (ILP, 1924) 22, cited in L Brockliss and N Sheldon (eds), Mass Education and the Limits of State Building, c 1870–1930 (Palgrave MacMillan, 2012) 48. 389 Elementary Education Act 1870, ss 8–10, 63. 390 The most detailed account of this extremely fractious period in education reform and the internal politics of the Board of Education is in N Daglish, Education Policy Making in England and Wales: The Crucible Years, 1895–1911, 2nd edn (Routledge, 2013). 391 PP 1895 [C 7862] XLIII. 392 RL Morant, ‘The National Organisation of Education of all grades as practised in Switzerland’, Special Reports on Educational Subjects, 3, PP, 1898, XXV.

Part 4: Education – The Modern Structure 449 and continued in an uncertain state until 1902.393 1900 saw an attack upon the London School Board when a ratepayer, Francis Black, who happened to be the proprietor of the Camden School of Art, asked the public auditor, T Barclay Cockerton, to determine whether the board’s expenditure on items of post-elementary education for both children and adults was lawful. Black also happened to be a personal friend of the Board of Education Vice-President, Sir John Gorst, who, together with Morant (then his private secretary), were the chief opponents of the boards. It was Gorst who actually engineered Black’s challenge, hoping that the Board would appeal the decision and that the result would be a judgment against the Board that could be of much broader application. He was right. The auditor disallowed and surcharged three items of rate expenditure which had been used in conjunction with Science and Art grants.394 The Board then appealed without success to the Divisional Court, and then the Court of Appeal. A sense of outrage informed the judgments in R v Cockerton.395 Wills J, for instance, branded the Board’s activities as the perfect example of extravagance. In the wake of this, the Education Act 1902 abolished the school boards and transferred to county councils, to borough councils of more than 10,000 persons, and to urban district councils of more than 20,000, the responsibility for providing elementary education as Local Education Authorities (LEAs). In order to carry out their duties, LEAs were given the power to levy rates.396 Part II of the Act further allowed them to ‘take such steps as seem to them desirable … to supply or aid the supply of education other than elementary.’ Secondary schools henceforth were seen as a rung on the ladder towards university and LEAs acquired the power to grant scholarships to the most able. The process of aiding universities had begun with an annual central grant first made in 1889 of £15,000; this grew to £24,000 by 1902. A University Grants Committee gradually absorbed financial responsibility for the universities, and slow progress was made in opening up university education to those outside the leisured or professional classes. Progress was nowhere slower than in respect of women, and in respect of Oxford and Cambridge. As a result of the efforts of the Association for Promoting the Higher Education of Women (founded in 1878), the first women’s colleges were founded in Oxford in 1879. Cambridge had already admitted women in 1869 on condition that they be educated in Hitchen, Hertfordshire, some 30 miles away. In neither case were women recognised as full members of the university and so they were not allowed to graduate with degrees. That privilege was not awarded at Oxford until 1920 and at Cambridge until 1948. By then, the colleges of the University of London and other ‘new’ universities had already charted a more enlightened course, and from 1878 women were able to study all the subjects of taught within the University of London save one – they were not admitted to Medicine until 1917.397 Of the 1902 Act, Robinson remarks that it ‘made possible the reinstatement of the grammar school as the only recognised type of public secondary education’.398 The preference of the LEAs was to send bright pupils on to further education in such schools and the resources

393 Robinson

(n 387) 162. the episode in detail, see Daglish (n 390) ch 5. 395 [1901] 1 QB 322; followed up with Dyer v London School Board [1902] 2 Ch 768. 396 s 2(l). The Local Government Board had to consent to a rate higher than 2d in the pound. 397 For a recent discussion see N Harte, J North and G Brewis, The World of UCL (UCL Press, 2018) ch 4. 398 Robinson (n 387) 163. 394 For

450 Poverty and Education which they provided for this demonstrably succeeded in advancing some working-class children. In 1897 boys from skilled and unskilled manual backgrounds had provided only nine per cent of grammar school pupils, but by 1910 this had risen to 20 per cent.399 For those outside the grammar and public school system, the m inimum age for leaving school had already been raised from 11 to 12 in 1899,400 and what was defined as ‘elementary’ teaching could now be provided up to the age of 15, but not normally beyond.401 The Conservative Anglican interest was well-served by the Act, insofar as Part III brought the voluntary, mainly church schools (predominantly, of course, Anglican) under the control of the LEAs. The LEAs gained the power to appoint a third of their governors.402 However, the voluntary schools made a great gain, since henceforth they were to be supported by the rates as well as by board grant. In return for a modest surrender of independence they had acquired financial security. The Nonconformists could only secure the precondition of a conscience clause allowing withdrawal from religious instruction (the ‘Kenyon-Slaney clause’).403 The 1902 Act is still the subject of controversy. For some gifted children there were new opportunities at the grammar schools. In addition, some of the better higher grade schools survived and were simply converted into municipal secondary schools.404 There was perhaps much to be said for a more centralist approach as a necessary precursor to attempts to raise overall standards. However, the demise of the school boards meant a shrinking of the diverse range of educational provision that they had sponsored. Many higher grade schools closed. In addition, many evening classes disappeared once the Board of Education was able to insist that central grants were to be used only for advanced teaching and not for the supposedly light-weight, often recreational courses which had proved so popular in London evening schools.405 Furthermore, in 1903 Morant introduced regulations that required pupil-teachers to spend four years at a secondary school prior to taking up a teaching apprenticeship at the age of 16, and this led to the demise by 1907 of the independent pupil-teacher training centres that the school boards had established. Meriel Vlaeminke describes the 1902 Act as a ‘wasteful, ill-informed and retrogressive step’, believing that ‘the higher grade schools were a vital constituent of a developing range of educational institutions … which were all blossoming at the close of the nineteenth century in response to an upsurge of educational demand.’406 Heather Ellis remarks that for those in the elementary schools, the curriculum ‘assumed an increasingly workaday character in the years leading up to the First World War’, whereas ‘the newly expanded secondary sector, confined largely to the state-aided grammar schools, was characterised by a curriculum closely modelled on that of the public schools.’407 In short, for those whose education was to remain at the elementary level, the higher intellectual aspirations hitherto evidenced in the curriculum of the higher 399 M Sanderson, Education and Economic Decline in Britain, 1870s to the 1990s (Cambridge University Press, 1999) 10–11. 400 Elementary Education (School Attendance) Act 1893 Amendment Act 1899. 401 Section 22(2). 402 Section 6(2) and for other controls, s 7. 403 Section 4(2). 404 Daglish (n 378) ch 13. 405 Education Regulations 1904. 406 M Vlaeminke, The English Higher Grade Schools: A Lost Opportunity (Woburn, 2000) 28. 407 H Ellis, ‘Elite Education and the Development of Mass Elementary Schooling in England, 1870–1930’ in Brockliss and Sheldon (n 388) 64.

Part 4: Education – The Modern Structure 451 grade schools faded away. Education for the majority became more vocational in nature. But in the developing secondary sector the trend was if anything the other way, with education for the few based upon classical humanism. Thus was reinforced that observable trait in British society which still regards vocational or practical education as a route taken by the intellectually and even socially inferior. In this respect, the road taken by British education was crucially different from that taken in most European countries, where the urge to catch up in the industrial race fostered both the growth and the status of technical and other useful training. The passage of the Bill had seen a great deal of Nonconformist antagonism.408 There was much resistance to the idea of ratepayers being obliged to support denominational schools. A persistent campaign of civil disobedience resulted, occupiers refused to pay their rates, and many were prosecuted or had their possessions distrained.409 Local authorities in Wales and elsewhere refused to cooperate and the Board of Education responded by making direct payments to voluntary schools rather than including the amounts in the grant to the LEA.410 Yorkshire County Council adopted the tactic of reducing teachers’ pay for the time spent in religious instruction, but the (judicial) House of Lords eventually ruled this illegal.411 The Swansea LEA calculated payments to teachers in voluntary schools at a lower rate than for teachers in their own schools, using the argument that there had previously been such a differential. This gave rise to a well-known decision on proper administrative procedures, Board of Education v Rice.412 The House of Lords effectively upheld the Board’s view that such a practice was inadmissible; and there was clear acknowledgment of the Board’s arbitral capacity – given to it alone – to settle disputes between an LEA and a voluntary school’s managers, subject only to judicial review where basic procedural requirements of natural justice had not been observed. The judgment was powerful confirmation of the position which Morant had sought for the Board of Education. The statutory rubrics made it difficult for opponents to challenge administrators’ decisions, and this left the Board with quite a free hand to encourage experimentation and to strengthen its own arrangements for the training of pupil-teachers. On the political front, the Liberals had attracted votes in 1905 with a pledge to reverse the religious preference of the 1902 Act. But it was over their Bill to do so that the (legislative) House of Lords first determined to assert its independence, and in the end and the Liberals chose to bide their moment for battle with the Upper House.413 Instead the Government was pushed towards a first measure of social protection through the education system. They took up (in weakened form) a Labour MP’s Bill for subsidised school meals,414 and they 408 DM Thompson, K Dix, and A Ruston (eds), Protestant Nonconformist Texts: The Twentieth Century (Ashgate, 2007) 220; DW Bebbington, The Nonconformist Conscience (Routledge, 2014) ch 7. 409 The leading figure in the campaign was the Nonconformist Minister, Dr John Clifford: see Bebbington (n 408) ch 7; MR Watts, The Dissenters: Volume III: The Crisis and Conscience of Nonconformity (Oxford University Press, 2015) ch 10. 410 Education (Local Authority Default) Act 1904: applied to two Welsh authorities, despite Lloyd George’s threat (empty as it proved) that chaos would result throughout Wales. 411 Att-Gen v West Riding of Yorkshire CC [1907] AC 29. 412 [1911] AC 179. 413 The first Bill, presented by Augustine Birrell, was followed by two government attempts in 1908 (one directed by McKenna, the other by Runciman) at the same objective; they were lost not only among religious factions but also through opposition from teachers, who for the first time were beginning to mobilise. See Simon (n 186) ch 8. 414 Education (Provision of Meals) Act 1906. The Government was shamed into this by the activism of Sir John Gorst: HD Hendrick, Child Welfare: England 1872–1989 (Routledge, 2003) 96–101.

452 Poverty and Education allowed Morant to engineer an Act on medical testing in schools which he (with the Webbs) hoped to use as the starting point for local health services.415 Both feeding and doctoring had a certain attraction even for those who remained generally opposed to state support systems, for the extent of unfitness in the populace, revealed in the scare stories of the Boer War,416 boded ill for the maintenance of a vast, scattered empire. The House of Lords accordingly tolerated these innovations, and this in turn encouraged the Liberals to believe that further state interventions were possible.417

B. Inter-War Plans In the inter-war period the pattern of collaboration between central and local authority was such that real initiative lay with the LEA. If the LEA was intent upon reforms then the board could do a great deal to shape and assist them. However, if the main thrust of the LEA was in the direction of keeping rates down then the board had few weapons in its armoury. Some new obligations would be imposed in the period after 1918, mainly because education became a major instrument in reconstruction plans. Even before the war ended, a new Education Act in 1918 set forth a bold proclamation: ‘With a view to establishing a national system of education available to all persons capable of profiting thereby, it shall be the duty of the councils of the counties and county boroughs to contribute thereto by providing for the progressive development and comprehensive organisation of education’; and they were required to put forward schemes of action to the board. The age of compulsory schooling was raised to 14 and fees in public elementary schools were completely abolished.418 The Act explicitly encouraged new ventures in terrain neglected during the Morant era: advanced instruction for those who stayed in the elementary system from the age of 14, the introduction of practical subjects and physical training, and aid for nursery schools.419 Central financing of local authorities ceased to be related to particular schools, and became instead a block grant of at least half the total expenditure.420 The ambitions of the 1918 Act were, however, to suffer at the hands of a Treasury responding to the economic conditions of the inter-war years. The Geddes axe of 1921 cut out a great deal of the new plans for secondary and continuation schooling. Ten years later, the National Government reduced building grants to local authorities, cut teachers’ pay, and introduced a parental means-test for free places at grant-aided secondary schools. A particular feature of these times was the apparent shift of educational power as between the denominational ‘non-provided’ sector and the ‘provided’ state schools. 415 Education (Administrative Provisions) Act 1907. Hendrick (ibid) 104–06. In the event, it was not until the NHS of 1948 that the schools medical services provided treatment as well as diagnosis. 416 Officially investigated by the Royal Commission on Physical Training (Scotland): PP 1903 [Cd 1507] XXX, and an Inter–Departmental Committee on Physical Deterioration (highly critical): PP 1904 [Cd 2175] XXXII. 417 For Dicey, the school meals legislation was a particular thrust of the collectivist wedge: AV Dicey, Law and Opinion in England in the Nineteenth Century, 2nd edn (Macmillan, 1914) xlix–li. 418 Section 8. As a corollary the restrictions on the employment of children under the leaving age were tightened: ss 13–16. See T Woodin, G McCulloch, and S Cowan (eds), Secondary Education and the Raising of the School–Leaving Age: Coming of Age? (Palgrave, 2013) 46–53. Exemptions which permitted the employment of some children under the age of 14 in particular occupations were abolished by the Education Act 1921. 419 Sections 2, 17, 19. See generally Simon (n 186) ch 3; L Andrews, The Education Act 1918 (Routledge, 1976); Hendrick (n 414) 71, 88. 420 Section 44.

Part 4: Education – The Modern Structure 453 The requirement under the Education Act 1921 that voluntary societies pay for the upkeep of their own school buildings was just one of the reasons why some 20 per cent of such schools disappeared in the inter-war period. By the outbreak of WWII, although nonprovided schools still amounted to roughly half the total number of schools (10,553 out of 20,906), they were generally much smaller. More than three million pupils were now enrolled in council-provided elementary schools, as opposed to 1.25 million in the non-provided sector. In secondary schools the disparity was even greater, with only 70,000 pupils in the non-provided, as opposed to 423,000 in the provided schools. Opinion within the teaching professions, as expressed through the NUT and TUC, was resolutely in favour of state provision.421 So parlous were the finances of voluntary schools (many Anglican) that even senior churchmen were doubtful that they could be maintained. By 1936 they were ready to surrender more of their independence in return for government assistance towards new building costs. Despite the difficulties of maintaining non-provided schools, the churches were naturally reluctant to surrender the opportunities and influence that arose from them, and this was perhaps all the more so because their influence was waning upon another front. The inter-war years saw a dramatic decline in enrolment in Sunday schools, which fell by about 50 per cent.422 The financial constraints of the times meant that it was much easier to think about further reform than to finance it. A number of official inquiries began to shape the policies which would dominate the period after 1944, the voice of the education expert becoming ever-more penetrating. The first Labour Government gave the Board’s Education Committee, under the chairmanship of Sir WH Hadow, the task of reviewing education for the general run of adolescents. In 1926 it recommended the crucial strategy that would eventually underpin the Butler Education Act of 1944:423 compulsory education should continue until 15 and all state schooling should divide into primary and secondary levels at ‘11-plus’. In the second stage, pupils would, according to ability and inclination, go either to a grammar school or to a new form of ‘modern’ school which would bring a practical, non-abstract approach to learning. In addition, there would be some scope for trade and other strictly technical schools, though their relation to the secondary modern schools was not worked out in detail. The basic ‘11-plus’ division would be made through the new science of educational psychology, which preferred intelligence testing at that age as a reliable guide to the future capacities and development of each child. These were influential ideas from the start, and a number of LEAs began, despite the setbacks of 1931, to build up their secondary school resources to achieve the primary/ secondary division. In 1938, the Consultative Committee, now chaired by Sir Will Spens, again confirmed the desirability of splitting secondary education into streams: it now placed more emphasis on the need for a third, technical channel, but it specifically rejected as too cumbersome and difficult the notion of a ‘multilateral’ school (or ‘comprehensive’

421 SD Green, The Passing of Protestant England: Secularisation and Social Change, c 1920–1960 (Cambridge University Press, 2011) ch 6. 422 C Davies, ‘Moralisation and Demoralisation: A Moral Explanation for Changes in Crime, Disorder and Social Problems’ in D Anderson (ed), The Loss of Virtue: Moral Confusion and Social Disorder in Britain and America (Social Affairs Unit, 1992) 1–13. 423 Education of the Adolescent (1926). The Committee later reported on The Primary School (1931) and Infant and Nursery Schools (1933).

454 Poverty and Education as it later became).424 This was a step back from the Hadow Report, which had at least warned of the danger that the secondary modern schools might become second-rate in every form of provision, and so embalm an inherent division between middle- and working-class schooling. Only subsequently, in the Norwood Report, would there be some consideration of restoring to the basic plan the Webb–Morant notion of a ladder for all of ability, whatever their social background: the possibility of a ‘13-plus’ change of school from modern to grammar for the most able was recommended.425 Still the central concept remained that separate schools would best foster the pupil’s ‘special cast of mind’, his or her ‘special interest and aptitudes’.426

C. The Education Act 1944 The Education Act 1944 was peculiarly the achievement of RA Butler, a man who believed that the 1902 Act had damaged both the Conservative Party and the Church of England.427 Butler received considerable support from Archbishop Temple. By 1942 Temple had come to support the idea of increased state control over Anglican schools, since it would ‘not only save the state a very good deal [of money] but at the same time [would] get … [the Church] into the position of a cooperative colleague with the Government and the LEAs and so immensely extend our influence.’428 What emerged in 1944 was an Act which put the modern education system on a centrist-Conservative base. The place of the essentially private, ‘public’ schools – charitable or sometimes proprietary in organisation – was preserved, while making them subject to state inspection for minimum standards.429 Likewise, the direct grant schools were allowed to continue in receipt of state aid for a proportion of local authority places, while keeping their autonomy over all decisionmaking, and maintaining a largely middle-class intake.430 As Temple had hoped, the role of Anglicanism within education was not only secured but enlarged. Henceforth, the school day in every voluntary or state school had to begin with an act of religious worship and religious instruction was to be on every curriculum.431 In state schools, religious instruction was to follow a syllabus locally that had been agreed by four committees. The first of these was to be constituted by the representatives of religious denominations that the LEA considered should be present. The second, was, in England, to be a committee of representatives of the Church of England. The third was to be a committee of teachers; and the fourth

424 Secondary Education (1938). The Education Act 1936 had provided for the introduction of compulsory education to 15, but WWII intervened just before implementation was due. See D Rubinstein and B Simon, The Evolution of the Comprehensive School 1926–66 (Routledge & Kegan Paul, 1969) chs 1 and 2. 425 Between the wars, economic and cultural barriers had prevented many working-class children from climbing the Webb–Morant ladder: JE Floud (ed), Social Class and Educational Opportunity (Heinemann, 1956); DV Glass, ‘Education and Social Change in Modern England’ in M Ginsberg (ed), Law and Opinion in England in the 20th Century (Stevens & Sons, 1959) 329–34. 426 Curriculum and Examinations in Secondary Schools (1943). The social assumptions of this report would subsequently be seriously criticised. 427 Green (n 421) 227. 428 LPL/WTP, 19/366: Temple to Glenday, 13 October 1942, cited in Green (n 421) 240. 429 Even so, the provision of the 1944 Act (s 77) would not be brought into effect until 1957. 430 This system had first been instituted in 1926. 431 1944 Act, ss 25–30.

Part 4: Education – The Modern Structure 455 of representatives of the local authority. Each committee had one vote and without all four votes the syllabus could not be agreed. Thus, in England at least, any syllabus of religious instruction had to be agreed by at least one committee of the Church of England, and also by another committee which they would very often dominate. Thus was the position of the Church of England entrenched.432 It was also relieved of a considerable financial burden since LEAs were now allowed to take over the full responsibility for the costs of a nonprovided school in return for a majority on the governing body. A church might choose to put a school under this ‘controlled’ status, or keep it as an ‘aided’ school, if it met half the capital costs.433 Cowling described the Act as ‘A moment … of Anglican Resistance’, an attempt to bring Church and state back together and reverse the effects of 1870 and 1902 in keeping them apart.434 The 1944 Act carried forward much of the spirit of the Fisher Act of 1918 in its determination to make education at all stages – now classified as primary, secondary and further – available to all who could benefit. The minimum leaving age was to be 15435 and most pupils were to pass to secondary schools. The mark of the Norwood Committee – the belief that grammar, technical and modern schools were needed to fit the requirements of three types of aptitude within the population – in the end found no direct expression in the Act. Instead, local authorities were to submit to central government (now, significantly, to the Ministry of Education,436 rather than the Board of Education) a development plan by which they proposed to meet their educational needs. The minister then had power to issue Local Education Orders specifying the obligations of the LEA under its proposed plan.437 These obligations would ultimately be enforceable by mandamus or by reduction of the central grant. The powers of compulsion and financial discipline became a crucial ingredient in the mixture of cooperation, negotiation and confrontation between the local and central ‘partners’ in modern education policy. New political antagonisms were emerging, particularly in the area of secondary education, just as the religious controversies had subsided. Conservative governments and local authorities in general preferred a division at ‘11-plus’ into grammar and secondary modern schools. However, much of the Labour movement, sensing in this distinction a social division rather than one truly intellectual, was already drawn to the concept of ‘multilateral’ or ‘comprehensive’ education. In the first phase of operation, there was no great enthusiasm to replace or substantially revise the 1944 Act and so there was some acceptance that different LEAs might pursue different educational strategies. So, for instance, the Attlee Government allowed those LEAs intent on establishing a system of divided secondary schools to do just that, whilst at the same time encouraging those LEAs more sympathetic to their own views (like London) to experiment with comprehensive secondary schools. It was only later that Labour governments moved towards a more determined imposition of comprehensive education. Centralisation gave central government considerable power over educational provision,

432 N Dennis, Uncertain Trumpet: A History of School Education to AD 2001 (Civitas, 2001) 44–46. 433 Section 15. 434 M Cowling, Religion and Public Doctrine in Modern England, vol III: Accommodations (Cambridge University Press, 2001) 691. 435 As already planned (see n 424); there was also provision to raise the leaving age to 16 at a later date: s 35. 436 Part I. 437 Sections 11, 12.

456 Poverty and Education but individual parents were left with little by way of specific entitlement, when it came to fulfilling their own legal duty to ensure the education of their children to the minimum leaving age.438 As with health services, they were entitled to some provision, but they could not insist that a child should be placed in any particular school; but then, they could not in general be obliged to accept a place in a given school either. The Education Act 1944 secured bi-partisan support during its passage, was generally greeted favourably by the public and lasted longer than any of its predecessors. However, from the 1960s onwards it has been much criticised. It was, in the end, not a very radical measure. Its critics have observed in particular that the Act allowed the continued entrenchment of a two-tier system of secondary education, in which pupils perceived as talented were diverted away from the general school system into a revitalised grammar school sector modelled upon the public schools. Many felt that separating one group from the general education system was not desirable – even had the examinations at 11 (the ‘11 plus’) been an entirely accurate method of assessing ability. And in reality the differing quality of educational experiences up until the age of 11, and varying degrees of familial aspiration and support received by different children, meant that middle and upper income groups secured a disproportionate share of the places available in the grammar school tier. To critics, therefore, the 1944 Act cemented class differences rather than dispelled them. Apologists will question what more could have been done in the conditions of 1944, and point to what was achieved – noticing both the revitalisation of schools hitherto in the ‘non-provided sector’ and, of course, the important conviction in the Act that secondary education should be available to all. Some may note the opportunities enjoyed by those working-class pupils who did pass through the grammar school system, and question whether its subsequent decline has not in fact led to a decline in social mobility. Education remains, as ever, the subject of passionate debate.

438 See

ss 35–40.

7 Accidents Courts and lawyers have had little enough to do with the social problems of poverty, sickness and old age, if those phenomena are considered in the round. But, in the industrial period, they have been concerned with accidents and the disruptions, emotional and medical as well as purely economic, which they cause. It has by no means been their exclusive preserve, since their main involvement has been in the process of compensating after the event and only to a lesser extent in the enforcement of criminal laws whose aim is prevention. In the course of a century and a half there has built up a legislative armoury of safety measures which it is principally for technical experts in government inspectorates to enforce. Even within the sphere of compensation, the use of insurance – both private and state – has become so widespread that claims adjusters and civil servants are now as much involved as lawyers. Yet the role played by lawyers in the course of evolution has been so distinctive as to call for a separate treatment of accidents – and in particular of the personal injuries that they cause. The common law view of the proper scope for compensation claims exposed the legal system to perhaps the most sustained allegations of class bias that have befallen it. For politicians and leaders of labour in the generation after 1867 the issue acquired a striking degree of acerbity. The problems were limited enough to seem soluble by positive action. The main outcome of the campaigns against the common law – the workmen’s compensation scheme of 1897 and 1906 – introduced a measure of ‘private’ social protection which would itself prove transitional. Its own propensity for dysfunction was to contribute to the adoption of state-run insurance schemes against unemployment and sickness in 1911; and ultimately in 1945 the accident scheme would become a part – though still a distinct part – of national insurance. The economic debilities which flow from accidents do not of necessity demand more favourable treatment than the adversities of sickness, old age or any other cause, and, in pre-industrial England they seem rarely to have been distinguished. With the coming of industrialisation the level of risks ‘took off ’ in the wake of economic growth and in the 1830s and 1840s, Government inquiries and the activities of a new factory inspectorate led to a cultural reimagining of ‘accidents’ as socially problematic phenomena.1 A world learning the capabilities of utilitarian calculation could think in terms of incentives to take future precautions and these might take the form of compensation to past victims. Even so, it was not until the second half of the nineteenth century that collection began of statistics 1 N Doran, ‘From Embodied “Health” to Official “Accidents”: Class, Codification and British Factory Legislation 1831–1844’ (1996) 5 Social and Legal Studies 523. See also K Figlio, ‘What Is an Accident?’ in P Weindling (ed), The Social History of Occupational Health (Croom Helm, 1985); B Luckin, ‘Accidents, Disasters and Cities’ (1993) 20 Urban History 177; R Cooter and B Luckin, ‘Accidents in History: An Introduction’ in R Cooter and B Luckin (eds), Accidents in History: Injuries, Fatalities and Social Relations (Editions Rodopi BV, 1997); J Moses, The First Modern Risk: Workplace Accidents and the Origins of European Social States (Cambridge University Press, 2018).

458 Accidents of the occurrence of accidents, the nature of the injuries and their relation to the particular population at risk.2 Transport provided the most dramatic evidence of increasing risk. The improvement of eighteenth-century roads through turnpike trusts and new techniques of construction brought a growth of road traffic that constantly threatened the new advances.3 Yet speeds increased: from 4–5 mph in the mid-1700s to 10–14 mph by 1830.4 Keen competition between coaching firms only added to the dangers. ‘Lay out before such thoughtless creatures [ie the ‘lower orders of people’], a road like a race-course and you produce races innumerable, in which a fall is not like that of a slow beast under its burden, but productive almost of certain death.’5 Even after the coming of the railways, highway accidents took a high toll, for the horse was a notoriously uncertain animal. One estimate puts the rate in the 1870s at 100,000 per annum, costing some £500,000.6 In their turn the railways produced disasters which at their worst could be on a large scale, attracting the morbid glamour that is today reserved for air crashes. Beside these ran a succession of more minor collisions, derailments and crossing and shunting accidents, which remained common throughout the nineteenth century.7 Despite the railways’ relative safety, these incidents, with their shocking nature and indiscriminate effects on the general public, became a defining feature of the Victorians’ experience of travel.8 But it was travel by sea that provided the greatest hazards of all, given the immense risks posed by natural forces. In the 1820s Parliamentary opinion began to be stirred against the condition of ships in a new world.9 Yet still in the 1870s well-insured ‘suicide ships’ were allegedly sent to their doom and Samuel Plimsoll secured, over the opposition of the shipping interest, the first version of his well-known ‘line’.10 Transport accidents provided illustrations enough of the different types into which disasters may be classified. The loss of a ship at sea might well leave no evidence from which cause could be traced.11 Likewise on land it might be impossible to identify the cause. 2 See P Bartrip and S Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford University Press, 1983) ch 2 and 75–76, 87, which presents a useful analysis of what figures there are for injuries at work in mines, railways and factories. 3 Not until the techniques pioneered by Macadam was it possible to contemplate the principle that ‘the roads must be made to accommodate the traffic, not the traffic regulated to preserve the roads’: S Webb and B Webb, English Local Government: The Story of the King’s Highway (Longmans, Green & Co, 1913) 172. 4 WT Jackman, The Development of Transportation in Modern England (Cambridge University Press, 1916) vol 1, ch 4, esp 312–18. 5 TD Whitaker, Loidis and Elmete (Robinson, Son & Holdsworth, 1816) 81. 6 WA Dinsdale, History of Accident Insurance in Great Britain (Stone & Cox, 1954) 179, quoting from papers in the Walford Collection. Deaths from horses and horse-conveyances: in 1875, 1,589; in 1876, 1,732: PP 1877 [C 1786] XXV 235; 1878 [C 2075] XXIII, Q 202. 7 The fatal running down of the former Cabinet minister, Huskisson, at the opening of the Liverpool–Manchester Railway in 1830, formed the first precedent. 8 R Harrington, ‘Railway Safety and Railway Slaughter: Railway Accidents, Government and Public in Victorian Britain’ (2003) 8 Journal of Victorian Culture 187; R Harrington, ‘On the Tracks of Trauma: Railway Spine Reconsidered’ (2003) 16 Social History of Medicine 209; N Daly, ‘Railway Novels: Sensation Fiction and the Modernization of the Senses’ (1999) 66 ELH 461 draws attention to Charles Dickens having been a victim of a rail crash at Staplehurst in 1865, as a result of which the novelist suffered shock and anxiety for several years afterwards. 9 For the regulation by a central inspectorate that was the result, see pp 21–28. 10 When first introduced by the Merchant Shipping Act 1876, ss 25–28, it was left to the owner to fix, and so was of little avail. 11 Hence the courts refused to presume that the loss of a ship was from negligence until the owner showed otherwise: Scott v London & St Katherine Docks Co (1865) 3 H & C 596, 599.

Accidents 459 But at sea, and even more upon rail, there might be a failure in the system which was being operated. Trains were run at excessive speeds, not out of the driver’s foolhardiness but because competition between the companies could sometimes be as keen as in the days of coaching. Staff made mistakes because they had too much to do and worked too long at a stretch. Companies refused to pay for the most advanced braking and other safety devices. Yet there were also the cases where the only apparent cause was the casual inadvertence or foolhardiness of an individual and this in circumstances against which there could be little by way of planning. Equally, transport accidents showed that there were distinct classes of victims. There were, first of all, those passengers who were being carried under a contract with the business that in some sense caused the accident. Then there were outsiders who were injured by collision on the highway or with someone else’s conveyance. Again, there were employees engaged in running the transport business. In the case of railways, workers were more exposed to risk of personal injury than passengers or strangers such as crossing-users. As the nineteenth century progressed a passenger’s chance of being killed in a rail accident steadily declined.12 Yet in 1875–1899, 12,870 railway servants were recorded as being killed at work, and 68,575 injured. In 1899 alone this amounted to 1:1000 killed and 1:115 injured.13 There were many other dangerous employments, where outsiders were only occasionally under any risk at all. Worst of all – in the earlier nineteenth century to be ranked beside seafaring – was mining, where injuries to individuals were a commonplace hazard and even major disasters could pass without sustained concern.14 A Select Committee of 1835, reacting to the quest to exploit deeper, more dangerous seams, did no more than put to mine-owners the question:15 how far any object of pecuniary interest or personal gain, or even the assumed advantages of public competition, can justify the continued exposure of men and boys in situations where science and mechanical skill have failed in providing anything like adequate protection.

The owners did a great deal to ensure that any answer came from themselves rather than from outside interferers.16 Despite the first timid steps towards inspection they were able for another quarter-century to treat their workforce as an expendable resource in the quest for industry’s essential fuel. The complex machinery of the new factories also exposed workers to serious hazard. Rapidly revolving parts and shafts caught up limbs and clothing (particularly women’s dresses) with fearful consequences; equally dreadful results could follow from cleaning 12 For the role of the Railway Department of the Board of Trade in imposing improvements in b raking, etc, see H Parris, Government and the Railways in Nineteenth-Century Britain (Routledge & Kegan Paul, 1965) ch 6. 13 According to the Royal Commission on Accidents to Railway Servants (PP 1900 [Cd 41, 42] XXVII) shunters were particularly exposed to risk, suffering as many deaths in a year (1897: 0.52 per cent) as merchant seamen (cf manual rail-servants other than mechanics in general: 0.12 per cent; underground coal miners: 0.13 per cent). A consequent statute, the Railway Employment (Prevention of Accidents) Act 1900, does seem to have induced a noticeable improvement: see PS Bagwell, The Railwaymen (Allen & Unwin, 1963) ch 4. 14 The 216,000 employed in the mines in 1851 had grown to nearly 807,000 by 1901; this was 2½ times the number working on the railways: Bartrip and Burman (n 2) 45. 15 Select Committee on Catastrophes in Mines, PP 1835 (603) V, 5. 16 See generally, p 489.

460 Accidents machines while still in motion.17 Steam boilers, the immediate source of power, could cause terrible havoc when they exploded.18 The risk of injury was exacerbated by the long hours of repetitive drudgery, often in humid, hot, dusty conditions. Despite the constant cry from mill-owners against the foolhardiness and stupidity of the operatives, the frequency of accidents suggested failures of system. Accidents were not separable as a problem from the other dehumanising conditions of industrial work, particularly the long-term threats to health from exposure to gases, dust and effluents. Very little attention could be given by labour unions in the 1830s and 1840s to the specific problems of the injured, though there would be signs of change by the 1850s. The 1840s would however prove to be the period in which the first attempts at imposing direct safety measures were undertaken, through the legislation on factories and the inspectorate which enforced it. While from the 1840s onwards, there was an interweaving of common law compensation and statutory regulation, the frame of reference was in various essentials set by the former. Provided that the overlap is not forgotten, the story deserves to start in the realm of litigation designed to shift the burden of an accident (so far as money can) from victim to perpetrator. The first part of this chapter accordingly deals with the evolution of the tort of negligence up to the 1860s. Then we turn to concomitant developments by way of spreading risk through insurance and avoiding dangers by safety measures. Finally, we discuss the subsequent reaction against the mid-Victorian pattern.

Part 1: Compensation by Civil Suits A. An Emergent Tort At the close of the eighteenth century, the growing dangers on the roads produced an outburst of reported litigation about highway accidents. In these cases, with only minor ripples, it was accepted that liability to pay compensation arose if the plaintiff proved that the defendant’s negligence caused him injury or loss. This was by no means inevitable, for the common law knew no general principle by which to settle the basis of such liability.19 It had defined, by means of the precedents governing its forms of action, a variety of limited situations which gave rise to responsibility for injury to others or damage to their goods. 17 Engels’ observation of the deformed and maimed in Manchester – ‘it is like living in the midst of an army just returned from a campaign’ – is probably overcoloured: cf The Condition of the Working Class in England (Blackwell, 1958) 186–88 with the hostile introduction and notes to that edition by W Henderson and W Chaloner, xix–xx. Nonetheless a medical observer, Dr Charles Thackrah (The Effects of Arts on Health, 2nd ed (Longman, 1832)) and a victim, William Dodd (A Narrative of the Experience and Sufferings of William Dodd, a Factory Cripple (L&G Seeley and Hatchard and Son, 1841)) suggest, as did the Factory Commission of 1833 and Shaftesbury’s Select Committee of 1840–1841, that there was a grave problem; cf the apologists referred to by Bartrip and Burman (n 2) 10–11 and see more generally 9–14; for later statistics, ibid 43 ff. 18 PWJ Bartrip, ‘The State and the Steam-Boiler in Nineteenth-Century Britain (1980) 25 International Review of Social History 77; J Morgan, ‘Technological Change and the Development of Liability for Fault in England and Wales’ in M Martin-Casals (ed), The Development of Liability in Relation to Technological Change (Cambridge University Press, 2010) 51–64. 19 PH Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 LQR 184, characterised a process of continuous development from the time of Bracton as ‘a skein of threads most of which are fairly distinct’ (at 185). See also PH Winfield, ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41.

Part 1: Compensation by Civil Suits 461 There were a number of commercial relationships which were recognised to create duties not to cause injuries or loss.20 In particular, those who exercised the ‘common callings’ – carriers, for instance, and innkeepers – were obliged to protect both persons and goods in their care. In the case of goods, so great was the opportunity of defalcation offered to them, that they had come under a strict duty to look after the objects entrusted to them.21 Many of the accident cases of the 1790s involved such a relationship, being actions brought by passengers against those who undertook to carry them for reward. It was argued for one defendant that liability did not arise in such a case even for carelessness; but the courts would not accept that passengers travelled on coaches at their own risk.22 Nor would they agree that a coach-owner was liable merely upon proof that he or his servant caused the injury, irrespective of any neglect: unlike goods, passengers were not entrusted in strictest confidence. The coach-owner and the ship-owner were to be responsible to their passengers only for neglects and defaults.23 These were not the only accident cases. There were also disputes arising out of collisions on the highway and at sea between strangers unrelated by any contract of carriage. In 1676, Mitchil (or Michael) v Alestree had affirmed that the action on the case lay ‘for negligence’ against a man who sent his servant to break in horses amid the crowds of Little Lincoln’s Inn Fields and so brought about an injury to the plaintiff.24 The precedent was, it seems, the source of a steady trickle of similar actions through the eighteenth century, though very little more on the subject was to appear in the reported case law until the 1790s.25 In the age of Blackstone and Mansfield, one well-known practice book, Buller’s Nisi Prius, could propound a generalisation familiar to any student of tort law today:26 Every man ought to take reasonable Care that he does not injure his Neighbour; therefore, whereever a Man receives any Hurt through the Default of another, though the same were not wilful, yet if it be occasioned by Negligence or Folly, the Law gives him an Action to recover Damages for the Injury so sustained.

Here, in primal innocence, is the proposition to which, after long and painful experience, Lord Atkin would again lead the common law in Donoghue v Stevenson.27 Its broad sweep

20 Blackstone had confined his discussion of negligence to these cases of ‘prior relationship’ based upon ‘implied contract’: Commentaries, vol 3, 163–65, cf 208. 21 Other bailees of goods, however were only bound to take care of them in the degree prescribed by Lord Holt in Coggs v Bernard (1703) 2 Ld Raym 909: see p 231. See further D Ibbetson, ‘Coggs v Bernard (1703)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Contract (Hart Publishing, 2008). 22 White v Boulton (1791) Peake 113, the first reported case in the spate of litigation. 23 Aston v Heaven (1797) 2 Esp 533; Christie v Griggs (1809) 2 Camp 79. Lord Ellenborough’s remark in Israel v Clark (1803) 4 Esp 259, 260 that ‘he would expect a clear landworthiness in the carriage itself to be established’ needs to be understood in the context of the defendant’s plea that he need only comply with the statutory prohibitions against overloading his coach. Similarly, Sharp v Grey (1833) 9 Bing 457. 24 (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172; Sir J Baker, An Introduction to English Legal History, 5th edn (Oxford University Press, 2019) 438. As demonstrated by M Prichard, ‘Trespass, Case and the Rule in Williams v Holland’ (1964) 22 CLJ 234, this was not merely an instance of a scienter action respecting animals known to be dangerous; it was taken to create a broader form of liability, the essence of which was an injury consequent upon negligence. 25 Prichard (ibid); Baker (ibid) 438. 26 1st edn (1768) 35–36; 4th edn (1785) 25–26 (by which time the work was under Buller’s editorship). 27 [1932] AC 562. See D Ibbetson, ‘“The Law of Business Rome”: Foundations of the Anglo-American Tort of Negligence’ (1999) 52 CLP 74, esp 84–91; D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) chs 8–10. See also D Ibbetson, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 University of New South Wales Law Journal 475.

462 Accidents could justify the courts in shifting the financial consequences of negligently caused injury onto the shoulders of the injurer in circumstances of ill-defined variety. Yet the logical possibilities had only to be sensed for the courts to begin a search for modifications and qualifications that would staunch the fecundity of the notion. In the end their most telling restraint would lie in the concept of duty of care; and it would take all of Lord Atkin’s daring to suggest once more that there was in principle a duty owed to any ‘neighbour’.28 But the historical process of retraction from Buller’s brave new world is best understood by leaving aside for the moment the uses of ‘duty of care’. We must first note how vicarious liability, already established in principle, added a separate dimension to the emerging tort of negligence; and how the increasing measure of damages gave real cause for concern. It was in face of these combined prospects that the courts turned to a clutch of ideas concerning comparative fault and the need for self-protection as the first means of precluding liability in many situations, but above all for accidents at work. One initial episode, however, had about it a curious air of inconsequence. It constituted that last major argument about the scope of the common law forms of action before their abolition. The question whether an accident claim should be formulated upon the writ of trespass or that of case had to do with the settled distinction that trespass lay for direct injury, and case for indirect:29 to throw a log into the highway and hit a man was a trespass, to leave it there so that he fell over it was actionable in case.30 It was a distinction whose application could be arbitrary, as the celebrated ‘squib’ case showed the common lawyers.31 In accident cases plaintiffs came to be faced with a serious procedural hazard, largely because any vicarious liability had to be asserted in case. Hence, in King’s Bench, where there was a nice adherence to the dichotomy: a collision caused by the negligence of the defendant as driver was direct and required trespass;32 but if his servant had been driving, the vicarious nature of the responsibility obliged an action on the case.33 It was an insistence upon due form that was perhaps symptomatic of a deeper malaise about the direction in which the common law was turning. Nonetheless it proved to have no direct bearing on fundamental issues; there was no coherent argument, for instance, that trespass lay for any ‘direct’ injury, while case demanded substantiation of fault.34 Accordingly, the dispute had become vestigial within three decades and would finally disappear with the forms of action under the Judicature Acts.35 28 [1932] AC 562 at 578; see p 483. 29 For the evolution of the distinction, see SFC Milsom, Historical Foundations of the Common Law, 2nd edn (Butterworths, 1981) ch 11; Ibbetson, Historical Introduction (n 27) ch 3. 30 Reynolds v Clarke (1729) 1 Str 634 (Fortescue J). 31 Scott v Shepherd (1773) 2 W Bl 892; Prichard (n 24). Common Pleas (Blackstone J dissenting) held it trespass for a man to throw a lighted squib into a crowd, where it was thrown on until it exploded and injured the plaintiff. 32 Day v Edwards (1794) 5 TR 648. 33 M’Manus v Crickett (1800) 1 East 106; cf the uncertainty in Savignac v Roome (1794) 6 TR 125; Prichard (n 24) 238–39, 242–48; Ibbetson (1999) (n 27) 155–63. 34 Earlier precedent had established that ‘inevitable accident’ might be a defence to trespass; and the modern view is that, in the nineteenth century, the basis of liability was not treated as differing in trespass and case, see Baker (n 24) 438–39. At the height of the controversy, Lord Kenyon saw only one practical consequence: that costs went to the plaintiff in trespass only if he secured a verdict of 40s damages, a rule not applicable to case. There was, in fact, also some difference in limitation period (trespass, four years; case, six years). 35 Common Pleas showed an early preference for case: and King’s Bench began to give way in Rogers v Imbleton (1806) 2 Bos & Pul NR 117. The rule finally settled in Williams v Holland (1833) 10 Bing 112 was that trespass had to be brought only for wilful acts causing immediate injury; in all other circumstances case might be used. The matter had worried the Common Law Commissioners two years earlier: PP 1831 (92) X, 7.

Part 1: Compensation by Civil Suits 463

B. Vicarious Liability The idea that, if a person used an agent to act on his behalf and the agent caused actionable loss, damage or injury in the course of doing so, the principal as well as the agent might be sued, can be found in the medieval common law and in the law merchant.36 Its place in modern law was fostered particularly by Lord Holt, who showed a lively awareness of its desirability.37 He held, for instance, that a shipowner was vicariously liable where the ship’s master had let cargo be damaged, that a stage-coach owner was liable when his driver lost luggage, and that a farmer was liable for fire damage caused by his servant ‘in way of husbandry’.38 In the first two instances, a relationship existed in which the law imposed strict duties upon the carrier. It was the third case that had a particular potency, since it affected the general obligations owed even to strangers. Even so, fire was a special danger and strict liability had been imposed for its escape. It was still not clear in the eighteenth century how far a principal would suffer vicarious liability when the agent’s wrong involved proof of his personal fault. In what degree was it necessary to show that the principal had ordered commission of the injuring act? Must he be shown to have required it to be performed in a manner that created undue danger? Must he have been careless in choosing the agent? Must there at least have been a relationship between him and the victim – most obviously, a contract from which responsibility could be implied? In Blackstone’s view there was vicarious liability when the agent was acting upon a general command – carrying out the task that he had been set in broad terms; it was not necessary to show that he had been expressly commanded to act in the wrongful way.39 Blackstone did, however, refer in justification to the trust that others placed in a principal to see that he employed proper agents, a notion which might be read as limiting the responsibility to fault in selection or to pre-existing contractual relationships.40 Blackstone, however, also referred to a concept of identification: qui facit per alium, facit per se. As Lord Brougham was later to put it, in terms explicitly utilitarian:41 The reason I am liable is this, that by employing him I set the whole thing in motion: and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it.

Some Western legal systems, notably the German, were unable to accept a notion of v icarious liability wide enough to require masters to shoulder responsibilities for the faults of their servants in the absence of any undertaking to do so. If the issue had arisen for settlement in England only at the outset of Victoria’s reign, a similarly s crupulous notion of moral responsibility might have pointed in the same direction.42 As it was, Georgian courts 36 WS Holdsworth, A History of English Law, vol 3 (Methuen, 1923) 382–87; vol 8 (Methuen, 1926) 472; Ibbetson, Historical Introduction (n 27) 69–70. 37 See JH Wigmore, ‘Responsibility for Tortious Acts: Its History’ in Committee of American Law Schools (ed), Select Essays in Anglo-American Legal History (Little Brown & Co, 1909) III 520. 38 Boson v Sandford (1691) 2 Salk 440, 3 Mod 231; Middleton v Fowler (1699) 1 Salk 282; Turberwill v Stamp (1698) Skinner 681, Comb 459, 1 Ld Raym 264. 39 Commentaries, vol 1, 429. 40 See also Boson v Sandford (n 38) and Laugher v Pointer (1826) 5 B & C 547, 549–50 (Tindal CJ). 41 Duncan v Findlater (1839) 6 Cl & F 894, 910. 42 T Baty, Vicarious Liability (Clarendon Press, 1916); HH Seiler, ‘Die deliktische Gehilfenhaftung in historischer Sicht’ (1967) 22 Juristen Zeitung 525.

464 Accidents had seen no contradiction in making a blameless principal liable for the personal fault of his agent, as was made plain in the running down decisions of the 1790s. Only on the obfuscating issue of the proper form of action – trespass or case – did the factor of vicarious responsibility add its own complication.43 Even at the time, a moralist such as Archdeacon Paley could regret that the principle stood ‘rather upon the authority of the law than upon any principle of natural justice’.44 It was a viewpoint that was not entirely to be lost. Eighty years later, Bramwell LJ would remark sardonically, ‘the only reason for going against the employer is the great convenience of his always having his pockets full.’45 But having started in the business of selectively compensating the victims of accidents, the common lawyers by and large accepted vicarious responsibility as a practical necessity. The live issues went rather to its scope. Of these, the most fundamental was to define the range of relationships imposing vicarious responsibility. As we have seen, the notion of employment for a cash wage is a modern one which was emerging with industrial capitalism.46 Older patterns of agricultural labour by living-in servants and out-working labourers, and of craft trades with their apprentices and journeymen, belonged to a world in which there were many gradations between the close-connected and the casual. Much early industry and construction work depended upon arrangements which today we would call sub-contracting. Large-scale factories under the direction of a single employer in our sense were only just emerging in the early nineteenth century. The language of ‘command’ which the common lawyers had already used to define the imposing of vicarious liability accordingly cast a wide net of obligation in typical conditions. In Bush v Steinman, the defendant had been repairing a house which he did not occupy. He employed a surveyor who employed a carpenter who in turn employed a bricklayer to do some of the work. The servant of the bricklayer left a pile of lime in the highway, which led to the plaintiff ’s carriage being overturned. The Court of Common Pleas held that the defendant was liable as the person ‘from whom the authority flows, and for whose benefit the work is carried on’.47 Heath J gave as an instance: ‘where a person hires a coach upon a job, and a job- coachman is sent with it, the person who hires the coach is liable for any mischief done by the coachman while in his employ, though he is not his servant.’48 Yet it was this very situation that was to cause a major difference of opinion amongst later judges and an eventual narrowing of doctrine. In 1826, a case of this kind was argued not only before the Court of King’s Bench, which was equally divided, but also before the judges of the other common law courts and they too appear to have been unable to agree in a way that would resolve the deadlock.49 When the issue arose once more in Quarman v Burnett, Parke B led the Court of Exchequer into requiring the relationship of master and servant before vicarious liability

43 See p 462. 44 W Paley, The Principles of Moral and Political Philosophy [1785] (Liberty Fund, 2002) 98. 45 PP 1877 (285) X, Q 1179; even in 1916, Dr Baty mounted a sustained attack on the concept in Vicarious Liability (n 42); and see F Pollock, Essays in Jurisprudence and Ethics (MacMillan, 1881) 125. 46 See p 273. 47 (1799) 1 Bos & Pul 404, 410. But Eyre CJ was greatly troubled by the breadth of the decision; see further Sly v Edgley (1806) 6 Esp 6. 48 Bush v Steinman (n 47) 409. 49 Laugher v Pointer (1826) 5 B & C 547; see also Brady v Giles (1835) 1 M & Rob 494; Randleson v Murray (1838) 8 Ad & E 109.

Part 1: Compensation by Civil Suits 465 could arise.50 If it were otherwise, he objected, ‘the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for any injury committed by the shopman’s carelessness’.51 As elsewhere this court judged the issue by its impact upon the domestic responsibilities of the paterfamilias. Only the occupier of land, in respect of nuisances occasioned on it, was regarded as being under a wider responsibility for the acts of outside contractors as well as servants. By this exception, cases such as Bush v Steinman were confined within a narrow bound.52 The formula that the employee must be ‘acting in the course of his employment’ became common form in the early nineteenth century. It was later to be complemented by the notion that there was no vicarious liability when the servant had gone off on his own affairs – ‘on a frolic of his own’, as the judges, with evident disapproval, put it.53 But what of the servant who deliberately committed a wrong54 when otherwise about his master’s business? Lord Kenyon thought that there should be no vicarious responsibility in such a case, unless the servant was acting on the master’s express instructions. But this was modified in 1821,55 so as to make the master liable when the servant’s act was an ‘injudicious’ attempt to execute his general instructions. And eventually, the employer was made liable, however reckless the employee had been, provided that the latter was acting in the course of his service and doing whatever he thought best met the interest of his employer. So where bus companies were competing for passengers, and one driver, by running his bus in front of another, caused an accident, his employer was liable unless it could be shown that the driver had been motivated by some private spite. Moreover – and this had the greatest practical importance – the employer could not exclude his liability by giving his employee specific instructions not to do what he did.56 We shall consider below how, at the outset of Victoria’s reign, the judges began to protect the entire category of employers against one aspect of vicarious responsibility – that for injuries to one employee occasioned by a ‘fellow servant’.57 The concept of such an exception was, however, no novelty. In the case of the Crown, the base rule that the monarch could not in his own courts be considered capable of wrong imposed a blanket protection against liability, personal or vicarious.58 But equally, those who managed an activity without any immediate chance to share in a profit – such as a turnpike, dock or town improvement

50 (1840) 6 M & W 499. 51 ibid 510. 52 FH Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480 shows how cases of the Bush v Steinman kind after about 1840 came to be spoken of as cases of nuisance rather than negligence. This treatment of one kind of personal injury liability as subject to the stricter obligations of nuisance was to produce some curious anomalies and confusions. 53 The expression appears to originate with Parke B’s judgment in Joel v Morrison (1834) 6 C & P 501. 54 M’Manus v Crickett (n 33). 55 Croft v Alison (1821) 4 B & Ald 590; see also Sharrod v London and North Western Railway Co (1849) 4 Ex 580. 56 Limpus v London General Omnibus Co (1862) 1 H & C 526. This was ultimately carried to the extreme that the employer remained liable even where the employee’s wrong (a fraud) was criminal and intended only to benefit himself: Lloyd v Grace Smith & Co [1912] AC 716. 57 See pp 469ff. 58 Nor could indirect pressure be brought by making the actual supervisor vicariously liable: Lane v Cotton (1701) 1 Ld Raym 646 (Postmaster-General); Whitfield v Lord Le Despencer (1778) 2 Cowp 754 (captain of man-of-war). This rule became of general application.

466 Accidents trust or commission – had a special claim to exemption from any responsibility for the faults of others: theirs was a public duty. With the early running down cases came those in which servants left rubble unlighted on the highway in the path of unsuspecting vehicles. By 1815 the employing authority was beginning to be exempted from vicarious liability in such cases.59 Some judges would support this upon a formal application of the vires concept: the statute establishing the authority was taken to confer no power to expend assets in meeting tortious liabilities unless it was expressly given.60 Not till the 1860s would it come to be said that, in exploiting statutory powers, it was still necessary to see that no unnecessary damage was done.61 Blackburn J would find justification for this in a new perception of reality: that such statutes were intended to impose liability on commissions, ‘either … by incorporating them, or by enabling them to sue and be sued in the name of the clerk, and restricting the execution to the property which they hold as Commissioners’.62

C. Measure of Damages The effectiveness of compensation suits in inducing caution on the part of those who ran potentially dangerous enterprises clearly depended on the level of damages which they were liable to pay. Assigning a monetary value to the consequences of personal injury is inevitably to some degree arbitrary; in consequence, the process was left in the hands of the jury, with few rules as to the instructions which the judge was to give them on the question. Arguments about the proper basis of assessment reached the courts in banc only very rarely and it is very difficult to collect information about the awards which were becoming daily more frequent in the trial courts. By the 1840s, at least, it seems to have been accepted that while damages could be given for losses of earnings, both actual and projected, as well as for medical and other expenditure, these pecuniary ‘heads’ were not the only factors to be taken into account. Claims for the pain and suffering occasioned to an injured person were well-established by the time that the King’s Bench ruled that relatives claiming under the Fatal Accidents Act 1846 had no right to a solatium for their grief.63 In the first decades of the nineteenth century, injuries which left the victim severely handicapped rarely resulted in awards even of £400–£500. £100 for the loss of a limb or an eye seems to have been common enough, a sum which

59 Harris v Baker (1815) 4 M & S 27, 29; Hall v Smith (1824) 2 Bing 156; Duncan v Findlater (1839) 6 Cl & F 894 (imposing the same rule upon Scots law). 60 Esp Lord Cottenham, Duncan v Findlater (ibid) 907–08; this was an extension of cases such as British Cast Plate Manufacturers Co v Meredith (1792) 4 TR 794, which held that it was no tortious invasion of property to do precisely what the incorporating statute authorised (such as paving a street which made entry onto premises difficult). 61 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93. The shift was achieved through a curious side-excursion: public purpose trustees were first held no longer to be exempt from poor rates despite their beneficial activity; see the culminating decision: Jones v Mersey Docks and Harbour Board Trustees (1865) 11 HLC 443. 62 Gibbs (ibid) 116. 63 Blake v Midland Railway Co (1852) 18 QB 93, 111. But 10 years before Pollock QC had surrendered any claim to damages for pain and suffering when appearing for an injured surgeon against the Brighton Railway – the idea was then too new: ibid 104; for claims on death, see pp 474–77.

Part 1: Compensation by Civil Suits 467 represented three or four years’ wages to a labourer. The advent of the railways as defendants encouraged juries to think on a more expansive scale. The three companies which produced detailed statements of compensation paid by them, to a Select Committee investigating railway accidents in 1857, showed one verdict of £4,981 and another of £4,000; five were for £2,000 or more and 13 for £1,000 or more.64 Protests by the railways against the size of these verdicts became increasingly strident. Much play was made of cases where the jury had been touched by (allegedly) exaggerated, or even fabricated, displays of suffering. For this, legal and medical practitioners who sought out plaintiffs were held partly to blame. Four judges, who showed a distinct sympathy for the companies before another Select Committee in 1870, admitted that such things did occur but said they were able to detect and control them.65 In the same spirit, they blamed juries for thinking in large terms against substantial defendants; their own juries did not generally return excessive verdicts, but Baron Martin spoke darkly of ‘some judges who take the view, that damages ought to be high, and in all probability they lead the jury to think so too.’66 Despite this, the commoner judicial attitude seems to have been to encourage caution. Baron Parke directed one jury: ‘scarcely any sums could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life.’67 Such remarks were commonplace. One attempt to provide juries with systematic information for calculating pecuniary loss led to a new trial being ordered.68 To supply them with life expectancy tables and the like, it was feared, would lead them to ignore the various contingencies which might have reduced the earning capacity of the individual plaintiff; instead they would think simply of giving him the price of a government annuity. And so a pattern was settled that was to survive even the decline of jury trial and the consequent growth of detailed rules about the ‘heads’ of personal injury damages. As with other torts, damages were assumed to represent complete compensation for the wrong – in this case for financial loss, suffering and loss of prospective happiness. But in practice much effort was to be devoted towards ensuring that the total amount would err on the side of moderation. While the occasional rich plaintiff (or his estate) was winning a verdict of £10,000 or even £13,000 in the 1870s,69 the general expectation of a humbler person rendered totally unfit for work was thought to be some three years’ wages. Indeed, this would be the justification offered for introducing such a limit into the Employers’ Liability Act 1880 when that statute saved injured workmen from the harshest restrictions of common law doctrine.70 It was nonetheless the scale of compensation which contributed significantly to the whole search for limitations.

64 Select Committee on Accidents on Railways, PP 1857–1858 (362) XIV Appendix. The three companies were the Great Northern, the Midland, and the Lancashire and Yorkshire. Thirteen railway companies supplied figures showing payments under awards and settlements of £368,355 over a period of 10 years. 65 Q 877 (Martin and Bramwell BB), Qs 1146–47 (Hannen J); Q 2242 (Willes J). 66 Q 866. 67 Armsworth v South East Railway Co (1847) 11 Jur 758. 68 Rowley v London & North Western Railway Co (1873) LR 8 Ex 221. 69 In Phillips v London & South Western Railway Co (1879) 4 QBD 406; affirmed (1879) 5 QBD 78, the plaintiff, a surgeon, had been earning £6,000–£7,000 a year and had been rendered totally incapacitated. A verdict of only £7,000 was held to be against the weight of the evidence. 70 See p 494.

468 Accidents

D. Contributory Negligence By providing defendants worth pursuing, vicarious liability fulfilled one precondition for the common law to have practical effect. But any plaintiff still needed the means and the resilience to engage in the litigation: in particular, he had to face the difficulty of establishing that the defendant’s negligence was the cause of the accident. This was the first point at which limitations began to constrict the entitlement to sue. It was natural for a defendant to allege that the plaintiff was to blame for the injury that befell him and this turned the law to a strategic but difficult judgment. It had long known the concept of ‘direct’ or ‘proximate’ cause as a precondition of civil liability.71 But what was to be the position if both plaintiff and defendant had in a significant degree contributed to the result by acts or neglects? The relative closeness in time of these events to the accident was often decisive. If the plaintiff ’s act occurred after the defendant’s, then the defence of contributory negligence would be likely to succeed. In the initial outcrop of accident cases, contributory negligence was accepted as a complete defence with no suggestion that the question was then a novelty. In Butterfield v Forrester, the defendant left a pole needed for building repairs sticking out into the road; the plaintiff rode full tilt into it. Bayley J directed the jury that if, with reasonable care, the plaintiff could have seen and avoided the pole, they were to find for the defendant. This they did and the judge’s direction was upheld.72 On the other hand, the time sequence might be reversed. In Davies v Mann73 the plaintiff tethered a donkey in the road and the defendant ran into it. He was held liable for injuring it because the jury found that had he exercised ordinary care he might have avoided it. From this case in particular (though it was by no means the first) developed the notion that the defendant would be liable if he had had the ‘last opportunity’ of avoiding the accident. Constantly pressed into service, this became a concept of arcane refinement.74 But most difficult of all were the cases where, if either plaintiff or defendant had been negligent, it was at the same time: as, for instance, in collisions between carriages and riders or between coaches and pedestrians. By the 1840s there was a fair consensus that if the plaintiff ’s negligence had made a substantial contribution to the accident then he should be wholly non-suited.75 The proportional reduction of damages, which was the means by which contributory negligence was brought into account in admiralty law for a collision on the high seas, was beyond the imagination of the common law. Yet, as was regularly acknowledged, juries who were not prepared completely to overlook the plaintiff ’s negligence might achieve an apportionment sub rosa. In Raisin v Mitchell, for instance, the plaintiff ’s contributory negligence in causing a collision at sea

71 Holdsworth, vol 8 (n 36) 459–62. 72 (1809) 11 East 60. 73 (1842) 10 M & W 546. 74 See esp Radley v London & North Western Railway Co (1876) 1 App Cas 754; British Columbia Electric Railway Co Ltd v Loach [1916] 1 AC 719; The Eurymedon [1938] P 41. For the later reform, P Mitchell, A History of Tort Law 1900–1950 (Cambridge University Press, 2015) ch 13. 75 eg Sills v Brown (1840) 9 C & P 601; cf Hawkins v Cooper (1838) 8 C & P 473, 474, where Tindal CJ directed the jury to find for the defendant if the accident ‘can be attributable in any degree to the incautious conduct of the plaintiff herself ’. This severer test did not survive.

Part 1: Compensation by Civil Suits 469 had been put in issue by the defendant, and the jury awarded exactly half the plaintiff ’s estimated damage.76 In a case where a widow was awarded only 40s in respect of her husband’s death, Cockburn CJ remarked tartly: ‘It is obvious that the jury have evaded their responsibility of a decision by a kind of compromise.’77 Yet to upset a verdict for the plaintiff on the ground that he should have been considered contributorily negligent obliged the court in banc to find the jury’s verdict to have been against the weight of the evidence. It was inherently difficult to interfere in this fashion. And so other factors began to emerge as questions of law on which judges might rule for themselves.

E. Common Employment In Priestley v Fowler,78 a butcher’s servant sued his master, alleging that the master had allowed a van to be overloaded with goods, apparently by other servants; as a result, it gave way and the plaintiff was thrown out, fracturing his thigh. The Court of Exchequer, clearly startled by the novelty of the proceedings, upset the plaintiff ’s verdict of £100 damages, after looking ‘at the consequences of a decision the one way or the other’. So far as is known, this was the first action by servant against master, at least in the superior courts, in respect of injuries caused by negligence.79 Workers such as seamen had mounted actions for unpaid wages, and groups of workmen had occasionally gone before the higher courts, for instance to seek enforcement of the Statute of Artificers 1563. Yet at best a servant must have expected sustenance for the rest of his hiring if he became incapacitated by sickness or accident. To think of a remote court awarding monetary compensation for fault, above all against a master, required considerable daring, and optimism; indeed, it may well be that the plaintiff was inspired not so much by boldness as by desperation, since the statutory restrictions on poor relief were applied in the Peterborough area (where the accident had taken place) with particular zeal.80 Priestley, at least, was emphatically denied his verdict. Lord Abinger CB, speaking for the court in a reserved judgment, touched upon enough possibilities for refusing the action to provide subsequent courts with many ways of interpreting his judgment. Though the jury had found that the master positively knew the van was overloaded, the fact would have been equally apparent to the servant. It was thus a case where notions of contributory negligence and voluntary assumption of risk might have been the reason for excusing the master. But to settle the matter on this footing might have left each subsequent case to the verdict of its jury, and the court sensed a real danger:81 If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent. He who is responsible by his general duty, or by the terms of 76 (1839) 9 C & P 613. The foreman of the jury admitted that ‘there was fault on both sides’; Tindal CJ allowed the verdict to stand, saying: ‘There may be faults to a certain extent.’ 77 Springett v Ball (1865) 4 F & F 472. 78 (1837) 3 M & W 1; and see H Smith, ‘Judges and the Lagging Law of Compensation for Personal Injuries in the Nineteenth Century’ (1981) 2 JLH 258, 259–62. 79 Bartrip and Burman (n 2) 24–25 cannot believe it, but have no positive counter-evidence. 80 AWB Simpson, ‘A Case of First Impression: Priestley v Fowler (1837)’ in AWB Simpson, Leading Cases in the Common Law (Oxford University Press, 1996). 81 Priestley (n 78), 5–6. The domestic possibilities are pursued through several more examples.

470 Accidents his contract, for all the consequences of negligence in a matter in which he is the principal, is responsible for negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of this carriage to his servant, he is responsible for negligence of his coach-maker, or his harness-maker, or his coach-man.

The willingness to treat vicarious liability, which was thus put in issue, as arising in respect not only of the acts of servants but of all contractors highlights the court’s state of alarm.82 Yet it was the attitude expressed in this passage, rather than any detailed legal analysis, that later courts were to find so pertinent. Although, on the facts, there was no allegation of carelessness by a fellow-servant of the plaintiff, later courts took inspiration from the decision and created the doctrine of common employment, as it became known, under which an employer was not vicariously liable to one of his employees for an injury occasioned by the negligence of another.83 Lord Abinger did admit that the employer ‘is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of the judgment, information and belief.’ This personal duty on the employer, which was quite distinct from any vicarious responsibility, was to be preserved, at least as a theoretical obligation.84 But cases such as Priestley v Fowler suggest that the role of this separate duty was severely limited by prevalent attitudes to responsibility for safety. If an employer’s cart is sent out overloaded, it is possible to find that there is negligence at three points. The employer may be deemed negligent in not setting up some system for checking against this dangerous condition ever arising. Equally, the employee responsible may be deemed negligent for the particular act of overloading. And the victim may be similarly treated for going off in the overloaded cart. For most of the nineteenth century it remained difficult to persuade judges, government inspectors and established opinion generally,85 that the servant should have a claim in any circumstance where he could perceive the danger. To require employers to adopt a system of safety bore the taint of paternalistic precaution and was almost always expensive. It was tempting instead to denounce the wanton recklessness or crass stupidity of the servant who had brought about or suffered the accident. The judgment in Priestley v Fowler, being concerned to impose a formidable limit on accident liability in the realm of employment, displays the same preoccupation with contract that would restrict the range of liability for faulty goods.86 Master and servant would have a contract which said nothing expressly about liability for accidents. Two consequences were held to follow: their mere relation could never ‘imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself ’; while on the other hand, ‘the servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself.’87 This conception of the servant as a ‘free agent’, able to protect himself either by extracting an express guarantee of his safety from the master, or else refusing to

82 The question was at that time open, but a live issue: see pp 463–65. 83 M Stein, ‘Priestley v Fowler (1837) and the Emerging Tort of Negligence’ (2002–2003) 44 Boston College Law Review 689. 84 See pp 480–81. 85 But not jurymen confronted with an injured plaintiff and a solvent enterprise as defendant! 86 See pp 479–80. 87 Priestley (n 78), 6.

Part 1: Compensation by Civil Suits 471 undertake risky work, owes an obvious debt to the lingua franca of political economy.88 Indeed, more overtly economic considerations were soon to creep into the rationale of the common employment doctrine: ‘I am quite sure’, remarked Lord Cranworth, ‘that what was meant in the Court of Exchequer, was, that if men engage for certain wages in a work of great risk, it is to be supposed that the risk forms an element in their contemplation in agreeing to accept the stipulated remuneration.’89 The courts, be it noted, did not imply from the lower price of a third-class railway passenger’s ticket that he had taken the risk of accidents upon himself. All that the contractual relationship was regarded as, impliedly, containing was an undertaking by the master that he had taken care in selecting ‘proper and competent persons’, and that he would also be careful to provide ‘adequate materials and resources for the work’.90 Eventually it was also recognised that the employer had a duty to take care that a safe system of work was operated.91 These employers’ duties were, however, very much narrow exceptions to a dominant legal, political and moral orthodoxy: at the root of common employment lay the judgment that the cost of accidents to employees was not one that developing industry could or should normally have to bear.92 Examples of such a concession are by no means limited to the mid-nineteenth century,93 but in its breadth of application the common employment rule was unique. It was accepted without qualms by almost all the English judges.94 ‘There never was a more useful decision,’ said Pollock LCB, ‘or one of greater practical and social importance in the whole history of the law.’95 In Scotland, however, some of the judiciary proved to be decidedly antagonistic, the Lord Justice Clerk going so far as to hold that ‘the master’s primary obligation in every contract of service in which his workmen are employed in a hazardous and dangerous occupation for his interest and profit, is to provide for, and attend to the safety of the men … The obligation to provide for the safety of the lives of his s ervants by fit machinery, is not greater, or more inherent in the contract, than the obligation to provide for their safety from the acts done by others whom he also employs.’96 But the House of Lords forced Scots law to take on the English mould, pronouncing that ‘it would be most 88 The ‘free agent’ had attained his political majority in the debates of 1831–33 on factory regulation: see p 291; and also M Stein, ‘Victorian Tort Liability for Workplace Injuries’ [2008] University of Illinois Law Review 933. 89 During argument in Bartonshill Coal Co v Reid (1858) 3 Macq 265, 275. The doctrine that the worker has assumed the risk of injury at a price was spelled out with the utmost clarity in the Supreme Court of Massachusetts by Shaw CJ in Farwell v Boston & Worcester Railroad Corp 45 Mass (4 Met) 49 (1842). See LM Friedman and J Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67 Columbia Law Review 50. This judgment was warmly received by the House of Lords in the Bartonshill cases. 90 Wilson v Merry & Cunningham (1868) LR 1 HL Sc 326, 332 (Lord Cairns LC). 91 Wilsons & Clyde Coal Co Ltd v English [1938] AC 57; Mitchell, History of Tort (n 74) ch 8. 92 cf R Kostal, Law and English Railway Capitalism 1825–1875 (Oxford University Press, 1997) 313–21; M Stein, ‘Victorian Liability’ (n 88). 93 By the ironically mistitled Responsibility of Shipowners Act 1733, shipowners had secured exemption from vicarious liability for wrongs committed by their masters and mariners beyond the value of vessel and freight. In the Warsaw Convention 1927, governments were to agree upon limitations of liability for the young airline industry. 94 In 1862, Byles J suggested that it should be confined to the domestic situations that so exercised Lord Abinger’s imagination in Priestley (n 78), but he attracted no followers (Clarke v Holmes (1862) 7 H & N 937). Only Martin B, amongst the midcentury generation of judges, said that he could not understand the common employment doctrine (Smith v Howard (1870) 22 LTNS 130). At the time of the decision in Armsworth v South Eastern Railway Co (1847) 11 Jur 758, the doctrine of common employment was not yet recognized (cf Kostal (n 92) 267). 95 Vose v London & Yorkshire Railway Co (1858) LJ Ex 249, 252; quite exceptionally for Exchequer, this was a case where the plaintiff succeeded upon the employer’s failure personally to institute a proper safety system. 96 Dixon v Rankin (1852) 14 D 420, 424–25; and see O’Byrne v Burn (1854) 16 D 1025.

472 Accidents inexpedient to sanction a different rule to the north of the Tweed from that which prevails in the south.’97 In two situations a few judges (notably in Scotland) had found common employment particularly unfair – both of them cases where there was little room for Lord Abinger’s justification of the doctrine on the ground that nothing must be done to weaken the vigilance of a servant to prevent the negligence of his fellows.98 The first was the case where the negligent employee had authority as a manager; he could give orders to the injured man but would not take directions from him. The second was the case where the two employees worked at entirely different tasks for the same employer. The notion that an employer might be held responsible for the negligence of a ‘vice-principal’ was at one stage adopted by the idiosyncratic Byles J;99 but in Wilson v Merry & Cunningham100 the Lords rejected a decision by Scots courts to treat a mine manager as representative of the owner. The Scots view that, for common employment to avail the employer, the two workers must be engaged as ‘collaborateurs’ on a common task, was one of the propositions overruled by the Lords in Bartonshill v Reid.101 It would not be until the late 1930s, with the doctrine’s moral authority dramatically waning, that its application would be restricted by paying closer attention to what could truly be regarded as ‘common work’.102

F. Voluntary Assumption of Risk If a worker must be taken, vis-à-vis his master, to have shouldered the risk of all fellow- servants’ negligence, there was no particular extravagance in applying the same presumption to other circumstances. In the early running-down cases, assumption of risk was a notion not clearly distinguished from contributory negligence, and both might well apply to given facts.103 Volenti non fit injuria soon became a maxim in regular use in other cases of work accidents, particularly where the master himself was in some sense responsible for the hazard. In Seymour v Maddox104 a theatre-owner had left an unfenced hole in a passage; the plaintiff, an actor, fell down it but was unable to recover because he knew it was there. In Dynen v Leach a labourer in a sugar works had been required to hoist up sugar moulds, not as previously with a net, but with a clip – a device (according to his counsel)

97 Bartonshill (n 89) 285 (Lord Cranworth). 98 Priestley (n 78) 7. 99 Clarke v Holmes (n 94); Gallagher v Piper (1864) 33 LJCP 329 (dissenting); for subsequent case law, see Bartrip and Burman (n 2) 118–19. 100 (1868) LR 1 HL (Scot) 326. 101 Bartonshill (n 89). For later instances, see Morgan v Vale of Neath Railway Co (1864) 5 B & S 570; Bartrip and Burman (n 2) 117–18. In the mid-1850s, the Court of Exchequer extended the defence to workers for different employers and even to voluntary helpers who joined in a common task (Wiggett v Fox (1856) 11 Ex 832; Degg v Midland Railway Co (1857) 1 H & N 773); but this was soon rejected as too extreme: eg Abraham v Reynolds (1860) 5 H & N 143; Fletcher v Peto (1862) 3 F & F 368. For later developments, see p 491ff. 102 Radcliffe v Ribble Motor Services Ltd [1939] AC 215; Miller v Glasgow Corp [1947] AC 368; Glasgow Corp v Bruce [1948] AC 79. 103 Cruden v Fentham (1798) 2 Esp 685; Clay v Wood (1803) 5 Esp 44; FH Bohlen, Studies in the Law of Torts (Bobbs-Merrill, 1926) 446. 104 (1851) 16 LTOS 387.

Part 1: Compensation by Civil Suits 473 adopted ‘from motives of economy’. He was killed when a mould fell on him, but the Court of Exchequer agreed that his dependants had properly been non-suited by the trial judge. Bramwell B, with his penchant for spelling out the rigours of economic liberalism, said:105 There is nothing legally wrongful in the use by an employer of works or machinery more or less dangerous to his workmen or less safe than others that might be adopted. It may be inhuman to carry on his work so as to expose his workmen to peril of their lives, but it does not create a right of action for an injury which it may occasion when, as in this case, the workman has known all the facts and is as well acquainted as the master with the nature of the machinery and voluntarily uses it.

It was only where the employee could not have appreciated the danger in the system of work or was protesting about it that he could succeed upon the employer’s duty (always acknowledged in principle) to provide a safe system of work. Moreover, the judges were careful to keep the issue where possible out of the reach of juries. Willes J remarked on one occasion:106 This is one of a great number of cases which have occurred in which the jury have invariably found for the employee – cases where a servant chooses to enter into an employment of which the system is well-known, and one of them after an accident has happened suddenly finds out that the master was exceedingly wrong not to have a greater number of servants …, but under such circumstances a servant has no ground to complain of the master in a court of law … [Cases] of this kind ought not to be left to the jury on a mere spark of evidence.

Subtleties of argument coalesced around volenti non fit injuria. Bowen LJ summarised the result of 25 years of case law when he remarked:107 The maxim, be it observed, is not ‘scienti non fit injuria’ but ‘volenti’. It is plain that mere knowledge may not be a conclusive defence. There may be a perception of the existence of the danger without comprehension of the risk: as when the workman is of imperfect intelligence, or, though he knows of the danger, remains imperfectly informed of its extent.

Whether a workman was volens or merely sciens was a nice question on which a trial judge’s direction to the jury might easily be found improper or a verdict might prove unacceptable.108

G. Identification The contractual constraints upon negligence liability reached their ultimate severity in an extraordinary extension of the contributory negligence principle which employed the fiction of ‘identification’ in a novel guise. If a traveller on a bus belonging to Company A was injured in an accident involving a bus belonging to Company B and the accident was due to the negligence of servants of both companies, the traveller was debarred from suing Company B because he was ‘identified’ with Company A and so affected by the contributory 105 (1857) 26 LJ Ex 221, 223. 106 Saxton v Hawksworth (1872) 26 LT 85. 107 Thomas v Quartermaine (1887) 18 QBD 685. 108 For the correlation of the doctrine to the employer’s duties of care, see pp 480–81; and for its retrenchment, pp 481–82.

474 Accidents negligence of its servant. The only possible basis for this identification lay in the contract of carriage. According to Maule J, ‘the passenger is not altogether without fault. He chose his own conveyance and must take the consequences of any default of the driver whom he thought to trust.’109 To one whose first concern was to prevent the spread of indiscriminate liability for negligence, the idea had a certain plausibility: the injured victim could proceed against the outside company (B in our example) if it alone had caused the accident by negligence. But if A had contributed, the traveller should be left to sue A for breach of its contractual obligation to carry each passenger with due care. In practice, the rule left the passenger victim in the cross-fire of two enterprises each attempting to put responsibility upon the other. And, of course, its effect was completely debilitating if the victim was an employee of one of the companies.110 For common employment and volenti reared up to prevent him in most cases from having any cause of action against his own employers. The doctrine of ‘identification’ operated in tandem with them to close off recourse against third parties. Though this form of ‘identification’ enjoyed a vogue for nearly 40 years from its debut in 1849, it did not attract universal admiration. The editors of Smith’s Leading Cases,111 in the years when it had merely been mooted, thought it ‘inconceivable’ that the judges would accept it (though they did). Not only was it rejected in Scotland, when the more extreme forms of common employment had had to be forced on the courts by the House of Lords, but also in the United States, where common employment had made headway.112

H. Death The death of a breadwinner in an accident could bring catastrophe to the other members of his family. Yet if the death was due to another’s negligence the dependants found themselves precluded from suing for compensation, either for the grief they suffered or their loss of financial support. Holdsworth attributes this development in part to muddled history.113 Some deaths that were caused by another’s fault were also murder or manslaughter and had therefore been subject to the medieval rule that a felony could not give rise to a civil action. When gradually it was recognised that the presence of felony only postponed civil proceedings until after prosecution, the possibility of a suit by those who suffered from the death was not faced on its merits. Amongst the early spate of running-down cases, Baker v Bolton was decided by Lord Ellenborough at nisi prius.114 He was reported as laying down the sweeping proposition that ‘in a civil court the death of a human being cannot be complained of as an injury’. He accordingly held that a publican whose wife had been killed 109 Thorogood v Bryan (1849) 8 CB 115, 132. The same predicament might arise in respect of railway passengers, owing to the growing use by one company of another’s lines. Indeed, as early as Bridge v Grand Junction Railway Co (1838) 3 M & W 244, it was assumed that the defence of ‘identification’ might succeed. 110 Its application to an employee-plaintiff was not settled until Child v Hearn (1874) 9 Ex 176 and Armstrong v Lancashire and Yorkshire Railway Co (1875) LR 10 Ex 47. 111 JW Smith, A Selection of Leading Cases, 3rd edn (Maxwell, 1849) vol 1, 132 a, b. 112 For its abandonment, see p 482. 113 Holdsworth, vol 3 (n 36) 333–35, 676–77. 114 (1808) 1 Camp 493.

Part 1: Compensation by Civil Suits 475 in the accident had no right to complain of the loss of her services in his business. Yet for the period of a month during which the wife lingered alive, he did, as a husband, have an established cause of action, the actio per quod consortium amisit.115 When the sufferers were the widow or children of a man killed in an accident, there was not even a known basis on which they might have sued (personally) but for the death. There was no principle, as there was in Scots law, that for their distress they might claim a sum by way of solatium. As for the personal representatives bringing an action on behalf of the deceased victim himself, such a claim was regarded, so it seems, as barred by the long-familiar maxim, actio personalis moritur cum persona.116 Whatever pains the machine of criminal justice might heap upon the person whose neglect or wilful action caused a death, he (and his employer) went free of the claim for damages that would have lain had the victim remained alive. Only one possibility presented itself as a remedy for this situation. Ancient superstition had decreed that articles which ‘moved to’ a death were deodands forfeit to the King’s Almoner for charity. The practice had evolved that deodands taken by the coroner investigating the cause of death, would be declared and valued by his jury; the amount had to be paid by the owner of the thing and the money was then divided, amongst the dependants of the victims.117 The coroner might thus extract financial aid for a distressed, resourceless widow without demanding any proof of negligence on the part of the owner of the deodand. For the most part, however, this opportunity was not realised. The amount recoverable was limited by the value of the moving part that caused the injury, and, apart from the intriguingly different practice in Westminster, where the assessment of deodand seems to have been linked with fault, the records generally suggest that, in the 1820s at least, deodands were being valued at only a few shillings.118 In the late 1830s an attempt was made to breathe life into the system, largely it seems through the efforts of Thomas Wakley MP, corruscating editor of The Lancet and in Middlesex a controversial coroner.119 Suddenly, in various parts of the country, the owners of the new steam-boats and railway engines found them being valued as deodands at several hundred pounds. But coroners’ inquisitions were subject to review upon motion in the Queen’s Bench, and that court took exception to the new turn of events. At first the successful objections, in time-honoured fashion, went to the lack of exact description in the inquisition of the event or the deodand.120 In the Sonning railway disaster, where the jury valued the engine at £2,000, Wakley took the precaution of having his inquisition drafted by the celebrated Serjeant Stephen; but still it ‘was cast aside and treated almost 115 The illogicality of allowing the husband to claim before death, but not afterwards, was to strike Bramwell LJ: Osborn v Gillett (1873) LR 8 Ex 88, 94–96 (criticising the reporting of Baker v Bolton). But his colleagues maintained the established rule and so subsequently did the House of Lords: Admiralty Commissioners v Owners of the SS Amerika [1917] AC 38. 116 Hence neither of these possibilities seems even to have been contested in the early nineteenth century. 117 The dependants had no claim of right, but their interest was recognised. In the cases mentioned in n 120, the widows were made parties to the proceedings. 118 H Smith, ‘From Deodand to Dependency’ (1967) 11 AJLH 389. In a dreadful accident at Hyde, Cheshire, in 1829, when 30 people were killed after a club-room floor collapsed, the jury assessed the timber at 5s. The Westminster practice is highlighted by T Sutton, ‘The Deodand and Responsibility for Death’ (1997) 18 JLH 44. 119 ibid 393–94. See J Hostettler, ‘Thomas Wakley – An Enemy of Injustice’ (1984) 5 JLH 60; E Cawthon, ‘New Life for the Deodand: Coroners’ Inquests and Occupational Deaths in England, 1830–1846’ (1989) 33 AJLH 137. 120 eg R v Brownlow (1839) 11 Ad & E 119 (steamboat boiler and engine: £1500; inquisition quashed for failure to state time of explosion and death); R v West (1841) 1 QB 826 (railway engine and carriage: £500, failure to describe deodand).

476 Accidents worse than waste paper’.121 This was because the court had discovered the principle that deodands could be awarded only in the case of a death by misadventure rather than by felonious act;122 and at the inquest in question the jury had been moved to return a verdict of ‘wilful murder’. The deodand system was thus rendered inoperative in cases of fault, the very cases where, if injury alone had resulted, the common law would have given an action for damages to the victim. At the height of the ‘railway boom’, Edwin Chadwick campaigned to publicise the dreadful conditions under which the railway navvy worked.123 One complaint which the Select Committee on Railway Labourers endorsed was the lack of protection or assistance offered to dependants of those who were killed.124 Even before that Committee’s report, Lord Campbell had taken up the cause, but could not be persuaded to do more than seek a remedy for this small part of the whole injustice. Accordingly, two bills became law. One abolished deodands,125 the other gave dependants certain opportunities to claim compensation by civil action.126 The latter statute, although in many respects obscure, was nonetheless drawn with a degree of cunning. For it did not give the dependants of the deceased their own right of action, as would have followed from the Scots example of the solatium. Instead, the personal representatives of the deceased person were permitted to maintain an action in any case where, if he had not died, he himself might have sued. Nevertheless the damages were to compensate those dependants who fell within a limited range – wife, husband, parent or child of the deceased. If necessary the jury was to apportion the damages amongst them. Any defence that would have been open to the defendant against the deceased ran equally against a claim by his estate on his dependants’ behalf; not only contributory negligence,127 but also common employment, were therefore to prevent claims from succeeding under the Act.128 In 1846, Priestley v Fowler was still a unique precedent standing against a wholly unfamiliar type of action and it was certainly assumed by some employers that they were being made vicariously liable to dead employees’ relatives under the new Act.129 Yet the first case to reiterate the Priestley v Fowler rule refused relief under the Fatal Accidents Act 1846 to the widow of a deceased railwayman who, as administratrix, sought to make her husband’s employers vicariously liable for the negligence of a fellow-worker.130 In the mines, 121 (1846) PD LXXXVII 1372–1373. 122 See R v Polwart (1841) 1 QB 818 (steamboat boiler: £800, verdict of manslaughter). cf the rule precluding civil action upon a felony, as to which, see p 474. 123 See p 487. 124 PP 1846 (530) XIII, x–xi; RA Lewis, ‘Edwin Chadwick and the Railway Labourers’ (1950) 3 Econ HR 107. 125 Deodands Act 1846. For the Parliamentary proceedings, see Bartrip and Burman (n 2) 98–103. 126 Fatal Accidents Act 1846 (also known as Lord Campbell’s Act, although it was first introduced by Lord Lyttelton); discussed in R Kidner, ‘A History of the Fatal Accidents Acts’ (1999) 50 NILQ 318; P Handford, ‘Lord Campbell and the Fatal Accidents Act’ (2013) 129 LQR 420. 127 Tucker v Chaplin (1848) 2 Car & K 730. In Scotland, under the right of action accorded to dependants, there was support for the view that ‘mere rashness on the part of the workman would not exclude a claim of reparation, if the employer had neglected his duty.’ But the House of Lords insisted that this generosity be surrendered: Paterson v Wallace (1854) 1 Macq 748, 754; see p 481. 128 Equally, if the deceased man expressly contracted out of his right to sue, his dependants were bound. The issue only became a live one after the Employers’ Liability Act 1880 partly reversed the implications of common employment: see Griffiths v Earl of Dudley (1882) 9 QBD 357, discussed at p 497, n 268 and text. 129 See the letter from the Coal Owners of North England to the Home Secretary, referred to by Bartrip and Burman (n 2) 103. 130 Hutchinson v York Newcastle and Berwick Railway Co (1850) 19 LJ Ex 296.

Part 1: Compensation by Civil Suits 477 where colliers died in their hundreds each year, the position was the same. The first inspectors of mines were appointed in 1850 and soon recognised the uselessness of Lord Campbell’s Act. Their early proposals included a reversion to the system of deodands.131 The families of deceased passengers did gain some benefit from the Act – indeed verdicts of £13,000 in 1871 and £16,000 in 1880 are recorded. But even they found that the courts interpreted the Act cautiously. Thus the judges refused to allow that the ‘injury’ suffered by the dependants could include their distress as well as their financial loss.132 The Scots precedent of the solatium was rejected, Coleridge J pointing out that the Act applied ‘not only to great railway companies but to little tradesmen who sent out a horse and cart in the care of an apprentice’.133

I. Duties of Care By mid-nineteenth century, the judges had determined that ‘negligence’ was to be measured by an objective standard. Alderson B gave a much-repeated definition: ‘Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the prudent conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’134 This set the ‘reasonable man’ on an early omnibus to Clapham. But it did not settle that liability arose ‘wherever a Man receives any Hurt through the Default of another’. The precocious generalisation to this effect in Buller’s Nisi Prius had too indiscriminate a potential for imposing costly responsibility.135 The practice books of the nineteenth century show that the thrust of arguments in court stuck closely to the common law’s usual technique of cautious analogy. Precedents for highway accidents, building accidents, and shipping accidents had to be relied upon to provide the next nearest case. Plaintiffs would then argue that there must be a duty to take care in some new situation; and to such claims the judges might respond that there was no duty at all, or one that was owed only to a limited class of people, or one that was to guard only against certain hazards.136 The concept of duty was unquestionably a matter of law and so gave the judges a power to remove cases from juries that was in a sense more fundamental than any of the defences

131 O MacDonagh, ‘Coal Mines Regulation: The First Decade, 1842–1852’ in R Robson (ed), Ideas and Institutions of Victorian Britain: Essays in Honour of George Kitson Clark (Bell, 1967) 78; Bartrip and Burman (n 2) 110. 132 cf Handford (n 126) 448, who points out that the first draft of the Bill provided compensation for ‘pecuniary injury’, but the Select Committee deleted the word ‘pecuniary’ and this amendment was accepted by Parliament; Handford suggests that the Committee ‘simply saw the word as unnecessary’. 133 Blake v Midland Railway Co (1852) 18 QB 93, 111. Lord Campbell, who was a member of that Court, also held that where a dependant had received insurance moneys in the estate of the deceased man, these had to be brought into account in determining whether he had suffered a loss by the death: Hicks v Newport, Abergavenny and Hereford Railway Co (1857) 4 B & S 403n. By contrast, a person injured but not killed did not have to bring insurance moneys into account when himself claiming damages; they came to him through his prevision: Bradburn v Great Western Railway Co (1874) LR 10 Ex 1. On the later reform of the insurance position for fatal accidents claims see Kidner (n 126) 333–34. 134 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781, 784. On the emergence of this single standard see Ibbetson, ‘Business Rome’ (n 27) 92–99. 135 See p 461. 136 See esp MJ Prichard ‘Scott v Shepherd and the Emergence of the Tort of Negligence’ (Selden Society, 1976).

478 Accidents already considered. The best-remembered examples of this process were in the realms of occupiers’ liability, manufacturers’ responsibility for defective products and employers’ liability for safety. They are worth recalling briefly for the different applications of the duty of care concept which they provided.

i. Occupiers’ Liability The occupier of land became a potential defendant in many different circumstances: injurious things might fall, spread or escape from his land, and harm property or people on other private land or on the highway. If his boundary was on the highway, there might be dangers, such as trap-doors or protrusions, which might cause an accident.137 Within his own bounds, untoward events might occur or dangerous conditions arise, which equally might result in injury. It is scarcely surprising that in the earlier nineteenth century, there was considerable confusion about the different aspects of the liability for occupiers. As regards the occupier within his own bounds, it was never contemplated that he should be in any sense strictly liable for injuries occurring to entrants upon his premises. At the other extreme, if he deliberately set traps with the intention of injuring people, it was held in the early nineteenth century that he would become liable even to trespassers who were injured as a result, if they themselves did not know of the hazard.138 This judicial opinion indeed coincided with the radical and humanitarian campaign against setting spring-guns and man-traps to catch poachers, a practice also rendered criminal in 1827.139 The difficult ground concerned negligence. By the 1830s it appears that shopkeepers were being held liable if they carelessly left trapdoors open and caused injury to unsuspecting customers.140 But the prospect of transplanting a commercial risk of this kind into the domestic circle of family, guests and servants was as worrying in this context as it had been to Lord Abinger in Priestley v Fowler. In 1856, a private guest visiting the owner of an hotel sued after being injured by a falling pane of glass. His host was not alleged to have known about this defect in the premises; the injury it was said, had come about through his ‘carelessness, negligence, default and improper conduct’. It was held on demurrer that no action could lie. Pollock CB drew upon Priestley v Fowler and broadened its armour by holding that no member of a household should be liable to claims by ‘any other member of the establishment’. Just as one servant had no claim under the fellow servant rule, so a visitor might not sue either master or servant, since for the time he was part of the household.141 This was an extreme view that would soon be modified. The contrast between the protected customer and the unprotected guest appeared too stark. Moreover, the entrant onto premises might be an employee sent by his employer on business to visit 137 In early instances, the liability was put in negligence (eg Payne v Rogers (1794) 2 H Bl 350; Bush v Steinman (1799) 1 B & P 404); later, such cases might be put in nuisance, particularly to draw upon an extended notion of vicarious responsibility: see n 52. 138 Deane v Clayton (1817) 7 Taunt 489; Bird v Holbrook (1828) 4 Bing 628. See R Pound, ‘The Economic Interpretation and the Law of Torts’ (1940) 53 Harvard Law Review 365. 139 Spring Guns Act 1827. 140 Parnaby v Lancaster Canal Co (1839) 11 Ad & E 230, 9 LJ Ex 338, 541; see also Chapman v Rothwell (1858) El Bl & El 168. 141 Southcote v Stanley (1856) 1 H & N 247.

Part 1: Compensation by Civil Suits 479 the occupant: in the heyday of common employment, some at least of the judges were reluctant to treat him as they treated business customers. For instance, in Wilkinson v Fairrie a carman, calling on his employer’s business at the defendant’s premises, was directed into an unlighted passage; he fell down an open stairwell. Bramwell B and Pollock CB brusquely rejected his claim: ‘if he could see his way, the accident was the result of his own negligence; if he could not. … he ought not to have proceeded without a light.’ In any case the defendants were under no duty to fence off the stairwell; it was to be distinguished from a ‘hole’ or ‘trap-door’.142 Under pressure of a growing number of decisions, a degree of clarification was achieved. In Indermaur v Dames, a gasfitter had been sent by his employer to work in a sugar refinery with a warning to take care, ‘because sugar refineries are very peculiar places: they allow neither candles nor lucifers’. He was shown the way in the dark but later fell through an open shaft. A verdict of £400 for a broken spine was upheld on appeal since he belonged to the class of entrants on premises who were there as ‘invitees’ of the occupier upon his business. Willes J said:143 With respect to such a visitor at least, we consider it settled law that he, using reasonable care for his own part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know.

On the other hand, mere ‘licensees’ – volunteers, guests, servants, or persons ‘whose employment is such that danger may be considered as bargained for’ – were expected to look after themselves, save exceptionally, as where the occupier wilfully deceived them or did some positive act which placed them in danger.144 Willes J’s judgment came to be read as if it were a statute. Around the ambiguities which existed in his formulation – such as the notion of ‘unusual danger’ and the position of the visiting servant – was to be spun much forensic filigree.145 But the basic distinction between invitee and licensee was to remain for a long period. Only in 1957 was it to be replaced by a ‘common duty of care’.146 And by then the whole issue fell to the judge, since juries had all but disappeared in negligence actions.

ii. Products Liability Thanks to industrial production, the ordinary person not only came across more varieties of article in the course of life and work, but he had to deal with objects that were more complex and dangerous. Where injuries and other damage resulted from the defective condition of an article, the claim could often be formulated in contract. The rapid development of the law concerning warranties and implied terms in sales of goods was directed not only towards giving damages for failure to provide the goods contracted for, but also to impose liability for such consequential losses as injuries caused to people or their property by the defective goods.147 142 (1862) 4 B & S 396. cf also Bolch v Smith (1862) 7 H & B 736 (servant failed because visiting for personal reasons). 143 (1866) LR 1 CP 274. 144 Willes J carried his formulation further in Gautret v Egerton (1867) LR 2 CP 371. 145 See eg PH Winfield, A Text-book of the Law of Tort, 2nd edn (Sweet & Maxwell, 1943) ch 22. 146 Occupiers’ Liability Act 1957. 147 See pp 200–01.

480 Accidents The question of liability in tort for negligence arose only when a contract action was not possible, and so the law did not develop rapidly. The most likely case was where the person injured was not party to any contract with the manufacturer or supplier of the dangerous article. Strict notions of privity of contract meant that there was no contract between a manufacturer and the ultimate retail purchaser unless the manufacturer sold direct to the public. The increasing scale of commerce made this the less likely. Equally there was no contract between a retailer and members of the purchaser’s family or his servants. This absence of privity was to be seized upon as a reason for denying that any liability for negligently caused injury arose. In Winterbottom v Wright148 a coachman employed to drive the Holyhead mailcoach was lamed for life when the coach broke down thanks to a latent defect. He sued the supplier of the coach, who was not his employer, it being accepted that he would have no action against the latter in consequence of Priestley v Fowler. However, Lord Abinger CB held that he had no cause of action against the supplier either. By permitting this action, we should be working this injustice that after the defendant had done everything to the satisfaction of the employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him.149

If the manufacturers of vehicles could be sued by all who used them ‘the most absurd and outrageous consequences, to which I can see no limit, would ensue.’150 While this nice contractualism came normally to limit the scope of a manufacturer’s liability for his faulty products, the rule was never quite firm. The Court of Exchequer itself had recognised five years before that deliberate lying could give rise to liability outside a contract: a gunsmith who sold a gun to a father for his son, warranting it falsely to be by a reputable maker, could be sued by the son when injured by it.151 Thereafter there was always some temptation to substitute the word ‘negligence’ for ‘fraud’ in such cases. In George v Skivington, a later Exchequer court allowed a claim by a woman, whose husband had bought her hair-wash from the defendant; the latter had specifically stated that it was suitable for her hair.152 ‘Few cases can have lived so dangerously and lived so long.’153 Eventually it would be given new and more substantial existence in Donoghue v Stevenson.

iii. Duties in Employment In the realm of work accidents, the notion of duty of care was fashioned to reflect the values embodied in the defences of contributory negligence, common employment and volenti. From Priestley v Fowler onwards, it was always accepted that an employer owed some duty to see to the safety of his servants and, as with duties such as those of occupiers,

148 (1842) 10 M & W 109. 149 ibid 115. 150 Alderson B (at 115) remarked, a propos the virtues of privity: ‘The only real argument in favour of the action is, that this is a case of hardship, but that might have been obviated, if the plaintiff had made himself party to the contract.’ Perhaps so, but hardly likely! 151 Langridge v Levy (1837) 2 M & W 519; affirmed (1838) 4 M & W 337. 152 (1869) LR 5 Ex 1; discussed in D Ibbetson, ‘George v Skivington (1869)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart Publishing, 2010) 69. 153 Donoghue v Stevenson [1932] AC 562, 572 (Lord Buckmaster).

Part 1: Compensation by Civil Suits 481 the experience of case law led to an elaborate process of definition. Here was a concept around which plaintiffs could press a case that an accident involved a failure of system, rather than a casual inadvertence. If permitted a liberal interpretation, the duty might have made masters responsible for failing to provide adequately trained operatives or supervisors, or for failing to make good defects in plant or materials, or for failing to set up proper safety procedures. In the mid-1850s, the House of Lords did show signs of moving in such a direction. Thus, in Paterson v Wallace154 the House directed a retrial in which it was to be left to the jury to decide whether the colliery owner had broken his duty to secure his workman’s safety by leaving a dangerous stone in a mine roof, as well as deciding whether the deceased miner had recklessly courted injury by going under it instead of waiting. In Brydon v Stewart,155 the House upheld an award of damages to the relatives of a deceased miner killed by unsafe planking at the pit mouth. It is against the potential of such decisions that the contemporaneous determination to give full scope to the concepts of common employment and voluntary assumption of risk must be judged. Just as common employment prevailed even against vicarious responsibility for the negligence of supervisory staff, so it proved very difficult to assert the master’s own negligence in selecting the supervisor.156 Just as volenti prevailed when a worker stayed on the job knowing of the risk to him, so it proved possible only rarely to show that the master continued to have a duty to make good the defect.157 The miners’ cases were treated as exceptions for specially hazardous work or as going only to circumstances where the worker could not appreciate the danger.158 It was in the Court of Exchequer that opposition to compensating for work accidents was most steadily maintained. Occasionally in the other common law courts, a less rigid attitude found expression. But looking at the gravamen of the reported case law, there can be no doubt that Exchequer set the prevalent tone.159 Summarising a half-century’s development, Bowen LJ pointed out that the duties to look to safety placed upon an employer ensured that an employee was placed in no better position than ‘the rest of the world who use the master’s premises at his invitation on business’.160

J. Later Changes in the Common Law We may end this account of the constraints that inhibited the growth of the negligence action at common law, by noting what later happened to the key factors. Certain of the evident artificialities would with time be abandoned by the judges themselves. Thus the assumption that a worker, or anyone else, assumed the risk of injury once he knew of the danger began to be pared away. In 1891 the House of Lords boldly decided, in Smith v Charles Baker & Sons,161 that a drill operator was not to be taken to have consented 154 (1854) 1 Macq 748 (Scot). 155 (1854) 25 LT 58, yet another appeal by Scots miners. 156 eg Ormond v Holland (1858) EB & E 102; cf McAulay v Brownlie (1860) 22 D 975. 157 cf eg Dynen v Leach (n 105). 158 eg Roberts v Smith (1857) 2 H & N 213 (Exchequer Chamber); not applied in Williams v Clough (1858) 3 H & N 258; Griffiths v Gidlow (1858) 3 H & N 648; cf Vose’s case (n 95). 159 Note eg Skipp v Eastern Counties Railway Co (1853) 9 Ex 223; Assop v Yates (1858) 2 H & N 768. 160 Thomas v Quartermaine (1887) 18 QBD 685, 693. 161 [1891] AC 325.

482 Accidents to the risks of having crane-loads of stones swung over his head simply by continuing at work. ‘I believe it to be contrary to fact,’ said Lord Herschell, ‘to assert that he either invited or assented to the act or default he complains of as a wrong.’162 Here was a judicial response to a quarter-century’s pressure by radicals and trade unionists to improve the lot of the injured workmen. The strange concept of identification was also given up at the same period. No longer was a passenger, by taking a ticket on a train or coach, assumed to have control over the driver.163 At other points, however, the legislature intervened. In the case of common employment, the Employers’ Liability Act 1880 would remove only the more extreme applications of the doctrine (to vice-principals, and in some cases, non-collaborateurs).164 This left the rule rather more firmly in place for other cases – for it is a standard assumption that, once legislation interposes, future changes must follow the same political process. Eventually in the 1930s the courts would show a new readiness to side-step common employment by giving a larger range to the employer’s own duties to provide safety at work.165 But statute in 1948 was needed to kill the doctrine off.166 It also took statute at that period to modify contributory negligence into a factor which proportionately reduced damages rather than abnegating the entire claim.167 The first statutory intervention in the field, the Fatal Accidents Act 1846, with minor modification,168 would also serve to settle the range of claims open to dependants of a deceased victim. Not till 1934 would Lord Ellenborough’s assumption, that the deceased’s estate retained nothing of his own rights in tort, be overturned and then by a statute which gave little enough heed to the role of Lord Campbell’s Act.169 In the event, combination of the two Acts allowed the dependants their financial loss and an additional sum, supposedly representing the deceased’s lost expectation of happiness, but in effect granting a solatium. The courts kept this award for loss of expectation of life to a small, conventional amount (set in 1941 at £200, and later raised to account for inflation170) until such awards were abolished in 1982.171

162 ibid 362. cf the unrepentant Lord Bramwell, dissenting: ‘It is said that to hold that the plaintiff is not to recover is to hold that a master may carry on his work in a dangerous way and damage his servant. I do so hold, if the servant is foolish enough to agree to it. This sounds very cruel. But do not people go to see dangerous sports? Acrobats daily incur frightful dangers, lion-tamers and the like. Let us hold to law. If we want to be charitable, gratify ourselves out of our own pockets’ (346). Five days later, the House held that common employment could not apply as between employees of a main contractor and a sub-contractor: Johnson v WH Lindsay & Co [1891] AC 371. 163 The Bernina (1888) 13 App Cas 1. 164 See p 494. 165 Notably in Wilsons and Clyde Coal Co Ltd v English [1938] AC 57; RB Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (University of North Carolina Press, 1978) 297–298. 166 Law Reform (Personal Injuries) Act 1948, s l; following the Report of the Monckton Committee on Alternative Remedies, PP 1945–46 [Cmd 6860] XIII. 167 Law Reform (Contributory Negligence) Act 1945, implementing a recommendation of the Law Reform Committee, Eighth Report, PP 1938–39 [Cmd 6032] XII; discussed in Mitchell (n 74) ch 13. 168 The statute provided for action by the dependants directly, when there was no personal r epresentative, or none willing to take action. 169 Law Reform (Miscellaneous Provisions) Act 1934; see Mitchell (n 74) ch 10. The problematic relationship between claims under the 1934 Act and those brought under the fatal accidents legislation was finally (if inelegantly) resolved in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. 170 Benham v Gambling [1941] AC 157; Yorkshire Electricity Board v Naylor [1968] AC 529. O Kahn-Freund, ‘Expectation of Happiness’ (1941–1942) 5 MLR 81 gives a devastating critique of the conceptual basis of the former decision. 171 Administration of Justice Act 1982, s 1.

Part 1: Compensation by Civil Suits 483 As for duties of care, when attitudes began to change in the late 1800s, a more sophisticated attempt at generalisation made its appearance as part of a unified theory of tort law grounded in liability for fault.172 In Heaven v Pender – a work accident claim against a site-owner who was not the plaintiff ’s employer – Brett MR (afterwards Lord Esher) stated:173 Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.

As a novel advantage to plaintiffs’ counsel, this was greeted by other judges with alarm. When Chancery courts were tempted into accepting that merely negligent misstatements should ground a claim for purely economic loss,174 the House of Lords and Court of Appeal (the latter containing a temporising Esher) announced that there was no such duty of care.175 ‘Heaven v Pender,’ lamented AL Smith LJ, ‘is often cited to support all kinds of untenable propositions.’ The discriminating approach of the earlier law resumed sway.176 The House of Lords would confirm, for instance, that the wife of a tenant could not sue the landlord after being injured by the defective state of the premises, for which under the lease he was responsible.177 The Court of Appeal insisted that farmers and other animal-owners were under no duty to prevent them from straying onto the roads, however dangerous they might be to the new motor traffic.178 It is difficult to accept Holmes’ proposition that all this represented a judicial distillation of the wisdom embodied in successive jury verdicts.179 The judges were pursuing their own notion of what was politic. Eventually, in Donoghue v Stevenson, a bare majority of the House of Lords placed manufacturers under a general duty to take care that faults in their products did not injure ultimate consumers. The ‘contractualist’ limitation of liability that had dominated judicial thought since Winterbottom v Wright was abandoned and, in Lord Atkin’s famous pronouncement, liability was derived from breach of a general duty to avoid foreseeable harm to one’s neighbours – persons, that is, ‘who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’180 Even so, to those trained not to jump, a great leap forward is not easily imitated. The innate caution which

172 Such a theory was made explicit particularly in OW Holmes, The Common Law [1881] (Lawbook Exchange, 2005) ch 3. 173 (1883) 11 QBD 503, 509. This was taken up with some enthusiasm in the United States. 174 eg Peek v Derry (1887) 37 Ch D 541; Cann v Willson (1888) 39 Ch D 39. 175 Derry v Peek (1889) 14 App Cas 337; Le Lievre v Gould [1893] 1 QB 491; but it cannot be said of Esher (as does CHS Fifoot, Judge and Jurist in the Reign of Victoria (Stevens, 1959) 38–39) that his ‘retreat was unequivocal’. 176 Hence Thomas Beven’s magisterial Principles of the Law of Negligence (Stevens & Haynes, 1889), analysing many distinct duties of care. 177 Cavalier v Pope [1906] AC 428; discussed in R Baker and J Garton, ‘Cavalier v Pope (1906)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart Publishing, 2010). 178 Heath’s Garage Ltd v Hodges [1916] 2 KB 370; Searle v Wallbank [1947] AC 341. 179 The Common Law (n 172) 110ff. 180 [1932] AC 562, 580. The differences of view were presaged in Oliver v Saddler & Co [1929] AC 584 and Excelsior Wire Rope Co Ltd v Callan [1930] AC 404.

484 Accidents the bulk of judges had shown on the question changed little. While Atkin remained in the House of Lords, it is true, there was some very modest growth in the range of liability. But in the years after his retirement there came a succession of leading decisions which in general attitude and specific result showed a marked resemblance to those which had prevailed half a century before. It would not be until the 1960s that the pendulum would swing more definitely in the direction set by Lord Atkin’s impetus, although it would start to swing back again in the late twentieth century.

Part 2: Planning Against Accidents A. Insurance and Limitation of Liability Once the common law opted for the principle of fault liability in the arena of accident compensation, its power to intervene was necessarily intermittent, whatever its precise scope. That range might be varied by explicit contractual arrangement, though it was not at the outset clear how far this could be allowed in terms of public policy. However, the possibilities were undoubtedly enhanced as the courts began to make free with notions of implied contract as a device for limiting the scope of the general law. There were two directions in which contractual arrangements might develop, towards insurance of liability and towards exemption from liability, and both deserve some exploration. Insurance which paid a benefit to the victim of an accident had been developing in the eighteenth century. The early mutual benefit organisations – friendly societies, widows’ protection funds and other workers’ clubs – frequently included sickness or death after an accident amongst the conditions upon which they paid benefit.181 In the realm of commercial insurance also, the risk of certain consequences of accidents had long been the subject of cover. The earliest life policies were often for the term of a single voyage and were taken precisely because of the special risks involved; the analogy to the insurance of ship and cargo in a marine venture had been easy to draw.182 But while the insurance of property on land developed steadily towards longer-term risks (for instance, in the case of fire and burglary insurance), the spread of insurance covering the person was mostly confined to the growth of longer-term life policies. Eighteenth-century life insurance had been dominated by gamblers speculating on the lives of well-known strangers; once such policies had been prohibited by statute, and more reliable actuarial data became available, the way was clear for the development of a sounder, more prudent market.183 But this was slow to emerge: in the 181 E Hopkins, Working Class Self-Help in Nineteenth-Century England: Responses to Industrialisation (UCL Press, 1995); D Turner and D Blackie, Disability in the Industrial Revolution: Physical Impairment in British Coalmining, 1780–1880 (Manchester University Press, 2018) ch 3. See also three articles by J Benson: ‘Colliery Disaster Funds, 1860–1897’ (1974) 19 International Review of Social History 73; ‘English Coal‐Miners’ Trade‐ Union Accident Funds, 1850–1900’ (1975) 28 Econ HR 401; ‘The Thrift of English Coal‐Miners, 1860–95’ (1978) 31 Econ HR 410. 182 HE Raynes, A History of British Insurance (Pitman, 1948) 118–19. 183 Gambling Act 1774. On the development see M Lobban, ‘The Law of Insurance’ in W Cornish et al, The Oxford History of the Laws of England Volume XII, 1820–1914: Private Law (Oxford University Press, 2010) Part 3, ch 2; TS Alborn, Regulated Lives: Life Assurance and British Society, 1800–1914 (University of Toronto Press, 2009). Also see pp 217–18 of the present volume.

Part 2: Planning Against Accidents 485 early 1800s some people bought their families security against their death (which would include premature death in an accident), but their numbers were confined to those who could afford substantial premiums and who were attracted by the novel type of security offered.184 It was not until the great railway boom that commercial insurance extended its activities beyond death to other injuries. Between 1845 and 1850, three companies were incorporated to provide accident cover to passengers against the risks of their journey. The most successful proved to be the Railway Passengers Assurance Company,185 whose terms for single journeys were originally:186 The sum of 3d for a first-class passenger to insure £1,000 in case of death; second-class 2d to insure £500; third-class 1d to insure £200; and, in case of accident only, a sum of money to be promptly paid in proportion to the extent of injury sustained.

Railway ticket offices were used to sell the insurance, but in its early years it was a modest operation. The offer of insurance to passengers against the consequences of accidents to themselves posed the question whether the companies could insure their liability to pay compensation. This was indeed one aspect of a wider issue: was it right that a person should be able to plan in advance to spread or avoid the risk of liability normally imposed on him by the law? Would such steps not lead to indifference and carelessness in exposing others to danger? In the mid-century years there was a widespread belief that any deflection of liability to pay compensation was both morally wrong and legally ineffective; but by the 1870s that opinion was being dispelled. When it was in the process of being formed, the Railway Passengers Assurance Company declined a suggestion that the railways should be able to insure against liability under the Fatal Accidents Act 1846 ‘on the ground of its being contrary to public policy – a view strongly held by the Board of Trade’.187 In another field, the Manchester Steam Users’ Association, formed in 1855 to aid in the prevention of steam boiler explosions, opposed insurance, ‘as it would induce a carelessness which the committee think should be punished rather than rewarded’. The Association’s chief inspector, however, left it to form the Steam Boiler Assurance Co. This was at once successful in providing cover against damage to property caused by explosions and by 1876, the company and its competitors explicitly covered liability for injuries to third parties and for damage to their property. At that time, the London and Provincial Carriage Insurance Co was formed to offer the first compound policies to the owners of road vehicles: this undertook to indemnify against damage to the vehicle and against liability to third parties.188 Here was the forerunner of the modern motor-vehicle policies, third-party and comprehensive. But for it and the eventual addition of statutory compulsion to carry third-party cover, it is evident that common law negligence liability would not have survived to carry the realm of traffic accidents. 184 Lobban (n 183) ch 7. 185 Incorporated by statute in 1849. 186 (1849) 11 Herapath’s Railway and Commercial Journal 112. The justification for the proportionately higher premiums for second and third-class passengers was that they were more at risk. The construction and positioning of first-class coaches made them safest. 187 FH Cox, The Oldest Accident Office in the World (Fanfare, 1949). Once, however, the Act of incorporation was obtained, the company foresook moral purity and attempted to attract liability business: ibid 41. 188 WA Dinsdale, History of Accident Insurance in Great Britain (Stone & Cox, 1954) 40, 179–80.

486 Accidents Liability insurance was also to blossom with the imposition of new responsibilities upon employers towards their workmen in 1880.189 It was indeed one of the ironies of the ‘common employment’ rule that the mutual insurance funds for the protection of employees, to which some employers were beginning to contribute in the 1870s, were able to develop free of any threat of being declared void as contrary to public policy. The employer had virtually no liability to insure against: that was the point of the fund. There was another way in which entrepreneurs liable to pay compensation for accidents might seek to protect themselves: by contracting in advance with those who might suffer accidents that their liability should be limited, or indeed entirely eliminated. Limitation of liability for the loss of goods had been long known, and in 1854 the railways had been subjected to a special statutory compromise on this question.190 But, as with liability insurance, there was at the outset a definite opinion that, without Parliamentary sanction, to limit liability against personal injury would be of no avail. Judges might strike out the relevant term from contracts on the ground that it was contrary to public policy; juries might refuse to find that passengers had been given sufficient notice to bring the term into the contract.191 In Part IX of the Merchant Shipping Act 1854, shipowners obtained the statutory right to limit their personal injury liability, arguing that the Fatal Accidents Act 1846 had exposed them to a wholly new order of financial risk, which had gone unconsidered when the Act was passed. The railways tried to follow suit on a string of occasions, but only a few companies secured the right to limit liability for injury in the case of the cheap workmen’s trains which they undertook to run.192 The case law, however, reveals that in the 1860s the railways were beginning to write limiting terms into certain kinds of ticket, without waiting for Parliamentary assistance. Drovers who accompanied their flocks free of charge, for instance, were held to agreements excluding liability; so, later on, were passengers on cheap excursions. The cases were to come before the courts in the very period when modern judicial attitudes to exemption clauses were largely settled. The judges strove to make these clauses commercially feasible, first, by keeping the issues largely in their control and out of the hands of the juries, and second, by prescribing the ‘objective’ test for incorporating them into contracts.193 In place of the earlier suspicion of exemption from personal injury liability, had grown a sympathy, in particular, for ‘open-ended’ risk that was felt to threaten great enterprises such as railways.194

B. Safety Legislation To the extent that it imposed liability to compensate, the common law indirectly stimulated systems of inspection and safe operation which might prevent the occurrence of accidents. 189 See p 494. 190 See p 259. 191 In 1870, Hannen J told the Select Committee on Compensation for Railway Accidents, ‘it has always been assumed, up to this time, by those who advise railway companies, that they cannot limit their liability and they have always acted upon that up to this time’: PP 1870 (341) X, Q 1737. To the same body Willes J marked the shift of opinion by saying that 20 years before he would have thought that a limiting stipulation could not have been made, but that the course of modern decisions was to admit them and leave as a question of fact whether the special contract had actually been made: ibid Q 2223. Bramwell B enthusiastically supported the latter view: Q 842. 192 See Royal Commission on Railways, PP 1867 [3844] XXIV, paras 131, 158. 193 eg Duffy v Great Northern Railway Co (1879) 41 LT 197. 194 See pp 466–67.

Part 2: Planning Against Accidents 487 There were two ways in which such an incentive might be made more rigorous. One was to increase the range of circumstances in which compensation was payable – even to the extent of imposing strict liability; the other was to institute inspection from outside in order to ensure that set standards were maintained. The first of these approaches (more liability) did not go entirely unremarked in the earlier nineteenth century, though it would make no political headway. Edwin Chadwick preached strict ‘pecuniary responsibility’ as a means of reducing injuries to workmen. Even as the Factories Commission was preparing recommendations on hours of work which carefully preserved the position of adults to act as free agents,195 he was writing in a passage on accident prevention that would harness the employers’ self-interest by simple utilitarian calculation: they were to pay all injured employees half wages and for medical attendance during absence from work, save for those (over 14) who were guilty of culpable temerity in causing the accident.196 Once he sensed a rightable wrong, Chadwick (like his master Bentham) was quick to qualify the freedom of the market. The idea got nowhere, but Chadwick returned to it in the ‘railway boom’ of the mid-1840s, when he received detailed information about the degraded conditions of the navvies working to cut the Woodhead tunnel on the Manchester, Ashton-under-Lyne and Sheffield Railway, and of the frequent accidents. He lobbied MPs and provincial newspapers and induced a Select Committee to recommend the introduction of both government inspection and employers’ no-fault liability in railway construction.197 Despite this, the latter idea would again lie fallow for a long period. The railway interest in Parliament and the repression of combination among railway workers were among factors which would leave the industry free of anything much in the way of regulation, a monument to the potential of free enterprise.198 In other areas, a movement towards the second prospect – external inspection – was beginning, though it was, in matters of safety, halting and fitful. The coaching business in its heyday had been subject to limitations which sought to prevent overloading of passengers as well as to preserve the condition of the roads.199 The laws had been left to be enforced mainly by informers who shared in any fines. From the late 1820s the shipping of emigrants came under central inspection which grew in efficacy by turning to the legislature for enhanced powers.200 Even the railways came under a degree of surveillance from 1840 onwards, so far as concerned standards of line construction – something which directly affected the safety of passengers; inspectors working under the Board of Trade’s Railway Department (later Commission) even acquired the power to prevent the opening of a substandard line.201 Passengers could in any case sue for negligent injury. Here also the prime need was to protect workers, but nothing significant would happen on this front until the next century. 195 See p 292. 196 PP 1833 (450) XX, 77. It seems that Tooke and Southwood Smith, the other Commissioners, did not appreciate what the proposal was. 197 PP 1846 (530) XII; RA Lewis, ‘Edwin Chadwick and the Railway Labourers’ (1950) 3 Econ HR 107; Bartrip and Burman (n 2) 68–73. 198 See generally, H Parris, Government and the Railways in Nineteenth-Century Britain (Routledge & Kegan Paul, 1965) ch 4. 199 P Bagwell, The Transport Revolution from 1770 (Batsford, 1974) 49, referring to the Stage Coaches Acts 1790 and 1806. 200 O MacDonagh, A Pattern of Government Growth, 1800–60: The Passenger Acts and their Enforcement (Macgibbon & Kee, 1961). 201 Railway Regulation Act 1842, s 6; Parris (n 198) 50–55.

488 Accidents However, textile factory-owners, mine operators, and then owners of other factories and workshops were brought under regimes which placed safety alongside other conditions within the aegis of government inspection. The terrible accidents with machinery that occurred in textile mills could be observed by anyone willing to look. The use of children to clean parts while they were still in motion, and the failure to fence off rotating shafts and other bits of the main gearing (in which women’s clothing could easily become entangled) were common causes of dreadful mutilations and deaths. Lord Ashley fought a case as next friend of Elizabeth Cotterell, who at 17 had been crippled for life after being caught and revolved 200 or more times in an unboxed upright shaft. By agreement he secured the admission of the defendant’s liability, £100 damages and costs.202 The factory inspectors of 1833, who were then asked by the Government for special reports, also favoured measures against failure to fence, though they differed about what to do.203 Not surprisingly for a pioneering body seeking to control employers who could be ruthlessly hostile, they wanted Parliament to provide a clear statutory code of conduct, leaving as little as possible to be decided upon their own responsibility. After a good deal of Parliamentary skirmishing, the Factories Act 1844 emerged with a number of provisions regarding safety.204 In particular, owners of the textile factories covered by the legislation were obliged to fence certain machinery, including ‘all parts of the Mill gearing’, under threat of a fine of £5–20 (or £10–100 if injury or death resulted); they were obliged to inform the inspectors of any accident where the worker did not return to work next day, and the inspectors were given power (subject to an appeal to arbitrators)205 to designate other machinery ‘dangerous’ by notifying the occupier – but apparently the only consequence of this was to render the employer liable to the increased penalties if subsequently the machinery should cause an accident.206 In addition, the inspectors acquired two subsidiary powers to give factory workers the help they so clearly needed if they were ever to secure any real compensation for their sufferings in accidents. An inspector might, with the Home Secretary’s approval, institute civil proceedings on behalf of a factory worker injured by machinery. Or, in a criminal prosecution for failure to safeguard mill-gearing, the court might award an increased penalty of up to £100 if a worker had been injured, and the inspector might apply any part of this sum for the benefit of the victim.207 These new safety measures took their place beside the limits on the working hours of women and children that in 1847 were conceded to the Ten Hours Movement. The small inspectorate was hard enough pressed in enforcing the new rules on hours, and seems to have made little impression on matters of safety. Part of the blame lay in the complacent 202 PP 1841 (56) IX 24–29. In the Factories Bill that he had taken over in 1833, Ashley had included fencing provisions and a power for coroners’ juries to indict factory owners for manslaughter whose neglect to comply caused death: MW Thomas, The Early Factory Legislation (Thames Bank, 1948) 225. 203 See PP 1841 [311] X 206ff: the severest view was Leonard Homer’s: see Thomas (ibid) 228–31. 204 Factories Act 1844, ss 20–23, 59, 60. 205 For the problems posed by this form of arbitration, see TK Djang, Factory Inspection in Great Britain (Allen & Unwin, 1942) 153. 206 So s 60 was understood in 1856, when failure to comply also became the subject of an ordinary penalty: Factory Act 1856, s 6. 207 Factories Act 1844, ss 24, 25, 60. For the employee’s right to sue independently for breach of statutory duty, see pp 488–91. The Law Officers took the view that no such claim could be made where the victim was killed: PP 1852 [1439] XXII, 32.

Part 2: Planning Against Accidents 489 attitude that some of them adopted,208 part in the antagonism shown by some benches of magistrates.209 But once the question of the relay system had been settled,210 the inspectors were encouraged by Palmerston, as Home Secretary, to take a firmer line in securing the fencing of all mill-gearing. The Act appeared to require this without qualification, and the inspectors drew attention to the need for an all-embracing law by publicising cases in which workers were unexpectedly caught even in high shafts. The manufacturers, who banded together in a vociferous National Association of Factory Occupiers, sought to denounce this as oppressive interference by the state.211 There was a flurry of litigious activity to determine whether some qualification should be read into the absolute words of the s tatute,212 but the question was determined against the manufacturers in a civil action, Doel v Sheppard, by the Court of King’s Bench.213 So they sought protection from Parliament, and while they did not undermine the entire legislation, they obtained an amendment which reduced the duty to fence gearing to parts ‘with which children and young persons and women are liable to come in contact, either in passing or in their ordinary occupation’.214 This left the inspectors deeply dissatisfied, because it allowed manufacturers to escape having to box many shafts which they considered dangerous, unless they first gave notice (with the prospect of protracted arbitration) under the 1844 Act.215 Any counter-thrust had to await the political shift of 1867. During the 1860s, when the position of children in employment was once more investigated and the factory legislation was extended to many new forms of employment,216 scarcely any new provisions were introduced to deal with safety. It was not until the last quarter of the century, largely under trade union pressure, that safety legislation began to increase in scope and severity, and there was a significant expansion in the inspectorates that had the duty of enforcing it.217 The provisions in the Factories Act 1844, and subsequent legislation which permitted the inspectors to ensure compensation for the victims of accidents,218 were of very little formal use, though they sometimes moved an employer to make some payment ex gratia.219 But the safety requirements of legislation concerning working conditions were to have a 208 Thus Sir John Kincaid’s Reports explain away the many accidents in his district (Scotland) as nearly always the fault of the victim. 209 Horner, for instance, reported that the Bolton magistrates refused to convict in a clear case of failure to fence: PP 1845 [639] XXV, 15, and see many of his succeeding reports. 210 See p 295. 211 They were assisted by Harriet Martineau: The Factory Controversy: A Warning Against Meddling Legislation (National Association of Factory Occupiers, 1855). 212 Horner, incensed by the refusal of the Oldham bench to convict two millowners for a failure to fence which had caused a fatal accident, took proceedings against the three mill-owning justices for failing to fence, even though there had been no accidents. Their convictions were quashed by Quarter Sessions and the case stated to the Queen’s Bench. See next note. 213 (1856) 5 E & B 856; see further p 490. 214 Factory Act 1856, s 4; see R Dickson, ‘Legal Aspects of the Factory Act of 1856’ (1981) 2 JLH 276; R Dickson, ‘Industrial Safety: The Political Challenge’ (1986) 7 JLH 188. 215 The inspectors refused, in protest, to issue such notices: Bartrip and Burman (n 2) 65. 216 See the Factory Acts Extension Acts of 1864 and 1867. 217 Esp by the Factory Acts Extension Act 1878, which inter alia repealed the Act of 1856; S and B Webb, Industrial Democracy (‘printed by the authors specially for the trade unions of the United Kingdom’, 1898) ch 7. For the special problem of explosives manufacture, see JH Pellew, ‘The Home Office and the Explosives Act of 1875’ (1974) 18 VS 175. 218 See p 207. 219 RWL Howells, ‘Priestley v Fowler and the Factory Acts’ (1963) 26 MLR 367, found no instance of a c ompensation claim being pursued by civil action; see also Bartrip and Burman (n 2) 55–63.

490 Accidents much more lasting effect as the basis of civil actions claiming compensation for injury. For even in the 1850s it was recognised that where a breach of such a statutory duty resulted in injury to a worker, this in itself gave him a cause of action. None of the statutes said so in terms, and so this development was entirely a matter of judicial determination. The argument was certainly put that, by providing a penalty for breaking the statute, Parliament had intended that no other consequence should ensue; but it was rejected, and in broad terms. Lord Campbell CJ seized upon a statement in Comyn’s Digest:220 [I]n every case when a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage or for the recompense of a wrong done to him contrary to the said law.221

In a brief space there emerged the contours of legal argument that were to reappear in i ndustrial accident cases based on breach of statutory duty for another century and a half.222 Doel v Sheppard,223 that temporary victory of inspectors over manufacturers, determined that a breach of the terms of the statute was all that had to be proved. The statute was not to be read as though the plaintiff had also to prove that his employer had been negligent in failing to provide a safe system of work. If the Factory Act said that certain gearing had to be fenced it was not relevant whether a particular piece of gearing created a real danger. On the other hand, the first important attempt to found an industrial claim on breach of statute – the case of Coe v Platt224 four years earlier – showed that it was necessary to prove a case falling exactly within what was required by the statute. The 13-year-old plaintiff had been caught in an unfenced shaft which was under repair. The court found that there was no breach of the fencing regulation since at the time the shaft was not under power ‘for any manufacturing process’ as the Factory Act prescribed.225 Thousands of subsequent claims hung upon the nice interpretation of statutory regulations in relation to particular circumstances. Later courts would show their mistrust for Lord Campbell’s view that those protected by a criminal statute by implication could base a civil action upon it unless the statute said to the contrary. When in the 1870s attempts to do this were made in cases which involved injury to property rather than to the person, reasons were found for refusing such claims.226 Cairns LC took issue with Campbell and insisted that each statute must be separately examined to determine whether Parliament’s intention had been impliedly to accord a civil cause of action when prescribing a criminal penalty.227

220 Comyns’ text is drawn from Lord Holt (Anon 6 Mod 26–27) who was talking of an action of debt arising at law from the Wills Act 1540; as ER Theyer pointed out, it involved a defence of Holt’s prerogatives against the encroachments of Chancery, and deserved to be understood in its context: ‘Public Wrong and Private Action’ (1913) 27 Harvard Law Review 317, 332. 221 Couch v Steel (1854) 3 E & B 402. The statutory provision broken (the Merchant Seamen Act 1844, s 18) required a shipowner to maintain a proper supply of medicines on board. A crew member was held entitled to sue for breach of this duty. It was part of an early, but overdue, attempt to regulate the conditions of merchant seamen. 222 The Enterprise and Regulatory Reform Act 2013, s 69 overturned these developments. 223 See n 213. 224 (1851) 6 Ex 752; (1852) 7 Ex 460, 923. The case was organised by Leonard Horner. He wished to publicise the victory at first instance, but the Home Secretary, Sir George Grey, would not agree: Bartrip and Burman (n 2) 56. 225 Factories Act 1844, s 21. 226 See esp Gorris v Scott (1874) LR 9 Ex 125 (shipowner’s duty to provide pens for sheep was to prevent contagious disease, not sweeping overboard); Atkinson v Newcastle & Gateshead Waterworks Co (1877) 2 Ex D 441 (water company not liable for consequences of fire even in failing to keep pressure at required level). 227 Atkinson (ibid) 448: when the Act was a ‘private legislative bargain’ the duty was not to be implied.

Part 3: Resetting the Victorian Frame 491 Such a change of tide was bound to wash against the industrial accident claim based on breach of statute. In Groves v Lord Wimborne, Grantham J felt its pull and refused judgment to a plaintiff whose right arm was irretrievably injured in a winch that had lost the fence required for it by the Factory and Workshop Act 1878. But the Court of Appeal refused to disturb the established approach to such provisions:228 The Act in question … is not in the nature of a private legislative bargain between employers and workmen, as the learned judge seemed to think, but is a public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit.

The Court of Appeal’s attitude in the atmosphere of 1898 is not hard to understand: the campaigns that had resulted, first in the Employers’ Liability Act 1880 and then in the Workmen’s Compensation Act 1897, had induced a somewhat more generous attitude to industrial accident claims, a change already manifest in the modification of volenti non fit injuria.229 By this time, the great value of basing a claim upon breach of a specified obligation was transparent. Not only did the plaintiff avoid the uncertainties that were inevitable in seeking to convince a jury that an employer’s system of work was not safe. Even more important, there was no defence of common employment since no one’s negligence was in issue.230 Queen’s Bench created breach of statutory duty at just the moment when Exchequer was so intent upon leaving the worker responsible for his own misfortunes. The principle accordingly represented some countervailing moderation. Its appeal also went to those who would place responsibility on employers to the extent that their liability was defined in advance; and since the modifying effects of the Factory Act 1856 limited those liabilities severely for a generation, breach of statutory duty set up only minor tensions with common employment, volenti and the employer’s circumscribed duties of care at common law. It would only be upon the abolition of common employment (in 1948) that the essentially strict nature of a claim for statutory duty would seem to pose a real incongruity. An attempt then to allow reasonable care as a defence in such an action would founder under trade union objections,231 but, eventually, the Enterprise and Regulatory Reform Act 2013 would bring to an end the distinctive legal treatment of such claims.

Part 3: Resetting the Victorian Frame A. Employers’ Liability Challenge to the common law limits upon compensation for work accidents came from two main quarters. Middle-class criticism – particularly that of lawyers – surfaced in the proceedings of the National Association for the Promotion of Social Sciences. The views 228 [1898] 2 QB 402, 406. The ‘penal compensation’ provision (see n 207), which an unfriendly court might well have taken to show the extent to which Parliament was providing personal redress, was brushed aside. The Home Secretary had a discretion to determine whether the penalty would be paid over to the accident victim; the section therefore determined nothing about his rights. 229 This defence was held inapplicable to breach of statutory duty (Baddeley v Earl Granville (1887) 19 QBD 423), even before it was more generally paralysed by Smith v Baker (see pp 481–82). 230 Groves v Wimborne (n 228) 410, cf 417–19. 231 See p 506.

492 Accidents to be found in its proceedings ranged from outright demands for the abolition of common employment to reaffirmations of the law’s current wisdom. Yet by the mid-1870s the Association was coming to lend its considerable weight to the cause of reform.232 The stronger challenge in political terms came from the emergent organisations of the workers themselves. The Parliamentary Committee of the Trades Union Congress, in particular, had established its position in the course of fighting for the new legislation on union organisation and the freedom to picket. The return of two Scottish miners – Macdonald and Burt – in the 1874 election gave new impetus to the Parliamentary Committee’s initial campaigning over accident compensation.233 Miners had a peculiarly severe experience of disasters, which inspection had done little about; and Scottish miners – with Macdonald latterly at their helm – had promoted much of the litigation which had served only to consolidate the walls of common employment.234 The two MPs and the Parliamentary Committee found allies among radical liberals, including large employers such as AJ Mundella, the younger Thomas Brassey and Michael Bass. The representatives of the colliery owners and railway companies now found that they could no longer blow the issue away, as had happened when AS Ayrton had raised it in 1862, with a bill to secure pecuniary responsibility by abolishing common employment.235 In the Select Committee, which was the response to MacDonald’s first Bill to sweep away both common employment and volenti,236 much argument that had become familiar through the court cases was once more rehearsed. The opponents of change relied upon the economic presumptions that were taken to justify writing into the contract of employment the employee’s assumption of risk for injuries caused to him by the negligence of fellow servants or from other known dangers;237 those who took such risks upon themselves were assumed to receive higher wages than they would if the employer had to bear financial responsibility.238 There were even those who claimed that the higher the risk the greater the wage actually applied across industry. The Attorney-General had already spoken of miners ‘whose favourite daily beverage was champagne’, a phenomenon indignantly denied by Burt.239 There was much talk about the ruin that would follow from placing responsibility for accidents upon employers, and dark threats that the cost of compensation could be met only by cuts in wages.

232 See Bartrip and Burman (n 2) 126–28, 140–45; H Smith, ‘Judges and the Lagging Law of Compensation for Personal Injuries in the Nineteenth Century’ (1981) 2 JLH 258, 262–67. 233 See also p 308. 234 See pp 471–72. 235 See Bartrip and Burman (n 2) 111–15. 236 MacDonald’s first Bill, in 1876, had been preceded by similar attempts in the two previous years, stemming from the representations of the Amalgamated Society of Railway Servants. 237 Bramwell LJ, the most vocal judicial opponent of change among the judges, admitted the unreality of implying a term into the contract of employment and so sought to base the argument on the employee’s failure to extract any positive undertaking from the employer. This might be consistent with his general attack on the ‘injustice’ of vicarious liability, but it failed to explain why the railway passenger got the advantage of that liability without having to bargain expressly for it: PP 1877 (285) X, QQ 1103, 1122. 238 Despite some well-publicised evidence to the contrary, AJ Balfour could still say: ‘If insurance against accidents is included in the present rate of wages, which I believe it to be in fact, workmen, by the operation of this [Employers’ Liability] Bill, will be paid twice over for the same risk’: (1880) PD CCLIII 1406. 239 PD 1876 CCXXIX, 1161, 1179–1180. Burt stated that a miner’s weekly wage had at best been £2 10s but that in present conditions he might be getting only 3s or 3s 6d a day.

Part 3: Resetting the Victorian Frame 493 One relatively new factor amongst the economic considerations, however, was the growth of aid funds that paid compensation to accident victims during periods off work. Not only might this arise from a worker’s independent thrift through joining a friendly society or trade union; some of the larger, more sympathetic employers had been prepared to contribute to mutual assistance funds operated either by their own workers or by themselves.240 Others felt their moral obligations discharged by dispensing charity on the occasion of an accident, even if it was only the coffin and guinea that were the customary solace of the miner’s widow. The masters duly pleaded that the proposal for legal liability to compensate some for injury would leave them without resources to show paternal generosity to all; indeed the proposed legislation would induce a litigious atmosphere that would ‘set class against class’. This was a response to the terms in which the radicals and the Parliamentary Committee put their case. They insisted that the judges had deliberately created and then extended a special discrimination in the law which distinguished one class – the workers – from the general public. The doctrine of common employment (and, more generally, that of volenti) was denounced as based upon economic assumptions that bore no resemblance to the realities of wage bargaining. The Select Committee was shown that, but for occasional exceptions such as explosives manufacture, levels of wages did not increase for danger. The solution was therefore to abandon the special defences in their entirety. Moderate sympathisers were alarmed at so sweeping a prospect and looked for a compromise. Common employment had been said to encourage vigilance by each employee over his fellows.241 But if this was the true justification of the rule, it was hard to see why it should have been extended to include cases of negligence by supervisory employees and by those in a wholly different job. Even the Select Committee of 1876–1877,242 which was glad enough to accept Bramwell LJ’s view that it was vicarious liability that was unjust and the common employment exception just, thought that there should be one modification: the employer who delegated the day-to-day running of the concern to a ‘competent’ manager should be made liable for his delegate’s negligence.243 This would at least put an end to the objection that the large employer could avoid obligations that the small employer had to bear.

240 Thus the Lancashire colliery owner, Thomas Knowles, held up for admiration the Northumberland and Durham Provident Society for Pitmen to which the employers contributed 20%, of the funds. In addition they paid ‘smart money’ of 6s a week to a miner off work through accident however caused: ibid 1176. 241 ‘Now I do not say that workmen will injure themselves for the sake of compensation, but I do say that whatever tends to lessen their reasons for care and good conduct, as compensation would, tends to make them less careful in themselves and more disposed to conceal want of care in others’: Lord Justice Bramwell, Employers’ Liability. Letter from Lord Justice Bramwell to Sir Henry Jackson (King, 1880) 6. 242 PP 1877 (285) X, iv ff; Evidence Q 1116. The other judicial witness in 1877, Brett LJ, accepted the same premise but regarded vicarious liability as an immoveable fixture. Accordingly, he reached the opposite conclusion to Bramwell: that the ‘class distinction’ against employees should be abandoned: Q 1926. On this question (as opposed to industrial disputes, see p 307) he stood prophet of the gradual shift in judicial attitudes that was to become apparent only in the 1890s. 243 There were obvious difficulties in determining which employees were ‘delegates’ of the managerial function. Although the distinction was not attempted at this juncture, it was later to be undertaken by the judges in treating the top management of a company as its ‘alter ego’. At a late stage, this was to supply a judicial exception to the common employment rule: Rudd v Elder Dempster & Co [1933] 1 KB 566. Even Bramwell LJ would have approved: PP 1877 (285) X, Qs 1117, 1176–77.

494 Accidents A somewhat broader proposal was to place all supervisors outside the range of common employment save those who were actually engaged in manual labour.244 This became the mainstay of the successful Bill taken up by the Liberal party in order to honour a prominent electoral promise. The Employers’ Liability Act 1880 allowed industrial manual workers245 to sue their employers vicariously for the negligence of non-manual superintendents and for certain other defaults.246 In addition, railway companies became liable to all their employees for injuries caused by the negligence of signalmen, pointsmen, drivers and others in charge or control of engines or trains.247 In all cases damages were limited to a maximum of three years’ earnings for an employee of the plaintiff ’s type.248 The radicals also took up, as a prominent part of the campaign, the idea of pecuniary responsibility that Edwin Chadwick had long before tried to impose on factory-owners and railway constructors: safe systems of work would be most effectively achieved if accidents were made expensive to employers. As it became apparent that some modest concessions were likely to succeed, the ‘expensive accident’ theory came to impinge on two subsidiary questions. First, should the employer be permitted to contract expressly with his labour force that he should not bear the new liabilities. A plausible case could be made for allowing him to do so if he already contributed, or proposed to contribute, to a mutual protection fund for accident victims. Secondly, should the employer be permitted to insure against his liability? Both possibilities could substantially weaken the prophylactic effect of liability in damages by allowing the employer to cover himself in advance and so calculate the comparative cost of positive safety measures. ‘Full unguarded insurance,’ Chadwick now pronounced, ‘is the mother of murder, of shipwreck and of fire.’249 But neither insurance nor even ‘contracting out’, though it was subsequently to become an issue of real political moment, was seriously contested as the 1880 Bill passed through Parliament. Once it was enacted, there was lively business in liability policies for some employers,250 just as others insisted that the workers sign away their rights and join a mutual protection club. In reality the increase in liability brought about by the Act of 1880 was modest in the extreme. A Tory MP, Sir Edward Watkin, remarked with some prescience, that it would deal with five per cent of the problem, whereas the other 95 per cent ought to be dealt with by insurance.251 Other conservatives took the same position, notably the ‘Fourth Party’ of Lord Randolph Churchill and his friends, who used the 1880 Bill to needle both the Government and their 244 This formed the basis of a proposal by its Chairman, Robert Lowe, that was rejected by a majority of the Select Committee in 1877. It was embodied in the Bill promoted by Thomas Brassey in 1879 and subsequently annexed by the Liberal leadership. 245 The Act excluded not only domestic servants but also seamen; but it covered all railway workers: s 8; see generally, Smith (n 232) 267–73. 246 These included unremedied defects in the condition of ‘ways, works, machinery, or plant’; compliance with the orders of a negligent servant; and actions in conformity with rules prescribed by the employer or his delegate. A plaintiff who knew of, but did not notify, a defect could not normally succeed; ss 1, 2. 247 ibid s 1. Injuries on the railways had been the subject of a separate Royal Commission, which had recommended a special rule of this kind: PP 1877 [C 1637] XLVIII. 248 ibid s 3; there were also restrictive time-limits: ss 4, 7. Cases were generally to be tried in the county courts: s 6. 249 ‘Employers’ Liability for Accidents to Workpeople’ Fraser’s Magazine, May 1881, 680, 684; and see his Preventive Legislation as against Curative Legislation (Meldrum, 1888). 250 The Employers Liability Assurance Corporation, formed to meet the demand, did particularly well: Raynes (n 182) 303. 251 PD 1880 CCLII 1134–1135. Subsequently, it became a common guess that one accident in 10 fell within the Act; see eg G Drage, The Labour Problem (Smith Elder & Co, 1896) 132.

Part 3: Resetting the Victorian Frame 495 own front bench. Already schemes existed, in some European countries, for the protection of workers in industries such as mining against accidents or sickness. But during the 1880s a much more striking comparison was to appear as the result of developments in Germany. Bismarck established his network of social security legislation, in which schemes for sickness insurance and for old age and invalidity pensions were linked together with compulsory accident insurance for workers. But while in the sickness and pension schemes the worker was a contributor to the fund, in the case of accident insurance, the fund was provided by the employers and the state in the proportion of 3:1.252 Thus workplace accidents were singled out as the responsibility of the employer and of society at large, and the manual worker was not required to sell his life or health in addition to his labour.253 But it allowed what Chadwick would never admit – that the payment of an insurance premium should settle the extent of the employers’ liability in advance. This was precisely the attraction of the scheme to employers fearful of the 1880 Act, and to all those who were coming to feel that ‘social’ legislation was a necessary bulwark against ‘socialist’ power. In social planning, as in imperial design, Joseph Chamberlain aspired to be the English Bismarck.254 As President of the Board of Trade in Gladstone’s Government, he had been one of the sponsors of the Employers’ Liability Act. But by then his advocacy of municipal socialism in Birmingham had already shown how far removed was his radicalism from the orthodoxies of his party. He looked upon the 1880 Act merely as a temporary victory in the quest for greater protection of the worker, and during the eighties he campaigned vigorously for new statutory measures to increase safety in employment (particularly for merchant seamen).255 His break with Gladstone over Home Rule led him into alliance with the Conservatives, especially with that small fringe of Disraelian reformists who strove to entice the working-class voter into the Tory fold. Eventually he would become the chief proponent of the Workmen’s Compensation Act 1897, which would oblige employers to give some assistance to injured employees, irrespective of fault. The leading spokesmen of the unions, however, long maintained their original position on the question. In 1877, a London compositor had put to the Trades Union Congress a plan for accident compensation out of a tax upon commodities, but this had been denounced by the miner, Thomas Halliday, on the ground that ‘what they wanted was not money, but their lives and limbs preserved.’256 Even through the years that saw the emergence of the ‘new unionism’, the unions’ efforts continued to be directed towards eliminating the inadequacies of the fault liability system, since they regarded a system of full compensation as the solution most likely to promote workers’ safety.257 The Act of 1880 was quickly shown to provide few injured workmen with the chance to sue for compensation. Even those whose case fell within its ambit found themselves obliged

252 The British learned much about the German scheme from the Royal Commission on Labour 1891–94: PP 1893–94 [C 9063-VI] XXXIX Pt II (Report by G Drage). 253 See S Webb and B Webb, Industrial Democracy (n 217) I, 385. 254 See WC Mallalie, ‘Joseph Chamberlain and Workmen’s Compensation’ (1950) 10 JEH 45; DG Hanes, The First British Workmen’s Compensation Act, 1897 (Yale University Press, 1968) 96–100. 255 For his later attachment to ‘experimentalism’, see p 500. 256 Webb and Webb (n 217) 382–83. For early Conservative interest in insurance, and Joseph Brown QC’s paper on the subject to the NAPSS in 1878, see Bartrip and Burman (n 2) 139–45. 257 V Markham Lester, ‘The Employers’ Liability/Workmen’s Compensation Debate of the 1890s Revisited’ (2001) 44 HJ 471.

496 Accidents to bring a personal action against their own employer – something which for many was put beyond possibility by a long habit of dependence, if not by fear of dismissal. Only slowly were the unions organising themselves to provide the moral and financial support that such an undertaking required.258 Moreover, the man audacious enough to claim might be met with a denial of liability, and before long he would find himself facing the hazards of negligence litigation: proving that he was a ‘workman’ as defined by the Act,259 proving the negligence of a supervisory fellow-servant or that a ‘defect in the ways, works, machinery, or plant’ had gone unremedied by the appropriate supervisor;260 warding off counter-assertions of contributory negligence,261 volenti,262 or failure to give the employer notice required by the Act.263 There were many nice points of interpretation raised by the Act and he could not rely on sympathy if his case came before the high judiciary:264 Some judges have construed the Act as narrowly as possible with a view to preventing what they conceived to be injustice to masters. Other judges have considered that the Act, having been passed to extend the liabilities of masters, in favour of workmen, ought to be construed liberally in favour of the workmen.

In so saying Lord Esher MR claimed allegiance to his own second category, but he does not seem to have been joined by many of his fellows. The resulting sense of frustration might have been somewhat alleviated by the total abolition of the ‘common employment’ defence, and indeed this was sought. But the great vehemence was kept for the hated practice of contracting out. During the 1880 debates, unionists and their spokesmen seem to have been preoccupied with combating a mendments that would have imposed mutual insurance schemes on workers without their assent.265 Though it was pointed out on occasion that the Bill left employers free to insist that their workforce contract out of their new rights,266 there seems to have been no serious attempt to secure an amendment that would have outlawed the practice. When the London and North Western, amongst the railways, and the Lancashire proprietors amongst the mine owners, proceeded to insist on ‘contracting out’ as a term of employment, they were faced 258 Before 1880, craft unions, such as the Carpenters and Joiners, Building Workers and Amalgamated Engineers, were paying various benefits to injured workers, but only supported litigation in occasional cases. But the prospects opened by the Employers’ Liability Act led to substantial union support for injured members in litigation. 259 See n 245. Omnibus drivers, but not conductors or drivers of horse trams, were held to be within the definition: Morgan v London General Omnibus Co (1884) 13 QBD 832; Cook v North Metropolitan Tramways Co (1887) 18 QBD 683; Smith v Associated Omnibus Co [1907] 1 KB 916. 260 The reported decisions on these central provisions were voluminous. The supervisory fellow-employee had to be distinguished from the man who was ordinarily engaged in manual labour (s 8), and this raised many nice questions of degree. On the failure to detect defects, the appellate courts insisted on their right to review findings at first instance: see the line of cases reviewed in Walsh v Whiteley (1888) 21 QBD 371. 261 eg disobeying works rules: Bunker v Midland Railway Co (1882) 47 LT 476 (boy under 15 ordered to drive van by foreman, but contrary to rules; action lost). 262 Applied to actions under the 1880 Act in Thomas v Quartermaine (1887) 18 QBD 685 (CA, Esher MR dissenting); but already this and other decisions showed a new readiness to use the defence much less severely against workers who continued work while appreciating the danger: see p 481 and Bartrip and Burman (n 2) 182–84. 263 See n 246. 264 Walsh v Whiteley (n 260) 375 (Esher MR). 265 Charles Bradlaugh, for instance, reported to the Commons a meeting of 40,000–50,000 Durham miners declaring their hostility to any clause which would put upon them a system of compulsory assurance: PD 1880 CCLV 362. 266 See eg Lord Shand’s letter in The Times (24 August 1880) (advocating compulsory insurance): A Wilson and H Levy, Workmen’s Compensation (Oxford University Press, 1939) vol 1, 41–44.

Part 3: Resetting the Victorian Frame 497 with substantial strikes, which, however, they successfully withstood.267 Moreover the courts accepted the legality of a contracting-out condition, the leading judgment being couched in staunchly liberal terms by Field J: if the Act were to negate an express term in the contract ‘the workman might obtain the benefits of the contract for years in the form of higher wages to cover the risk of injury, and then claim full additional compensation when he was injured.’268 It was economic brocards of this kind that working men found so remote from reality. As speech after speech records, employees who had accepted contracting out as a condition of keeping their jobs felt that they had had no real choice in the matter.269 The consequence was not that they were left entirely without provision regarding accidents, for employers did not go so far; instead they contributed to a mutual fund which, while it could give broader and better cover than under the Act, was often run on a wholly inadequate basis: the benefits paid out to injured workmen might be very small or the solvency of the fund might be precarious;270 worst of all, the proportion of the fund contributed by the employer might be very low.271 The worker saw no evidence that such shabby substitutions for the guarantees of the Act brought him the higher wages posited by economic theorists. Running in tandem with these grievances was a natural dislike amongst unionists for mutual funds which performed a protective role often assumed by unions, and which linked employer and employee together in a collaboration inimical to the bargaining strength of the union. Since benefits were often cumulative, it became increasingly difficult for an employee to leave his employment voluntarily or do anything that might lead to his dismissal.272 But these matters of self-interest were accepted to be secondary to the main argument against the mutual funds, at least by governments which moved progressively towards acting on the workers’ case. Much of the argument about contracting out was concerned neither with the inadequacies of the meanest mutual funds nor with their effect on labour relations generally. The root issue remained the question of safety. Attempts were made to substantiate the assumptions of the ‘expensive accident’ theory by demonstrating statistically that accident rates had gone up in concerns which insisted on contracting out, but had gone down in comparable organisations which accepted liability under the Act. But the figures proved nothing, save to those determined to find what they sought, partly because the Act itself had an impact too slight to produce noticeable improvements.273 Even supposing, proclaimed The Daily Chronicle, an amendment that ‘entitled twice as many cripples to a fling at the law, and that the damages were twice as heavy, does the reader imagine that shipowners would 267 For these events, and the extent of contracting out, see Bartrip and Burman (n 2) 158–73. 268 Griffiths v Earl of Dudley (1882) 9 QBD 357, 364. 269 TH Green, who found the whole subject an apposite example for his revised liberalism, lent his weight particularly to this argument: Liberal Legislation and Freedom of Contract (Slatter & Rose, 1881) 14. 270 The four largest miners’ societies had an accumulated deficit of £159,400 in 1889: Anon, ‘The Flaw in the Employers’ Liability Bill’ Westminster Review (January 1889) 492, 495. 271 Subsidies varied from 3.9% (Midlands) to 25.2% (North Wales): ibid. 272 John Burns put the TUC view, alleging that the ‘real object of the masters in promoting the mutual insurance schemes is to prejudice the workmen, to damage the friendly societies and to impede the cause of Trade Unionism’: PD 1893 XXI, 439–440. This was hotly denied. 273 See Drage (n 251) 144–57; but note Bartrip and Burman (n 2) 171–73, 181–89, pointing out that while contracting out only ever affected a minority of workers, it prevailed in some of the most dangerous localities, such as Lancashire and South Wales mining.

498 Accidents risk a day’s demurrage or slow down their operations or see that everything was taut and shipshape on that account?’274 In Parliament there were two main tussles about the future of employers’ liability, as first the Conservatives, and then the Liberals sought to attract the working-class vote so substantially increased by the Third Reform Act. During Salisbury’s Government of 1886–90, it became necessary to give the 1880 Act life beyond its original seven years. Two Bills to abolish contracting out were referred to a Select Committee under Sir Thomas Brassey.275 The Committee’s report, in general rather complacent, did propose that in future a contracting-out term would be valid only if given for some consideration other than just the worker’s labour. This ‘separate consideration’, as it came to be defined in the Government’s Bill of 1888, comprised an ‘adequate’ contribution by the employer to an insurance fund which protected against all accidents at work and ‘a benefit equivalent to the compensation under the Act’.276 But so great was the opposition on both flanks to this tortuous substitute for a simple prohibition of contracting out that the Bill foundered. The original Act was extended without alteration.277 In 1893 Asquith, the Liberal Home Secretary, promoted a Bill accepting the unionists’ case – both common employment and contracting out were to be abolished. The Lords inserted an amendment allowing contracting out where the arrangement was ‘deemed fair’ by the Board of Trade and it was adopted by the workers affected in a secret ballot. But the antagonism remained extreme and the new Bill was also lost. Though compensation for work accidents was a lively issue in the 1895 election, the Webbs, writing in the following year, considered that a slackness had come over the whole controversy, and also that systematic provision for all injured workers irrespective of fault was a ‘suggestion as yet scarcely whispered by Trade Unionists’.278 Yet within a year Chamberlain had persuaded them, albeit with reluctance, that beside the ‘preventive’ action for damages based on negligence, should be placed a ‘curative’ entitlement to smaller sums for all victims of accidents.279

B. Workmen’s Compensation i. The 1897 Act The Workmen’s Compensation Act 1897 was built around two principles. First, the employer was liable to pay compensation where personal injury was caused to any of his workmen ‘by accident arising out of and in the course of employment’.280 Secondly, compensation was

274 The Workers’ Tragedy (1896). 275 From 1881, Thomas Burt and Henry Broadhurst introduced annual Bills to secure the abolition of common employment. 276 The employer was to guarantee the fund and the Board of Trade would assess the adequacy of the scheme if necessary. See Bartrip and Burman (n 2) 176–78. 277 This was done annually as a matter of course until 1948. 278 Webb and Webb (n 217) I, 382, 385. 279 See Hanes (n 254) 104; the Bill was introduced by the Home Secretary, Sir Matthew Ridley, who had taken an interest in the subject for 20 years. 280 Section 1(1). See generally, PWJ Bartrip, Workmen’s Compensation in Twentieth Century Britain (Gower, 1987) ch 1.

Part 3: Resetting the Victorian Frame 499 to make good in part the losses that flowed from incapacity to earn: if the injured worker survived the accident he was to receive one half of his average weekly earnings up to a maximum of £1 a week; if he died his dependants were to receive a sum equal to his last three years’ earnings from the employer, subject to a minimum of £150 and a maximum of £300.281 The scheme did not embody the concept of mutual insurance which had previously been prominent in the thinking of Tory democrats and socially conscious employers. As in Bismarck’s scheme, the worker was not obliged to make any direct contribution towards his own protection. But an element of risk participation was preserved by the principle of a half-pay pension to the incapacitated survivor of an accident.282 Unlike the German system, however, there was no obligation placed upon the employer to take insurance cover with an industry-wide indemnity organisation supervised by the state.283 A workman who caused his own accident by ‘serious and wilful misconduct’ could not claim.284 The Act did not abolish common law actions for damages for negligence;285 but their numbers dwindled.286 An application for compensation acted as an election not to seek damages.287 The experience of the 1880 Act, particularly the political tension generated by contracting out, left its mark in the absence of any requirement that the worker should contribute. Contracting out itself was still permitted because employers demanded it in the name of liberty. But the contract had to be ‘not less favourable to the general body of workmen and their dependants than the provisions of the Act’.288 Though in the debates of 1897 there was still a good deal of anxiety from the unions, the power to contract out in this form was little used. Some employers, however, did deduct the premiums for workmen’s compensation insurance from wages.289

281 cf the complex averaging that had been used under the 1880 Act: see n 248. The compensation was payable only after two weeks off work: see s 1(2), sch 1. 282 Many mutual insurance schemes were wound up, but friendly society and union provisions were little affected: Wilson and Levy (n 266) vol 1, 79–80. 283 In introducing the Bill, Ridley disdained the German as ‘an extremely elaborate system, one which is utterly foreign to this country’: PD 1897 XLVIII 1431. The German precedent remained to the fore during the debates, since the second reading revolved around a motion by Geoffrey Drage (in palindromic echo of Chamberlain four years before) that the house could be satisfied with no bill that did not provide for prevention of accidents as well as compensation. In this he drew on his comparative knowledge (see n 252) to attack the Bismarckian system as destructive of industrial harmony in that it gave rise to great difficulty with malingerers, caused a huge number of appeals and passed the cost of accidents back to the worker: PD 1897 XLIX 636ff. But his warnings were not taken up by the Liberal front bench and at the end of the debate he withdrew his motion. 284 This qualification (s 1(2)(c)), admitted into the Bill upon an amendment, raised in spectral form some aspects of contributory negligence. Attempts to modify it in later Acts were subjected to evasive interpretation by the courts: see pp 503–04. 285 It also preserved the power of magistrates under the factories and mines legislation, to award penal compensation: s 1(5) (see p 488). But it seems that magistrates refused to apply the provision, saying that the workman could apply for compensation: see the Report of the Departmental Committee appointed to inquire into the law relating to compensation for injuries to workmen (1904 Cd 2208) chaired by Sir Kenelm Digby, para 47. 286 Employers’ liability actions in 1898 numbered 879 and in 1908, 405; in 1922, 35 came to trial, a level which did not afterwards change; see Bartrip (1987) (n 280) 219–23 (also referring to statutory duty actions). 287 1897 Act, ss 1(2)(b), 1(4); the election was made at the moment of applying for workmen’s compensation: Edwards v Godfrey [1899] 2 QB 333; cf Beckley v Scott & Co [1902] 2 KB (Ir) 504. 288 Section 3(l). The Registrar-General of Friendly Societies was to certify this. 289 Digby Committee Report (n 285) para 62. Equally, a few employers (eg of stevedores) passed the cost of insuring onto customers by separate charge: ibid.

500 Accidents

ii. Reviews of the Scheme Chamberlain conceived his Act as a legislative experiment, following the economist Stanley Jevons, who argued that ‘the state use the experimental method: in the usual absence of certain evidence as to how to remedy a particular evil, Parliament must observe it closely, propose a remedy, try it out, and if it works, keep it.’290 The Act was to last for seven years, and it only affected railways, factories, mines and quarries, engineering works and certain building works.291 The results therefore soon required assessment. A Departmental Committee under Sir Kenelm Digby reported in 1904 in terms that were cautiously optimistic.292 The Act had not so far imposed any crushing burden on industry and it worked reasonably where labour was permanent and unionised and employers were insured or sufficiently large to cover their own risks adequately. As a result the system was expanded in 1906 to cover all industrial accidents involving manual workers save in certain exceptional categories;293 and some diseases commonly associated with types of employment were also brought within it.294 In addition, the Act of 1906 strove to support the system against its first wave of critics. In this aim it achieved little and after WWI another Committee, chaired by a Liberal MP, Holman Gregory, suggested more fine-tuning.295 Some of these recommendations, though by no means all, were eventually made law in 1923.296 Largely in this form, the scheme survived through to the end of WWII. But by then it had been subjected to some devastating criticism, notably by Levy and Wilson; and Beveridge, in his Report on the future of social insurance, accepted the case for integrating accident compensation within a structure of state-run benefits. The National Insurance (Industrial Injuries) Act 1946 provided for the replacement of workmen’s compensation with the industrial injuries scheme of social insurance. Workmen’s compensation proved to be a transitional experiment in social policy. Through its half-century, there was in fact a constant stream of criticism. Between the two sides of industry, an atmosphere of antagonism built up over the settlement of claims; and among the exacerbating factors lay the fact that claims were in the end handled by lawyers following ordinary court procedure. Though under no legal obligation to do so, the majority of employers did insure their liability to pay workmen’s compensation, either with 290 Hanes (n 254) 100. A great deal was heard of the ‘experiment’ as Parliament worked through the provisions delimiting the employments covered. 291 Section 7, extended to agricultural workers in 1900; for which, see Bartrip (1987) (n 280) 27–33. 292 Departmental Committee on Workmen’s Compensation, PP 1904 [Cmd 2208] LXXXVIII; Bartrip (1987) (n 280) 38–45. 293 Workmen’s Compensation Act 1906, s 13, bringing employed seamen in particular into the scheme; see generally Bartrip (1987) (n 280) 45–54. On the earlier exclusion of seamen from the scheme see R Gorski, ‘Employers’ Liability and the Victorian Seaman’ (2009) 95 Mariner’s Mirror 62. Note also two broadening decisions: Fenton v J Thorley & Co [1903] AC 443; Brintons Ltd v Turvey [1905] AC 230. 294 Section 8, sch 3; see Wilson and Levy (n 266) vol 1, 104–10. 295 Departmental Committee on Workmen’s Compensation, PP 1920 [Cmd 816] XXVI. Bartrip (1987) (n 280) 88–96. In the war and post-war conditions of 1917–19 it had been necessary to increase the amount of some benefits, to include children even if illegally employed, and to introduce a special, industry-funded scheme for silicosis: ibid 74–82, and for an extension in 1924, ibid 144–45. 296 The Workmen’s Compensation Act 1923 resulted from a Bill sponsored by the Conservative Government. It had been provoked by a Bill from the Labour member, JH Thomas, which attempted to enact the whole range of the Holman Gregory proposals: see generally Wilson and Levy (n 266), I chs 12 and 14; Bartrip (1987) (n 280) 96–110.

Part 3: Resetting the Victorian Frame 501 a private insurance company in the business for its own profit or in an indemnity association with other employers. Private insurers already had, by 1897, considerable experience of compromising their liability under various forms of policy by direct approach to the victim. Cheap and quick settlements were to be secured from men who had rarely possessed any capital sum before and who in any case feared a dispute involving their employers. With the increase of liability insurance brought about by workmen’s compensation, the insurance companies began to build up their corps of claims adjusters. Not only union representatives, but officials of the Home Office, factory inspectors and county court judges complained to the Digby Committee of the plausible approaches to men still sick in hospital and the persistent visiting and even the bullying that they might suffer at home. AH Ruegg KC297 said of the claims settlers, particularly from the smaller insurance companies, that ‘they are smart young men and they think they have done a very commendable thing when they have settled for a small amount.’298 The workers’ representatives sought legislation to render inoperative lump sum commutations of the right to weekly payments. But the employers and insurers, as well as expounding the virtues of freedom of contract, could point to some situations in which it was in the injured man’s interests to be paid a lump sum – for instance if his incapacity meant that his future was best secured by purchasing a shop or other small business.299 The Digby Committee agreed that ‘improvident or oppressive settlements for lump sums are much too frequent’ but would only recommend that there should be supervision over settlements by the county court registrars and judges.300 The Act of 1906 provided that certain settlements would not be binding unless registered with a county court, and the court might refuse registration or make a different order if the sum was inadequate or the agreement had been obtained by ‘fraud or undue influence or other improper means’.301 But failure to register carried no criminal or other sanction, and insurers and employers tried to ensure that the worker did not do so. During this period, the unions were increasing their ability to combat the activities of the claims adjusters. Yet in 1920 union membership stood at 8.3 million, while the number covered by workmen’s compensation was some 15 million.302 Before the Holman Gregory Committee, even the representative of the London Chamber of Commerce acknowledged that some insurance offices continued to be ‘unsympathetic’ towards injured workers. The Committee was not prepared to recommend either a ban on settlements or penalties for failure to register them; and so the problem persisted. The union representatives argued instead for a system of state insurance. ‘I cannot conceive,’ said 297 Ruegg, subsequently a county court judge, became the foremost legal exponent and critic of the scheme: see his Laws Regulating the Relation of Employer and Workman in England (Clowes, 1905); (with HP Stanes) The Workmen’s Compensation Act 1906, 9th edn (Butterworth, 1922) and his evidence to the Digby Committee, and the Gregory Committee (on behalf of the Council of County Court Judges). 298 Report (n 285) Q 1372. 299 The Gregory Committee also stressed the phenomenon of compensation neurosis: settlement by a lump sum once for all did lead to a marked physical improvement in some cases: Report (n 295) para 83. 300 Report (n 285) para 239 – given effect by the 1906 Act, sch 2(9), (10); this built upon a less effectual registration provision in the Act of 1897, Sch 2(8). 301 Judge Sir Edward Bray to the Gregory Committee (above, n 295) Q 15037. At one point the Court of Appeal even held that there need be no registration unless a weekly payment had later been commuted into a lump sum (Ryan v Hartley [1912] 2 KB 150); this was not accepted by the HL (Russell v Rudd [1923] AC 309). 302 Report (n 295) para 4; and see paras 83–88.

502 Accidents Samuel Chorlton for the National Union of Railwaymen, ‘under State insurance and investigation by a State representative, that the desire for bargaining and profit could accentuate itself to the extent that it does now.’303 The Committee itself was disturbed by evidence of the insurance companies’ practice. After some intensive price competition,304 rates had begun in 1911 to stabilise and income to increase (through being calculated as a proportion of wages at a time when wages were rising). As a result, for every £100 of premiums, only £52 went as compensation or into a compensation reserve; the rest went on profits (£15), managerial expenses (£19), commission to agents and brokers (£12) and transfers to additional reserves (£2).305 The Committee acknowledged that a state scheme had the attraction of ‘relative cheapness’. Nonetheless, it actually negotiated with the Accident Offices Association for a working arrangement by which the proportion of premium income devoted to compensation would rise to 70 per cent.306 In the event the Association gave no actual undertaking until 1923 when they were able to satisfy the Secretary of State with 60 per cent, rising after three years to 62.5 per cent.307 Thus by these careful manoeuvrings and the sympathy of the Gregory Committee, they maintained their position within the system. The most that the Committee was prepared to see by way of state intervention was a requirement that the 250,000 ‘self-insuring’ employers (many of them small traders) should take out cover.308 Eventually, in 1934, this solution would be imposed on a single industry – mining – where the problem was acute.309 The promoters of workmen’s compensation in 1897 claimed that it would be straightforward and uncontroversial to operate. Disputes would be settled by voluntary joint committees of employers and workmen, with ultimate resort to an arbitrator – if necessary a county court judge. The Government first tried to foster the informality of this by providing for the arbitrator’s award to be without appeal and proceedings before him to be without legal representation (save with leave). ‘The Government,’ said Chamberlain, ‘were as strongly persuaded as any one could be that the constant interference of the lawyer would be an absolute injury. [“Hear, hear!”]’310 In the end, however, they gave in to pressure from the Law Society. The Court of Appeal and the House of Lords were to take appeals on points of law in the interests of uniform interpretation. Professional representatives were to be constrained only by a scale of maximum fees.311 In the upshot, the joint arbitration committees rarely materialised and the normal forum became the county courts, which by 1900 heard 1,145 claims. The effect upon appeal business was even greater, quadrupling Court of Appeal work in four years.312 303 Gregory Report (n 295) Q 2626; the Committee rejected his case. 304 A tariff association was formed, but to little avail. The Employers’ Liability Insurance Companies Act 1907 required new companies to deposit £20,000, as was the system for life insurance under Acts of 1870–1872: Bartrip (1987) (n 280) 64–67. 305 Gregory Report (n 295), paras 10–12. For the costs and benefits of the scheme generally, Bartrip (1987) (n 280) 67–72, 120–28. 306 Gregory Report (n 295) paras 22–23. 307 Wilson and Levy (n 266) I, 166. 308 Gregory Report (n 295) paras 20, 25. 309 Workmen’s Compensation (Coal Mines) Act 1934; Bartrip (1987) (n 280) 157–62. 310 PD 1897 L 272. 311 ibid 670. Despite some pointed needling from radicals the Government would admit only to being swayed by the advice of county court judges. 312 B Abel-Smith and RB Stevens, Lawyers and the Courts (Heinemann, 1966) 116; and see generally Bartrip (1987) (n 280) 59–63, 129–30, 133–36.

Part 3: Resetting the Victorian Frame 503 Chamberlain had derided Asquith’s Bill of 1893, for ‘not being an Employers’ Liability Bill so much as a Lawyers’ Employment Bill.’ The foolhardiness of the jibe was soon apparent. The consequences of choosing a ‘self-administering or court’ type of dispute settlement, as opposed to the ‘board or commission’ type commonly adopted in North America, were to be the subject of many criticisms. The experiment would not be repeated in the pension and national insurance schemes of 1908–11.313 Workmen’s compensation, which Dicey denounced as collectivist, would induce a sharp hostility to the rule of the common law so paramount among his constitutional virtues. The opinion became widespread that the judges, by training and temperament, were unsuited to handling claims under such schemes and that the use of ordinary court procedures as the model for arbitrations was a mistake. The stream of cases which reached the Court of Appeal, though never more than a very small part of a swelling tide of claims, produced results notable for their narrow construction of the Act and fine interpretative glosses upon it. The 1897 Act, indeed, invited difficulty by its ‘experimental’ restriction to employment in a ‘railway, factory, mine, quarry or engineering work’, etc. Each of these terms proved to have a contentious penumbra: for instance, the Court of Appeal held a ship repairer working in a dry dock was not employed ‘on in or about a dock’; fortunately, in this instance, a further appeal to the House of Lords procured a reversal.314 In 1914, a county court judge would write of such cases that in:315 [n]early all … and there are, I regret to say, many, where the Court of Appeal has overruled the County Court, and the County Court judgment has ultimately been restored by the House of Lords, the error has been in the Court of Appeal striving to find a reason to hinder the payment of compensation, rather than searching for the principle which brought an admitted injury within the scheme that Parliament has made to compensate the injured. After all, the Act was one for the compensation of workmen, and every case of injury that is found not to be provided for is a blot on the scheme.

The division amongst the judges according to their sympathy either for employers or for workers, which Lord Esher had remarked, seemed to have become a division between one appellate court and the next. The Court of Appeal, led initially by AL Smith as Master of the Rolls,316 displayed a thoroughly legalistic caution. The Lords, which contained Liberals such as Davey and Shand, as well as Halsbury and McNaghten, who were close to Salisbury’s Government, were undoubtedly more robust in approach. Later, however, the Lords showed their own divisions.317 In the process they caused the learning heaped up around the phrase, ‘accident arising out of and in the course of employment’, to acquire a distinct list in the employer’s favour. The workman’s claim was precluded in many situations where he was not actually working at his job, but was, for instance, in transit to or from it, or was taking a break during the working day. Most remarkable of all was the development of the doctrine of the ‘added peril’. Parliament on two occasions 313 See pp 431–32. 314 Raine v R Jobson & Co [1901] AC 404. 315 Sir E Parry, The Law and the Poor (Smith, Elder & Co, 1914) 91. 316 Parry (ibid 89) wrote affectionately, ‘the social creed of “AL” was something between that of the Church catechism and the Sporting Times.’ 317 Remarking on the two opposed ‘tendencies of construction’, Lord Dunedin said: ‘to mention names, I think it will certainly be found that the protagonist of the one is Lord Loreburn and of the other, Lord Atkinson’: Simpson v London Midland & Scottish Railway Co [1931] AC 351, 357. See generally, Stevens (n 165) 164–70.

504 Accidents tried to express the idea that serious and wilful misconduct by the worker should not count against him if, as a result, he was killed or seriously and permanently disabled.318 But the Lords read these provisions as subject to the overriding consideration that the accident would not arise out of the employment at all if the claimant caused his own injury ‘through the new and added peril to which, by his own conduct he exposed himself, not through any peril which his contract of service, direct or indirect, involved or at all obliged him to enter.’319 The young miner who broke a pit rule by riding in any empty coal truck, the shunter who rode on a truck bumper instead of walking in front as his job required and the railwayman who passed between trucks to get to a mess room all lost their claims on this account.320 Despite Parliament’s intervention in 1923,321 the House of Lords continued to insist that an agricultural worker who went to fasten the chains of a reaping machine by walking along a pole, instead of getting off, lost his claim, since he had added gratuitously to the risk ‘by a foolhardy act of bravado’.322 Only on the eve of war did the Lords begin to efface their own gloss upon the terms of the statute.323 The story of the ‘added peril’ provides one instance of the ‘armchair tests’ to which some lawyers, closer to the grass roots of industrial accidents, objected strongly. ‘In very many cases these tests are quite inapplicable to the actual conditions of the industry concerned but they are seized upon by County Court Judges as a ready means by which to decide difficult cases.’324 Even those claimants who did not become the subject of a test case on appeal might be daunted by the formality and expense of a county court arbitration. It was generally recognised that legal representation was vital and only trade union assistance enabled the system for settling disputes to work at all. Part of the formality, however, was the direct result of the suspicion with which each side regarded the other. For instance, a claimant was required to give notice of his accident ‘as soon as practicable’ after its occurrence.325 This was intended to give employers some protection against claims that they could not check because of lapse of time. But given the stress and disruption of a serious accident, there were many perfectly genuine claimants who put themselves out of time by hesitating, not least because they feared losing their job as a result of complaining. The most serious problems concerning claims, however, related to medical issues, since these were the crux of so many disputes. Many cases were dealt with upon the assessment of the claimant’s own doctor. But in others – where, for instance, permanent disability was likely, or the insurers smelt a malingerer – they required medical examination by their own doctor. This was often antagonistic in atmosphere and could be used as a means of pressing for cheap settlement.326 If medical issues spilled over into arbitration, they might 318 Workmen’s Compensation Act 1906, s 1(2)(c); Workmen’s Compensation Act 1923, s 7. 319 Thus Lord Atkinson, sternest proponent: Barnes v Nunnery Colliery Co Ltd [1912] AC 44, 50. 320 Barnes (ibid); Herbert v Samuel Fox & Co Ltd [1916] 1 AC 405; Lancashire & Yorkshire Railway Co v Highley [1917] AC 352. 321 See n 318. 322 Stephen v Cooper [1929] AC 570. 323 Harris v Associated Portland Cement Manufacturers Ltd [1939] AC 71. 324 C Muir, Justice in a Depressed Area (Allen & Unwin, 1936) 152. 325 Workmen’s Compensation Act 1897, s 2(1). There was also a six-month limitation period for claims. See further Gregory Report (n 295) 51 and the 1923 Act, s 10. 326 According to James Sexton, speaking on behalf of the TUC Parliamentary Committee to the Gregory Committee, insurance companies sometimes required regular medical assessments, and ‘things get so nauseous to the man that sometimes he may refuse to go’: Report (n 295) Q 3860.

Part 3: Resetting the Victorian Frame 505 be resolved in three ways. The county court judge might choose between the views of the forensic experts; or the question might be passed to one of the medical referees appointed for each court, or a referee might be appointed to advise the county court judge in determining an arbitration. But even the system of medical referees proved problematic. The proposal of the Digby Committee that they should be made state officials made no headway, even when later it was suggested that their functions should be given to the medical officers appointed under the national health insurance scheme.327 As a result, they fell under the suspicion of bias which was liable to infect medical assessment at all its stages.328 The Stewart Committee in 1938 considered that Medical Boards, composed of three members, should become appeal tribunals from the referees.329 The workmen’s compensation law gave a great many people who suffered a work injury or contracted an industrial disease a measure of protection which had simply not existed for their Victorian counterparts. Its founders had presented it as a mere starting point. A failure to admit that first strides were not the whole race was the great error of the governments which inherited its surveillance. After 1906 there were only meagre increases in the rate of benefit.330 Adequate medical treatment was never introduced; nor were schemes to rehabilitate claimants, retraining them for suitable employment where possible.331 State insurance was rejected, and state supervision under a Home Office commissioner, though it had been a vital element in the Gregory Committee’s plans for building up the existing structure, formed no part of the remedial legislation of 1923. Once economic recovery had begun in the 1930s there was considerable agitation for improvements.332 If war had not intervened, it may be that the system would have survived with substantial emendation, instead of being swept away. As it was, the task set for a Royal Commission in 1939 was passed on to Sir William Beveridge, for consideration as part of his plan for the social services of the future. It was the much broader base that he proposed for social security which made possible a radical recasting of protection against industrial injury and disease. Compared with the assurance that characterises so much of Beveridge’s Report, his proposals regarding industrial injury have a tentative air.333 They represent only a transitional step towards the transformation achieved by the National Insurance (Industrial Injuries) Act 1946. Some basic elements in his proposals were to survive: industrial injury benefit as part of the state scheme was to 327 Report (n 289) para 265; cf Gregory Report (n 295) para 97. 328 Cases occurred in which medical referees to one court regularly appeared as expert witnesses for one side in other courts: ibid. 329 Departmental Committee on Certain Questions arising under the Workmen’s Compensation Acts, PP 1937–38 [Cmd 5657] XV. 330 In 1906, the position of those under 21 was improved; in 1923 the maximum payable was raised from £250 to £350 and certain other improvements were introduced. 331 A Wilson, ‘Workmen’s Compensation’ (1939) 10 Political Quarterly 232, 235 (highlighting the priority given to rehabilitation under the German, Canadian and Australian systems). AF Young, Industrial Injuries Insurance (Routledge & Kegan Paul, 1964) 84–85, discusses the great importance of retraining in any adequate programme for the victims of accidents. 332 A succession of private members’ bills provoked the limited inquiries of the Stewart Committee (1938, n 329) and then the appointment of the Henderson Royal Commission (1939). In decisions such as Dover Navigation Co Ltd v Craig [1940] AC 190; Noble v Southern Railway Co [1940] AC 583; Weaver v Tredegar Iron & Coal Co Ltd [1940] AC 955, the House of Lords brought a more benevolent approach to issues before it. 333 Social Insurance and Allied Services, PP 1942–43 [Cmd 6404] VI, paras 80ff; and cf the ensuing White Paper, Social Insurance, PP 1943–44 [Cmd 6511] VIII, Pt II; see generally, Bartrip (1987) (n 280) chs 8, 9.

506 Accidents supersede workmen’s compensation, replacing the employer’s sole responsibility by a joint insurance fund with contributions from employers, employees and the state. Nonetheless the industrial injuries scheme ought to remain a distinct part of social insurance and provide more substantial aid than sickness or unemployment benefit, so Beveridge argued, because of the dangerous nature of certain industries vital to the economy; and because a man at work was ‘under orders’. The first argument, which Beveridge himself considered the more significant, was, however, directed only to the dangerous sectors of industry. In any case, Beveridge qualified his proposal for a separate benefit by suggesting that it should operate only in relation to those so seriously injured that they still needed assistance after 13 weeks. This would be regarded by the Government as undermining the whole case for a more generous industrial injuries benefit and was not taken up. As AF Young noted, the true force for maintaining the distinction was political rather than rational:334 Workmen’s compensation has been part of most workers’ armoury as long as they can remember. It has offered a better rate of benefit than sickness insurance, and so long as there is a chance to obtain this higher rate, even if for selected cases only, so long will the scheme be supported. It is in truth a protest against the general principle of fixing national insurance benefit at or below the level of subsistence.

So equally with regard to ‘alternative remedies’: should the injured worker be entitled to a claim for common law damages in addition to or as an alternative to his social security benefit? Many places which had adopted the British model for workman’s compensation had also, in effect, made the common employment rule permanent: actions by worker against employer were precluded except where the employer was shown to have been guilty of personal negligence.335 Beveridge, indeed, offered as his third justification for maintaining a special rate of injuries benefit within the social security system that only then would it appear possible – as on grounds of equity and for the avoidance of controversy it is desirable – to limit the employers’ liability at Common Law to the results of actions for which he is responsible morally and in fact, not simply by virtue of some principle of legal liability336 [ie vicarious responsibility].

But an important current of opinion was already flowing the other way. In 1939 the House of Lords had limited the scope of common employment to exclude the case of ‘fellow servants who are engaged to act on independent jobs, which do not necessarily or in the ordinary course bring them into relation.’ Only the force of precedent prevented its abandonment in toto.337 The whole issue was referred to the Monckton Committee in 1944, which accepted the old arguments against the artificial implication that employees consented to the risks of common employment. The doctrine was therefore to be abolished, and so also was the rule that an injured workman must elect between a common law claim and injury benefit, which had dogged workmen’s compensation. Both proposals became law. But nonetheless 334 Young (n 331) 92; see also VN George, Social Security: Beveridge and After (Routledge and Kegan Paul, 1968) ch 9. 335 cf Monckton Committee on Alternative Remedies, PP 1945–46 [Cmd 6860] XIII, paras 75–77. 336 Report (above, n 330) para 81; and see paras 258–64. 337 Radcliffe v Ribble Motor Services Ltd [1939] AC 215 (collision between bus drivers of same company; no common employment); but cf Graham v Glasgow CC [1947] AC 368; Glasgow Corp v Bruce [1948] AC 79.

Part 3: Resetting the Victorian Frame 507 a majority of the Monckton Committee thought it right to apply the Beveridge principle that ‘no injured person should have the same need met twice’. So a majority proposed that any injury benefit should go to reduce an award of common law damages. The courts had long accepted that an injured person who had received money under a private insurance policy against an accident did not have to bring the sum into account in an award of damages: the insurance benefits had been separately paid for by premiums that were the result of thrifty foresight.338 The Monckton majority refused to regard national insurance benefits resulting from compulsory contributions of employers and employees as well as the state in the same light; the minority argued the contrary. The ultimate compromise put forward by the Government allowed the injured person to keep part of his benefit out of the damages calculation.339 Though sometimes attacked as irrational, it could be viewed as an arrangement for allowing the employee extra provision towards his needs which reflected his personal contribution to the insurance fund.340

C. Postlude During the nineteenth century, the common law had come increasingly to treat liability for non-contractual harm in terms of liability for fault. The tort of negligence emerged as the mode of compensating for accidental injury to person and property and it grew to encompass some of the consequential losses which might also ensue. In general the territory into which fault liability moved was previously unoccupied by common law rules. Where there were established principles, their strength was not likely to be overcome by large generalisations, however morally attractive. Thus most of the settled instances of strict liability – and notably such torts as conversion which served to protect private property – kept their established character; likewise torts which were dependent upon intentional wrongdoing, such as deceit, were not to be remoulded. Liability for personal fault had undoubtedly appealed to the strongly individualistic strain in Victorian moralising; but as a basis for a workable system of accident compensation it had required significant compromise. From the outset, vicarious liability made the employing enterprise liable alongside the negligent employee and so provided a defendant who was likely to be worth suing. Where the judges decided to exclude vicarious responsibility – as in the common employment rule – a more limited type of compensation, applicable equally to non-negligent accidents, had to be imposed by legislation, and it was expected that this liability would be backed by insurance cover. More generally, insurance came to be accepted as a necessary planning device for the risks of injury in the field of transport. First, accident insurance gave victims their own protection; and then liability insurance was allowed to cover enterprises against their legal responsibilities even for personal injury.341 The view that such insurance would induce a feckless disregard for 338 See n 133. 339 The Law Reform (Personal Injuries) Act 1948, s 2, provided that in calculating common law damages, any cash benefit received under national insurance, other than half that received or likely to be received for five years from the accident, should be brought into account. 340 cf P Cane and J Goudkamp, Atiyah’s Accidents, Compensation and the Law, 9th edn (Cambridge University Press, 2018) 370–71; for the effects of the transition in general, see Bartrip (1987) (n 280) ch 11. 341 See pp 484–86.

508 Accidents precautions gave place to the hope that, through differentials in premiums and perhaps even safety advice and inspection by insurers, this arrangement for compensation could also foster prevention. At the same period the right to contract out was accepted not only for the extended liability of the Employers’ Liability Act 1880 but also under the terms of contracts in the realm of transport. This became particularly apparent once the motor vehicle began to replace the horse as the main hazard of the roads. Even before the first restrictions on motor traffic were slackened in 1903,342 the Law Accident Insurance Society was offering a comprehensive policy, combining liability cover for injury to other people and property with accident cover for injury to the car insured, its driver and passengers. The new field was not covered by the deposit system of financial guarantee343 and intense competition made motor insurance unprofitable for a decade. The leaders eventually organised themselves under tariff cartels – for private cars (1913–14), commercial vehicles (1915) and finally motor cycles (1921) – which proved enduring enough to bring ‘stability’. During this period shipping insurance would fluctuate somewhat in profitability, but would, in the 1920s, be supplemented by new business in aviation insurance.344 In 1930, it was finally required that third-party liability insurance be carried for all motor vehicles on public highways.345 Though short-term pre-occupations led insurers to regard this move with some coldness, they would soon realise its opportunities of an assured and growing market. The non-tariff insurers led the way in introducing discriminatory devices such as no-claims bonuses (at first non-cumulative) and regional zoning for premiums; soon these became general practice. By 1946, the position of motor insurance would be sufficiently entrenched for the whole industry to be drawn into collaboration in a Motor Insurers’ Bureau.346 All in the business undertook to finance this institution which acted as third-party liability insurer to those who suffered injury or damage by an uninsured driver (including one whose policy could be avoided for fraud or breach of condition by his own insurer).347 Insurance thus became the life-support system of liability in this field and insurers’ staff played an influential role in determining what compensation should be paid, negotiating with individual victims and their solicitors, or, where the victim had accident cover, with his own insurer.348 The common law rules for liability, requiring proof of negligence, and absence of contributory negligence or other defence, underpinned the structure of such negotiations. Accordingly, litigation continued to evolve from them, as it did with common law claims for accidents at work and (on its different premises) workmen’s compensation. A major role of this litigation was to set values upon the less readily quantifiable elements allowed in damages, such as the pain and suffering and ‘loss of amenity’ for (say) the loss of an eye or a limb. It was in the insurer’s interest to have an accepted scale for these factors, for then premiums could be more accurately set. So long as 342 The Motor Car Act 1903 raised the speed limit from 12 to 20 mph. 343 This would be required by the Road Traffic Act 1930, ss 37 and 42. 344 See G Clayton, British Insurance (Elek Books, 1971) 119–20. 345 For the political developments, see Dinsdale (n 188) 327–29. 346 The contract was with the Ministry of Transport. 347 See Clayton (n 344) 157–58, 374. 348 A whole range of understandings were generated between insurers when they were the real interests on each side of a dispute – notably such arrangements as ‘knock-for-knock’ agreements, under which each indemnified its own client in a collision, whatever the truth about fault.

Part 3: Resetting the Victorian Frame 509 juries were allowed to assess damages there could be considerable variation in awards. Indeed, p laintiffs’ advisers looked to them as the only hope of preventing damages from settling down at conservative levels which would be hard to adjust even to keep in line with inflation, let alone to improve the victim’s deal. On the whole the judges sympathised with insurance interests. As one economy measure in 1933, the High Court acquired a discretion to order that a negligence action be tried by judge alone without a jury.349 Gradually juries would become infrequent. Courts were reluctant to order them and plaintiffs gave up asking.350 Judges settled to the notion of evolving tariffs from themselves.351 In 1945 the present-day position was still emergent. The moderating of contributory negligence and the abolition of common employment would prove politically acceptable at this juncture, partly because the growth of insurance made the broadening of liability less fearful. By the same token, transport authorities would be prevented from entirely excluding liability through the terms on their tickets.352 So there were modifications of the nineteenthcentury responses to the problems of accidental injury. But what impresses nonetheless is the continuing grip of those responses. Other jurisdictions, working from the same starting points, have chosen to treat fault liability as no longer pivotal – in the field of employment accidents by making some form of workers’ compensation the only basis for responsibility, in the field of traffic accidents (and perhaps even in all spheres) by introducing a ‘no-fault’ liability scheme. This latter idea has had its airing in Britain.353 But the deliberation with which it was discussed, the qualified verdict upon the alternative that was returned by Royal Commission, the lack of any subsequent action, all suggest that the compensation system for accidents has little of the political momentum that it enjoyed in the late nineteenth century. Without such impetus, it is likely that the forms evolved by a particular history will continue to underpin the British approach to the subject.

349 Administration of Justice (Miscellaneous Provisions) Act 1933, s 6; the power, which had already been tried as a wartime measure from 1918–25, applied to all civil actions save those involving personal reputation or fraud: see RM Jackson, ‘The Incidence of Jury Trial During the Past Century’ (1937) 1 MLR 132. 350 The process was completed by Ward v James [1966] 1 QB 273. 351 Kemp and Kemp’s Quantum of Damages, 1st edn (Sweet & Maxwell, 1954–56) collected the requisite information together for them. 352 A movement which began with the Road Traffic Act 1930, s 97; see now, Unfair Contract Terms Act 1977, s 2(1); Public Passenger Vehicles Act 1981, s 29; Road Traffic Act 1988, s 149; Consumer Rights Act 2015, s 62. 353 P Bartrip, ‘Pedestrians, Motorists and No-Fault Compensation for Road Accidents in 1930s Britain’ (2010) 31 JLH 45; P Bartrip, ‘No-Fault Compensation on the Roads in Twentieth Century Britain’ (2010) 69 CLJ 263.

8 Crime Part 1: The Era of the Bloody Code A. Reform and Conservation Criminal law reveals the state at its most proscriptive, the mechanisms of criminal justice the state at its most punitive. It is then no surprise that in this final chapter we come to areas of law and administration the content and operation of which were the subject of fierce debate throughout our period. As in contemporary society, the fact of crime troubled and engaged communities and interest groups over the two centuries to a degree that, rightly or wrongly, many other legal issues simply did not. During their own lifetimes, many, from reflective philosophers to ill-informed chatterers, were inclined to conclude that the mechanisms in place against crime were unsatisfactory since they had self-evidently been unable to solve the very problem of criminality itself. In addition to this, the belief that society had once been better and that it had subsequently become debased was as prevalent a cultural trope in the eighteenth century as it is today in the twenty-first. Both a belief in a better past and a dissatisfaction with the present were often expressed in the sentiment that something should be done about the state of society in general and crime in particular. The question, as ever, was what? Throughout our period there were those who confidently asserted that if punishments could only be more severe or more lenient, if the law could only be more uniform in its application or more discretionary in its operation, if more acts could only be criminalised or decriminalised, then the behaviour of society would dramatically improve. It is not too whiggish to observe that the impulse to reform manifested by the powerful and upheld by the moral conviction that society could be rid of the burden of crime was a key driver of change over the course of our period.1 Today some of the more confident assertions put forward by some of the reformers may seem somewhat risible. Any suggestion that the law might be so refined, that it might be so true in its application, so reliable in its enforcement and so effective in its outcome that crime might be wholly or substantially eradicated would today be treated with some scepticism. A modern observer might observe that whilst such might be possible in an Orwellian state the remedy would be worse than the condition itself. To understand, however, the energy that animated the enthusiasts in their various projects (good or ill) for reform one has to appreciate that an intelligent observer of society in, let us say, the nineteenth century would not necessarily have felt that this aspect of the human condition was irremediable. 1 The best starting point for any student wishing to get an overview of this period is probably BP Smith’s excellent ‘Criminal Justice Administration, 1650–1850: A Historiographic Essay’ (2007) 25 L&HR 593.

Part 1: The Era of the Bloody Code 511 An octogenarian born in 1828 would have been christened when the first rackety locomotives were rumbling uncertainly towards Darlington and buried in the early years of the airplane and the motorcar. In between, he would have seen massive public works drive typhus and smallpox out of the cities, seen the state active in the development of a system of national education, perhaps benefitted personally from the discoveries of antisepsis and anaesthesia, observed the wonders of the telegraph, and so on. Amongst the thunder of technological and social progress it was not apparent to those such as Utilitarians on the cusp of the nineteenth century or the positive criminologists at its end that scientific principles could not be equally applied to the governance of man. It did not seem at all fantastical to propose that the right methods could rid society of criminality in the same way that the application of the appropriate vaccines or the provision of wholesome water had rid the nation of many of its other contagions. By the end of our period what had been done was little short of a revolution. A professional police force had displaced a system of law enforcement that had dated back to medieval times, the capital statutes had been pared back to almost nothing, the adversarial trial as we know it had emerged and instead of transporting its undesirables abroad the state had erected a grandiose architecture of penality which, if not entirely novel, now exceeded in its scope and aspirations anything that had been conceived of before. All this had of course happened over a prolonged period of time, but with sudden flurries of activity, and if in sum the changes amounted to a revolution, that word was rarely voiced with approval in circles of power. Indeed, while there was relentless pressure for change in some quarters this did not in any way impede the seemingly contradictory assertion that the English system had already reached a stage of perfection unparalleled anywhere else in the world. Dissent as to the content and operation of the law was to be decently expressed within certain milieux, but it was not to be encouraged as an enterprise to be embarked upon by one and all. Those arguing the perfection of the system and those arguing for the reformation of the system were sometimes different people but oftentimes they were one and the same but propounding different views to different constituencies. Reconciling society at large to the operation of the criminal law became a matter of particular urgency in England in the wake of the challenge posed by radical ideas and revolutionary France at the end of the eighteenth century. It was in an attempt to disabuse the common people of radical notions that an important tract, Village Politics, was penned in 1792 by Hannah More – although the purported author was Will Chip, ‘a simple country carpenter’. Framed as a dialogue between Jack Anvil, a wise old blacksmith, and Tom Hod, a naïf and foolish mason, the tract purported to expose the falsehoods and fulminations of Tom Paine and the French Revolutionaries.2 Jack of course was a defender of the current order, believing that in England the people already enjoyed liberty whereas in France they had merely become even more oppressed. Central to this claim was his assessment of the English legal system and its criminal law in particular:3 Thou and I are tried by our peers as much as a lord is. Why the king can’t send me to prison if I do no harm, and if I do, there is reason good why I should go there. I may go to law with Sir John, 2 For the campaign to mobilise popular opinion against Paine, see T O’Gorman, ‘The Paine Burnings of 1792–3’ (2006) 193 P&P 111. 3 ‘Will Chip, a country carpenter’ [= Hannah More], Village Politics. Addressed to all the mechanics, journeymen, and day labourers, in Great Britain (Simmons, Kirkby & Jones, 1793).

512 Crime at the great castle yonder and he no more dares lift his little finger against me than if I were his equal. A lord is hanged for a hanging matter, as thou or I should be; and if it be any comfort to thee, I myself remember a Peer of the Realm being hanged for killing his man, just the same as the man would have been for killing him.

The peer being referred to was Lawrence Shirley, Lord Ferrers, executed and dissected in 1760, after having been tried in the Lords for the murder of his steward. That peers in general suffered the same punishments for committing the same offences as their inferiors is, to put it mildly, doubtful.4 However, there was nothing new about More’s claim that all Englishmen were treated the same in the eyes of the law. Some espoused this idea for instrumental reasons, readily appreciating that if the lower strata of society could be induced to believe in the impartiality of the law then they might be more readily reconciled to the current order. Others, though, seem to have genuinely believed that such was the case and particularly asserted it when, like More, they were expressing patriotic ideals and contrasting the supposed national virtues with the undoubted vices of other nations. National patriotic society was not, however, simply constructed by intellectuals or social elites. As Kathleen Wilson has observed, it was an important facet of what was finally produced that: since, it was the (largely mythical) role of the people in the constitution that in most contemporaries’ minds distinguished English liberty from Continental absolutism, populist beliefs and discourses were a crucial plank in the construction of national identities and consciousness.5

People in all ranks of society were to be found who were complicit in the notion that Englishmen enjoyed certain species of equalities that were not to be found elsewhere, a notion which was readily exploited by the elites when inspiring the Church and King riots against the radicals in 1797. The claims about the criminal law made in Village Politics are not at first sight readily reconcilable with Beattie’s general and seemingly contradictory observation that in the eighteenth century, ‘Men were not equal before the law … nor was that sought as an ideal.’ However, the contradiction to some extent disappears once one appreciates that the claims made were about fairness in the process of trial and criminalisation and were not claims that the law operated to equal effect in respect of everyone. That privileges might be permitted to some groups that were denied to others and that the law might take hold of some in a way which did not take hold of others was, in the main, accepted as a natural reflection of the structure of society. There were of course certain fundamentals – even a peer could not murder his steward – but there was very little rights discourse as such. The law did not offer to the agricultural labourer the right to vote in the vestry, he had not the right to terminate his employment at will nor to shoot game – others did, but for him these were criminal offences. What the criminal law purported to offer was an assurance that when a man was accused of some breach of those laws that were applicable to him then

4 To give but one illustration from earlier in the eighteenth century, the career of Charles, the fourth Baron Mohun, included innumerable assaults, assistance in the kidnapping of a young woman and two homicides – which merited in response but the mildest of punishments. Society was perhaps relieved when that career was cut short by his duel in 1712 with James Douglas, Lord Hamilton – an affair in which both of them perished: V Slater, High Life, Low Morals, The Duel that Shook Stuart Society (Pimlico Press, 2000). 5 K Wilson, The Sense of The People: Press Politics, Culture and Imperialism in England (Past and Present Publications, 1995).

Part 1: The Era of the Bloody Code 513 the proof of it would be tested in a manner that wiser heads than his had concluded was best suited to protect the innocent and identify the guilty. The rules of proof and procedure were consistent even if the law operated to different effect upon different groups in society. Furthermore, in respect of the more serious offences the question of whether the offence had been proved lay with the trial jury, a jury of one’s peers summoned after the charge itself had been scrutinised and affirmed true by the most educated members of society sitting in the grand jury.6 What today we might call substantive inequality was in the main accepted as an inevitable consequence of the human condition. Procedural equality then was the most that could be hoped for – though the two were often conflated in debate. Anatole France famously remarked that the laws of France in their majesty equally forbade the rich and the poor from sleeping under bridges, a remark that invites us to look beyond the fact of the activity and into its circumstance.7 Circumstance was not in general an excuse (although it might be a mitigation) and the species of equality we are dealing with here merely demanded that the same methods, procedures and proofs be employed to discover whether a defendant had slept under a bridge regardless of whether he be rich or poor. This, though, was no small advance from arbitrary judgement and abuse of power – if, that is, procedural equality really pertained in the courtroom. Judgements about the state of the criminal law and justice system itself, are, if they are wise, always nuanced, finessed and never absolute. Broadly speaking, there are two different estimations of the operation of the criminal law in the eighteenth and nineteenth centuries, although they do not so much dispute each other’s evidence as choose to highlight different aspects of the system. Some see the law evolving as an internally referenced logical system which generally and genuinely attempted to deliver the best justice that could be conceived of at the time. Others stress the exclusivity of the law in many of its facets and believe that the rhetoric of equality before the law was merely a kind of confidence trick designed to bamboozle and deflect attention from the true nature of the law as the ruthless servant of the interests of the propertied classes. Some of the debates will be rehearsed here but no one, we think, would accept the premise of Jack Anvil that common men in the eighteenth and nineteenth century ‘can no more be sent to prison unjustly than a judge; and are as much taken care of by the laws as the parliament man who makes them.’8

B. The Range of Criminal Law In the modern world the criminal law has long been a particular domain of the state and there are compelling reasons why it should be so. A state that demands fealty generally tries to temper that demand by the offer of protection in return and is alive to the possibility that 6 The ideal was secured primarily by the writ of habeas corpus, by which one who detained another could be required by a royal court to establish the legal justification for doing so. It became tarnished whenever, in times of great tension, Parliament was led to suspend habeas corpus (as in 1794 and 1817) and it was permanently spotted at the edges by the preventive powers of the magistracy. 7 La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain. (‘In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.): Le Lys Rouge [= The Red Lily] (1894), ch 7. 8 Village Politics (n 3) 14–15.

514 Crime unless it intervenes the transgressions of one against another could become feuds between families, communities and interest groups that might ultimately threaten the security of the realm. In any complex process the question of beginnings is a difficult one, but a strong case can be made for saying that in England the origins of the criminal law as a state enterprise lie in the abolition of ordeals following the Lateran Council of 1215.9 Prior to this, those suspected of breaches of customary norms were liable to be put to the ordeal of fire or water, their guilt to be determined by the ecclesiastical authorities informed by signs manifested by God. Of course, there was a strong element of prior selection. Those put to the ordeal were those without reputation, which meant they were either already marginalised in the community or strongly suspected because of circumstantial evidence or prior bad character.10 The abolition, upon theological grounds, of the ordeals necessitated the introduction of some form of secular procedure for determining guilt. For a long time, though, the differences between the ordeal and the jury trial which succeeded it may have been more apparent than real. Just as community sentiment determined who went to an ordeal, and was surely determinative of the outcome, so too presenting juries drawn from communities were expected to have a personal knowledge of the offences in question, and by extension to hold a view already as to who had committed them.11 By the beginning of our period something that was beginning to resemble the modern trial was emerging, although a good deal of what was medieval still remained.12 The state was still doing very little to ensure that criminal offences were actually pursued through the courts. High political offences were the concern of the Government and the AttorneyGeneral, but for the most part eighteenth-century justice was conducted on the basis of negotiations between private parties rather than worked out through the operation of a state bureaucracy. Courts were substantially dependent upon the inclination of private prosecutors to bring forward cases, but even where prosecutions were initiated, cases often failed to be actually heard or determined because of the tendency of the parties to compound the offences – that is, to reach a privately negotiated compensatory settlement rather than proceeding to trial.13 In the eighteenth century this was entirely legal in the case of lesser

9 T Olson, ‘Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial’ (2000) 50 Syracuse Law Review 109; R Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford University Press, 1986). 10 In VIII Ethelred 22 the ordeal was said to be appropriate to ‘the foreigner or the friendless man’ which contrasts with II Cnut 22 whereby ‘trustworthy men of good repute’ could clear themselves of an accusation by taking an oath. 11 In Britton it was said that if a judge finds the jurors ‘know nothing of the facts, let others be called who do know it’: FM Morgan (ed), Britton (Oxford University Press, 1865) 30–31. For the general early history: WS Holdsworth, A History of English Law, vol 2 (Methuen, 1923) 43–50; vol 4 (Methuen, 1925) 492–532; vol 8 (Methuen, 1926) 301–46; Sir J Baker, An Introduction to English Legal History, 5th edn (Oxford University Press, 2019) ch 5. 12 One curious relic, the appeal of murder, survived on to the eighteenth century. Very rarely employed, it served as a means by which the relatives of the victim might challenge an acquitted murderer to a second trial. When the procedure was employed in 1818, in the case of Ashford v Thornton (1818) 1 B & Ald 405, counsel advised the defence that the appeal could still be met by a challenge to trial by battle – which the prosecution declined. The scandal which ensued led to the abolition of trial by battle by the Appeal of Murder Act 1819: DR Ernst, ‘The Moribund Appeal of Death: Compensating Survivors and Controlling Jurors in Early Modern England’ (1984) 28 AJLH 164. 13 Procedural rules meant that it was much easier for a complainant to give evidence in a criminal action rather than during the course of a civil suit. Thus, many acts which today might rise to civil suit were proceeded against by criminal indictment – with the expectation that the alleged offence would be compounded. See N Landau, ‘Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions’ (2000) 17 L&HR 507, 533–34;

Part 1: The Era of the Bloody Code 515 offences known as misdemeanours. Indeed, Beattie observes that in an attempt to rid the courts of unwanted business they sometimes used the threat of large fines upon conviction, ‘as a way of persuading a recalcitrant prisoner to come to terms with the complainant’.14 By contrast, the compounding of a more serious offence – a felony – was illegal under Elizabethan statute, but this did not prevent it occurring.15 When they discovered it the courts sometimes took action – for instance in 1788 a Thomas Deakin was sentenced by Shrewsbury Assizes to stand in the pillory for two hours for compounding a case without leave of the court. Upon reflection, however, it was recommended that the sentence be commuted to three months’ imprisonment since he was ‘extremely odious, a common informer’ and if set in the pillory would be exposed to ‘the fury of the populace’.16 In the eighteenth century there was a very active tradition of ordinary people bringing cases in response to offences against themselves. Peter King’s study of cases from the Winstree hundred in Essex showed that in 1792 most of the households had at least one member who had experienced a summary hearing in the previous four years, but a ‘huge variety of minor disputes – illegally detained property, inter-personal violence, insults, wages, poor relief, dangerous driving, swearing, etc were all resolved by these magistrates without recourse to jury trial or summary punishment.’17 In early-nineteenth-century Nottinghamshire, the most common class of business in Sir Gervase Clifton’s justicing notebooks concerned the operation of the Poor Law, followed by that of employment disputes; there were of course also complaints about assault and so on, but the term ‘crime’ was rarely employed.18 Similarly, Outhwaite observes that the notebook of the Rev Edmund Tew, a magistrate at Bolden near Durham, reveals that ‘Arbitration and summary justice, processes that leave no mark in formal records, were far more common than trials.’19 Resolving cases before judgment was quicker, cheaper, offered some gain to the prosecutor or complainant, and also prevented the odium (and sometimes retribution) that might fall upon a person who was thought to be using the law vindictively. Some form of retribution, covert or overt, was particularly likely if the penalties prescribed by law were thought to be disproportionate to the wrong complained of. There were, though, cases that would not be compounded. The complainant might feel the offence was too egregious to be settled by simple compensation or the accused might refuse to acknowledge guilt. The accused might not have any resources with which to satisfy the complainant or it might be a case where the complainant was determined to invoke the deterrent effect of the law. The lord of the manor did not prosecute a poacher to secure restitution for the loss of a pair of rabbits, but to deter potential poachers from doing the same. It was in order to advance deterrent prosecutions that communities and occupational groups banded together from the end of the seventeenth century to form prosecution societies. Many of these were short-lived or involved very few members, but some were rather large and functioned for a very long time indeed. Estimates of the total number vary also, DD Friedman, ‘Making Sense of English Law Enforcement in the Eighteenth Century’ (1995) 2 University of Chicago Law School Roundtable 475, 482. 14 JM Beattie, Crime and the Courts in England 1660–1800 (Clarendon, 1986) 457. 15 Common Informers Act 1584. 16 HO 47/7/8 fos 50-1, 21 March 1788. 17 P King, ‘Summary Justice and Social Relations in Eighteenth-Century England’ (2004) 183 P&P 125, 132. 18 C Steedman, ‘At Every Bloody Level: A Magistrate, a Framework-Knitter, and the Law (2012) 30 L&HR 387. 19 RB Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge University Press, 2007) 102.

516 Crime between about 1,000 and 4,000.20 These societies had civic and social functions as well as prosecutorial and they constituted themselves by elaborate charters, adopted a hierarchy of officials, commissioned regalia and invented ceremonial procedure including annual processions; that of one of these, by the Heptonstall Prosecution Society, was still taking place at the very end of the nineteenth century.21 The societies were in part a recognition that the compounding of individual offences did little to secure the interests of the community as a whole. If we look at the content of the actual law in the eighteenth century, we can see that whilst many of the offences of violence against the person were governed by the common law, statute law was particularly concerned with property offences. The victory of landed magnates in 1688 had led to the creation of many new offences, many of them capital and the whole forming the so called ‘Bloody Code’. Perhaps the most notorious piece of legislation was the Waltham Act: the so-called ‘Black Act’ of 1723. By 1820 there were over 200 capital crimes on the statute book. This, though, is somewhat misleading since many offences were very specific and could in fact have been swept up into far fewer general statutes. Common law offences could of course also be capital such as murder and manslaughter, rape, buggery and bestiality, aggravated assaults and affrays, robbery and piracy, burglary and housebreaking, the many forms of larceny (theft) and forgery, arson and malicious damage to property. There were in addition offences against the state itself, the gravest being treason. The full horrors of conviction were somewhat mitigated in the eighteenth century by the practice of allowing the culprit to hang until they had expired before beginning the ritual practice of quartering. Lord Lovat was granted this mercy after the 1745 rebellion, and by 1795 quartering itself had fallen into abeyance. Thereafter decapitation after hanging remained as the distinguishing mark of the traitor until this too was abolished in 1870. Below treason were the misdemeanours of seditious and blasphemous libel, the principal curbs upon freedom of speech and publication; and alongside these were the public order offences, of which the most usual had become unlawful assembly and riot.22 These likewise were misdemeanours, but rioters became guilty of felony if they failed to disperse within an hour of a magistrate reading the proclamation under the Riot Act 1715.23 Amongst the offences against the state one can also include those which interfered with Crown revenues (for instance by smuggling dutiable goods), those which tampered with the administration of justice (such as perjury), and those which threatened the integrity of the armed forces (such as mutiny and desertion).

20 P King, ‘Prosecution Associations and Their Impact in Eighteenth-Century Essex’ in D Hay and F Snyder (eds), Prosecution and Police in Britain (Oxford University Press, 1989). 21 CB Little and CP Sheffield, ‘Frontiers and Criminal Justice: English Private Prosecution Societies and A merican Vigilantism in the Eighteenth and Nineteenth Centuries’ (1983) 48 American Sociological Review 796, 800. 22 On the government’s use of seditious libel and blasphemy as instruments of social control, see C Emsley, ‘An Aspect of Pitt’s Terror: Prosecutions for Sedition during the 1790s’ (1981) 6 SH 155; M Lobban, ‘Treason, Sedition and the Radical Movement in the Age of the French Revolution’ (2000) 22 Liverpool Law Review 205; P Harling, ‘The Law of Libel and the Limits of Repression, 1790–1832’ (2001) 44 HJ 107. Unlawful assembly was the gathering of three or more for a common purpose in a manner that caused a reasonable fear of breach of the peace. Riot was a tumultuous disturbance by three or more intending to execute their enterprise violently to the terror of the people and to assist one another against any opposition. 23 This was a modified version of Tudor legislation: Holdsworth, vol 8 (n 11) 328–31; vol 10 (Methuen, 1938) 705–13.

Part 1: The Era of the Bloody Code 517 In addition to offences against person, property and the state, there were also a plethora of trade regulations concerning weights and measures, market practices, licensing provisions and the like, breaches of which invited criminal sanctions. It is something of a myth that the bureaucratisation of day-to-day existence is a modern phenomenon. It was still the case in the eighteenth century that some of the most important regulations were designed to support the notion of a ‘just price’ for essential commodities. Thus, assizes of bread and ale were still being held in London and many towns. Engrossers (those who sought to buy up all of a certain produce in order to force the price higher), forestallers (those who tried to purchase goods before they had been exposed for sale in the proper market) and regraters (who bought in a market only to sell in the same market for a higher price) all remained liable to prosecution. Regrating, for example, remained an offence at common law until 1844; EP Thompson notes that there were a substantial number of prosecutions for such offences at the end of the eighteenth century.24 Not a few conflicts in the nineteenth century were to be occasioned by the dismantling of these price controls and the establishment of unregulated and inter-regional markets in foodstuffs.25 Other species of regulatory offences related to moral defects such as swearing, drunkenness, profanity, sexual promiscuity, abuse of church property, failure to observe the Sabbath, and so on, which might cause a malefactor to be brought before the church courts. Increasingly, such offences were considered summarily by the justices of the peace sitting separately or in pairs. They might award a fine, a whipping or a brief term in a gaol or house of correction.26 However, Church courts retained their jurisdiction and if, in general, their use of that jurisdiction was in decline by the end of the seventeenth century, still Outhwaite has shown that the picture was somewhat mixed. Corrective presentiments, so called ‘office prosecutions’ by church wardens and others, seem to have actually been increasing in some areas into the middle of the eighteenth century, most notably in the deanery courts of Lancashire.27 The general trend was towards decline, however, although penance, that most ecclesiastical of punishments, was still occasionally being imposed. Thus in 1789 at Salisbury, ‘One Woodridge, a carpenter, at Petworth in this county, having married his late wife’s sister, they both did penance together in the church at that place.’28 At Fritton Church, Suffolk, in 1816, Hannah Freeman did penance ‘for defaming the character of Mary Banham, spinster’.29 In 1839 penance was imposed upon a woman who had defamed her neighbour in Walton Church, near Liverpool. By this time the practice was controversial, but it received some support in the Liverpool Mercury who reported that, ‘It is many years since such an occurrence took place: the white sheet was not, however, enforced. This should be a warning to the fair sex who are troubled with an evil tongue.’30 24 EP Thompson, Customs in Common, (Penguin, 1993) 209–10. 25 RD Storch, ‘Popular Festivity and Consumer Protest: Food Price Disturbance in the Southwest and Oxfordshire in 1867’ (1982) 14 Albion 209; R Wells, ‘The Revolt of the South-west 1800–1801: A Study in English Popular Protest’ (1977) 2 SH 713. 26 Until 1857, the church courts continued occasionally to deal with such matters as brawling in churchyards and defamation not serious enough to be the subject of common law prosecution: see the Ecclesiastical Courts Commission, PP 1831–32 (199) XXIV 53–64. 27 Outhwaite (n 19) 83. 28 Salisbury Journal 28 December 1789. 29 ‘Fritton’, The History and Antiquities of the County of Suffolk: vol 1 (1846) 352–59; published online at: www.british-history.ac.uk/report.aspx?compid=75144&strquery=‘penance’. 30 The Liverpool Mercury cited in Freeman’s Journal and Daily Commercial Advertiser (Dublin, Ireland), 17 December 1838.

518 Crime When a vicar at Fen Ditton in Cambridgeshire tried to impose a similar penance on a woman who had supposedly defamed his wife, an enormous crowd turned up, rioted and damaged his church.31 The powers of the Church courts were by this time being steadily dismantled, although the final criminal jurisdiction did not disappear until 1860.32 One consequence of the declining church jurisdiction was that there were moral offences which ceased to be penalised.33 This was troubling to those who believed that the worst offences were only the product of loose, unsupervised living – drunkenness, prostitution, irreligion, rootless wandering and so on. Whether crime itself was actually on the rise, the fear of crime regularly animated campaigns against vice and by the end of the eighteenth century many towns had well-supported societies which set themselves up to police morals.34

C. The Amount of Crime and Its Nature All attempts to quantify crime are bedevilled by the impossibility of estimating the number of crimes that are unreported, and in the eighteenth century the difficulties were even worse than today since such complaints as were received by parish constables and justices were not the subject of regular records.35 The first crime statistics were not published until 1805, but notwithstanding this, there was a tendency in the literature of the time to make bold but unsubstantiated assertions about the prevalence of crime and the activities of criminals. These assertions were often wrapped in a bogus specificity presumably designed to give them an air of authority. Thus could the magistrate Patrick Colquhoun assert in 1796 that there were 115,000 undesirable persons, vagrants, beggars, hucksters and the like, living directly or indirectly from the proceeds of crime in London, ‘the grand receptacle for the idle and depraved of almost any Country and certainly from every quarter of the dominions of the Crown.’36 Modern studies informed by the lists of those prosecuted at the Assizes and Quarter Sessions, together with the records of coroner’s inquests, have allowed some broad trends to be observed in the discovery and prosecution of the more serious offences. Homicide rates are much the easiest to track and separate studies concur in showing a steady 31 ‘Fen Ditton: Church’, A History of the County of Cambridge and the Isle of Ely: Vol 10: Cheveley, Flendish, Staine and Staploe Hundreds (North-eastern Cambridgeshire) (2002) 127–29; published online at: www.british-history. ac.uk/report.aspx?compid=18818&strquery=‘penance’. 32 The 1832 Parliamentary report identified 372 church courts in England: PP 1831–32 XXIV 552. 33 Some attempts at policing morality, such as the ecclesiastical offences of adultery and fornication, made no transfer permanently into the secular jurisdiction, and in one case – incest – this would be long delayed. 34 Such societies were by no means a new phenomenon, expressing as they did an evangelical yen to impose a religious awakening on the lower orders. But they multiplied and diversified from the late eighteenth century. Typical examples such as the Proclamation Society of 1787 and its later emanation, the Society for the Suppression of Vice, were inspired by Wilberforce and the Clapham sect. Much of this activity spilled over into more general plans to regulate poor relief through efficient marshalling: L Radzinowicz, History of Criminal Law and its Administration from 1750, vol 3: Reform of the Police (Stevens and Sons, 1956) 143–80; vol 4: Grappling for Control (Stevens and Sons, 1968) 43–59. 35 On the records of crimes and prosecutions before the appearance of central statistics in the nineteenth century, see JA Sharpe, Crime in Early Modern England 1550–1750 (Longman, 1984) 34–63; Beattie (1986) (n 14) 4–5 and 19–22. 36 P Colquhoun, A Treatise on the Policing of the Metropolis (C Dilly, 1797) xi.

Part 1: The Era of the Bloody Code 519 decline from the Middle Ages onwards.37 In London, for example, the number of prosecutions for homicide per 100,000 population declined from 3.9 in 1690 to 0.6 in 1791.38 In Kent the average rate between 1751 and 1791 was still some 1.98 per 100,000 but between 1801 and 1841 it fell to 1.24.39 The reasons advanced for the declining rates of homicide are contentious, as they often rest on assumptions about the general effect of the ‘civilising process’ as expounded by Norbert Elias. Shoemaker, in his study of gentlemanly violence, asserts that in London the reformation of manners led to the formation of new types of masculinity which were less dependent upon one’s prowess in defending one’s reputation in public space. Thus, the number of insults traded between gentlemen, and the number of fatal duels that resulted, declined substantially in the second half of the eighteenth century.40 In respect of all offences against the person, however, it remains true that by modern day standards eighteenth- and nineteenth-century society was still rather violent and that socially and legally a greater degree of toleration was extended towards violence than today. The handbook for magistrates, Burn’s Justice of the Peace, for example, advised that in cases of assault, ‘the court frequently recommends the defendant to talk with the prosecutor, that is, to make him amends for the injury done him’, whereupon the court would impose only a small fine.41 The practice is well-attested at Essex Quarter Sessions. Of all those indicted for assault there between 1770 and 1774, some 64 per cent pleaded guilty and this is closely connected to the fact that 62 per cent of those indicted ended up being fined a mere shilling. Some 17 per cent were acquitted whereas some 13 per cent ended up imprisoned. Assault, then, as a charge, had an almost civil character, with most defendants admitting guilt, coming to an agreement with their victim and paying some token fine. By 1820 this had changed dramatically in response to the increasingly severe stance of the Quarter Sessions; only 13 per cent pleaded guilty and almost 52 per cent of those indicted were imprisoned.42 The majority of prosecutions in the eighteenth century concerned property offences.43 Property indictments also seem to have declined over the two centuries until almost the end of the eighteenth. However, indictments in urban areas began to rise again in the final decades and continued to do so thereafter. Koyama charts a dramatic increase in committal rates from about 1808 until 1818. Thereafter, there was a modest decline until about 1825 when rates again began to rise such that by 1842 the number of people committed

37 R Roth, ‘Homicide in Early Modern England, 1549–1800: The Need for a Quantitative Synthesis’ (2001) 5 Crime, History & Societies 33. 38 R Shoemaker, ‘Male Honour and the Decline of Public Violence in Eighteenth Century London’ (2001) 26 SH 190, 193. 39 JS Cockburn, ‘Patterns of Violence in English Society: Homicide in Kent 1560–1985’ (1991) 130 P&P 70, 78. 40 Shoemaker (2001) (n 38) 203; S Banks, ‘Killing with Courtesy: The Duel and the English Duellist, 1785–1845’ (2008) 47 JBS 528; S Banks, A Polite Exchange of Bullets: The Duel and the English Gentleman, 1750–1850 (Boydell and Brewer, 2010). 41 R Burn, The Justice of the Peace, and Parish Officer, 22nd edn (Strahan, 1814) vol 3, 185, cited in MJ Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge University Press, 2004) 22. 42 P King, ‘Punishing Assault: The Transformation of Attitudes in the English Courts’ (1996) 27 JIH 43, 49. 43 See esp JM Beattie, ‘The Pattern of Crime in England, 1600–1800’ (1974) 62 P&P 47 and Beattie (1986) (n 14) chs 2 and 3; D Hay, ‘Dearth, War and Theft in the Eighteenth Century: The Record of the English Courts’ (1982) 95 P&P 117. For a detailed study of one species of property offence see S Tickell, Shoplifting in Eighteenth-Century England (Boydell and Brewer, 2018).

520 Crime for trial for indictable offences was seven times the number that it had been in 1805.44 This should not be taken as evidence that crime itself had risen dramatically. There was rather an increasing willingness to prosecute and see cases through, and better systems of law enforcement and of administration ensured that a larger proportion of offences came to be reported and recorded. It is very likely, though, that genuine spikes in criminal activity occurred in the aftermath of the various wars. The discharge of soldiers would suddenly increase the numbers tramping about the country in search of work or other subsistence, and a miasma of rumour would spread around the real threat which they posed. In response, more victims would prosecute, grand juries would be readier to approve indictments, trials would less often lead to acquittals and more convicts would be left for the gallows. As the surplus labour was slowly absorbed the problems would appear to abate and so the severity of the justice system would, to some extent, diminish. The cycle can be seen after the European wars, during 1749–1752 (when Henry Fielding and others became so incensed against the increase of robberies and thefts); after the Indian and American wars, during 1763–1765; and again, in the mid-1780s as the conflict with the 13 American colonies drew to its close. In each case the eventual return to ‘normality’ only strengthened the belief that existing procedures could be made to work well enough and plans for radical change could then be belittled. At times of bad harvest and hunger, the same phenomenon was observable to some extent, but it tended to be moderated by a factor that was unlikely to operate so strongly in the wake of war. The waves of sympathy for the plight of those who suffered most dreadfully from shortages would find expression, not only in special doles and other charitable relief, but also in a certain reluctance to proceed against those who stole out of necessity. But even so the moral balance might still send the rate of prosecutions up. In normal times prosecutions would be most willingly advanced against youths or young men without dependents. Beattie notes, though, that at times of stress there was an increasing tendency to proceed against those who were older, between about 20 and 40, who would often have had wives and young children to feed and clothe.45 Whilst their number is again hard to quantify, it is certainly the case that some of the offences being complained of before the courts towards the end of the eighteenth century related to conduct that had not previously been thought criminal at all. There was an increasing tendency in trade and manufacture to pay cash only wages and to reclassify the taking of traditional labour perquisites as acts of theft.46 There were many occupations in which remnants – leftover produce, sweepings, spoiled samples and the like – had traditionally been taken by employees to supplement their meagre incomes. The drive for greater efficiency and profit – together with the breakdown in certain areas of traditional labour relations – led to manufacturers criminalising these customary practices.47 Thus the result of the Bugging Act 1749 and the Worsted Act 1777 was that in the cloth industry,

44 M Koyama, ‘The Law and Economics of Private Prosecutions in Industrial Revolution England’ (2014) 159 Public Choice 277, 282 fig 1. See also MJ Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge University Press, 1990) 14. 45 Beattie (1986) (n 14) 202–12 and 235–52. 46 For discussion of the changes to workplace organisation wrought by industrialisation, of which these developments were a part, see pp 277–78. 47 See B Godfrey and J Locker, ‘The Nineteenth Century Decline of Custom and its Impact Upon Theories of “Workplace Theft” and “White Collar” Crime’ (2001) 38 Northern History 26.

Part 1: The Era of the Bloody Code 521 ‘Ordinary tasks of the labour process such as sweeping out the room and snipping weft ends tying up the warp to the beam, became potentially criminal offences.’48 Linebaugh gives the example of ten weavers who were informed upon for having traded silk ribbons with an informer. Each asserted that the silk had not been stolen from their employers but had been fabric that would otherwise have been wasted – the local constables seemed to agree with them and could only with reluctance be prevailed upon to administer the whipping that the magistrates ordered.49 There were in fact arguments on both sides. In the Port of London, for example, larceny, indeed wholescale piracy, was rife until the end of the century. The loss of revenues to the Crown alone amounted to £500,000 a year and the Bumboat Act 1762, which was intended to regulate the activities of the small craft trading with merchant ships at anchor, proved to be utterly ineffectual. In response the London River Police were formed in 1798 and their cracking down upon organised gangs proved to be of great benefit to the metropolis. However, the force also spent much time in petty activities such as preventing coal heavers from taking fuel for their personal use (previously regarded as a right) and even stopping children collecting the pieces washed up on the shore.50 In general it seems fair to remark that while the exorcising of traditional perquisites from the workplace was a long and difficult process, it was rarely accompanied by an attempt to quantify the value of what was lost and offer an appropriate recompense in the form of wage increases.51 In the country, traditional privileges included rights of gathering, gleaning, turbage, and pasturing. These gave tenants, hired labourers and artisans subsistence opportunities outside of the cash economy. These were also under threat at the end of the eighteenth century and in response to the perceived injustice of ejectment from land or extinguishment of rights a number of distinctly agricultural offences were committed – such as the firing of ricks, the maiming of cattle, the destruction of trees and so on. The countryside was, and was to remain, the subject of significant contest in the eighteenth and nineteenth centuries and that contest was quite often played out in the courts. Many customary practices had hitherto been supported by leet courts, verderers courts, and so on. However, these were increasingly disregarded by the criminal courts in the face of vested interests. The laws were in fact often contradictory. For example, a number of judgments upheld the rights of commoners to dismantle unlawful obstructions and to distrain supernumerary cattle in cases where the commons were strictly stinted.52 However, criminal courts were increasingly prepared to penalise those who wished to assert their traditional rights to enjoyment of land.53 For example, those who had actually enclosed illegally were still able to deploy the Black Act 1723 against those who retaliated by throwing down the fences. This happened, for example, to the rector of Bainton in Yorkshire, who found himself 48 P Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Allen Lane, 1991) 268. See also R Soderlund, ‘Intended as a Terror to the Idle and Profligate: Embezzlement and the Origins of Policing in the Yorkshire Worsted Industry, c 1750–1777’ (1998) 31 Social History 647; J Styles, ‘Regulating Yarn Standards in the English Worsted Industries, 1550–1800’ (2013) 44 Textile History 145. 49 ibid 266. 50 G Budworth, The River Beat: The Story of London’s River Police Since 1798 (Historical Publications, 1997). 51 For a full list of acts designed to penalise workplace appropriation, see B Godfrey and P Lawrence, Crime and Justice 1750–1950 (Willan, 2005) 156. 52 Hall v Harding (1769) 4 Burr 2426; Arlett v Ellis (1827) 7 B & C 346. 53 For example, Steel v Houghton (1788) 1 H Bl 51 decided that gleaning was no longer a right at common law (although it could be claimed by local custom), Lord Loughborough declaring that it contradicted the exclusive enjoyment that was a fundamental right of property.

522 Crime at York Assizes in 1748 having mobilised his parishioners against the fences erected by the lord of the manor.54 A persistent source of grievance were the Game Laws, which by this time were mainly dealt with by the petty sessions.55 Originally, the common law had not recognised the ownership of wild animals and so deer, game, rabbit and hare could be taken at will.56 That situation was modified by a number of statutes.57 In 1671 it became a summary offence for a person to hunt game if he was not a substantial landholder, heir to person of ‘higher degree’ or owner of a chase or park.58 Further buttresses were added in the eighteenth century, making it, for instance, an offence to possess hunting equipment, or to deal in game as a trader; and the penalties were increased for hunting at night. Enclosure and hunting were connected in so far as the former might be done for the purposes of the latter and it was often resisted. A popular ballad opera, ‘The Charnwood Opera’, commemorated a mass attack in 1749 by colliers upon the new enclosures for rabbit warrens in the Charnwood Forest. One protester was killed but the action secured continuing rights of access to the forest for many Leicestershire villages.59 Not all gentlemen were enthusiastic about the game laws: Blackstone wrote of ‘questionable’ crimes, ‘which the sportsmen of England seem to think of the highest importance.’60 But others strongly defended them upon the grounds that they helped keep the gentry on their estates.61 There was no relaxation in the eighteenth century. After 1784, a hunting licence with a two-guinea Exchequer stamp was required62 and the game laws continued to be administered by JPs according to their own interests.63 Not until 1831 was there partial reform.64 One consequence of the severity of the game laws was that they made poaching

54 E Tate, The English Village Community and the Enclosure Movements (Gollancz, 1967) 152. See also B Bushaway, By Rite: Custom, Ceremony and Community in England 1700–1800 (Breviary Stuff, 2011) 83; PRO Assi 24.42, Somerset, summer 1774: a shopkeeper, a carpenter, a yeoman, and four labourers charged and acquitted of throwing down hedges at Porlock. PRO Assi 4.22, Worcester, Lent 1789: a butcher, husbandman, four yeoman and four needlemakers and others charged with pulling down 14 yards of fences at Feckenham. PRO Assi 24.43, Devon, summer 1807: a spinster, four labourers and a labourer’s wife charged with coming into a garden with shovels, spades, saws and axes and digging up the ground. On destructive responses to enclosure, see also p 143 of the present work. 55 In the earlier seventeenth century, prosecutions for poaching still went mainly to Quarter Sessions. 56 But as deer and rabbits came to be ‘enclosed’ they were treated as private property; later the same was done for game birds. 57 For a summary, see PB Munsche, Gentlemen and Poachers: The English Game Laws 1671–1831 (Cambridge University Press, 1981) App; for the subject in general, see PB Munsche and M Ingram, ‘Communities and Courts: Law and Disorder in Early Seventeenth Century Wiltshire’ in JS Cockburn (ed), Crime in England, 1550–1800 (Methuen, 1977); also C Kirby, ‘The English Game Law System’ (1932–3) 38 American Historical Review 241; A Howkins, ‘Economic Crime and Class Law: Poaching and the Game Laws, 1840–1880’ in SB Burman and BE Harrell-Bond (eds), The Imposition of Law (Academic Press, 1979). 58 The maximum punishment became a fine of £5 or three months in a house of correction: Game Preservation Act 1706, s 4; there were higher penalties for ‘deer-stealing’: Deer Stealers Act 1691. 59 G Porter and J Tuisanen, ‘Performing Resistance to the New Rural Order: An Unpublished Ballad Opera and the Green Song’ (2006) 47 The Eighteenth Century 203. 60 Commentaries vol 4, 174–75 and 409. 61 An attitude solemnly adumbrated by a lawyer such as Joseph Chitty (1816) 9 The Pamphleteer 181. 62 The Waltham Black Act 1723 and other capital statutes also struck at some poaching activities. 63 It was probably the disgraceful trial of a farmer, Beller, by the Duke of Buckingham in 1820 which allowed Brougham, in a famous squib, to call ‘a brace of sporting justices’ in a game case, a tribunal ‘worse constituted than that of the Turkish cadi’; for the context of this remark, see Munsche (1981) (n 57) 76–80. 64 In 1831, reformist pressure led to removal of the most evidently discriminatory provisions in the game laws. But still £3 13s 6d was needed for a licence; and still the game rights over the land remained the landlord’s, unless expressly granted to the tenant, an arrangement which generated long resentment (often for good economic

Part 1: The Era of the Bloody Code 523 a desperate and potentially violent affair with struggles between gamekeepers and poachers not always concluded to the advantage of the former. Thus, in the nineteenth century in the Forest of Dean: Keepers and others have been absolutely killed by poachers. One man certainly was killed since I was there; that was a policeman. They took to shooting the keepers when they were not allowed to shoot the deer and it was thought better to give the deer up.65

The criminality of poaching gangs was, though, as nothing compared to that of smugglers, who by the end of the eighteenth century were mounting a formidable challenge to the rule of law. Smuggling was at its height in England between about 1770 and 1820 and it is no exaggeration to say that there were coastal parts of the country in which the writ of government scarcely ran.66 The resources at the disposal of these gangs were considerable. In October 1791, for example, the Dolphin, a revenue cutter, was attacked by a smuggling lugger near Padstow in Cornwall. None of the smugglers were arrested for the revenue men were outmatched by the vessel, ‘navigated with about fifty men, all armed and ready for action, having eight six-pounders mounted, with as many more in the hold and pierced for eighteen guns.’67 The eighteenth-century government’s response to the challenge was tripartite. First, a considerable body of legislation sought to regulate maritime activity and penalise offences. The Hovering Act 1718 allowed any vessel operating outside of its licensed area to be seized and a second such act in 1784 allowed any vessel of less than 60 tons which ‘hovered’ within three miles whilst carrying brandy, tea, wine, coffee or French silk to be similarly impounded. It became an offence to signal to a ship from the shore, to receive smuggled goods or to hide a smuggler. Wounding a revenue officer became a capital offence in 1736 and after 1738 any smuggler who was caught could be transported for seven years – and so on. In an attempt to enthuse local officials, collective fines were resorted to, counties were fined for each officer killed within their boundaries or for failing to catch the men who had deposited contraband goods. Secondly, incentives were also proffered, to informers, to ordinary men and women prepared to give evidence against the gangs and to smugglers themselves for turning in their fellows. The sums offered were considerable – £100 was offered to anyone whose evidence led to the conviction of anyone on the lugger which had attacked the Dolphin. Finally, there was a piecemeal but over time significant reform of Customs and Excise68 with revenue officers being posted as riding officers to watch the coast and summon the military. Regular naval patrols were introduced, also the ‘preventative boats’ that were later to form part of the Waterguard, and customs houses were established along troubled sections of the coast – the whole apparatus being overhauled with the formation of the Coastguard in 1831.

reason) and eventual legislation in the Ground Game Act 1880: D Jones, Crime, Protest, Community and Police in Nineteenth Century Britain (Routledge, 1983) ch 3; H Hopkins, The Long Affray (Faber & Faber, 1985). 65 Report from the Select Committee on the Woods, Forests and Land Revenues of the Crown [SCW] 1889 31. 66 G Morley, The Smuggling War: The Government’s Fight Against Smuggling in the 18th and 19th Centuries, (Sutton, 1994); K Hipper, Smugglers All (Larks Press, 2001); WJ Ashworth, Customs and Excise: Trade, Production and Consumption in England, 1640–1845 (Oxford University Press, 2003). The best account from a smuggler’s perspective is J Rattenbury, Memoirs of a Smuggler, Compiled from His Diary and Journal: Containing the Principal Events in the Life of John Rattenbury of Beer, Devonshire (V Graham, 1837). 67 Exeter Flying Post, 5 October 1791. 68 The Board of Customs Commissioners had been created by patent in 1671.

524 Crime These measures made smuggling more difficult, but none were truly successful. Adam Smith, who was appointed Scotland’s Commissioner of the Custom in 1778, was diligent in his duties but described the smuggler as a person who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice and would have been in every respect an excellent citizen had not the laws of the country made that a crime which nature never meant to be so.69

This was a flattering description given the ferocity and cruelty of some of the gangs, but Smith recognised that it was the high duty levied on imported goods that made smuggling lucrative and induced many to regard it as not truly criminal. Occupations such as fishing were inherently dangerous and for as long as a single smuggling trip could net many times the income of a legitimate voyage smuggling continued. Its general decline in the nineteenth century is to be attributed more to the gradual move towards free trade and the reduction of duties than to law enforcement.70 In the meantime, smugglers were able to gather large groups of well-armed men who corrupted or intimidated magistrates, constables, and revenue officials. In some parts of the country – notably the West Country, Sussex and Kent – they could seize control of towns and, for a time, oust the legal authorities. In 1822, for example, they were able to tar and feather alleged informers and parade them in broad daylight through Deal in Kent, the forces of authority being entirely impotent.71

D. Policing In most areas of England and Wales, authority was in the first instance vested in the justices of the peace, whose origins date back to 1195 when Richard I appointed knights to uphold his peace in disturbed areas of the county. Policing had come primarily to be a function of the smallest units of country and town – the parishes. The primary servant of these magistrates in day-to-day affairs was the parish constable, whose annual office rotated amongst those who had a holding in the parish, as did those of churchwarden, surveyor and overseer of the poor.72 In earlier times the parish constables had to some extent come under the supervision of the high constable of each hundred, but after the Restoration this role had mostly passed to the justices of the peace.73 There remains considerable disagreement today as to how effective these constables proved in maintaining law and order – and it was not so very different at the time. For some the office was an unwanted

69 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 11th London edn (1811) vol 2, 310. 70 The Reciprocity of Duties Act 1823 marked a key step in the mutual reduction of duties between European powers. 71 Morning Chronicle, 23 March 1822, issue 16514. 72 For London, see R Paley, ‘An Imperfect, Inadequate and Wretched System? Policing London Before Peel’ (1989) 10 Criminal Justice History 95; AT Harris, Policing the City, Crime and Legal Authority in London, 1780–1840 (Oxford University Press, 2004); JM Beattie, The First English Detectives, The Bow Street Runners and the Policing of London, 1750–1840 (Oxford University Press, 2012). 73 With time, it became the justices, rather than the courts leet, who actually appointed the constable, thus giving it some appearance of an office of the Crown. For the earlier role of the constable as mediator between central government and local community, see Sharpe (1984) (n 35) 76–77.

Part 1: The Era of the Bloody Code 525 (and unpaid) imposition; Defoe called it ‘an unsupportable hardship’. The burden of the office was, in a sense, acknowledged by the Crown insofar as exemption from it was one of those rewards that might be given to those who had themselves successfully prosecuted certain offences.74 Those who could afford it might pay others to take their place for a year and the quality of these men was in doubt. Even where the constable was a man of vigour, he was necessarily aware that his office ran for but a year and that he had to live amongst the community thereafter. Bribery, partiality, lethargy, fear of reprisal:75 these were but some of the things which inhibited the constable in the performance of his duty. The very least that can be said is that a single constable often proved inadequate to the task of containing the disturbances that were prone to break out in eighteenth and nineteenth century communities.76 On the other hand, there were virtues in having the community policed by someone who actually had a direct stake in it and if local knowledge is key to successful community policing then it has to be said that the parish constables had that advantage over their later professional counterparts who, in the first instance at least, were imposed from the outside. The uncritical assumption that the paid police of the nineteenth century were necessarily more efficient than the parish constables who preceded them is open to challenge. Certainly, when the professional police first appeared, they were very thinly scattered. Many observers were to be critical of the ability of the new police to protect property and the inadequacies of transport and communications meant that in many areas the early professional police were to struggle to make their presence felt.77 The older, substantially amateur, system can only be fairly evaluated once one recognises that in most communities it was not only the parish constable, backed up by the magistrate, who enforced the law and brought wrongdoers to book. Manorial officers, church functionaries and officials from local courts exercised many regulatory and enforcement powers. For example, pinners (or pinders) dealt with stray animals and issues of husbandry, church sidesmen took an active role in reporting and proceeding against moral offences, officers of leet courts regulated trade and prosecuted market offences, and so on. What with the assistance of bailiffs, beadles, manorial stewards and parish overseers, the parish constable was not as helpless as is sometimes supposed. Furthermore, there was a robust tradition of popular justice generally running alongside the systems of official sanction. Given the vigour with which crowds were wont to penalise offences of pickpocketing,

74 These ‘Tyburn tickets’ were abolished by the Criminal Law Act 1826, s 32. 75 For attempts at supervising neglectful constables, see L Radzinowicz, History of English Criminal Law and Its Administration from 1750, vol 2: The Clash between Private Initiative and Public Interest in the Enforcement of the Law (Stevens and Sons, 1956) 161–67. 76 For example, when a riot against an informer broke out one night at Ventnor in 1844 the parish constable did not get up ‘as he had no staff and thought he could do no good’. He seems to have been singularly unobservant since the disturbance continued for a second night with the burning of the informer’s effigy; this time he was there but ‘did not take any particular notice as to who the parties were or who were the most active in the disturbance.’ Hampshire Advertiser & Salisbury Guardian, 22 June 1844. 77 A member of the Rural police had been present during the Ventnor disturbances described above, but he also took no action as he ‘considered that his interference would have been no use as there were between two and three hundred persons present.’ ibid. For middle-class complaints about the difficulty in protecting property and in the inadequacy of professional policing see DL Smith, ‘Securing the Englishman’s Castle: Situational Crime Prevention in the Nineteenth Century’ (2012) 40 Victorian Literature and Culture 263.

526 Crime dishonest trading and the like, many an offender collared by the mob had cause to regard the arrival of the parish constable as a matter of relief.78 The great challenge to traditional systems of social control, however, came with population growth and urbanisation.79 The expansion of London posed a particular challenge. In 1751 Henry Fielding observed that the city was like a vast forest, ‘in which a Thief may harbour with as great a security as wild beast do.’ By 1800 the capital contained some 11 per cent of the total population of England and Wales and some 40 per cent of the urban population.80 A further cause of anxiety was the fact that London’s urban growth was founded not so much upon natural increase as upon migration from the countryside. Migrants cast adrift from their communities, freed from traditional bonds and submerged into the anonymity of the city were, it was thought, particularly likely to fall into criminality. The fear was, as Blackwood’s Edinburgh Magazine later put it, that ‘the restraints of character, relationship, and vicinity … are lost in the crowd … Multitudes remove responsibility without weakening passion.’81 It is sometimes asserted that the origins of professional policing lie in the foundation of London’s Metropolitan Police in 1829, but in fact there had already been something of a revolution in the eighteenth century. The Statute of Westminster (1285) had required all towns and boroughs to have a body of men to safeguard the streets at night, and these watchmen served as the deputies of the parish constable and were endowed with the same powers. By the beginning of the eighteenth century the medieval watches had either declined or proved wholly inadequate. However, a series of paid and expanded watches were introduced into Westminster through some 23 parochial Night Watch Acts passed between 1735 and 1823.82 In addition to appointing Commissioners to establish a watch, these acts often arranged for lighting and paving and the removal of rubbish and thereby, to a degree, improved and secured public space.83 The initial impetus for reform came first in 1735 out of the West End parishes of St James, Piccadilly, and St George, Hanover Square. The City of London itself had had a watch since the seventeenth century, but in 1737 Common Council had also added a day watch.84 By 1790 most parishes in London had followed the West End and established a reformed night watch. Provincial towns had followed suit with Liverpool acting first to establish a new watch in 1747.85 These were local watches paid for by a rate on local ratepayers levied by the instrument of parish government the vestry. The size and enthusiasm of the watch depended much upon the willingness of the vestry and the constables to supervise them and the r atepayers to pay for them. Thus, an enquiry in 1772 found that the parish of St Mary-le-Strand employed 78 S Banks, Informal Justice in England and Wales, 1760–1914: The Courts of Popular Opinion (Boydell and Brewer, 2014). 79 EA Wrigley estimates that the total population of England grew from about 7.7 million in 1791 to 13.3 million in 1831: People, Cities and Wealth: The Transformation of Traditional Society (Blackwell, 1987) 217. 80 ibid 162. 81 Blackwood’s Edinburgh Magazine, vol 56, July–Dec 1844, 7–8, ‘Causes of the Increase of Crime’. 82 EA Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Stanford University Press, 1998) 2–3. 83 Turnpike Trust Acts in addition quite often carried within them provisions for establishing a small night watch. 84 TA Critchley, A History of Police in England and Wales, 900–1966 (Constable, 1966) 30; D Rumblelow, I Spy Blue (Macmillan, 1971). 85 The question could become intensely political, as with Bristol: see S and B Webb, The Manor and the Borough (Longmans, 1908) vol 2, 483 and 456–58.

Part 1: The Era of the Bloody Code 527 only three watchmen, whilst that of St Martin-in-the Fields had 85. Rates of pay as between parishes could vary from ten pence a night to 14 pence (1s 2d). The Westminster Night Watch Act 1774 introduced some standardisation, specifying minimum pay and introducing some control over the quality of the men appointed to the watch. But the fact remained that into the nineteenth century some parishes had large and seemingly efficient watches whilst others had scarcely any at all. In the meantime, Henry Fielding whilst magistrate at Bow Street had attempted in 1749 to improve the pursuit of criminals by forming the Bow Street Runners.86 Originally comprising just six men, these were at first little distinguishable from the ‘thief-takers’ who made their living from rewards. Paid a regular salary and supplied with a uniform of sorts under Henry and later John Fielding, these became something of a small disciplined force. After the Middlesex Justices Act 1792 there were seven offices of police in Westminster and although each was independent that of Bow Street was acknowledged as the senior with its chief magistrate reporting to the Home Secretary. Each office consisted of three stipendiary magistrates and six constables, and the magistrates also came to exercise a supervisory function over four substantial patrols that were founded to further police the city. The Horse Patrol, consisting of 60 men, was tasked with sweeping highwaymen from the roads into London and was assisted by about 100 men in the so-called Dismounted Patrol. The Day Patrol in Westminster itself consisted of just 27 men whereas the Night Patrol boasted 100. By the time of the 1828 Report into the Policing of the Metropolis, the number of men engaged in this activity had increased substantially from the number so occupied in the middle of the eighteenth century. Yet as the report showed, policing was plagued by rivalries between forces. Sir Richard Birnie, the chief magistrate at Bow Street, told a select committee that in his view the watchmen were ‘good for nothing decrepit old men, who carry a lantern merely to shew a thief where they are.’87 However, a parish constable observed of Birnie’s stipendiary police that they exhibited ‘a wonderful apathy’ with respect to the congregation of thieves and prostitutes on street corners – unless of course stirred into action by the arrival of a parish constable.88 There were genuine jurisdictional problems and since criminals were often pursued only as far as the parish boundaries, they fully exploited this. Furthermore, there was no little resentment on the part of some ratepayers at the ‘freeloading’ of others. Parishes that were well secured by their own watches often refused to lend assistance to less well-resourced parishes on the not indefensible grounds that the ratepayers in those troubled areas should cough up for a decent watch themselves. Policing, in short, was still the servant of the local vested interests of rate-payers and officeholders. It took a long time to convince the wealthy and political classes as a whole that responsibility for policing could be properly and safely taken out of the hands of local authority and delivered into the hands of central government. Policing in the eighteenth century mainly meant patrolling either in the hope of deterring crime or catching criminals in the act. There was, as yet, little investigation (meaning enquiry after the fact) to find out who might have committed a particular offence. 86 A Babington, A House in Bow Street: Crime and the Magistracy, London 1740–1881, 2nd edn (Barry Rose, 1999); Beattie (2012) (n 72). 87 Report from the Select Committee on the Police of the Metropolis 11th July 1828 (533) VI I 37. 88 ibid 74–75.

528 Crime What there was lay in the hands of the magistrates rather than police officers per se. Furthermore, where the culprit was known there was little state intervention to materially assist in the prosecution of criminals. There were, however, a whole range of inducements to encourage private individuals to launch a prosecution. The compounding of felonies has been mentioned above, but there were also statutes dealing with felonies against property that prescribed ‘Parliamentary rewards’ – better known as ‘blood money’ – the sum amounting to £10 or even £40, depending on the crime.89 In addition, the Home Office regularly offered sums for the detection and prosecution of particular criminals in whom they had an interest, and parishes and boroughs would do the same. The Home Office would intervene only if persuaded that there was some special cause for public alarm. In the last, troubled years of the eighteenth century, it spent nearly £8,000 a year on rewards. By 1814 the figure would rise to some £11,000.90 The victim who could not persuade any public body to act might well offer a reward himself, particularly if he had reason to believe that the crime had been committed by a gang, one of whom might be induced by the hopes of a reward and a pardon to come forward.91 Inducements encouraged the development of a whole class of informers who sometimes perjured themselves to gain a conviction or, at the very least, interested themselves in matters that they might otherwise have considered to be none of their concern.92 Juries, to their credit, were suitably suspicious of the evidence of such men and women and a Royal Proclamation of 1750 both denounced the incidence of perjury among prosecutors who sought rewards, and lamented the consequent reluctance of juries to convict. Six years later, McDaniel and his confederates procured the wrongful conviction and execution of two young men in order to claim the blood money. The scandal was long remembered, but the system was much too useful to be abandoned. The Select Committee on Police of 1817 roundly criticised the inherent dangers and wanted the total abolition of the government rewards. But the Law Officers would go no further than to replace the specified sums with a reward to be set at the judge’s discretion.93 In addition to those more serious offences in which the state took a special interest there were also lesser matters, beneath its notice, which the magistrates generally punished by fines. The practice of allowing informers to share a portion of the fine levied on any wrongdoer further encouraged the growth of officious snoopers. These were sometimes totally unscrupulous: quite ready to distort the facts, perjure themselves or extract hush money. There were rules against Sunday trading, rules setting licensing hours, requiring permits to trade or to beg, outlawing unlawful gaming, supervising weights and measures, controlling market practices and so on. From rather affluent occupational groups down to beggars and hawkers, there were many who found themselves battling against the regulations that 89 The Royal Mint and the Customs authorities also paid statutory rewards. Some statutes coupled the reward with a free pardon, so as to induce accomplices to turn King’s evidence. See Beattie (1986) (n 14) 50–59. 90 See Radzinowicz (1956) (n 75) vol 2, 83–111. 91 The Home Secretary might be induced to advertise a pardon in the hope of stimulating a private offer of reward: Radzinowicz (1956) (n 75) vol 2, 45–52. On private rewards, generally ibid 112–37; and in relation to threatening anonymous letters, EP Thompson, ‘The Crime of Anonymity’ in D Hay et al (eds), Albion’s Fatal Tree (Pantheon, 1975). 92 See Landau (2000) (n 13). For the role of informers in enforcing the Gin Act and the vigour of the reprisals sometimes visited upon them see J Warner and F Ivis, ‘“Damn You, You Informing Bitch.” Vox Populi and the Unmaking of the Gin Act of 1736’ (1999) 33 JSH 299. 93 Radzinowicz (1956) (n 34) vol 3, 74–82.

Part 1: The Era of the Bloody Code 529 inhibited and sometimes entirely jeopardised the earning of livelihoods.94 Most of these regulatory breaches, then as now, were willingly colluded in by the general population, or at the least their violation was regarded as hardly wrong.95 Although we are generally talking here of lesser offences it should not be forgotten that for those involved there was often a great deal at stake. Richard Ireland has rightly observed that a ‘minor’ financial penalty or a few days imprisonment, which could tarnish ‘character’ (which was conceived of as given by others, not intrinsic to the self) and therefore jeopardize earning capacity, might make the difference between financial survival and the institutionalisation of an entire family in the Union workhouse.96

Coke had described common informers as ‘vituperative vermin’ and the general detestation in which they were held meant that violent and public retribution was sometimes visited upon them. During the opposition in London to the Gin Act 1736 there were at least nine occasions upon which informers were captured, paraded through the streets, beaten and stripped.97 In 1776 butchers staged in Oxford market a mock execution of the man who had informed upon them for Sunday trading.98 In 1822 several thousand people gathered at Kingston to attack two informers who had laid complaints before the magistrates about breaches of the Coach and Coal Acts. One of the men jumped from a bridge into the Thames but was captured and beaten almost to death.99 In 1832 an inspector of hawkers’ licences named Moses Pegg demanded that a man selling brooms from a cart at Great Wigston in Leicestershire produce his licence – his reward was to be stoned by the villagers, thrown into a ditch and pelted with sludge.100 There were innumerable similar incidents, but the informers could often hope for only limited sympathy and protection from the magistrates. When one attempted in 1831 to lay a complaint in Lambeth of ‘furious driving’ (a common method of extorting money from hackney drivers) the magistrate threw out the complaint, refusing to accept the word of such a person.101 Yet until the development of administrative and supervisory officers, the authorities were dependent upon the existence of such men to induce the majority to comply with the law. If the combination of informers, interested citizens and parish officials generally combined to enforce some irregular order in the eighteenth-century community, we have seen that they were often ineffectual when set against organised and desperate men such as smugglers. This was similarly the case when it came to control broader protests that threatened (from the authorities’ viewpoint) to descend into criminality. Crowds gathering to denounce or protest were a frequent occurrence in eighteenth-century life. They came together from many causes: in opposition to rising food prices; in resistance to tithes, enclosures, turnpikes and press-gangs; to make demands over wages and other working 94 For example, The Poor Man’s Guardian, 16 June 1832 protested about the imprisonment of a heavily pregnant women who had been arrested in Hatton Garden for selling nuts from a basket without a licence. 95 Although there were other ‘minor’ offences such as selling short measures that were viewed with profound hostility. 96 R Ireland, ‘A Want of Order and Good Discipline’: Rules, Discretion and the Victorian Prison (University of Wales Press, 2007) 4. 97 London Daily Post and General Advertiser, 5 August 1738. 98 Gazeteer and New Daily Advertiser, 14 June 1776. 99 Morning Chronicle, 22 August 1823. 100 Leicester Chronicle, 7 April 1832. 101 Morning Chronicle, 13 June 1831.

530 Crime conditions; in condemnation of vicious husbands, adulterous couples and other misfits. These were all, in their different ways, social crusades, to be distinguished from the drinksodden rowdiness that was prone to occur at fairs and other festivities.102 Actual gatherings might be instigated by the appearance of publications or the sending of written threats, which the authorities might seek to treat as criminal. Equally there might be clandestine attacks on individuals or property. The responses to such activities varied greatly. For instance, during food price riots it was not unknown for magistrates to accede to requests to fix prices and intervene to compel the distribution of food. Some magistrates were genuinely sympathetic to an old economy that was increasingly giving way to free market relations.103 Traditional protest was well understood in the eighteenth century and the authorities’ attitude to it was sometimes extraordinarily relaxed. If the paternalist attitude of the eighteenth-century upper class was condescending it did at least foster some sense of social responsibility towards those under their protection. Furthermore, magistrates were well aware of the limited instruments of compulsion at their disposal. Such an awareness often induced them to tolerate activities that they would otherwise perhaps have been inclined to suppress. When disruption threatened they often responded with caution and were sometimes willing to give way on matters that did not seem to be matters of particular principle.104 In the case of truly major threat, the Government might be persuaded to send in troops, men who, whatever their sympathies, faced the harsh discipline of military law if they disobeyed.105 Unfortunately, as outsiders unfamiliar with the nuances of local situations there was always a risk that they would over-react and inflame matters further. Far from preserving the interests of the better classes, the presence of the army could sometimes endanger them. Given the rather miserable conditions of the eighteenth-century soldiery it is unsurprising that they did not always behave well. The inhabitants of Wantage and Abingdon complained in 1795 of the soldiers billeted upon them that ‘such a sett of Villains never entered this Town before.’106 In 1800 the inhabitants of Sunderland petitioned with the rector for the removal of troops since ‘[their] principal aim is robbery’.107 102 J Bohstedt, Riots and Community Politics in England and Wales 1790–1810 (Harvard University Press, 1983) shows these disturbances to have been most common and effective in rural towns, where vertical controls were less complete than in the countryside, but horizontal cohesions were greater than in the new industrial areas. 103 See Storch (1998) (n 25); Wells (1977) (n 25). 104 Group protest, an essential element in eighteenth-century social relationships, now has a considerable literature: see esp G Rude, The Crowd in History: A Study of Popular Disturbances in England and France, 1730–1848 (John Wiley, 1964); EP Thompson ‘The Moral Authority of the Crowd in the Eighteenth Century’ (1971) 50 P&P 76; EP Thompson, ‘Eighteenth Century English Society: Class Struggle Without Class?’ (1978) 3 SH 133; A Randall and A Charlesworth (eds), Markets, Market Culture and Popular Protest in E ighteenth Century Britain and Ireland (Liverpool University Press, 1996); O’Gorman (2006) (n 2); J Stevenson, Popular Disturbances in England 1700–1832, 2nd edn (Routledge, 2013); S Banks, Informal Justice in England and Wales, 1760–1914: The Courts of Popular Opinion (Boydell, 2014). 105 Unlike other European countries, Britain lacked a clear concept of ‘state of siege’ which triggered formal arrangements for the exercise of power during civil emergencies, an omission which ‘reflected the absence of foreign invasion as much as the feebleness of domestic revolutionary threat’: C Townshend, ‘Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940’ (1982) 25 HJ 167, 167. Insubordination that was labelled ‘mutiny’ was by no means unknown in either the army or the navy of the period: J Stevenson, Popular Disturbances in England 1700–1870 (Longman, 1979) 145–50; for military discipline: JR Dinwiddy, ‘The Early Nineteenth-Century Campaign Against Flogging in the Army’ (1982) 97 EHR 308; GA Steppler, ‘British Military Law, Discipline, and the Conduct of Regimental Courts Martial in the Later Eighteenth Century’ (1987) 102 EHR 859. 106 Petition to Sir G Young and C Dundas, 6 April 1795: PRO WO 40/17. 107 PRO WO 40/17.

Part 1: The Era of the Bloody Code 531 Small wonder, then, that calling in the army was indeed the last resort and that for the most part communities preferred to rely upon their own resources. The support of the respectable middle was essential when confronting times of crisis. Under a power given by the Act of Settlement 1662, the justices could swear special constables to defend a parish against ‘actual tumult, riot or felony’ and their occasional service was generally rewarded – in London by the Government, elsewhere out of the county rate, commonly at 5s a day.108 This was a frequent practice in towns, though in some places property owners chose to organise privately, sometimes as part of mutual defence tactics against looting and theft.109 During the wars with Revolutionary France these private associations proliferated, sometimes taking a decidedly militaristic turn, with organised training in arms.110 The London Foot Association, indeed, became large enough for the constitutional legality of maintaining in effect a private army to be raised with the Recorder of London.111 In the countryside, the state itself had a traditional quasi-military force: the m ilitia. This was selected and raised by the Crown’s chief representative in the shires, the Lord Lieutenant.112 In the earlier eighteenth century these local brigades had declined; but hostilities with France led to a revival under a statute of 1757, which instituted compulsory service by ballot, with the opportunity to buy out for £10: the result was to build up a parttime force comprising a labouring infantry commanded by propertied officers.113 During the post-Revolution wars with France, Pitt added to this two further forces, a volunteer foot force and a yeomanry.114 The yeomanry consisted of an amateur cavalry of tenant farmers and others who could equip themselves. Socially, the yeomanry were situated somewhat higher than either the old militia or the volunteer foot force and so were thought to be more dependable in times of disturbance. Accordingly, the yeomanry survived longer and it was they who would make the fateful charge on the crowd hearing Orator Hunt at St Peter’s Fields, Manchester, in 1819, derisively nicknamed Peterloo.115 As with crime in general, public disorder in London posed a unique threat. Any prolonged disturbance there raised the spectre of true insurrection. In the early years of George III’s reign, the Commons’ repeated refusals to admit John Wilkes as MP for Westminster, despite his successes at the polls, provoked tumultuous meetings and strikes, against which troops had to be used.116 In 1780 every resource – troops, special constables, watchmen, bellmen – were needed to quell the week-long anarchy of the Gordon riots.117 Yet so set was the opposition to permanent police that even this terrifying outburst brought no immediate change. In 1785, the younger Pitt proposed a police force for the whole 108 Poor Relief Act 1662, s 15. 109 Radzinowicz (1956) (n 75) vol 2, 209–11. 110 The Militia Act 1817 empowered justices in general sessions to require men over 17 to assist in preserving the peace in an emergency: JL and B Hammond, The Town Labourer (Longmans, 1917) 81–82. 111 His answer was equivocal: Radzinowicz (1968) (n 34) vol 4, 107–10. 112 This was also part of the Restoration settlement: Militia Act 1757. See too JR Western, The English Militia in the Eighteenth Century, 1660–1802 (Routledge, 1965). 113 TA Critchley, The Conquest of Violence: Order and Liberty in Britain (Constable, 1970) 67–68. 114 For the deployment of these different forces in face of the Luddite disturbances, see FO Darvall, Popular Disturbances and Public Order in Regency England (Oxford University Press, 1934) chs 12 and 13. 115 On which see R Poole, ‘The March to Peterloo: Politics and Festivity in Late Georgian England’ (2006) 192 P&P 109. 116 G Rude, Wilkes and Liberty (Oxford University Press, 1962); J Brewer, ‘The Wilkites and the Law 1763–74’ in J Brewer and J Styles (eds), An Ungovernable People (Hutchinson, 1980). 117 I Haywood and J Seed (eds), The Gordon Riots: Politics, Culture and Insurrection in Late Nineteenth Century Britain (Cambridge University Press, 2012).

532 Crime Metropolis, but this was voted out.118 In the following year, Parliament was prepared to set up what became the Royal Irish Constabulary. But in Ireland the strains of subjecting the local populace to the will of English landlords and their agents were of a wholly different order.119 Beside the Irish problem, even the Gordon riots appeared a passing phenomenon. They were not the expression of any lasting animus against the country’s rulers as a whole, or any section of them. Even through the coming decades of war with France, and the extraordinary economic and political consequences which would follow at home, the established techniques for controlling disorder would continue to be applied. During the ‘Luddite’ attacks on the new production machinery in 1811–13, the panoply of troops, militia, spies and informers, and ultimately prosecution, had to be brought into play. But still they were enough for the Government’s purposes.120

E. The Punishment of Criminals In 1789 the wheels of a Hackney carriage passed over a pile of glowing ashes in the street near Newgate. Upon alighting at his destination the occupant of the carriage asked his coachman the reason for the fire; to which the coachman replied: ‘Oh sir, they have been burning a woman for murdering her husband.’ The woman was Christine Murphy, the last woman burnt in England; and years later the passenger remembered the men gathered around and gazing at her ashes.121 Murphy had been convicted of petty treason, an offence that could be committed by killing one’s husband but also by forging currency (coining), and in fact it was the latter rather than the former for which she was condemned. The manner of Murphy’s death tells us much about the nature of punishment and criminal justice in the early part of our period. Murphy was actually hanged with a noose tied to the top of a stake and mercifully was dead before the fire was lit around her.122 Society was by this time beginning to shed the more torturous medieval punishments. Although living disembowelment remained a theoretical possibility, in practice traitors no longer endured it. Branding (save as symbolic act), nose-slitting, tongue piercing, ear cropping and the like had disappeared from the repertoire of punishments. Progress was uneven, however, and in a few country places very old tools were still being employed, especially as modes of reinforcing gender distinctions. The scold’s bridle had not quite disappeared by 1750123 and one was apparently used at Lichfield in 1781.124 It 118 Radzinowicz (1956) (n 34) vol 3, 108–21. 119 Radzinowicz (1956) (n 34) vol 3, 121–23. For the uprising of 1798: R Wells, Insurrection: the British Experience, 1795–1803 (Sutton, 1983). 120 MI Thomis, The Luddites: Machine-Breaking in Regency England (David and Charles, 1970); A Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776–1809 (Cambridge University Press, 1991); K Navickas, ‘The Search for “General Ludd”: The Mythology of Luddism’ (2005) 30 SH 281. 121 Notes and Queries (series 1) vol 3, 165. See S Devereaux, ‘The Abolition of the Burning of Women in England Reconsidered’ (2005) 9 Crime, History & Societies 73. 122 Even in the bloody 1780s the death of a woman, and this particular mode of disposal, seem to have aroused especial and disturbing interest. Dodsley’s Annual Register claimed that 20,000 attended the execution of Elizabeth Herring in 1773. Catherine Haynes (executed in 1726) had been the last woman to be burnt alive. 123 D Underdown, ‘The Taming of the Scold’ in A Fletcher and J Stevenson (eds), Order and Disorder in Early Modern England (Cambridge University Press, 1985). 124 MW Greenslade (ed), A History of the County of Stafford, vol 14: Lichfield (Oxford University Press, 1990) 73–87.

Part 1: The Era of the Bloody Code 533 was claimed by the folklorist, Georgina Jackson, that the ‘brank’ had been employed in Much Wenlock in Shropshire in 1840 and 1846 but this is quite uncertain. Rather better evidenced is the last official ducking which occurred in 1809 when Jenny Pipes was paraded through Leominster and immersed in the River Lugg by order of magistrates.125 More generally, at the start of our period corporal punishment, with an added component of public humiliation, was still seen as a necessary and normative response to criminality; whippings were generally delivered outside the court, in the market square or during the course of a procession through the streets at the cart’s tail. Executions, for reasons of constitutional propriety and exemplary instruction, had to be similarly observable.126 The fact that Christine Murphy’s execution took place upon a public roadway reminds us that the elaborate architecture of punishment that was to emerge in the nineteenth century was for the most part still absent. Chastisement, not only of criminals but also of children, apprentices, servants, or sometimes even wives, was embedded in ordinary life. With some exceptions, then, the criminal was still exposed to society at this time and it was only later that he or she was to disappear from common view, differently housed, dressed, depersonalised and sequestrated within an elaborate penal bureaucracy. It was characteristic of that later bureaucracy that it would try to develop measured systems of correction in order to apply punishment with uniform precision. In the mideighteenth century things were rather more arbitrary. Nowhere was this more clearly demonstrated than at the pillory. When the crowd disapproved of the offence committed, death or mutilation were not unknown. Sexual offences particularly aroused the crowd’s ire. A Frenchman, D’Archenholz, wrote of those convicted of sodomy that The punishment by law is imprisonment, and the pillory. With this accusation, it is, however, better to suffer death at once; for, on such an occasion, the fury of the populace is unbounded, and even the better sort of people have no compassion for the culprit.127

The horrors of being exposed to the outraged mob can hardly be exaggerated. To give but one example, Ann Marrow was blinded in both eyes in 1777 after she had allegedly impersonated a man and then married three women.128 On the other hand, some men were pilloried for offences that actually aroused public approbation. The mob oftentimes afforded gentle treatment to the seditious libellers, the writers and the publishers that the Government exposed to them. Thus, when John Williams, the publisher of John Wilkes’s North Briton, was pilloried in 1765 he left the scene considerably richer, £200 having been collected by the crowd on his behalf. The tendency for such punishments to misfire when imposed upon anti-authoritarian figures, a genuine concern about the arbitrary nature of the punishment, and a general fear of the congregation of potentially riotous crowds in public spaces led to the pillory being restricted to the punishment of perjurers in 1816 and its complete abolition in 1837. By the end of the eighteenth century the authorities had slowly started to turn against public punishment, although the number of whippings awarded by the courts was actually 125 WS Walsh, Curiosities of Popular Customs and of Rites, Ceremonies, Observances, and Miscellaneous Antiquities (JP Lippincott, 1914) 349. See also J Piggott (1869) 4 Notes & Queries (4th series) 61. 126 B Faulk, ‘The Public Execution: Urban Rhetoric and Victorian Crowds’ in WB Thesig (ed), Executions and the British Experience from the 17th to the 20th Century (MacFarland, 1990). 127 M D’Archenholz, A Picture of England: Containing a Description of the Laws, Customs and Manners of England. Interspersed with Curious and Interesting Anecdotes. (P Byrne, 1790) 197. 128 Place Papers BL Add MS 27826, fo 172.

534 Crime rising. Some 168 whippings were ordered in London and urban Middlesex between 1730 and 1739, whereas between 1790 and 1799 it was 612. However, the percentage of the punishments that were ordered to be in public had declined from some 47 per cent to just 26 per cent129 Furthermore, after the mid-century public whipping tended to be inflicted in one location and rarely took the form of being dragged through the streets at the cart’s tail. In addition, changing attitudes to women – which included the development of a stereotype that made them less culpable for their acts – were reflected in an increasing reluctance to whip women publicly. Certainly, public whippings of women in London were very rare after the 1770s and the practice was abolished altogether in 1817.130 As yet, conducting executions out of the public gaze was scarcely contemplated – how else could the public be assured that the sentence had actually been carried out or, on the other hand, that no intolerable cruelty had been practised in the process? However, there was some amelioration in respect of the display of the felon both before and after execution. The tortuous procession to Tyburn was abolished in 1783 and the use of the gibbet declined dramatically after 1800, although the practice was not formally abolished until 1834.131 Numerically, public executions were actually on the rise as the nineteenth century approached, although a much higher percentage of the capital sentences passed on felons resulted in the end in pardon or else, more commonly, were commuted to transportation. Between 1751 and 1760 there were 168 capital convictions in London and Middlesex in consequence of which 98 people were executed and 70 (42 per cent) were reprieved. When we come to the period between 1791 and 1800, however, the proliferation of capital statutes meant that the number of convictions had risen dramatically to 780 and while 587 (75 per cent) of the convicted were reprieved this still left 193 for the hangman.132 The number of capital convictions would certainly had been greater still had it not been for the continued existence of that most peculiar privilege, benefit of clergy. Originally a concession by Henry II in remorse for Becket’s murder, this granted the church the right to punish its own clerics and, significantly, church courts did not impose the death penalty. By the sixteenth century, common law and statute had laid it down that the most serious offences were not ‘clergyable’; but by this time the benefit had been opened to others besides clerks in holy orders. All men who could read might claim it once and so secure their freedom, subject to being branded on the thumb in order to prevent them claiming a second time.133 By the later seventeenth century illiterate defendants were being allowed to pass the reading test in order to ameliorate the severity of the criminal code. In 1692 the privilege was extended to women. Then in 1706 the reading test was abolished.134 Thus for all but the most serious crimes, there came to be a general exemption from the death penalty for first offenders. However, with the development of the ‘Bloody Code’ numerous property 129 R Shoemaker, ‘Streets of Shame? The Crowd and Public Punishments in London, 1700–1820’ in S Devereaux and P Griffiths (eds), Penal Practice and Culture, 1500–1900 (Palgrave Macmillan, 2004) 239 table 9.1. 130 ibid 242 table 9.2. 131 S Devereaux, ‘Recasting the Theatre of Execution: The Abolition of the Tyburn Ritual’ (2009) 202 P&P 127; S Tarlow, ‘The Technology of the Gibbet’ (2014) 18 International Journal of Historical Archaeology 668. 132 VAC Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford University Press, 1994) 616, table 1. 133 Peers could claim the privilege without demonstrating their literacy. The culminating statute was the Benefit of Clergy Act 1575. 134 Benefit of Clergy Act 1691; Punishment of Felons Act 1706; and note the earlier Female Convicts Act 1624; Beattie (1986) (n 14) 451–52.

Part 1: The Era of the Bloody Code 535 offences were created which were made non-clergyable. Sometimes this was a response to particular outrages or consequence of post-war fears of increasing crime.135 We know from assize lists that capital charges continued mostly to be from the old list,136 but the additions stood as some warning from the landed governors that their toleration was being unduly strained. The difficulty of getting juries to convict on capital statutes, the existence of benefit of clergy, the desire to remit some of the capital sentences that were imposed and the declining enthusiasm for the more egregious public punishments were just some of the reasons why eighteenth-century society was faced with a dilemma. What to do with criminals who could not be hung? The expansion of the practice of transportation was, in part, an answer to this question. Banishment had been a medieval practice, in form a voluntary abjuration, in reality a means of avoiding execution. However, by the early seventeenth century the English had started to experiment with sending convicted criminals to the new colonies in the Americas.137 In 1718, the arrangement was rendered more systematic: it became a condition of benefit of clergy that the offender submit to transportation for seven years; and equally, many of those reprieved from capital punishment were pardoned only upon accepting transportation for 14 years.138 However, transportation had greater effects than simply offering an alternative punishment for those capitally convicted. The very availability of transportation meant that from 1718 onwards harsher sanctions could be employed against those whose offences fell short of felony. It is striking how much more severely property offences came to be treated through the eighteenth and into the nineteenth century. To illustrate, the Worsted Act 1777, passed at the behest of textile manufacturers,139 provided for a £20 fine or one month in gaol for a first offence of embezzling cloth. By comparison, an 1827 act designed to deter the not so dissimilar offence of larceny of wool during manufacture provided for first time offenders to be imprisoned for four years or transported for seven years.140 What evolved was a scheme of enforced exile under conditions often close to private enslavement.141 Men and women were transported who might otherwise have been merely fined, whipped or incarcerated for a short period.142 The number who were actually transported to America (mainly to Maryland and Virginia) is the subject of some debate. Fogelman, whose work seems to be

135 The most notorious instance was the Criminal Law Act 1723 (also known as the Waltham Black Act, or more simply, the Black Act). The 50 or so capital offences of 1688 were quadrupled. The exact number of new offences created cannot be given, since it depends upon how far elaborate and specific provisions should be broken down: for a listing, see L Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol 1: The Movement for Reform, 1750–1833 (Stevens and Sons, 1948) App 1. 136 See esp Beattie (1986) (n 14) ch 4, analysing the Surrey records. 137 For the early history of transportation, see C Herrup, ‘Punishing Pardon: Some Thoughts on the Origins of Penal Transportation’ in S Devereaux and P Griffiths (eds), Penal Practice and Culture, 1500–1900 (Palgrave Macmillan, 2004). 138 Transportation Act 1717. For the origins and passage of the Transportation Acts, see JM Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford University Press, 2001) ch 9. 139 See pp 520–21. 140 Larceny Act 1827. 141 Some convicts declared their preference for a swift hanging as opposed to the unknown terrors of transportation: S Devereaux, ‘Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789’ (2007) 25 L&HR 101. 142 AT Rubin, ‘The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London’ (2012) 46 Law & Society Review 815.

536 Crime the most broadly accepted, estimated some 30,000, others have suggested up to 50,000.143 Not that all of them reached shore. The major London shipper of convicts gave evidence in 1778 that of the 3,200 men and women for whom he had been responsible, more than a seventh had died either in gaol awaiting transportation or on the voyage itself.144 The costs to the Government of the process were minimal since, with the growing demand for labour in North America, private contractors were prepared to pay the costs of shipping the transportees in return for the right to charge for their assignment into the service of a settler.145 The extent to which the criminal justice system (certainly that within London) came to depend upon transportation is shown by Beattie’s work. Some 75 per cent of those punished for non-capital property crimes in London between 1714 and 1750 were sentenced to transportation. In the Home Counties it was somewhat lower, amounting to 56 per cent in Surrey. Of those convicted for these crimes, men and women were sentenced to transportation in almost equal proportion: Beattie found no evidence of gender bias in sentencing. However, fewer women were tried and convicted in the first place, which meant that about a third of London transportees were women.146 The evidence from other urban centres is somewhat similar. Women made up about half of those transported from Newcastle in the final 25 years before the American Revolution and about a third of those ordered for transportation from Bristol Quarter Sessions and Assizes between 1727 and 1776. However, it may well be that the picture in country areas was very different, since of the transportees from rural Gloucester only a little over ten per cent were women.147 The outbreak of revolutionary war in the American colonies put a sudden end to the exercise and threw the whole system into crisis. As a necessary expedient, those marked for transportation were holed up in old ships – the ‘hulks’ – and put to work in gangs dredging and maintaining the Thames.148 The ships were operated under a contracting system and conditions, needless to say, were appalling. The system of hulks was to be subsequently expanded and to remain in place but it occasioned much disquiet. Conditions aside, there remained the question of security. Escapes were not uncommon, and whilst escapees were theoretically liable to be executed for having returned illegally from transportation, juries were reluctant to convict them.149 Some argued for the creation of national penitentiaries to house the convicts, but the preference remained for transportation away from England and there was considerable local resistance to the costs such a prison system would impose upon the ratepayers. Legislation (much less ambitious than originally intended) was passed in 1779 to enable prison construction, but with all the obstruction nothing 143 A Fogelman, ‘From Slaves, Convicts and Servants to Free Passengers: The Transformation of Immigration in the Era of the American Revolution’ (1998) 85 Journal of American History 43. For a summary of the debate see G Morgan and P Ruston, Eighteenth Century Transportation: The Formation of the Criminal Atlantic (Palgrave Macmillan, 2004) 33–38. 144 Journals of the House of Commons, vol 36, April 1778, 931–32 (‘gaol fever’) and vol 37, 311, April 1778 (‘gaol fever’); cited in Morgan and Rushton (2004) (n 143) 34. 145 The same contractors dealt in indentured servants, but convicts were often preferred by settlers as their term of assignment was longer. 146 Beattie (2001) (n 138) 444. 147 Morgan and Rushton (2004) (n 143) 46–55. 148 For their history, W Branch Johnson, The English Prison Hulks (Christopher Johnson, 1957); C Campbell, The Intolerable Hulks: British Shipboard Confinement, 1776–1857, 2nd edn (Fenestra Books, 2001). 149 J Innes, ‘The Role of Transportation in Seventeenth and Eighteenth-Century Penal Practice’ in G Bridge (ed), New Perspectives in Australian History, vol 5 (London Institute for Commonweath Studies, 1990) 19–20.

Part 1: The Era of the Bloody Code 537 was done for 30 years.150 One might have supposed that incarceration would have suggested itself as the natural alternative once it became clear that the American colonies could not be recovered. However, it did not and eventually Pitt’s Government decided upon the ambitious experiment of sending transportees out to the scarcely known east coast of Australia. Imprisonment had been used as a punishment for serious crime in the Middle Ages, as well as for those awaiting trial and those confined for debt.151 In addition, many debtors were confined in gaols; in London, for example, at Newgate, Ludgate, King’s Bench, the Fleet and Marshalsea. In addition, Jacobean legislation had required the erection of county and borough ‘bridewells’ – houses of correction where justices could send ‘rogues and vagabonds’ for short spells of hard labour. In many counties and boroughs, these institutions had not remained distinct from the gaols. Moreover, some summary offences (for instance, under the game laws) provided for incarceration in a house of correction; and so short-term imprisonment had gradually acquired some place as a criminal punishment. But before 1775 imprisonment seems rarely to have been used per se as a punishment for felony or misdemeanour.152 Thus for petty larceny (theft of goods under a shilling), the court could choose between transportation and a whipping, the latter being much the more frequent. The gaols and houses of correction were often in poor condition, ramshackle places from which escape was by no means precluded. They were often filthy, infested and insanitary. Ultimate responsibility for the more important of them lay mostly with county benches or town corporations. But the day-to-day running was given over to a gaoler who made of his office what he could from charges to the prisoners. Those inmates who were destitute accordingly received only the barest sustenance. They might have to sleep in rags on bare boards in rooms with unglazed windows.153 When the gaols came under unusual strain – as in post-war upsurges of prosecution – the inmates might be wracked by deadly gaol fever, a disease which might also be transmitted to constables, turnkeys and even judges and jurors.154 To expect these places to take in substantial numbers of convicts for months or years was a tall order. Yet it was a prospect which had to be faced after 1775. The judges at assizes, and – more reluctantly – the justices at sessions, began to pass sentences of imprisonment for months or years.155 As John Howard set out from Bedford on the tour that was to lead to his famous State of the Prisons (1777), the prisons of England and Wales were under increasing strain.

150 S Devereaux, ‘The Making of the Penitentiary Act, 1775–1779’ (1999) 42 HJ 405. 151 RW Ireland, ‘Theory and Practice Within the Medieval English Prison’ (1987) 31 AJLH 56. 152 But note the Punishment of Felons Act 1706, which allowed, as a sentence for clergyable felony, a term of six months to two years hard labour in a house of correction. It was used to some extent until overtaken by the transportation arrangements of 1718: Beattie (1986) (n 14) 492–500. 153 J White, ‘Pain and Degradation in Georgian London: Life in Marshalsea Prison’ (2009) 68 HWJ 69. 154 Gaol fever was most probably epidemic typhus deriving from the bacteria spread by the bites from lice and fleas. In the long-remembered ‘Black Session’ of the Old Bailey in 1750, infected prisoners from Newgate spread the disease to two judges, jurymen and various other officers. From this time onwards, a concern to do something about sanitation in gaols began to grow and the Health of Prisoners Act 1774 (also known as Popham’s Act) authorised justices to order annual whitewashing, better ventilation and a supply of running water. John Howard would find that the Act was used and that the fever had been much reduced in consequence: Beattie (1986) (n 14) 297–309. Howard himself would later die of typhus after having visited a prison in Russia: C Creighton, A History of Epidemics in Britain, vol 2 (Cambridge University Press, 1894) 90–95. 155 For the increasing tendency towards incarceration, see King (1996) (n 42).

538 Crime

F. The Process of Trial Between the complaint of crime to a magistrate and the decision whether to acquit or to punish lay the processes of accusation and trial. An understanding of this central ritual is a prerequisite to any true characterisation of the criminal process as a whole.156 Let us first say something of the various stages. If the justice’s examination of the complainant and his or her witnesses gave a sufficient basis for going further, the accused would normally be sent to the county gaol157 to be held for the next Assize or Quarter Session (the choice depending primarily upon the seriousness of the charge, with non-clergyable felonies going almost always to assizes).158 As the date of the hearing approached, the prisoners would be moved to the town of the sitting, to be held in readiness. Both events – Assizes for meeting the visiting judges, Quarter Sessions for settling the course of local affairs – were high points in the justices’ annual round of governing. The sittings would open with a charge – by the senior judge at Assizes, the chairman or recorder at Quarter Sessions – which would dwell on the state of law and order, a homily often enough on the evils of loose and shiftless living and on the duties of those assembled to see to the maintenance of order and public safety.159 For the criminal business of both courts, the formal indictments had to be carefully drawn, generally by the clerk of assize or clerk of the peace (for Sessions).160 Errors could well lead the judge to direct a discharge: for instance, for naming the wrong person as owner of stolen goods, or misdescribing what was taken or the place of a robbery.161 The indictments would then be sent to the grand jury – at Assizes, a large body of county notables, mostly justices162 – to hear the prosecution witnesses and decide whether there was a ‘true bill’ on which the accused should stand trial.163 This was not idle ceremony: something like a fifth of all charges were

156 The development of the trial procedure during this period is covered in S Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’ (1990) 75 Cornell Law Review 497; JM Beattie, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 L&HR 221; D Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Clarendon Press, 1998); JH Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003). 157 Bail could be sought but was not likely to be granted to those who could not put up trustable sureties or recognizances. 158 A person held for the Assizes could be in gaol for up to six months. In London and Middlesex, however, the Old Bailey needed eight Sessions a year for its lists. Quarter Sessions differed in the amount of criminal work they would undertake: for the position in Surrey, see Beattie (1986) (n 14) 285–88 and 309–11. 159 See Beattie (1986) (n 14) 331–33 and for other grand preliminaries to the Assizes, 316–18. 160 Baker (n 11) 545–46. 161 Formalistic construction of indictments was sometimes carried to extravagant lengths; but then the system had no regular means of challenging a jury’s conviction on appeal and this device probably acted as surrogate: see Stephen (1883) vol 1, 273–97; JH Baker, ‘The Refinement of English Criminal Jurisprudence, 1500–1848’ in L Knafla (ed), Crime and Criminal Justice in Europe and Canada (Calgary Institute for the Humanities, 1981) 22–23: ‘In many cases the ethic of the sporting contest was enough to carry the day; if the Crown did not follow the rules it could be declared out.’ 162 The minimum number was 12, but could rise to 50. At Sessions the social status of grand jurors was more middling: Beattie (1986) (n 14) 318–31. 163 One of the earliest manifestations of due process was the requirement that a person accused on indictment be presented for trial by these representatives of the community. In the same tradition was presentment of a person accused of homicide by the inquest of the coroner’s jury. Such communal processes could be sidestepped by information to the King’s Bench, but only in the case of misdemeanours: see pp 49–50.

Part 1: The Era of the Bloody Code 539 ‘ignored’ by the grand jury in ‘ordinary’ years, when there was no particular need either for severity or for clemency. Those sent forward for trial would then have to face their trial jury, made up typically of men from the ranks of small-property-owners: craftsmen, shopkeepers, tenant farmers.164 On the arraignment of each defendant the charge in the indictment would be read out and his or her plea taken – almost invariably a plea of Not Guilty.165 The prosecutor would then give his own evidence and would be followed by his witnesses. Before 1730, it was extremely unusual for either prosecutor or defendant to have a barrister to provide professional representation and this older mode remained common practice throughout the eighteenth century and beyond.166 Trials were mostly simple and rapid; in the early eighteenth century, the Old Bailey, for example, heard between 12 and 20 jury trials a day in its single courtroom.167 Batch verdicts in which the jurors conferred about several cases were abandoned at the Old Bailey in 1738 and thereafter jurors usually gave a quick verdict at the end of each trial. A German observer was astonished to observe that out of 100 cases on average juries only retired to the deliberation room between three and five times.168 During the trial itself it was for the judge (or, at sessions, the chairman or recorder) to elicit the evidence from witnesses and to probe it to the extent that he might feel was warranted.169 The accused might be drawn into this process by being asked what he accepted and what he wanted to challenge. The separation of cross-examination from examination-inchief would become the norm only with the arrival of counsel in the criminal courts. But even before that stage was reached, the judges were beginning to apply limiting rules of evidence. The hearsay rule rejected the testimony of a witness as to what another party had said because the person whose speech was being reported could not be cross-examined upon it and was not sworn in court. The character rule prevented the prosecution from introducing evidence of bad character unless character was first raised by defence witnesses – in which case the prosecution was entitled to rebut it. Particularly important were the restrictions upon the evidence of an accomplice who had turned King’s (or Queen’s) evidence; and upon any confessions already made by those accused.170 Both kinds of evidence often formed the nub of the case for the Crown – perhaps more so in a pre-police state than is the case today. In cases of burglary and robbery by gangs, it might only be possible to discover and prosecute the leaders by turning one of the members against them. The inducement 164 The property qualification for trial juries had come to include £10 freeholders and £20 long-leaseholders; but there would be many local variations until Peel achieved a standardisation with the Juries Act 1825: Beattie (1986) (n 14) 378–80. The petty jurors for Essex in 1783 were farmers, shopkeepers, tradesmen, oyster dredgers, bricklayers and weavers, ERO Q/J1/11. 165 The occasional defendant who refused to ‘put himself on his country’ by pleading would be left to the jury to decide whether he stood mute ‘of malice’ or ‘by visitation of God’. In the latter case he would probably be detained as a lunatic, but in the former he was liable to peine forte et dure – torturing by weights until he submitted or died. The practice was still recorded in the eighteenth century even though the old reason for refusing to plead – avoiding forfeiture of goods – had disappeared. Scrupulous feeling led to the substitution of a plea of guilty: Felony and Piracy Act 1772; and this became a plea of not guilty by enactment of the Criminal Law Act 1827, s 2. 166 Beattie (1986) (n 14) 352–62; Langbein (2003) (n 156) 106–77. The former estimates that at the Old Bailey in the late eighteenth century perhaps one defendant in six had counsel: ibid 360. 167 Beattie (1986) (n 14) 376–78 and on jury deliberations, 395–99; Langbein (2003) (n 156) 16–18. 168 R Gneist, Vier Fragen zur deutschen Strafprocessordnung mit einem Schlusswort über die Schoffengerichte 150–51 (Julius Springer, 1874); cited in Langbein (2003) (n 156) 22. 169 Langbein (2003) (n 156) 15–16. 170 For the emergence (from about 1740) and operation of these rules, see Langbein (2003) (n 156) 178–251.

540 Crime that was regularly offered at the Bow Street Office was immunity from prosecution in return for Crown evidence,171 and since this meant escape from hanging or transportation it could be a powerful incentive. It worked well when small fry provided true evidence against big fish; but there were obvious dangers of distortion or total fabrication. The magistrate might indeed have to choose between competing accomplices each seeking to split on the other – with results sometimes revealing and sometimes perplexing.172 Clearly the judges felt the dangers of this system and their concern may have intensified as the consequences of having a regular police office in the Metropolis became apparent. There is some evidence that in the 1750s they would direct the jury to acquit if the Crown case depended on the uncorroborated evidence of a turncoat accomplice. This in turn would place grave impediments in the way of pursuing some of the most serious cases. In 1788 the 12 judges, at the instance of Buller J, temporised. It was enough that the judge should instruct the jury of the danger of convicting on the accomplice’s uncorroborated evidence.173 At much the same time, it was ruled that evidence of a pre-trial confession could not be given if, instead of being ‘free and voluntary’, it was ‘forced from the mind by the flattery of hope, or by the torture of fear.’174 The reason for keeping it from the jurors was said to be the difficulty they might have in appreciating its possible unreliability. A half-century later, with defence counsel to press the issue on many occasions, the judges would show themselves very willing to exclude confessions obtained upon threat or promise; but the first emergence of the rule – a striking act of self-denial – occurred as professional detection was being set up at Bow Street. The whole evolution is one expression of that deep suspicion of ‘police’ which pervaded so much of the thinking of the respectable. Once the evidence was completed and the accused had made any statement he or she chose,175 it was for the judge to direct the jury, making his view of the case as plain as he felt inclined.176 It was, however, the jury which had the ultimate power to decide whether or not to convict. The power of the judge to imprison or fine jurors for giving a wrongful verdict had been curtailed following Bushell’s Case in 1670.177 The judge, however, still retained thereafter the power to fine jurors for misbehaviour. Furthermore, whatever their conclusions, the absence of a provision for majority verdicts (in Scotland the votes of only eight of the 15 jurors could suffice) meant that jurors were expected to come to a unanimous decision. Once a case had begun to be heard then generally there was no adjournment permitted and

171 The medieval practice of approvement, under which the accomplice pleaded guilty and was then pardoned, had fallen into disuse as exposing him to too grave a risk. 172 In R v Rudd (1775) 1 Leach 115, it was held proper that a duplicitous Crown accomplice should later herself be prosecuted; but that an honest turncoat would be protected, having ‘an equitable title to a recommendation for the King’s mercy.’ For a discussion of the significance of the case and R v Warickshall (1783) 1 Leach 263, see Langbein (2003) (n 156) 218–33. 173 R v Atwood (1788) 1 Leach 464; Langbein (2003) (n 156) 212–17. 174 R v Warickshall (1783) 1 Leach 263; Langbein (2003) (n 156) 179–80. 175 This statement was unsworn the accused being unable to give evidence under oath until the Criminal Evidence Act 1898; see Langbein (2003) 52–53. 176 The judge might direct an acquittal, inter alia, by adopting a limited interpretation of the statute said to have been offended. This ‘equitable’ or ‘merciful’ tendency was particularly manifest over the less serious non-clergyable offences: J Hall, Theft, Law and Society (Bobbs-Merrill, 1952) 87–95; Radzinowicz (1948) (n 135) vol 1, 83–91, App 1. 177 (1670) 1 Freeman 1.

Part 1: The Era of the Bloody Code 541 the jury were to ‘be kept without Meat, Drink, Fire or Candle, till they agree’.178 This power was still being exercised into the nineteenth century; for example, in Conway and Lynch, an Irish murder case, the jury were kept locked up without refreshment for 24 hours.179 By this time most judges were discharging juries who simply could not agree but certainly some in the 1830s were still occasionally employing the power to order the ‘carting’ of juries, ie their transportation in an open cart to the boundaries of the county exposed to any opprobrium that might be heaped upon them.180 Juries were selected in rotation but the process of selection made it likely that there would be members who already had experience of the duties. In the main they understood the upshot of their verdicts, whether or not the judge chose to spell it out.181 In a case of theft, if they convicted of ‘aggravated’ larceny, the offence was capital, though a pardon might afterwards be granted, often on condition of transportation; if they found grand larceny (theft to the value of a shilling or more), the punishment was transportation to the American colonies; if they found only petty larceny, it was for the judge to decide on transportation or a whipping. Accordingly, a jury might ameliorate a sentence by deliberately undervaluing the stolen property. This ‘pious perjury’ was an accepted part of their function in dealing with the general run of property crime.182 For other more serious charges the scope for manoeuvre was not so broad, but still there remained the power to acquit, which was used with considerable frequency.183 At the end of the criminal session the convicts were brought up for sentencing.184 Those convicted of non-clergyable felonies would be condemned to death, but in practice the judge would then proceed to reprieve a substantial proportion of them by means of making recommendations to the King-in-Cabinet; recommendations which were the inspiration for most of the pardons subsequently granted.185 If the judge was dissatisfied with the convictions, he might propose a free pardon. Much more likely it would be a pardon conditional upon transportation. Typically, this might be either because the offence was against property only, without any element of personal violence, or because there was something to be said for the defendant – an innocent led astray, a person with a credible character witness, a youngster, a pauper overwhelmed by temptation. By contrast, the shiftless vagrant, the gang-leader, the pimp or brothel-keeper, the incorrigible offender – these were the people to be made an example of on the scaffold, if their offence warranted it or if a wave of fear called

178 W Nelson, The Office and Authority of Justice of the Peace, 6th edn (J Nutt, 1718) 386. For the judge’s powers see Langbein (2003) (n 156) 321–31. 179 R v Conway and Lynch (1845) 7 IRLR 149. 180 WE Vaughan, Murder Trials in Ireland, 1836–1914 (Four Courts Press, 2009) 267–68. 181 For the social composition and method of selection at Assizes and Quarter Sessions, see esp Beattie’s evidence for Surrey: (1986) (n 14) 378–95. 182 See Blackstone, Commentaries vol 4, 239; Beattie (1986) (n 14) 419–30; and for a French observer’s acute account of the practice: M Cottu, On the Administration of the Criminal Code in England (The Pamphleteer, 1820). 183 Beattie (1986) (n 14) 406–19. 184 Before sentence, the allocution afforded the defendant his opportunity to claim benefit of clergy, or to raise a motion in arrest of judgment, eg by way of objection to the indictment: see J Baker, ‘Criminal Courts and Procedure at Common Law, 1550–800’ in JS Cockburn (ed), Crime in England 1550–1800 (Methuen, 1977) 41–42. A woman whose pregnancy was confirmed by a jury of matrons would be reprieved from execution at least until the birth of the child (and mostly, it would seem, for good). 185 On the process, see esp JH Langbein, ‘Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources’ (1983) 50 University of Chicago Law Review 1, 5–10 and 18–21; Gatrell (1994) (n 132) ch 6; S Devereaux, ‘Peel, Pardon and Punishment: The Recorder’s Report Revisited’ in S Devereaux and P Griffiths (eds), Penal Practice and Culture, 1500–1900: Punishing the English (Macmillan, 2004).

542 Crime for a tough demonstration of authority’s power.186 The ‘friends’ of the condemned might still petition for royal clemency. In the case of well-known figures the number of signatories could be substantial: 23,000 London householders signed the petition for Dr Dodd in 1777. For the most part, though, appeals in the eighteenth century consisted of no more than a couple of letters and possibly a very brief petition – as documents they are almost as forlorn as were their subjects and few achieved their purpose. Even where new evidence came to light after conviction the courts never admitted their errors. Men tacitly admitted to be innocent were not executed but nonetheless they might still be sent to the hulks to serve a sometimes lengthy sentence before being pardoned.187

G. Defining the Law Criminal process contained no effective machinery for referring general issues of law from Assizes or Quarter Sessions to an appellate bench. This helps to account for the amorphous condition of much of the substantive law, particularly at the level of general principle. In addition, so long as counsel were rare participants, there was no incentive for reports to appear of points decided at trial.188 Some judges kept private notes of their decisions and during the eighteenth century these were assembled into a repository which passed down the line of Chief Justices.189 Not until the last decades of the century did reports from criminal assizes begin; and soon after came the first text collations of the subject, which drew on the reports in the private sources, as well as the classic writers and the great bulk of statutory material, much of it concerned to specify exactly which types of felony were non-clergyable. Nonetheless, the criminal law did gradually acquire some firmer underpinning. However, great caution was shown in the face of attempts to expand the range of property offences beyond the standard notions of theft and malicious damage. It was difficult to develop the law so as to criminalise the transfer of money from one party to another where that transfer had been induced by deception, or to criminalise the reckless or consciously deliberate squandering of funds so transferred (defalcation). One long-standing exception lay in the fact that it was larceny for a carrier or servant in receipt of goods to ‘break bulk’, ie to split up the goods and take a proportion for him or herself.190 But this notion was not easily expanded. In the early modern period, it is true, cheating had become a common law misdemeanour.191 But in 1761, Lord Mansfield insisted there would only be an offence where the conduct posed an element of public danger. So if on a single occasion a trader had deliberately supplied goods that were underweight then this was a matter for a civil remedy: no criminal offence had been committed. On the other hand, if he had

186 For the factors which were likely to sway decisions, see Radzinowicz (1948) (n 135) vol 1, 114–18; JH Langbein, ‘Albion’s Fatal Flaws’ (1983) 98 P&P 96; P King, ‘Decision-makers and Decision-making in the English Criminal Law 1750–1800’ (1984) 27 HJ 25, 42; Beattie (1986) (n 14) 430–49; Gatrell (1994) (n 132) ch 6. 187 Gatrell (1994) (n 132) 206–07. 188 The fact that the defendant’s plea was reserved until the trial left no scope for the development of an exchange of written pleadings: see generally, SFC Milsom, Historical Foundations of the Common Law, 2nd edn (Oxford University Press, 1981) ch 14. 189 See the preface to the first of the new texts: Sir EH East, Pleas of the Crown (1803) v–xv. 190 See eg Hall (n 176) chs 1 and 2. 191 R v Ward (1727) 2 Ld Raym 1461, generalising a statute of 1542.

Part 1: The Era of the Bloody Code 543 habitually used a false weighing scale in order to overcharge all his customers then he had committed just such an offence.192 Twenty years later, this caution did begin to crumble: the hirer of a horse who had intended from the first to sell it became liable for ‘larceny by a trick’. The offence, though, was confined to cases covering the hiring of property and did not extend to cases where the initial owner had been tricked into conferring actual ownership of the property onto another.193 However, in 1788 it was argued that such transfers of property were covered by a general provision of the statute regulating pawnbrokers which the Fieldings had inspired in 1757.194 King’s Bench were prepared to accept that this misdemeanour of obtaining goods by false pretences did not require proof of public danger in the same way as cheating at common law.195 However, there was a concern that anyone who deliberately breached a contract might become liable for such an offence and the crime was held not to arise in the case of extravagant puffs for goods or of statements about future intention.196 The reluctance to expand the criminal law, like the scrupulousness taken over form, derived from more than just a cynical insistence on the virtues of ‘legality’. It stemmed also from an appreciation of the nature of economic transactions. Most such transactions occurred without any external, let alone legal, scrutiny with the result that allegations of fraud and misappropriation merely set one version of events, that of the prosecutor, against another, that of the defendant. It was probably because ‘breaking bulk’ left independent evidence of the act that it was criminalised early: the purloined goods could be seen. In respect of most transactions, however, the parties were encouraged to be self-sufficient. The state provided a civil remedy against a trickster – a process which included a power of mesne arrest, and it was not clear that the state could or should do any more.197

H. Characterising the System Sitting in judgement ourselves, how finally might we characterise the eighteenth-century criminal justice system? It is undeniable that many of the laws operated to unequal effect, bearing down most harshly on the poorer elements of society and curtailing their autonomy whilst leaving those higher up the social scale unconstrained. The best that can said of them is that they were impartial in the sense wryly referred to by Anatole France.198 Radzinowicz saw the eighteenth-century system as merely outmoded and negligent, and accordingly ripe for a modernisation that was both more just and more humane.199 Douglas Hay, though, 192 R v Wheatly (1761) 2 Burr 1125. 193 R v Pear (1779) 1 Leach 212; R v Harvey (1787) 1 Leach 467; R v Parkes (1794) 2 Leach 614. 194 Pawnbrokers Act 1757, s l. 195 R v Young (1788) 1 Leach 505. 196 See eg R v Goodhall (1821) R & R 461; R v Roebuck (1856) Dears & B 24; cf R v Pywell (1816) 1 Stark 402; R v Codrington (1825) 1 C & P 661. 197 For an over-emphatic exploration of this theme, G Fletcher, ‘The Metamorphosis of Larceny’ (1976) 89 Harvard Law Review 469; cf LL Weinreb ‘Manifest Criminality, Criminal Intent and the “Metamorphosis of Larceny”’ (1980) 90 Yale Law Journal 294, with reply, ibid 319. 198 See n 7. 199 Beattie (1986) (n 14) 107–12; cf B Lenman and G Parker, ‘The State, the Community and the Criminal Law in Early Modern Europe’ in VAC Gatrell et al (eds), Crime and the Law: The Social History of Crime in Western Europe since 1500 (Europa, 1980).

544 Crime credited the system with rather more artifice. According to Hay, the whole system was characterised by an arbitrariness that was the product of clever design rather than inefficiency or accident. The aim was to force the lower orders into attitudes of subservience dependent upon the patronage of their betters as some protection against the full rigours of the law. In particular, the death penalty terrorised malefactors, but should it be respited the condemned and their families were forced into the most servile displays of gratitude that served to confer legitimacy upon what had passed. Most historians who have since written on the subject have acknowledged that Hay has provided a significant perspective.200 Others, though, have doubted the role of ‘influence’ in the capital cases, arguing that whilst at times it was undoubtedly important, for the most part pardons were dependent upon the assessment of the judge. He was likely to look broadly for the sort of factors which still today go to mitigate sentence: ill-fortune, mental stress, passing lapse from general righteousness, and so on. He might have little to go on, and not be prepared to spend long on the question, but the outcome was not wholly haphazard. Whatever our view of the operation of the capital sentence, there are difficulties in deriving the character of the whole system from an examination of the penalty that, whilst the most severe, was also the one that was least often applied. Scholars have tended to gravitate towards the more serious offences and their consequences at the expense of statistically much more numerous offences, such as those that were summarily judged and penalised by fines.201 If one examines offences generally, even at the more serious end, the age in which Parliaments cavalierly increased the range of capital offences was equally a period in which the rate of prosecution for most crimes noticeably fell. Even the prosecution rate for theft and associated property offences seems to have declined in many places. In early modern England, aside from London and the next largest towns, great stretches of the country had reached an equilibrium which left formal enforcement of the criminal law an occasional, even marginal, activity, with increases only in periods of particular dearth or disruption. Explanations for the relative stability of society are necessarily complex. Certainly, much can be attributed to the fact that in the small villages and towns that housed the majority of the population there were many bonds of authority that served to circumscribe and control individual behaviour. The landlord exercised power over the tenant, the farmer over the labourer, the master over the servant, the poor-law overseer over the recipient, the parson over the parish, the squire over the village, and so on. Those bonds were not only vertical, however; they were also horizontal. Parishes were, and were for a long time to remain, characterised by high degrees of solidarity which served to restrain misbehaviour and sometimes if necessary to penalise it without recourse to formal processes.202 Formal complaints of criminal behaviour were first laid, for the most part, at the door of the magistrate, but the complainants did not necessarily expect that a criminal process would result. Much of the magistrate’s time was spent in resolving disputes rather than

200 Note, however, JH Langbein, ‘Albion’s Fatal Flaws’ (1983) 98 P&P 96, who accuses Hay of performing the ‘legitimation trick’, whereby whatever happened, aggressive or circumspect, is explained as evidencing the determination of the governing class to impress its authority. 201 D Hay, ‘Property, Authority and the Criminal Law’ in Hay et al (1975) (n 91). 202 For the importance of parochial identity see KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales (Cambridge University Press, 2006).

Part 2: Criminal Justice Transformed 545 enalising or prosecuting offenders.203 Where matters nonetheless went to trial, it is clear p from lists of prosecutors at Assizes and Quarter Sessions that those who made use of the system were a wide cross-section of the whole: relatively few came from the aristocracy and gentry, the great bulk from the farming tenantry and small-traders, together with a not inconsiderable number of labourers.204 This is only to be expected. Great wealth lay primarily in sources of income – in rents, investments, the profits of office. It was the lesser owners – of livestock and grain, tools and manufactured products, money in purses and under beds – who were most vulnerable to thieves and the like. People in the middling and lesser ranks needed recourse to the protective discipline of the criminal law and some of them felt obliged to devote very considerable efforts towards its workings. The system that resulted, however, was rarely proactive and only bestirred itself in cases of special outrage, in the face of which it could sometimes act with some vigour to suppress crime and inflict exemplary punishments. For the most part it was merely reactive, responding haphazardly to the particular needs of particular communities. Granted that the legal system was naturally disposed to the protection of the interests of property, it was not so subservient to those interests as to sacrifice all principles before them. Similarly, in the eighteenth century the mechanisms of control and enforcement were not so developed as to allow the elites to cultivate a disregard for the mores of the broader society. It was the ability of those elites to secure the cooperation of those far below them, quite as much as their ability to coerce them, that produced a social model that despite its haphazard appearance was in fact remarkably resilient. However, the nineteenth century was to offer unprecedented challenges. Increasing urbanisation and the resulting social dislocation, allied to the spreading ideas of radicalism, and exacerbated by the inevitable periods of industrial downturn and agricultural crisis, were to test old assumptions – sometimes to breaking point.

Part 2: Criminal Justice Transformed A. The Beccarian Strategy In an important essay in 1764 an Italian count, Cesare Beccaria, set out a powerful case against the punitive strategies then in place in much of Europe.205 Criminals, he asserted, were not deterred by the sporadic infliction upon a small number of them of the hideous and exaggerated punishments conceived by the states and carried through in the theatre of public execution.206 He argued instead that the consistent application of the law combined with a greater certainty of punishment could provide for a much more effective deterrent. Furthermore, if punishment could be more certainly and consistently applied then this

203 Outhwaite (n 19) 102, quoted in the text to n 19 on p 515. 204 For example, 43% of those who prosecuted for assault at the Essex Quarter Sessions between 1780 and 1789 were tradesmen or artisans and 24% labourers: King (1996) (n 42) 57, table 9. See also King (2004) (n 17) 125. 205 Dei Delitti e delle Pene; appearing in English as Of Crimes and Punishments in 1767 or 1768. 206 For a study of the torturous punishments of these times see P Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford University Press, 2012).

546 Crime would allow for proper retribution; that is to say, for the penalty imposed to be in proportion to the crime committed, rather than inflicted in excess of the offence as a supposed means of deterring others. In England Beccaria’s ideas were studied with interest by men such as William Blackstone, William Eden, Samuel Romilly and Jeremy Bentham.207 His notions of consistency and proportionality appealed to all those of a Utilitarian frame of mind.208 Though this early interest would be deflected by the years of war with France, it would lead eventually to major changes in respect of both policing and punishment. Full-time, paid police would be installed, first in London, then in the municipal boroughs and finally in the counties. In place of capital punishment for all the most serious offences would come renewed use of transportation, and increasingly also a willingness to imprison at home, which would in time breed penal servitude as a replacement for transportation. These were complex shifts which, as respects policing, aroused all the English gentleman’s liberal sensibilities. The arguments tended therefore to concentrate upon the techniques of punishment and these will accordingly be our starting point. Among them, repeal of the ‘Bloody Code’ would come to occupy a position of great prominence. But even the issue of the death penalty was dependent upon the organisation of viable ‘secondary punishments.’ It is these which form the true connecting link with the previous period.

B. Punishments i. The Drive for Imprisonment The formula of locking up in order to set to work had been used since the Elizabethan era in dealing with rogues, vagabonds and lesser vagrants, and in the eighteenth century there had been experiments with Houses of Industry for the discipline of all the able-bodied seeking poor relief.209 In many places houses of correction for the idle and local gaols for criminals merged into single institutions and there then arose the possibility of subjecting the latter group to reformatory discipline. Such a possibility was apparent not just in Britain but also on the Continent, where Michel Foucault has charted the development of the resulting ‘carcerial archipelagoes’.210 If his account is rather broader brush and lacking in historical specificity, still the broader point remains valid that the development of penal institutions

207 Eden produced his Principles of Penal Law in 1771 at the age of 26; Romilly his Observations in 1786 at 28 (these latter were in response to Madan’s Thoughts on Executive Justice). During these years, there were distinct signs of restiveness in Parliament and elsewhere over the unthinking extension of the death penalty to new crimes: eg the Commons Committee on Capital Offences (1771) JHC XXXIII 365. 208 JE Crimmins, ‘The Principles of Utilitarian Penal Law in Beccaria’ in P Koritansky (ed), The Philosophy of Punishment and the History of Political Thought (University of Missouri Press, 2011). 209 For an attempt to relate this form of punishment to emergent modes of capitalist production see G Rusche and O Kirchheimer, Punishment and Social Structure (Columbia University Press, 1939). 210 Notably in Discipline and Punish (English translation, Penguin, 1977). For a useful counter to the erroneous notion that incarceration as a punishment in itself was a novel eighteenth-century invention see R Ireland, ‘Theory and Practice within the Medieval English Prison’ (1987) 31 AJLH 56. The long development of the incarceration idea in England suggests an over-dramatic quality in Foucault’s presentation of the shift in perception: see P Spierenburg, The Spectacle of Suffering (Cambridge University Press, 1984) viii–ix and ch 12.

Part 2: Criminal Justice Transformed 547 was an observable characteristic of governments dealing with the social problems created by rapid industrialisation.211 In England it was in the 1770s and 1780s that a new belief in the punitive prison began to manifest itself. In the first instance, novel ideas for imprisonment attracted only a small coterie of adherents. However, the work of these men endured and two generations later inspired the eruption of an unstoppable enthusiasm for incarceration. John Howard, whose The State of the Prisons (1777) fired the new movement, was by nature an ascetic disciplinarian, responsive to the evangelical stirrings around him.212 His proposals for reforming the neglected lock-ups around the country were directed to turning them into institutions for the conditioning and change of men and women. There should be a place for regular, supervised work, with provision for separate arrangements for sleeping in the interests of health, sexual decency and ‘non-contamination’, and enough food and clothing to make the strict regime endurable. But the punitive nature of the regime was never to be forgotten, for that was its whole purpose. Even as the book was in the writing, the Duke of Richmond began rebuilding the Sussex county gaol at Horsham with provision for separate confinement by day as well as night.213 And when later the houses of correction were also remodeled, their reputation became so fearsome that the intake was said to have been halved.214 It is evident that at the time of the Penitentiary Act 1779, which was promoted in particular by Howard, Eden and Blackstone, many still assumed that transportation to America would resume once the rebellion had been crushed.215 Offenders previously sentenced to transportation to America could now under the act be transported to ‘any parts beyond the seas, whether the same be situated in America or elsewhere’ for the same terms.216 Hulks were to remain in service for the worst class of prisoners. The real novelty of the Act lay, however, in its proposal for the building, at government expense, of two national penitentiaries; one for men and one for women. These were to provide some permanent establishment in which convicts reprieved from the gallows could serve out sentences. Separate confinement was to be provided, with labour of the ‘hardest, most servile kind’, so that the work could not be spoiled.217 Nonetheless it was to be useful – sawing stone, polishing marble, beating hemp, rasping wood, chopping rags and the like.218 The warders would be salaried and carefully supervised, so as to eliminate the old corrupt relationships between keepers and their charges. The model proposed – of separate confinement and labour – was influential in guiding the construction of local prisons but in the event neither penitentiary was constructed

211 For this theme in Anglo-American context, see G Himmelfarb, Victorian Minds (Harper and Row, 1970) 32. 212 See esp M Ignatieff, A Just Measure Of Pain: The Penitentiary in the Industrial Revolution 1750–1850 (Macmillan, 1978) 47–57; and, in variation of Foucault, M Ignatieff, ‘State, Civil Society and Total Institutions: A Critique of Recent Social Histories of Punishment’ in D Sugarman (ed), Legality, Ideology and the State (Academic Press, 1983); R Morgan, ‘Divine Philanthropy: John Howard Reconsidered’ (1977) 62 History 388; RW England, ‘Who Wrote John Howard’s Text? The State of the Prisons as a Dissenting Enterprise’ (1993) 33 British Journal of Criminology 203. 213 Howard had criticised its condition before a Select Committee in 1774. 214 S Webb and B Webb, English Prisons under Local Government (Longmans, 1922) 54; S McConville, A History of English Prison Administration, vol 1: 1750–1877 (Routledge & Kegan Paul, 1981) 89–98. 215 S Devereaux, ‘The Making of the Penitentiary Act, 1775–1779’ (1999) 42 HJ 405. 216 Penitentiary Act 1779, s 1. 217 Devereaux (1999) (n 215) 422, quoting from the commentary to the Bill. 218 Penitentiary Act 1779, s 24. The Act also provided for a three-stage system, rewards for meritorous work and even remission by an assize judge: ss 24, 38–39, 45, 47, 49.

548 Crime owing to opposition from the Treasury and elsewhere.219 There remained a strong disposition in governing circles in favour of transportation and also a realisation of how difficult it would be to impose the work and costs of establishing new penal establishments upon officials and rate-payers.220 Thus, once transportation resumed, the 1779 Act came to nothing. In 1794, its place was eventually taken by the Government’s agreement with Bentham that he should construct and run a penitentiary in accordance with his Panopticon model.221 This too became the subject of long delays and prevarications until eventually the Holford Select Committee in 1811 reported in favour of a different project and a disillusioned Bentham was left with a solatium of £23,000 for his efforts. At least this continuing interest of the central government in reformed prisons gave some stimulus to the justices to alter the structure and administration of local gaols. This would occur in a few places, such as Reading and Dorchester. At Southwell, the Rev Thomas Becher was responsible for a well-publicised adaptation of the Nottinghamshire House of Correction, which made disciplined useful labour the central activity and allowed earnings to prisoners during their term and on release, all in the hope of installing a sense of worthwhile occupation.222 In Gloucester, Sir George Onesiphorus Paul saw to the building of a penitentiary and five houses of correction which aimed at a fearsome evangelical target: by subjecting an inmate to a largely solitary existence removed from all moral contamination, he or she would be brought to a Christian conversion and so to inmost repentance. In this, prison work was meant to play only a secondary part – as a relief from the dreadful tedium of separation, just as in life it must be understood as the one hedge against destitution and despair.223 In practice this regime proved very difficult to operate. After 20 years of unremitting effort, Paul was obliged to recognise that without his personal drive the Gloucester prison was likely to relapse into its former condition. While the first generation of prison reformers had engaged in fervent debate and a degree of experimentation, they nonetheless appeared to be hammering against a wall of unconcern and venality and their enthusiasm invariably waned.

ii. Transportation Reformed: Australian and Other Colonies Most powerful opinion remained in favour of the resumption of transportation and as anxiety about crime increased following the return of soldiers from the American War, so the Government cast around, not always very rationally, for alternatives. One idea that appealed to the Home Secretary Lord Sydney was to transport convicts to the isle of Lemane on the river Gambia. There the convicts would be invited to elect a chief and council to govern themselves and, equipped with the necessary agricultural supplies, would establish

219 D Eastwood, Governing Rural England: Tradition and Transformation in Local Government, 1780–1840 (Oxford University Press 1994) 247–48. 220 Devereaux (1999) (n 214) 433. 221 His completed ideas appeared in the tract Panopticon. Or, the Inspection House (1791) (Works (1843) vol 4, 43). See R Evans, The Fabrication of Virtue: English Prison Architecture, 1750–1840 (Cambridge University Press, 1982). 222 Webb and Webb (1922) (n 214) 60–62; McConville (1981) (n 213) 116–17. 223 Webb and Webb (1922) (n 214) 56–60; EAL Moir, ‘Sir George Onesiphorus Paul’ in HPR Finberg (ed), Gloucestershire Studies (Leicester University Press, 1957); Ignatieff (1978) (n 211) 103–09; McConville (ibid) 98–104.

Part 2: Criminal Justice Transformed 549 their own self-sustaining community. Soon self-sufficient, they would thereafter occasion no expense to the Government, save for the cost of stationing a single guard ship down the river to prevent the transportees communicating with trading vessels.224 Perhaps not surprisingly, a select committee of the House of Commons was sceptical and its chair Lord Beauchamp steered them instead towards the selection of Botany Bay.225 The complements of soldiers and prisoners who set forth in the first fleet in 1787 survived the initial stages of settlement in New South Wales only with immense difficulty; but the experiment gradually pulled through. Between that year and 1853, some 160,000 convicts were transported from Britain and Ireland to New South Wales and Van Diemen’s Land (Tasmania), most prolifically in the 1830s.226 Although the first fleet was dispatched entirely at government expense, transportation was soon contracted out to private companies. These provided the ships and supplies for the voyage and were in return paid for supplying labour to the free settlers in the colonies. Upon arrival each convict was assigned to a settler and obliged to labour in return for their keep for the duration of their sentence.227 In theory, masters could be taken to court for abusing these men and women.228 In practice, of course, the treatment of the convicts depended very much upon the disposition of their masters. Sir George Arthurs, who was governor of Van Diemen’s Land from 1824 to 1837, gave frank evidence to the Select Committee on Transportation in 1837 that the convict is subject to the caprice of the family to which he is assigned, and subject to the most summary laws. He is liable to be sent to a chain gang, or to be scourged for idleness, for insolent words, for insolent looks, or for anything betraying the insurgent spirit.229

For those convicts who resisted the system not only the lash and chain gang awaited but also the threat of transfer to special penal settlements for the refractory.230 On the other hand, an increasing body of scholarship has suggested that many convicts reacted to their lot neither with passive acquiescence nor with brutish rebellion and that they learned to employ the opportunities and powers of agency that were available to them. Some cultivated relationships with well-disposed masters. Skilled convicts might enjoy a certain collective bargaining power, others participated in the ‘black market’ economy to earn extra money, exchanged favours, and so on.231 Furthermore, there were also official inducements to good behaviour such as the grant of land to those whose sentences were expiring, and the

224 Lord Sydney to the Lords of the Treasury, 9 February 1785 cited in C Bridge (ed), New Perspectives in Australian History (Institute of Commonwealth Studies, 1990) 33. 225 The Transportation Act 1784 gave the general authority. 226 P Harling, ‘The Trouble with Convicts: From Transportation to Penal Servitude, 1840–1867’ (2014) 53 JBS 80. 227 For a detailed account of one convict’s experiences see M Ward, ‘A Tale of Transportation: The Case of David Moore’ (2015) 22 Clogher Record 43. 228 JB Hirst, Convict Society and Its Enemies: A History of Early New South Wales (Allen & Unwin, 1986) 20–22. 229 Cited in D Oxley, ‘Representing Convict Women’ in I Duffield and J Bradley (eds), Representing Convicts: New Perspectives on Convict Forced Labour Migration (Leicester University Press, 1997) 90. 230 Of these, the most notorious were Port Arthur in Van Diemen’s Land, Moreton Bay (later the site of Brisbane) and Norfolk Island: R Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia 1787–1868 (Collins Harvill, 1987) ch 13 and JS Kerr, Out of Sight, Out of Mind: Australia’s Places of Confinement, 1788–1988 (EH Ervin, 2000). For Moreton Bay in particular, see R Evans and W Thorpe, ‘Power, Punishment and Penal Labour: Convict Workers and Moreton Bay’ (1992) 25 Australian Historical Studies 90. 231 J Damousi, Depraved and Disorderly: Female Convicts, Sexuality and Gender in Colonial Australia (Cambridge University Press, 1997); Duffield and Bradley (n 229); L Frost and H Maxwell-Stewart (eds), Chain Letters: Narrating Convict Lives (Melbourne University Press, 2001). For collective bargaining by convict miners see R Tuffin,

550 Crime r emission of sentences by the grant of tickets-of-leave. By 1830 the normal practice was that a transportee for seven years got his ticket after four, the transportee for 14 years after six, and the transportee for life after eight. The outcomes for men and women convicted of the same offence and transported halfway across the world might be very different indeed. This offended those who feared that the classes in need of discipline at home might not be deterred from wrongful conduct if they believed that some transported convicts might be better off than they themselves were at home. On the other hand, it also offended those who, having learned of the terrible conditions and abuses suffered by many convicts, took the more principled Beccarian position that justice should be proportionate, certain and uniform. They protested that transportation and the bonded labour system subjected English men and women to conditions approximate to slavery.232 Those in favour of greater severity abroad had some success with the dispatch of JT Bigge to become a Commissioner of New South Wales in 1819. He criticised the governorship of Macquarie (1809–1821) and this induced Macquarie’s successors to tighten up discipline and cut back on the grant of privileges to convicts. However, in the 1830s Whigs and radicals launched a sustained attack upon transportation itself, arguing that it was both an inadequate deterrent and also arbitrary and oppressive. Between 1837 and 1838 the Select Committee on Transportation headed by the young Sir William Molesworth took up the theme.233 Particular weight was given within the Committee to moral arguments predicated upon the belief that the conditions of transportation encouraged vice – both natural and unnatural – and in a sense made the Government complicit in its commission. This was but another cogent reason why incarceration in domestic penal establishments and gang labour upon public works such as road-building was to be preferred and why transportation to New South Wales should cease.234 The recommendations of the report had a mixed reception in New South Wales itself. Petitions in favour of continuing transportation from those free settlers who were dependent upon cheap labour were rejected by the Melbourne Government who put the recommendation into effect in 1840, a last contribution of the post-Reform Whigs to change in the criminal system. Van Diemen’s Land was left as the only Australian colony to which convicts could be sent, but the number of free inhabitants was much smaller than in New South Wales and the agricultural market was less developed. Soon the free settlers began to be alarmed that they would be overwhelmed by idle and threatening convict gangs. From 1845 they began petitioning London for a halt, forcing a two-year suspension in 1846.235 Thus thwarted, the Home Secretary Sir George Grey and the Colonial Secretary the third Earl Grey looked elsewhere; but the colonial authorities in Ceylon and Mauritius resisted. New Zealand was examined but free settlers and Maori leaders alike were vigorous in their opposition. An attempt to send the convict ship Neptune to South Africa in 1849 resulted in the f ormation ‘Convicts of the “Proper Description”: The Appropriation and Management of Skilled Convict Labour’ (2018) 114 Labour History 69. 232 See Wiener (1990) (n 44) 98–102. 233 Molesworth was an ardent Benthamite and seems to have been chosen by Russell after he had made up his own mind that there must be great change. Also on the Committee was Lord Howick (Earl Grey), who as Colonial Secretary would preside over the dismantling of the system. 234 PP 1837 (518) XIX; Hughes (n 230) 493–98; Harling (2014) (n 225) 81–84. 235 Harling (2014) (n 225) 84–87.

Part 2: Criminal Justice Transformed 551 of an A nti-Convict Association there and the resignation of many of Cape Colony’s legislative council. The ship could not be disembarked and had eventually to be diverted to Van Diemen’s Land where transportation had resumed in 1848.236 A vigorous antitransportationist movement had by this time emerged there as well and the arrival of the convict ships occasioned regular protests. In February 1852 the Russell Government left office and the Colonial Office advised that the system was unsustainable. By 1853 legislation was in place for long-term ‘penal servitude’ at home,237 and no convicts were dispatched to Van Diemen’s Land after 1852, although some few hundreds were dispatched to Western Australia and to hulks in Gibraltar and Bermuda. The whole system would be wound up in 1868 at the request of the other Australian colonies.238 That three-fifths of all convicts sent to Australia went after 1830 alerts us to the connection between transportation and the death penalty, for it was the availability and widespread employment of the former after 1830 that signified, and indeed allowed, the relaxation in the application of the latter. To this we shall now turn.

iii. The Reduction of Capital Punishment Whether one accepts Hay’s claim that the system of pardon and execution was designed to act as an engine of terror forcing offending classes into attitudes of submission, there was much discussion in the eighteenth century as to the best way to apply capital punishment so as to achieve the best deterrent effect. Some, such as the Rev Martin Madan, argued that the uncertainty of its application induced criminals to ‘chance their luck’. The abolition of all reprieves would thereby much enhance the scaffold’s effectiveness.239 Calls for more frequent executions were most vocal during periods when the public were most apprehensive about perceived or actual increases in crime – often consequent upon the discharge of soldiers and sailors upon the conclusion of war. For example, Henry Fielding urged greater severity in this regard after 1748.240 Others, such as Archdeacon William Paley, argued to the contrary that occasional exemplary executions would operate to greater effect.241 A variety of arguments were advanced by those seeking greater discernment in the application of execution. In a system dependent on private prosecution, some who might have prosecuted offences were, without doubt, inhibited either by their own conscience or by the knowledge that unpopular prosecutions that had capital outcomes were particularly likely to invite retribution.242 It was also the case that the intent of the law was sometimes defeated in court by jurors who undervalued property in order to avoid convicting under the capital statutes. The argument was powerful that if a host of property cases were no longer capital then they would be more 236 ibid 90–93. 237 Penal Servitude Act 1853. 238 Harling (2014) (n 225) 99. 239 Thoughts on Executive Justice (1785); Radzinowicz (1948) (n 135) vol 1, 239–48. 240 His celebrated Inquiry into the Causes of the Late Increase of Robbers (1750) also argued strongly for better organisation of policing, a call which was taken up by an ensuing Commons Committee. That Committee, however, was not happy with the proliferation of capital statutes and did not press for more frequent executions. 241 Principles of Moral and Political Philosophy (1785) VI, ch 9; Radzinowicz (1948) (n 135) vol 1, 248–59. 242 Thus, following an execution of a Bedfordshire man for rape, about 200 people surrounded the victim’s house, ‘exhibiting obscene effigies of herself and her parents’: A Clark, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770–1845 (Pandora, 1987) 49–50.

552 Crime regularly proceeded against and convictions would be easier to secure. It seems that the number of executions in the eighteenth century was as much driven by an absence of practical alternatives as by the authorities’ punitive instincts, for with the beginnings of long-term imprisonment and transportation to Australia the proportion of those condemned to death who were actually executed declined sharply. Between 1781 and 1785 57 per cent of those capitally convicted in London and Middlesex were pardoned, but between 1801 and 1805 that rose to some 89 per cent.243 The increased willingness to use the prerogative of mercy did not, however, result in an immediate decline in the number of actual executions since the number of capital convictions was rising. Between 1806 and 1810 there were 1,874 capital convictions in England and Wales but between 1816 and 1820 there were 5,823. A higher percentage were being pardoned by 1816, but the number of executions nevertheless rose from 286 to 518.244 Meanwhile, in 1808 the Quaker William Allen and the barrister Basil Montagu had founded the Society for Diffusing Information on the Subject of the Punishment of Death (the Capital Punishment Society) and in 1819 this was to merge with the Prison Discipline Society. The issues of the reduction of capital punishment and the expansion of a better prison estate were clearly connected and the pressure both to reduce the former and expand the latter came in substantial measure from evangelical opinion.245 Amongst the evangelicals, William Wilberforce’s ‘Saints’ were an influential minority and altogether there were some 112 MPs sitting between 1784 and 1832 who were self-professed evangelicals or who possessed evangelical leanings.246 The constituency arguing for the abolition of the death penalty in respect of different categories of property crime was led by Sir Samuel Romilly. He attributed the resistance he encountered to the tensions engendered by the French Revolution and the wars, which in his view infused many with a ‘stupid dread of innovation’ and a ‘savage spirit’.247 His two successes, in 1808 and 1811, acted mainly as warnings to his opponents not to relax their guard.248 No matter how assiduously he constructed a utilitarian case to show the ineffectiveness of the death penalty as a deterrent – pointing up the reluctance to prosecute, the loopholes in trial procedure, the extent of commutation – there were those who insisted that any relaxation of the existing regime would undermine the whole edifice of authority.249 They were led in the Lords by several of the bishops, and by the Lord Chancellor and the Chief Justice of the King’s Bench (Eldon and Ellenborough); the latter claimed to speak for the whole bench of judges and asserted that on a law reform issue they must first be consulted.250 In the years after 1815, the mood shifted and the debate began to acquire resonances of larger political tensions. Those who were amassing the newest forms of wealth did not view the haphazard brutalities of the existing system as an adequate means of putting down

243 Gatrell (1994) (n 132) 616, Table 1. 244 Gatrell (1994) (n 132) 617, Table 2. 245 R Follet, Evangelicalism, Penal Theory and the Politics of Criminal Law Reform in England, 1808–1830 (Palgrave Macmillan, 2001). 246 Follet (n 245) 68. 247 P Medd, Romilly; a Life of Sir Samuel Romilly, Lawyer and Reformer (Collins, 1968) 215. 248 Larceny Act 1808 (pick-pocketing – but Romilly had to accept transportation for life as the substitute); Stealing of Linen Act 1811 supported by petitions from owners of bleaching grounds). 249 See esp PD 1811 XI, App 1–13; Radzinowicz (1948) (n 135) vol 1, 322–31 and ch 16. 250 JNJ Palmer, ‘Evils Merely Prohibited’ (1976) 3 British Journal of Law & Society 1.

Part 2: Criminal Justice Transformed 553 crime, and increasingly they were worried by the purloining of their manufactured products and the forgery of bills, warrants and other commercial paper. The petitions of factoryowners, bankers and insurers, which poured in upon Parliament, demanded that the death penalty be given up and adequate policing be instituted instead.251 After Romilly’s untimely death in 1818, leadership of the reformers was taken up by Mackintosh and Fowell Buxton. In 1819 Mackintosh secured a Commons Select Committee inquiring into the Criminal Laws and became its chairman.252 Like Romilly, the Committee eschewed large moral arguments. It built up the case against the present law with a use of statistics that was quite novel. Attorneys, magistrates, prison chaplains and gaol-keepers were called to give evidence of current inadequacies. The judges were not consulted, the excuse being that their position precluded them from offering criticism.253 In the Committee’s view, capital punishment should be removed from numerous (though by no means all) property offences, including those contained within the notorious Waltham Black Act, and such varied offences as abducting a woman, failing to surrender as a bankrupt and being found disguised in the Mint. Their list included the three forms of aggravated theft which for so long had been the centre of Romilly’s efforts: shoplifting to the value of 5s; stealing from a dwelling house; and stealing from a vessel to the value of 40s. But for all this, Mackintosh and Buxton were without real strength in Parliament. All that came of a series of Bills was that the limit on the shoplifting offence was raised to 15s and a few innocuous crimes were removed from the capital panopoly. But Mackintosh’s Forgery Bill was persistently whittled down by opposition from the law officers and others and even so was voted out by surprise.254 As with the question of police, it was Peel’s arrival at the Home Office in 1822 which shifted the political balance. Despite the reforms that he subsequently achieved, we must ‘dispense with any image we may entertain of Peel as a humanitarian reformer’.255 Peel’s motives for what was to follow were to restore the credibility of the law and by making it more efficient to make it a more effective deterrent. He also hoped to outflank the more radical proposals of his Whig opponents. He determined to embark upon ‘a holdingoperation – a tidying up’.256 Thus he began to dismantle those statutes that were rarely prosecuted upon or where, if they were, the capital sentence that might follow was invariably commuted. He opened conciliatory discussions with the judges and found a positive ally in Ellenborough’s successor, Lord Tenterden.257 Already in 1823, he could secure the substitution of transportation or imprisonment for shoplifting and stealing above 40s from ships; and similarly in various statutes concerned with malicious damage and sending threatening letters.258 Assaulting a customs officer and other revenue and quarantine offences ceased to be capital in 1825. Two years later, larceny from a dwelling house

251 PD 1811 XIX App 87–122; Radzinowicz (1948) (n 135) vol 1, 506–11. 252 For its Report, PP 1819 (585) VIII; Radzinowicz (1948) (n 135) vol 1, 526–51; P Handler, ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’ (2005) 48 HJ 683. 253 Only the retired Chief Baron, Macdonald, was consulted – as a known supporter of reform. 254 Radzinowicz (1948) (n 135) vol 1, 551–66. 255 S Devereaux, ‘Peel, Pardon and Punishment: The Recorder’s Report Revisited’ in Devereaux and Griffiths (2004) (n 129) 278. 256 Gatrell (n 132) 569. 257 Radzinowicz (1948) (n 135) vol 1, ch 18. 258 By virtue of two Benefit of Clergy Acts enacted in 1823, the second of which repealed the Waltham Black Act, save for two provisions which would be carried into the Malicious Injuries to Property Act 1827.

554 Crime became capital only at the value of £5, while capital burglary and housebreaking were confined to entry into a dwelling house or its connected buildings, not merely its ‘curtilage’.259 At the same time, benefit of clergy was abolished and its distinction between first and subsequent offenders became less important. These, then, were moderations of some significance. Furthermore, they were offered alongside a series of statutes designed to consolidate, clarify and modernise enactments on serious crime, which over time had become an incoherent morass.260 However, their impact upon the numbers of people actually executed was only modest. Peel’s cautious intentions are perhaps best illustrated by his forgery bill of 1830, in which he was prepared to lift capital punishments only from the less threatening forms wherein the sentence was in any case routinely commuted. It was to be retained for the forgery of securities representing money, wills of personality and the seals of the realm and for false entries relating to public stock. Mackintosh and his associates, supported by massive petitions from bankers and others who said the current law was virtually unenforceable, steered amendments through the Commons. But they were defeated in the Lords, where Peel had the support of Tenterden and the Lord Chancellor, Lyndhurst.261 The arrival of a new Whig administration in 1830 led to a more ambitious assault upon the capital statutes. This led first to the lifting of the penalty from most of the non-violent property crimes to which it still applied: coinage offences; sheep and cattle stealing; larceny from a dwelling-house; and all forgeries save wills and powers of attorney to transfer stock (which had to be kept as a concession to the Lords).262 Capital punishment remained in place for robberies, piracies, rapes and other forms of actual or threatened physical violence; and, of course, for murder. In 1833 a number of attempts to have violent property crimes made non-capital failed, but when Lord John Russell became Home Secretary in 1835 he put through a whole series of measures removing the death penalty from violent property crimes (robbery, burglary, arson and piracy in particular), unless there were aggravating circumstances.263 In 1840 rape was also made non-capital.264 Property crimes were, for the most part, crimes of calculation. Although the infliction of capital punishment for such crimes might seem to some unduly severe, nonetheless it was logical to suppose that such a penalty had a deterrent effect. Removing the death penalty from crimes of calculation then left it in place for crimes that it was in fact least likely to deter. As Thomas Beggs put it, ‘The very idea of murder does not usually occur until reason has become prostrate before passion – how then can calculation of punishment suppress it?’265 Many were swayed by that reasoning and in 1840 90 MPs supported 259 Quarantine Act 1825; Larceny Act 1827, esp ss 6 and 7. 260 There was in addition the Offences against the Person Act 1828. 261 Forgery Act 1830; Radzinowicz (1948) (n 135) vol 1, 590–95. For the use of the death penalty to deter forgery see R McGowen, ‘Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821’ (2007) 25 L&HR 241. 262 Coinage Offences Act 1832; Punishment of Death Act 1832; Forgery, Abolition of Punishment of Death Act 1832. See also P Handler, ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’ (2005) 48 HJ 683. 263 Second Report, PP 1836 [343] XXXVI. 264 Forgery Act 1837; Offences against the Person Act 1837; Burglary Act 1837; Robbery from the Person Act 1837; Piracy Act 1837; Burning of Buildings Act 1837; Punishment of Offences Act 1837; Substitution of Punishments for Death Act 1841. See too; Radzinowicz (1968) (n 34) vol 4, 316–26. 265 T Beggs, The Deterrent Influence of Capital Punishment: A Reply to The Speech of JS Mill Esq MP Made in the House of Commons, 21 April 1868 By Thomas Beggs Hon Sec of the Society for the Abolition of Capital Punishment (1868) 9.

Part 2: Criminal Justice Transformed 555 William Ewart’s unsuccessful motion for complete abolition. Although the death penalty was later lifted from attempted murder and buggery, it was kept for murder, treason, piracy with wounding and arson of naval ships, stores and dockyards.266 It was still generally assumed in 1840 that the sight of a public execution had a salutary effect upon those who had witnessed it – although Bernard Mandeville had argued in 1725 that executions were ‘exemplary in the wrong way’.267 It was also supposed that it was necessary that executions be in public in order to confirm that no intolerable cruelty was being practised upon the criminal and to confirm that the sentence was being carried into effect against rich and poor criminals alike. In 1844, the Home Office rejected a petition of the magistrates in Nottingham to relocate its scaffold because the proposed site would not allow a sufficiently large number of people to get a good view of the execution or to hear the proceedings.268 In 1868 Serjeant Gaselee was still contending in the House of Commons that ‘in the case of a wealthy criminal it would be impossible, under a system of private executions, to convince the poor that the sentence had been carried into effect.’269 Opinions, however, were beginning to change. The petition from Nottingham had been inspired by a post-execution stampede which had resulted in 12 people being crushed to death. Controlling large crowds in public space was always challenging and now the railways brought an increased opportunity for execution tourism – special trains had to be laid to on in 1856 to meet the demand of those eager to travel to Stafford to see the execution of William Palmer. The declining tolerance of respectable local residents whose localities were sporadically invaded by crowds, characterised as comprised of the most villainous classes, ensured that although riots at the scaffold were rather rare by this time, the Home Office was regularly petitioned that scaffolds should be erected within prisons or at least outside urban centres.270 Furthermore, there was an increasing anxiety that the mob, lacking as it did the dispassionate intellectual abilities of its betters, might merely be encouraged to copy the violence that it witnessed on the scaffold. From the early nineteenth century onwards, a gaggle of associated and often pseudo-scientific ideas about the childlike and imitative quality of the lower classes came to challenge the efficacy of public execution. Louis Masur observes that in the USA it was phrenology that ‘provided a compelling argument against public hangings at a time when social authorities increasingly feared a crisis of public order.’271 In England many newspapers (The Times a notable exception) similarly began to accept the imitative hypothesis. In 1849 it was declared that ‘A public execution, we are fully convinced has a decided tendency to give vigour and vitality to any murderous propensity that may lurk in a barbarous breast.’272 By 1862, ‘Nothing is now more 266 Radzinowicz (1968) (n 34) vol 4, 326–43. 267 B Mandeville, An Inquiry into the Causes of the Frequent Executions at Tyburn (1725) 36. 268 HO 45/681. 269 HC Deb 5 March 1868 vol 190 cc 1127–41. [Parliamentary Debates, series 3, vol 206, cols 1074–98, 19 May 1871 (House of Commons).] 270 For example, in 1864 the Grand Jury of the county of Lancaster greeted the transfer of the assizes to Manchester with dismay, petitioning in the hope that ‘measures may be taken for giving power to hold executions for the hundred of Salford, under proper regulations, within the precincts of the gaol’. The Times, 8 December 1864, 12 col d. 271 LP Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (Oxford University Press, 1989) 100. 272 Liverpool Mercury, 16 November 1849.

556 Crime undoubted than that every public execution sows the seeds of future murders broadcast over the land.’273 Abolitionists were divided as to how to react to the increasing calls for the specific abolition of executions that were public. Some tactically supported such calls, believing that the notion that executions were only safe and constitutional if performed in public was so ingrained in society that once the public element was dispensed with then total abolition must inevitably follow. Others were concerned that if the horror of the practice was concealed then the opposition to it would be dissipated. The cause of the abolitionists was weakened by the defection of a number of erstwhile literary supporters, most notably Charles Dickens. The author notoriously changed his stance upon the death penalty between 1846 and 1849, advocating firstly complete abolition and then what he judged the more practical step of private execution.274 By the time that a Capital Punishment Commission reported in 1866, local magistrates were already acting in ways that indicated their conviction that the sight of the execution operated to no worthwhile deterrent effect. In Stafford, for example, the local authorities had ceased giving notice of the times of executions in order to try to prevent crowds forming,275 and some scaffolds, notably that at Newgate, were by now screened in part by curtains, so that the moment of death itself was not observed.276 The Commission made two important recommendations for change: first, there should be a non-capital offence of infanticide (causing death of a child at birth or within seven days thereafter); secondly, executions should cease to be public spectacles and instead be confined behind prison walls.277 Of these, nothing was to be done in the short term about the former. Juries would continue to try and sometimes to convict mothers who killed their children at birth for murder. The judges mostly disliked having to pass the death sentence in these cases, even knowing that the chances of a reprieve were high (the power of reprieve, however, had passed in 1861 to the Home Secretary). It was to be their pressure which eventually saw to the creation of a separate non-capital crime of infanticide – but this would not be until 1922.278 The second recommendation was enacted in 1868,279 the public executionists having put up a stout defence, but the commission having been particularly swayed by the evidence given to it by the former Home Secretary Sir George Grey, who had become a very late convert to the idea of intra-mural execution. There was still an apprehension that the public would not believe that an execution had occurred unless it was adequately witnessed and to this end section 3 of the Act gave power to admit to the execution ‘Persons as it seems to the Sheriff or the Visiting Justices of the Prison proper to admit within the Prison for the purpose’. Proper persons were deemed to include the press and it was only some two decades later, once the public became inured to the end of the public 273 Reynold’s Newspaper, 4 May 1862. 274 FS Schwarzbach, ‘All the Hideous Apparatus of Death: Dickens and Executions’ in WB Thesig (ed), Executions and the British Experience from the 17th to the 20th Century (MacFarland, 1990). 275 Capital Punishment Commission 1866, 14 q 89. 276 Capital Punishment Commission 1866, 151 q 1259. 277 PP 1866 [3590] XXI. 278 DS Davies, ‘Child-Killing in English Law’ in JWC Turner and L Radzinowicz (eds), The Modern Approach to Criminal Law (Macmillan, 1945); T Ward, ‘Legislating for Human Nature: Legal Responses to Infanticide, 1860–1938’ in M Jackson (ed), Historical Perspectives on Child Murder and Concealment, 1550–2000 (Ashgate, 2002). 279 Capital Punishment Amendment Act 1868.

Part 2: Criminal Justice Transformed 557 execution, that the authorities felt confident enough to exclude them. In the meantime, the introduction of intra-mural execution by the Act had, as the pessimists had predicted, dealt a heavy blow to the abolitionists and, for the moment, their support ebbed away.

iv. The Prison Triumphant Richard Ireland pithily remarks that: The constant repetition of the falsehood (one which has probably arisen because of the distorting effect of the dominance of serious crime concern in penal historiography) that imprisonment as a punitive measure is a modern invention, does not make that falsehood true.280

Penal incarceration was not so novel a practice as it is sometimes made out to have been when it spread towards the end of the eighteenth century. However, it is undeniable that a great burst of enthusiasm for penal incarceration in the following century eventually resulted in the building of a great penal estate altogether more impressive than anything which had gone before. As Ireland points out, it was the increasing wealth of society that made these developments a possibility – national income per head doubled between 1780 and 1860.281 In conceiving of those new prisons a number of models were already available, be it the bridlewells and houses of correction, the debtors prisons or the houses of industry that had been erected in Suffolk between 1755 and 1771.282 However, the new establishments sprang not just from the past but also from the imagination of those who proposed them and who were willing to experiment.283 At the end of the eighteenth century the experiments with new prison treatments were still a matter for local initiative, The enthusiasms of the Duke of Richmond, Becher, Paul and their adherents were not matched at the centre, where government was diverted from its penitentiary plan by the revival of transportation.284 However, in 1808 the Society for the Improvement of Prison Discipline was founded and in 1816 it had a second burst of life; in that same year, the charismatic Elizabeth Fry began her transformation of the women’s wards in Newgate Gaol into hives of orderly industry.285 In 1811, the Holford Select Committee recommended that the long-postponed national penitentiary be built on lines which rejected the panoptical principles of Bentham.286 Millbank, opened in 1816 for the reception of those sentenced to transportation, would serve as the only alternative to the hulks until the late 1830s.287 At that point, as the future of transportation began seriously to be questioned, two further national

280 Ireland (2007) (n 96) 9. 281 ibid 17. 282 Ignatieff (1978) (n 211) ch 1. 283 For the relationship between new prisons and the realm of literature see J Bender, Imagining the Penitentiary: Fiction and the Architecture of Mind in Eighteenth-Century England (University of Chicago Press, 1987). 284 M Ogborn, ‘Discipline, Government and Law: Separate Confinement in the Prisons of England and Wales, 1830–1877’ (1995) 20 TIBG 295; S Devereaux, ‘Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789’ (2007) 25 L&HR 101. 285 For the founding and early years of the Society, including the close support of Mrs Fry’s Quaker connections, see Webb and Webb (n 214) 72. For her work, J Kent, Elizabeth Fry (Batsford, 1962). 286 First Report, PP 1810–1811 (199) III; see p 548. 287 A Griffiths, Memorials of Millbank and Chapters in Prison History (HS King, 1875); McConville (1981) (n 213) ch 6.

558 Crime prisons were begun: Parkhurst (Isle of Wight) for the reception of 27 young offenders, and Pentonville (north London) for adult men.288 Alongside this, the Home Office sought to impose new standards and higher purpose on those responsible for the local gaols. By the 1860s, the campaign would ensure that these gaols were either converted from their eighteenth-century condition, or were closed down. But the movement was a gradual one, for there were few benches of justices ready to find the necessary funds for rebuilding their institutions. The process of raising standards began with an Act of 1815, which required that the gaoler be paid a salary.289 This was followed by the Gaols Act 1823 (an early achievement of Peel’s), which sought to place careful classification of prisoners at the centre of a reformed, severe discipline.290 Then in 1835, four Home Office Inspectors of Prisons were appointed.291 They were given little power to command – they were after all dealing with committees of justices of the peace – but they had a wide brief to make investigations and to publish reports. Among the first appointees were two sturdy publicists from the Prison Disciplinary Society, William Crawford and the Rev Whitworth Russell, and they soon acquired the right to inspect the many gaols left outside Peel’s Act and to prescribe prison rules and dietaries.292 Crawford had returned from a tour of American prisons a firm advocate of a system of wholly separate confinement, as adopted in Philadelphia, wherein a prisoner performed whatever labour he could be assigned within his single cell, never saw another prisoner and lived in almost unrelenting solitude save for infrequent visits from the chaplain.293 This he contrasted with the silent associated system adopted at places such as Auburn wherein prisoners worked together in workshops but in absolute silence. The practical impossibility of preventing all forms of communication in the associated system and the severe and often arbitrary corporal punishments employed in the attempt repelled him. Separate, in effect solitary, confinement was nothing new in England – it had been tried at Gloucester and other local prisons. Crawford was already aware that the potential effects of such confinement might cause apprehension in the minds of those who might read his report but he hastened to reassure that he had made careful enquiries at Philadelphia and ascertained that the four prisoners incarcerated who were lunatics or idiots had been so before entry to the prison. There were great limitations as to what could be done within a wholly separated system and in the 1820s it was the associated systems that had the ideological ascendancy. Within them it was possible, in theory at least, to train and even educate prisoners, and get them to perform comparatively complex labour. This endeared itself to utilitarians who believed that prisoners should be obliged to support themselves and that subjecting them to

288 These were to accommodate prisoners undergoing the pre-transportation stage of a ‘probation’ system devised by Peel’s Colonial Secretary, Stanley. 289 Gaol Fees Abolition Act 1815. See McConville (1981) (n 214) 247–48. 290 Implementing a Select Committee Report, PP 1822 (300) IV; Webb and Webb (1922) (n 214) 73–75; M cConville (1981) (n 214) 248–50. It applied only to county prisons and those of the City of London, Westminster and 17 provincial towns, not to the three debtors’ prisons of London or the 150 in the lesser boroughs and franchises. 291 A Lords Committee, chaired by the veteran Duke of Richmond, favoured their creation: see generally the five Reports: PP 1835 (438–441) XI, XII; Prisons Act 1835. 292 Prisons Act 1839. See McConville (1981) (n 214) 254–56. 293 Distinguished investigators from France, Belgium and Germany also visited and published long commentaries. For Crawford’s Report, undertaken for the government, see: URQ Henriques, ‘The Rise and Decline of the Separate System of Prison Discipline’ (1972) 54 P&P 61; N Johnston, ‘The World’s Most Important Prison: Success or Failure?’ (2004) 84 The Prison Journal 20.

Part 2: Criminal Justice Transformed 559 purposeful work would fit them for economically productive lives upon release. Bentham accordingly argued for useful work executed in small groups, with the convicts to earn a share of the value of the products so created.294 At Southwell, Becher actually organised a scheme with incentive payments of this kind. Elizabeth Fry was active in promoting group labour in the women’s side at Newgate, and Peel’s Gaols Act 1823 called for ‘constant employment and labour’ in association, the prisoners being divided according to a simple, five-fold classification.295 Those of an evangelical disposition were, however, less interested in productive labour and preferred instead to concentrate upon rescuing the sinful soul of the prisoner. This, it seemed, could be achieved not by imposing work upon him but instead through enforced contemplation, for the very symptoms of solitary confinement were to them opportunities for intervention. The Rev Clay was to enthuse that: A few months in the solitary cell renders a prisoner strangely impressionable. The chaplain can then make the brawny navvy cry like a child; he can work on his feelings in almost any way he pleases; he can, so to speak, photograph his thoughts, wishes and opinions on his patient’s mind and fill his mouth with his own phrases and language.296

When Crawford and Whitworth Russell were appointed the first central inspectors (under the 1835 Act) for the Home District, they argued the need for rebuilding to accommodate a Separate regime, and they poured much scorn upon the silent associated system employed in the Coldbath Fields House of Correction and elsewhere.297 Crawford and Russell were able to influence the Millbank Committee into appointing the chaplain also as governor, which led to a veritable inquisition of soul-saving. Even more important, they were involved in the plans for ensuring that the Government’s Pentonville Prison was erected with separate accommodation, in which inmates underwent long months of segregation.298 The triumph of the separatist model at the centre should not be supposed to have resulted in its universal adoption throughout the land. All model systems tended to decay once brought into contact with the contradictory enthusiasms, inefficiency, parsimony or simple lethargy of local authorities. To give the example of one county in Carmarthenshire, the provision of separate cells was entirely neglected until 1865 – when after ten years of the penal servitude system and considerable public alarm about the release of major criminals back into the community – the local authorities were required by statute to rebuild so as to provide separate accommodation and a regime of hard, demeaning labour.299

294 However, it was only in the final version of the Panopticon plan that Bentham moved away from ideas of solitary labour, uncontaminated by association. 295 This required division of men and women; and then into convicted felons, convicted misdemeanants, those awaiting trial for felony, those for misdemeanour, and vagrants: Gaols Act 1823, s 4. The appointment of a chaplain and a surgeon was for the first time required. The chaplain was to pass on complaints to the justices – a source of tension with the governor, which was of major significance in prison administration throughout the period: McConville (1981) (n 214) 160–63. 296 J Clay, The Prison Chaplain: A Memoir of the Rev John Clay, BD, Late Chaplain of the Preston Gaol: with Selections from His Reports and Correspondence and a Sketch of Prison Discipline in England (Macmillan, 1861) 386. 297 Crawford had seen it in operation in the Auburn prison, New York state. The denunciation came in their Third Report as Prison Inspectors (PP 1837–1838 (141) XXX). But a fellow inspector, Captain Williams, favoured the silent system and the governor of Coldbath Fields, GL Chesterton, continued vigorously to defend it. 298 Initially, the period of separate confinement at Pentonville was set at eighteen months but the alarming consequences caused it to eventually be reduced to nine months. 299 Prison Act 1865.

560 Crime This prompted a cellular rebuild in Carmarthen gaol itself, but until then the prison’s authorities had been pretty much left to run their own ship. In truth, separate confinement spread only slowly and sporadically and even where formally adopted it was often mitigated by compromises induced by resource limitations.300 The limits to state oversight are shown once more at Carmarthen, where in the 40 years up until nationalisation the prison inspectors spent only 22 days in the gaol. In the absence of separate confinement a silent regime was supposedly in place but even this was only ‘adopted as far as practicable’.301 In 1877, however, local prisons were placed under the control of Prison Commissioners who were responsible to the Home Secretary.302 It is from then on that we can really talk of a prison system, with the financial burden of maintaining the gaols transferred from the local ratepayer to the central government. Despite the horrors of separate confinement, the effects of which were not fully comprehended, and the regular physical chastisement necessary to maintain the silent associated regime, it is possible to characterise aspects of the penal regimes of the first half of the nineteenth century as the product less of society’s punitive impulses than of its leaders’ misplaced idealism. For example, the physical environment of the separate cell, sometimes with a degree of heating, might be favourably contrasted with the disease-ridden dormitories that had gone before. Furthermore, there were some rather liberal experiments. When Alexander Maconochie was given charge of the penal settlement for refractory transportees at Norfolk Island off the New South Wales Coast, he was permitted to introduce a ‘marks’ system of rewards and punishments by which a prisoner’s progress towards privileges and release was conditioned by his behaviour. However, notwithstanding the apparent success of his regime it was soon wound up as it was judged too lenient. In 1849 the Birmingham justices appointed Maconochie the governor of their prison, but they too became alarmed at his benign methods and forced him to retire after two years. The fate of Maconochie illustrates the point that notwithstanding the propagation of reformist ideas there were always powerful voices insisting that deterrence was the overweaning objective of criminal justice. In a celebrated attack on the reformism of the Fry school, the Rev Sydney Smith wrote: ‘There should be no tea and sugar, no assemblage of female felons round the washing-tub – nothing but beating hemp and pulling oakum and pounding bricks – no work but what was tedious, unusual and unfeminine.’303 This fixation with punitive work was wholly typical. The deterrent prison had to be ‘least eligible’, nastier than life outside or within a poor law workhouse. There should be no incentive for a pauper or vagrant to become a proven criminal. The deprivation of freedom was not of itself enough. Diet, clothing and bedding could be made unpleasant,304 but reducing the diet too far could overwhelm the institution with sickness, as happened at Millbank in 1823.305 So the argument came back to work. An instrument for unremitting labour, the treadwheel, was perfected by William Cubitt in 1818. It formed an ‘everlasting staircase’ which could be 300 For a detailed study of the spread of separate confinement see Ogborn (1995) (n 284). 301 Ireland (2007) (n 96) 96 and 195. 302 Prison Act 1877; McConville (1981) (n 223) 468–82. 303 Edinburgh Review, February 1822. 304 See McConville (1981) (n 214) 356–62. 305 Reduction of the diet in 1822 led to an outbreak of scurvy so serious that the prison had to be abandoned for months: McConville (1981) (n 213) 144–46. The episode inhibited similar experiments, despite later jibes about ‘prison palaces’: for which, see MH Tomlinson, ‘“Prison Palaces”: A Re-appraisal of Early Victorian Prisons, 1835–77’ (1978) 51 BIHR 60.

Part 2: Criminal Justice Transformed 561 used to power corn-grinding, water-raising, hemp-beating and so on, not that this was the object. It was soon taken up by various benches of justices, who put their charges on it for long stretches each day.306 A later alternative, utterly without useful function, was the crank, which the prisoner could be required to turn so many times per hour or day.307 Besides these instruments of terror there were always the dreary occupations like oakum-picking (shredding rope for ship-caulking) which had been listed in the Penitentiary Act 1779. When it came to practical organisation, there proved to be considerable overlap between this third position and the second. The advocates of uncompromising deterrence often favoured separate confinement because the lack of contact with other prisoners added an insufferable measure of tedium to the rigours of hard labour. It was an approach well-comprehended by the bulk of retired officers from the army and navy who were now filling the governorships of prisons and the central administration.308 Chief among them in the middle decades of the century was unquestionably Sir Joshua Jebb, RE, whose career began as Crawford and Russell were at their brief zenith, and who became Surveyor General (1844) and then Chairman of the Board of Directors of Convict Prisons (1850).309 He was able to build up his own, rather more pragmatic, position as the excesses of religiously inspired separation became apparent. For him, short-term sentences could consist only of unpalatable medicine and he pressed for the conversion of the local prisons, where most of these prisoners were sent, to separate-cell accommodation in which dreary labour could be required. For the longerterm convict he did much to shape the regime formalisd under the Penal Servitude Acts of 1853 and 1857. After four-to-six months’ solitary confinement at Pentonville, prisoners who would previously have been transported were henceforth sent to public works prisons such as Chatham, Dartmoor, Portland and Portsmouth. One consequence of the reforms was the bringing in of long sentences – which had previously been unheard of. However, after serving two-thirds of their sentence the convicts were given parole or ‘ticket of leave’. This could be revoked if the men committed further crimes, associated with bad characters or simply could not demonstrate any honest means of maintaining themselves.310 At last, the hulks could be replaced with conditions more apparently civilised.311 By the 1860s the reformist aspirations of Utilitarians and Evangelicals alike were ‘obscured by the clouds of deterrence that rolled in’.312 Quite why this should have been

306 For the debate about its effects, see esp PP 1823 (113) XV; 1824 (45, 247) XIX; 1825 (34) XXIII; and James Mill’s attacking article in the Encyclopedia Britannica (1823); Webb and Webb (1922) (n 214) 96–100. 307 Introduced into Pentonville in 1846; Mayhew and Binny calculated that performing 10,000 revolutions – a typical daily requirement – would take eight hours and 20 minutes: H Mayhew and J Binney, The Criminal Prisons of London and Scenes of London Life (Griffin, Bohn and Co, 1862) 308. 308 For prison administration in this period, see McConville (1981) (n 214) esp chs 8–10, 13; JE Thomas, The English Prison Officer Since 1850: A Study in Conflict (Routledge and Kegan Paul, 1972) chs 1–4. 309 The Directorate was created in that year as the central system grew in importance and came under increasing criticism: McConville (1981) (n 214) 215–17. 310 P Priestly, Victorian Prison Lives: English Prison Biography, 1830–1914 (Methuen, 1985) 284; Harling (2014) (n 226) 100–02; B Godfrey, DJ Cox and H Johnston, Victorian Convicts: 100 Criminal Lives (Pen & Sword, 2016) 4–11. 311 Scandal broke over their administration in 1847 and a highly critical report by the Prison Inspector, WJ Williams, condemned their squalor and ‘contamination’. The Home Office became determined to phase them out and the last British hulk was given up in 1857; they continued for a while to be used in Bermuda and Gibraltar during the final stages of transportation: Johnson (1957) (n 148) chs 18–20. 312 V Bailey, ‘English Prisons, Penal Culture and the Abatement of Imprisonment, 1895–1922’ (1997) 36 JBS 285, 286.

562 Crime so is difficult to determine, insofar as the temper of society seemed to cool after the midcentury and a relative prosperity had begun rather slowly to spread down the social scale. Objectively, society seems to have been less threatened by crime in the second half of the century than in the first. Nonetheless, the literature of the period suggests a mounting apprehension upon the part of the better classes, a sense that they were potentially besieged, surrounded like colonists, by peoples primitive and impulsive, who unchecked and undisciplined might work some terrible destruction.313 The sense of impending crisis was marked by the succession of Parliamentary committees and Royal Commissions which inquired anxiously into the new deal. In the mid-1850s the administrators were still able to convince a Lords’ Select Committee that penal servitude was workable – the minimum sentence was even reduced to three years.314 But five years later, sparked by an outbreak of ‘garrotting’ robberies in London, feeling ran so strongly the other way as truly to amount to ‘moral panic’.315 A Royal Commission sought to insist that transportation should more regularly be the last stage of penal servitude and that the preceding home stage should be increased in duration to five years, or seven years on a reconviction.316 Flogging, which for adult males had largely been phased out in the consolidating Acts of 1861, was restored for robberies and similar violent crimes.317 At the same juncture, a Lords Select Committee, chaired by the Earl of Carnarvon, enthusiastically adopted Jebb’s recipe of ‘hard labour, hard fare and a hard bed’; prison regimes at the local level must be based on separate cells and work that was ‘penal, irksome and fatiguing’.318 The result was the Prison Act 1865, with its requirement that the justices transform local prisons in accordance with the model, so as to provide either a separate or a silent routine with separate accommodation for sleeping.319 The Inspectors were now armed with powers to ensure due execution of the Act.320 In 1869 Sir Edmund du Cane succeeded Jebb as Director-General of Convict Prisons and until 1895 he adopted the firm principles that deterrence was the primary purpose of punishment and that deterrent regimes were therefore to be rigorously and uniformly enforced.321 In 1877, he became Chairman of the Prisons Commission which was 313 ‘The uneducated man is still a child-the half-educated far worse. … You will find him almost the literal demonstration of Lord Brougham’s definition of the savage – “a man of physical powers, but a child in intellect”’: Anon, Capital Punishment not Opposed to the Doctrine of the Christian Religion. The Conduct of the Populace at Executions not a Conclusive Proof of the Inefficiency of Capital Punishment. Considered in Two Letters by a Priest of the Catholic Church Established in England. (William Pickering, 1850) 19. 314 PP 1856 (244) XVII; resulting in the Penal Servitude Act 1857. 315 See J Davis, ‘The London Garotting Panic of 1862’ in Gatrell et al (n 199); PWJ Bartrip. ‘Public Opinion and Law Enforcement: The Ticket-of-Leave Scares in Mid-Victorian Britain’ in V Bailey (ed), Policing and Punishment in Nineteenth-Century Britain (Croom Helm, 1981). 316 PP 1863 (3190) XXI. The minimum periods of penal servitude were increased and licence conditions were tightened in ways that gave supervising police considerable way-leave to harass. 317 Feeling that corporal punishment was too savage a brutality for the state to inflict had grown gradually, it being stopped for women in 1820. After its re-introduction for robbery there were a series of campaigns to extend it, particularly to sexual offences, but they did not succeed: L Radzinowicz and R Hood, History of English Criminal Law and its Administration from 1750, Vol 5: The Emergence of Penal Policy (Stevens and Sons, 1986) ch 21. 318 PP 1863 (499) IX. 319 The Act was remarkable for setting out detailed prison rules in the primary legislation, thus making them unalterable except by a further Act; it was not a precedent to be followed. 320 There proved still to be many obstructions: Webb and Webb (1922) (n 214) ch 11; McConville (1981) (n 214) ch 11. 321 Bailey (1997) (n 312) 286–87.

Part 2: Criminal Justice Transformed 563 e stablished to run the amalgamated prison and penal servitude regimes. For long-term convicts, the ‘progressive stages’ of penal servitude would remain; but otherwise there was to be no real distinction by sex, age, physical condition or mental capacity. The justices were reduced to the role of visitors. More than ever before, the prisons imposed their dreary, arduous routines, unregarded by the world outside.322

v. Juvenile Offenders As adult prisoners came to be regarded as past praying for, the reformers moved their attention towards children and adolescents. The eighteenth-century policy of deterrence by example was indiscriminately crude, and once children were seven, and so at common law capable of committing a crime, they might be subjected to any of the punishments applied to adults. By the turn of the nineteenth century, however, the practice of executing children had all but disappeared although many were imprisoned or transported.323 Wiener, following the work of Magarey, has pointed out that juveniles in the first half of the nineteenth century were actually more likely to be the subject of criminal sanctions than they had been earlier.324 Fisher took this further, arguing, not uncontroversially, that the new prisons actually emerged as the product of a particular desire to tackle juvenile crime and to penalise types of mainly juvenile activity that had not been previously criminalised.325 Children in a period of mass child labour and high mortality were regarded unsentimentally and in some respects, notably in terms of corporal punishment, were liable to be treated more severely than adults.326 However, notwithstanding the above, during the eighteenth century an appreciation gradually grew that childhood was a distinct condition, a state of lesser responsibility and this in turn encouraged a new philanthropy towards foundlings, orphans and those picked up for crime. As early as 1756, the Marine Society had started a school for the children of convicts. In 1788, the Philanthropic Society set up cottage homes for delinquent and destitute boys, first in Hackney, then in Bermondsey. At Stretton in Warwickshire, farm-colonies were started in 1818. Sometimes the Crown was prepared to pardon convicted juveniles on condition they went into homes of this type.327 The concern over young criminals in the towns and cities parallels the growing concern with adult crime. The Bow Street magistrate, Sir John Fielding, had noted the emergence 322 For the ‘Du Cane era’: Webb and Webb (1922) (n 214) ch 12. 323 Home Office records do show that Baron Hotham condemned a 10-year-old boy to death for stealing at Chelmsford Post Office in 1800. In court the boy looked ‘an absolute child’ and Hotham was forced by the jury and crowd to consider mercy. In the end the defendant was transported for 14 years. A fourteen-year-old, John Bell, was actually hanged for murder at Maidstone Prison in 1831. The crime was indeed atrocious but the executioner himself was horrified and described the body swaying, ‘too and fro, dead as the feelings of an English judge’: Gatrell (1994) 1–4. 324 S Magarey, ‘The Invention of Juvenile Delinquency in Early Nineteenth-Century England’ (1978) 34 Labour History 11; Wiener (1990) (n 44) 52. 325 G Fisher, ‘The Birth of the Prison Retold’ (1995) 104 Yale Law Journal 1235. King in response has pointed out that few of those indicted from property offences in the Home Counties between 1782 and 1787 were juveniles and that work from Shropshire suggests that fewer than 7% of those in prison for violent offences can also be considered as such: King (1996) (n 42) 43. 326 URQ Henriques, Before the Welfare State: Social Administration in Early Industrial Britain (Longman, 1979) 185. 327 Radzinowicz and Hood (1986) (n 317) vol 5, ch 6; J Carlebach, Caring for Children in Trouble (Routledge and Kegan Paul, 1970) ch 1.

564 Crime of gangs of young thieves, set to work by Fagin-like masters; and as the problem became increasingly evident so did the attempts to rescue the more redeemable among them. But it was not until the great age of prison building that any really substantial arrangements for dealing separately with juveniles was set in train. For some time there had been criticism of the way in which young felons were sentenced and treated without distinction, being put into Millbank or the hulks before, in many cases, being transported. One hulk-vessel was eventually set apart for boys. But only in 1837 did the Government begin the construction of Parkhurst prison on the Isle of Wight, as part of the programme of subjecting them to two or three years’ imprisonment and then sending them to Australia to work for private masters. However, once the end of transportation began to approach and penal servitude became its replacement, the whole question of reforming young offenders at home became more prominent. But as with adults, there were very different views of how this reformation could be achieved. At the one pole, there were optimists who sought to encourage, particularly by removing youngsters from city slums and giving them healthy work outdoors. Rev Sydney Turner, chaplain of the Philanthropic Society, became a leading spokesman of this approach, having organised the Society’s farm school at Redhill on the lines of De Metz’s colonie agricole at Mettray. At the other pole, pessimists believed that only severe discipline and constant exhortation could provide the necessary corrective. Barwick Lloyd Baker imposed a deterrent regime of hard work on his Gloucester Reformatory; and Mary Carpenter, the best-known publicist in the whole movement, made her own establishment at Kingswood a stern and gloomy place.328 A flurry of discussion led to general legislation. In 1854, courts were empowered to sentence offenders under 16, first to 14 or more days in prison, then to a period of two-to-five years in a reformatory school. These schools were to be privately run but would receive a government grant per capita in return for Home Office inspection. Three years later, industrial schools were established to receive those sentenced by courts as vagrants.329 A considerable number of both types of school were set up and institutional discipline became the standard means of dealing with refractory members of both sexes, as much a feature of the penological scene as the separate-cell prisons for adult offenders.330 Not until the 1880s was much concern shown over conditions within the schools; and even then a Royal Commission returned a largely complacent verdict: ‘Over and above their effect in reducing the amount of both juvenile and adult crime, these schools are successfully training a vast number of children for honest and useful lives.’331

328 Mary Carpenter’s Reformatory Schools for the Children of the Perishing and Dangerous Classes and for Juvenile Offenders (C Gilpin, 1851) was particularly influential – the title reveals much: see G Pearson, Hooligan: A History of Respectable Fears (Macmillan, 1983) ch 7. 329 Youthful Offenders (Reformatory Schools) Act 1854; Industrial Schools Act 1857 (the latter following a Scots precedent of 1854); see generally Carlebach (n 327) 59–81; JA Stack, ‘Social Policy and Juvenile Delinquency in England and Wales 1815–1875’ (PhD thesis, University of Iowa, 1974); G Parker ‘The Juvenile Court Movement’ (1976) 26 University of Toronto Law Journal 140; Radzinowicz and Hood (1986) (n 317) vol 5, ch 7. 330 There were over 50 English reformatories by 1858; the number of industrial schools climbed to over 140. 331 PP 1884 [C 3876] XLV. The Commission did recommend abandoning the preliminary fourteen days in prison; but School managers objected strongly and the requirement was phased out only in two stages (in 1893 and 1899).

Part 2: Criminal Justice Transformed 565 The schools were by no means the sole recourse in dealing with juvenile offenders. The most heinous still sometimes went to prison.332 Much more frequent was corporal punishment. ‘A good hiding’ was after all the means of control mostly used by parents and school-teachers. There were few who stopped to question whether it should be inflicted by courts on juveniles, even though a certain decorum was leading to its gradual elimination in the case of adults.333 Statute continued to permit both the superior courts and magistrates to award whippings for indictable offences committed by those under 16, if necessary in conjunction with some other punishment. The beating was administered by prison officers or, with growing frequency, by the police.334 Some of them regarded it as a minor blood-sport and occasionally parents and friends reacted in protest. But, for the most part, public opinion seemed unquestioningly to support the use of the state’s new arm to knock the country’s youth into shape.335

C. Police Reform i. The London Metropolis Notwithstanding the considerable improvements to the watches that were achieved in many parishes during the course of the eighteenth century, pressure for further reform mounted in its closing decades. The growing problems of controlling the London metropolis had led to the Government’s support of the Bow Street office,336 and in 1792 the Middlesex Justices Act created seven rotation offices in strategic parts of the capital, each with three magistrates and six police officers, all of them salaried.337 Amongst the first batch of magistrates was Patrick Colquhoun whose Treatise on the Police of the Metropolis (1795) was widely read.338 Of particular concern were the conditions in the Port of London where theft was rife both from warehouses and from the ships that were sometimes looted within sight of London Bridge. In 1762, in an attempt to deter the London watermen from c olluding in these thefts, a Bumboat Act required all small boats to be registered and licensed, contained provisions for them to be searched for stolen goods, and provided penalties of up to 14 years’ transportation for the receivers of such goods. It proved ineffectual and selfhelp remained the order of the day. The East India Company, which maintained its own docks at Rotherhithe, had its own lighters to unload vessels and employed its own revenue officers in secure warehouses. Others were reliant on hundreds of privately owned boats,

332 Young offenders over 15 continued to have no special arrangements made for them, until the development of the Borstal institutions. 333 Shoemaker (n 129). 334 JR Gillis, ‘The Evolution of Juvenile Delinquency in England, 1890–1914’ (1975) 67 P&P 96. 335 Radzinowicz and Hood (1986) (n 317) vol 5, 711–19. The Howard Association, the YMCA and the NSPCC all supported whippings as part of sentences. For the use of corporal punishments in educational establishments see S Humphries, Hooligans or Rebels? An Oral History of Working Class Childhood and Youth 1889–1939 (Blackwell, 1981). 336 JM Beattie, The First English Detectives. The Bow Street Runners and the Policing of London, 1750–1840 (Oxford University Press, 2012). 337 C Emsley, Policing and its Context (Macmillan, 1983) 48–52. 338 R Reiner, The Politics of the Police, 4th edn (Oxford University Press, 2010) 41.

566 Crime on temporary labour, and on the dumping of commodities on the dockside where they enjoyed indifferent security. To tackle this, Colquhoun joined forces with John Harriott, a sometime soldier, engineer, adventurer and public servant, and proposed a policing scheme to the West India Company of Merchants and Planters. The company was persuaded to lease business premises near Wapping New Stairs, and in June 1798, 70 constables were recruited to superintend the conveyance, off-loading and storage of its goods. The scheme was costed at £5,000 per annum, about a fifth of the company’s estimated annual losses. Most of the money was naturally provided by the company but the Government was persuaded to subsidise the enterprise to the tune of £980. The scheme soon demonstrated its worth, but legislation proposing to transform the private scheme into a statutory body was, predictably, opposed by the City of London Corporation, the Company of Watermen and many of the Port’s licensed porters, carters and carriers. Nevertheless, in 1800 a bill passed, for a trial period of seven years, and the Thames River Police became publicly maintained through an additional police office at Wapping with John Harriot as its first resident magistrate.339 For a long time, however, attempts to spread professional policing throughout the metropolis were more successfully resisted. Six Parliamentary Committees considered London’s policing between 1812 and 1822, and each rejected the idea of a new professional police.340 It is easy to characterise the resistance to professional policing as entirely based upon the vested interests of those who might thereby be marginalised, or upon the lack of imagination of those who failed to see what has seemed obvious to Whig historians thereafter – that the old mechanisms of law enforcement were incapable of meeting the challenges of an expanding, urbanising and industrialising society. It should, however, be remembered that there are many societies where the presence of professional police forces is either non-existent, or merely sporadic or wholly ineffectual, and yet those societies continue in being and even thrive. The same local patriotism encountered in town, borough and county that seems to have underlain much of the resistance was also the patriotism that induced people to volunteer for church and manorial offices, to come to the assistance of their constables, to gather to help extinguish fires, clear ditches, to labour collectively at the harvest, and so on.341 Even thoughtful contemporaries then might have supposed that more harm might be done by displacing the local actors in the system that had kept a rough order in society since time immemorial than good might be obtained by professional policing. All the more so, if we accept the work of scholars who suggest that those local actors were neither as inefficient nor their successors as effectual as has often been asserted. In respect of London, Paley has argued that ‘whether judged in terms of perceived need, of quality of personnel, or of cost, it is highly unlikely that the new police really were more efficient than the old.’342 For one thing, the new force had no detective 339 Depredations on the Thames Act 1800. See too; G Budworth, The London River Beat: The Story of London’s River Police since 1798 (Historical Publications, 1997). 340 Reiner (2010) (n 338) 42. For a consideration of what the term policing actually meant in the eighteenth century and how it was changing, see FM Dodsworth, ‘The Idea of Police in Eighteenth-Century England: Discipline, Reformation, Superintendence, c 1780–1800’ (2008) 69 Journal of the History of Ideas 583. 341 For a sense of the fierce localism that endured until the end of the nineteenth century (and sometimes thereafter) see KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge University Press, 2006). 342 Paley (1989) (n 72) 123.

Part 2: Criminal Justice Transformed 567 branch. After the passage of the Metropolitan Police Act 1829, Peel had instructed his constables that their principal objective was the prevention of crime rather than its detection and punishment, and it is doubtful that at the outset the methods of these new professional police were any more advanced than those of the watches.343 Reynolds added to Paley’s observations by comprehensively demonstrating that the numbers involved in law enforcement in London had risen substantially throughout the course of the eighteenth century, and that some watches were comparatively well-paid and operated to a significant deterrent effect. All in all we are perhaps moving now towards the consensus as expressed by Taylor that policing in London before 1829 was in fact ‘more dynamic, more efficient and less venal’ than whiggish commentators have supposed.344 Estimates of the quality of law enforcement in the borough and counties have had to be similarly revised somewhat, now that it has become apparent that many town authorities were already by the end of the eighteenth century working independently to improve policing provision.345 The same was true of rural areas. As Styles has shown, much depended upon the energy of individual magistrates, and some were certainly pursuing crime energetically.346 Resistance to a professional police force was not merely based on a lingering belief in the efficacy of the older system; it also rested on constitutional grounds. The idea that any centrally controlled force might be injurious to the liberties of the propertied classes was regularly expressed from the seventeenth century onwards, particularly in opposition to the maintenance of a professional army.347 Lord Shelburne touched a raw nerve in 1780 in Parliament when he accused a regimental commander and Tory MP named Fullarton, of being as ready to deploy his men to act against the liberties of England as against her enemies. A duel resulted.348 It could readily be supposed that a uniformed police would swiftly become an agent of government oppression, and looking across the channel to developments in France merely exacerbated the anxieties. By 1750, the Paris police of the ancien régime had been built into a force of some 3,000 men, which could be used for the surveillance of all levels of society. The Revolution brought its own terrible histories of accusation and retribution, and on Napoleon’s accession to power, the police would be built by Fouché into an instrument which many saw as even more fearsome. These visions of excess played upon an acute English sensibility. Many believed with the Earl of Dudley that they would ‘rather a dozen people’s throats should be cut in Ratcliffe Highway every three or four years than be subject to domiciliary visits, spies and all the rest of Fouché’s contrivances.’ In 1822 a Select Committee pronounced that ‘improvements in police or facilities in the detection of crime’ were irreconcilable with ‘that perfect freedom of action and exemption from interference, which are the great privilege and blessing of society in this country.’349 343 DL Smith, ‘Securing the Englishman’s Castle: Situational Crime Prevention in the Nineteenth Century (2012) 40 Victorian Literature and Culture 263, 264. 344 D Taylor, The New Police in Nineteenth-Century England: Crime, Conflict and Control (Manchester University Press, 1997) 15. 345 For an overview see D Philips and RD Storch, Policing Provincial England, 1829–1856: The Politics of Reform (Leicester University Press, 1999) 9–35. 346 J Styles, ‘The Eighteenth-Century Magistrate as Detective: Samuel Lister of Little Horton’ (1982) 47 Bradford Antiquary 98. 347 For example, John Trenchard, An Argument, Shewing that a Standing Army is Inconsistent with a Free Government and Absolutely Destructive of the English Monarchy (London, 1687). 348 JG Millingen, A History of Duelling (R Bentley, 1841) 108–10. 349 PP 1822 (440) IV, 107. This outcome was reached despite Peel being in the chair and for all the criticism of the existing arrangements made by an earlier Committee, steered for Romilly by Grey Bennet: PP 1818 (423) VIII.

568 Crime This epitomised equally the feelings of the country justice with his division of parish constables and of the borough alderman with his nightwatch and his concern to keep away those who might pry into his affairs. The press were largely of the same opinion, as were those further down the social scale who could gain any public voice. And yet in 1829 Peel was able to successfully guide his Metropolis Police Improvement Bill through Parliament due in no small measure to his acute political skills and dubious use of crime statistics. From 1810 onwards the Government began to publish the number of indictable crimes committed in England and Wales and these soon began to show a steady increase.350 In London the rise in indictments probably owed much to Peel’s own reforms, which provided for more liberal payments of expenses to prosecutors and witnesses. That there might be no correlation between the number of indictments and the number of crimes committed was appreciated by some at the time. Peel, however, succeeded in convincing Parliament of the necessity of reform by comparing crimes in London and Middlesex as between 1811–18 and 1821–8 and arguing that whilst the population had risen some 19 per cent during that time the number of crimes had (allegedly) risen by 55 per cent.351 He avoided opposition by excluding the City of London itself from his proposals and benefitted greatly from being able to steer his proposals through at a time when parliament was anxious about the question of Catholic emancipation. Peel, though, was careful to emphasise the utility of the new force as a means of protecting property against predation, rather than as an instrument for curbing the volatility of crowds.352 There were aspects of the new scheme which linked it to the recent developments in the Metropolis. The Commissioners in charge of the force were nominated justices of the peace and appointed Metropolitan magistrates, though they had no judicial functions. They were at the same time responsible to the Home Secretary. But the scale of operation was unquestionably different. Here was a single force, ultimately in the hands of central government, which could be maintained at the ratepayers’ expense up to a rate of 8d in the pound, and above that out of public funds.353 One of the two Commissioners first appointed, Colonel Charles Rowan, had a military background; the other was a young barrister, Richard Mayne. While they did what they could to distance their force from army models – the first ‘Peelers’ were arrayed in top hats and red waistcoats354 and carried nothing but a rattle and truncheon – it was inevitable that much about them would be military in character. There was little else by way of precedent. The men were regularly drilled, they acted under specific orders from their superiors, and they were left little discretion in seeking to resolve arguments and tensions.355 At the outset, some 3,000 men were recruited, and the two commissioners prevented their force from being drawn either, as to officers, from those with commissions in the services or, as to men, from the old bodies of watchmen and constables. They set the pay at only 3s a day and established a policy of appointing sergeants from the ranks. They also prescribed 350 Reiner (2010) (n 337) 41. 351 C Emsley, Crime and Society in England, 1750–1900 (Longman, 1991) 25. 352 In the same year, Peel also promoted a reform of police in Cheshire, following the earlier London model of stipendiaries (called high constables) each with a paid force in support: Cheshire Police Act 1829. See Philips and Storch (1999) (n 344) 85–92. 353 Metropolitan Police Act 1829, s 23. 354 Hence ‘Robin Redbreasts’. 355 The contrast of style in New York policing at the same period is the theme of WR Miller, Cops and Bobbies (University of Chicago Press, 1977); see also C Reith, A New Study of Police History (Oliver, 1956) chs 9–13.

Part 2: Criminal Justice Transformed 569 that recruits be under 35, of good physique, at least five feet seven inches, literate and of good character. Whilst in terms of quality these men may have been an improvement upon the old watchmen, there were in fact rather fewer of them. Paley points out that there were perhaps only half as many of the new police as there had been of the old watch and that in consequence their walking beats had to be much longer.356 Hostility to the new police was immediately apparent, with pamphlets widely circulated against ‘Peel’s bloody gang’.357 Elements of the press were hostile, with the Monthly Magazine calling Colonel Rowan a ‘Horseguard dependent’ and the Weekly Dispatch describing the force as ‘a gendarmerie’.358 Placards urging resistance were to be seen all over London. Officers were manhandled even when trying to direct the traffic at Hyde Park Corner. The new police received little sympathy when they themselves became victims of violence. The first policeman on duty to be murdered was PC Joseph Grantham, kicked to death whilst trying to break up a fight in Somers Town, King’s Cross on 29 June 1830. The coroner’s jury perversely concluded that he had brought about his own death by ‘over exertion in the discharge of his duty’.359 The costs of the new force were considerable, some £207,000 per year between 1830 and 1832 levied on the rates, but some parishes tried to frustrate the operation of the new system by withholding their contributions, and in 1833 legislation had to be introduced which provided for a quarter of the police’s expenses to be met out of the Government’s central funds.360 In the febrile months of the First Reform Bill, the police regularly had to restrain large, excitable crowds. But it was in 1833 that they reached the nadir of their fortunes, when they faced three allegations of abusing their power, each typical of its kind. First, Sergeant Popay was found to have infiltrated the National Political Union in disguise. Second, the police were obliged to fight a pitched battle with demonstrators at a rally of the National Union of the Working Classes in Coldbath Fields, which Melbourne, the Home Secretary, had chosen to ban.361 Third, the principal Bow Street magistrate, Sir Frederick Roe, took up the cause of a prostitute who claimed she had been raped by Sergeant Wovenden in a police cell. The outcome of these scandals demonstrated how essential the force had already become to the Government and how far respectable opinion had been won over. One inquiry found Popay to have been acting without his superiors’ knowledge (although the affair helped to delay the creation of detective branches for a long period).362 Another inquiry exonerated the police for their conduct of the Coldbath Fields operation.363 And Roe’s allegations eventually foundered, though not before he had made a great deal of trouble; with time it became fairly apparent that he had been seeking a cause by which to reassert the power of the magistracy over the police.364 Yet another Parliamentary Committee returned a highly 356 Paley (1989) (n 72) 115–16. 357 Reiner (2010) (n 338) 43. 358 Weekly Dispatch, 27 September 1829 and Monthly Magazine, new series, 8 (October 1829) 362–63 both cited in Emsley (1991) (n 351) 26. 359 G Mason, The Official History of the Metropolitan Police (Carlton, 2004) 15. 360 Metropolitan Police Act 1833. See Emsley (1991) (n 351) 27. 361 A constable was killed, but juries returned hostile verdicts at the inquest and a murder trial: Re Culley (1833) 5 B & Ad 230; R v Fursey (1833) 3 St Tr (NS) 543; G Thurston, The Clerkenwell Riot (Allen & Unwin, 1967). 362 PP 1833 (627) XIII; see C Reith, British Police and the Democratic Ideal (Oxford University Press, 1943) 152–58; Radzinowicz (1968) (n 34) vol 4, 185–89. 363 PP 1833 (718) XIII; Radzinowicz (1968) (n 34) vol 4, 180–85. 364 Radzinowicz (1968) (n 34) vol 4, 173–80.

570 Crime favourable report on the Metropolitan force as a whole, and recommended that it absorb the Bow Street horse patrol, the Runners and the other police office constables. Eventually even this would be achieved.365

ii. The Municipalities and the Counties Just as parochial authorities in London had tried to overhaul their policing arrangements prior to Peel’s great reform, in the municipalities and counties there had been a series of initiatives. Some came very late in the day. In 1830 and 1833, those who sought credence for the old police system secured Acts which would give ratepayers the power to vote for a paid watch without the need to procure a special improvement Act.366 More piecemeal, but perhaps of more significance, had been the trend in particular localities towards the employment of what we might call professional or semi-professional constables. Socially, the situation of the constable was in decline. In the seventeenth century, constables had been drawn from propertied and respectable members of their towns or villages equivalent to overseers of the poor or churchwardens. In Essex by the 1820s only 16 per cent of such men came from amongst the substantial farming community – most were lesser farmers, artisans or tradesmen: substantial farmers were eschewing the office.367 On the other hand, in towns there was an increasing trend towards appointment of long-standing constables who were supported by a mix of retainers from parishes, private subscriptions and fees from process serving.368 Sometimes the living obtained was generous. Furthermore, in addition to the above acts some towns made voluntary transitions to the employment of full-time policemen through their own local Acts – Croydon, for example, appointed a superintendent and five constables in such a manner.369 However, the Royal Commission on the future of the boroughs wanted more370 and under the Municipal Corporations Act 1835, the new councils were obliged to establish Watch Committees which were to appoint a ‘sufficient number of fit men’ as constables.371 The committees had power to make regulations for this force and to dismiss those who broke them. But the Act did not even provide for a chief constable to have executive authority, let alone state what the relationship between the force and the Watch Committee was to be. It conferred on the men the powers of a constable at common law and instructed them to obey the lawful orders of a justice of the peace; and so further blurring of authority ensued, which would not start to be resolved until the 1960s.372 In the meantime, under the new Home Secretary, Lord John Russell, a Royal Commission on a Constabulary Force was appointed to consider policing in the counties, the Poor Law Commissioners having already recommended the creation of a new force. 365 PP 1834 (600) XVI; Metropolitan Police Act 1839, absorbing the police offices and the Thames police into the Metropolitan. In 1839, the City police were also reformed into a single force with its own Commissioner and 500 men. 366 Lighting and Watching Acts 1830 and 1833. 367 Philips and Storch (1999) (n 344) 18–35. 368 Philips and Storch identify such men at Trowbridge, Calne, Chippenham, Truro, Newport Pagnell, Barton-onHumber, Ashby de la Zouch, Malton and many other places besides. 369 Philips and Storch (1999) (n 345) 28. 370 First Report, PP 1835 (116) XXIII, 43. 371 Municipal Corporations Act 1835, s 76. 372 Partly from this, would emerge the view that a constable was not an employee of the police authority: Fisher v Oldham Corp [1930] 2 KB 364. See generally, Emsley (1991) (n 351) 164, 168, 173.

Part 2: Criminal Justice Transformed 571 The commission was composed of Rowan of the Metropolitan Police, Chadwick and Shaw-Lefevre.373 An enormous amount of correspondence with justices of the peace, prison governors, interested country gentlemen, clerics and so on resulted. Much of it was eventually ignored by Chadwick who, with the help of some leading questions and interviews, was able to establish to his satisfaction that the countryside was beset by thieves and vagabonds driven out of the towns by the earlier police reforms, and that poverty had no role to play in rural property crime. The report boldly proposed a professional force for the whole country, regulated on the lines of the Metropolitan police and placed under the authority of the Metropolitan Commissioners (and above them, the Home Secretary). The intent was plain: the county magistracy would remain involved in police management but would lose their ultimate authority. There were, of course, recommendations to soften the blow. The force would be extended in stages over the whole country, in order to allow the ‘Met’ to help train sufficient men, and to give the justices the chance to say when they wanted the new system introduced into their area; and the justices would exercise the power of dismissal over the force in their county (the county rate would after all be expected to meet three-quarters of its cost). As the Report reiterated, the only way towards efficient policing was to give up the outmoded, hierarchical inheritance which was dependent on the voluntary efforts of justices and parish constables.374 In place of ‘impotence’ there was to be ‘strict responsibility’. Opposition to the proposals came naturally from magistrates who were not mollified by the proposals regarding the roles that would be left to them. The Justice of the Peace launched a vehement attack upon the proposal for a national police ‘for the mere purpose of repressing crime and apprehending offenders … If it were necessary in this country that a system of political espionage should be established, that might be a reason for its introduction.’375 The Government, in the meantime, was increasingly alarmed by the rising tide of Chartism and developments in Birmingham, Manchester and Bolton.376 These three had not been converted into municipal corporations in 1835 but were converted under subsequent charters. The legality of those charters, and so of the new police Watch committees thereby established, was under challenge. At a dangerous time, it seemed that these three expanding towns might have no legitimate police forces. Despite the opposition, and aided not a little by the tumult in the country, the County Police Act was passed, accompanied by three emergency bills appointing Commissioners for the three aforementioned towns, who were to manage policing and report directly to the Home Secretary.377 Those Commissioners were able to hand over their forces to the Watch Committees by 1842. There was, however, still some considerable resistance to the implications of this legislation. Three years later only 25 of the 56 counties had set up professional forces;

373 Philips and Storch (1999) (n 345) 115–45. 374 Much play was made of the community’s refusal to come out on a hue- and-cry: First Report, PP 1839 [169] XIX, 90–92, 95–96. 375 Philips and Storch (1999) (n 345) 134. 376 For in influence of Chartism in Manchester see PA Pickering Chartism and the Chartists in Manchester and Salford (Macmillan, 1995). 377 The general Act was the County Police Act 1839, amended the following year by the County Police Amendment Act 1840.

572 Crime some of them were substantial, others merely token. Kent led the way in seeking an alternative policing strategy that could be based upon a re-invigoration of the old parish constabulary. Two Parish Constables Acts in 1842 and 1850 specified that henceforth parish constables were to be ratepayers of good standing aged between 25 and 45, and made provision for the appointment of a paid superintending constable able to instill some discipline into the whole. As a species of half-way measure, 13 counties made use of these powers in the belief that a voluntary response from within the social hierarchy, drawing on the tradition of the eighteenth-century militias, afforded the answer to civil insurrection, a measure of the fact that the defeat of the forces of amateurism was not finally accomplished until the County and Borough Police Act 1856. That Act was the product of the arrival four years previously of Palmerston at the Home Office. He was determined to rationalise the existing hodge-podge of policing arrangements. A House of Commons Select Committee on Police was appointed in 1853. The Committee was stacked with supporters of a professional provincial police and opposed to the superintending constable system – witnesses were carefully chosen to support the conclusion that that system was unsatisfactory.378 Few, though, were prepared to go as far as Chadwick who was still advocating a ‘General Police’ for all the country under the authority of a new department in the Home Office. When the Committee reported; it recommended that all counties should be obliged to establish professional forces under the control of Quarter Sessions. Small borough forces were to be merged, and large borough forces amalgamated. Resistance was fierce from the borough watch committees, who had hardly been consulted, and two Bills were proposed but then had to be withdrawn.379 In 1856 Russell himself became the prime minister of a country ending a war and having to face the consequences of substituting penal servitude for transportation. He resolved to try again. A new bill proposed, as before, that the Home Secretary would have no direct authority over the county forces which county Quarter Sessions would now be required to maintain. However, this time it also offered by way of a sweetener that there would be a grant from government of one-quarter of the cost of paying and equipping county and borough forces – if, that is, a government inspection found the relevant force to be satisfactory. The Home Secretary, Sir George Grey, twisted the arms of recalcitrant boroughs by informing them that the Government would no longer station small units of troops in or near troublesome boroughs in case they were needed intervene and keep order – from now on the boroughs were on their own. Furthermore, their independence was threatened. Boroughs were reminded that they ‘were not sacred ground upon which Parliament could not venture’.380 A borough would only qualify for the grant-in-aid if its population was over 5,000, and the pressure of the inspection would contribute towards some 58 borough forces being consolidated with those of an adjacent county by 1870.381 But against this there was steady creation of new boroughs, and with them separate forces, until legislation in 1877 put an end to police powers being given to boroughs of less than 20,000.382 In 1888, as part 378 Philips and Storch (1999) (n 345) 227. 379 For Palmerston’s role, Critchley (1966) (n 84) 101–15; Philips (1999) (n 345) 226–35. 380 HPD, 3rd Series, 140, 10 March 1856, cols 2124–36; Philips (1999) (n 345) 229. See DF Smith, Sir George Grey at the Mid-Victorian Home Office (University of Toronto Press, 1972). 381 For the early inspections, H Parris, ‘The Home Office and Provincial Police in England and Wales, 1856–1870’ [1961] PL 230; and for conditions and reactions, C Steedman, Policing the Victorian Community: The Formation of English Provincial Police Forces, 1856–1880 (Routledge, 1984) 25–59; Critchley (1966) (n 84) 118–23. 382 Municipal Corporations (New Charters) Act 1877.

Part 2: Criminal Justice Transformed 573 of the county government reforms, forces in boroughs of less than 10,000 were required to merge with a county force.383

iii. Protest Movements and Police Although it was sometimes understated, the desire to have a regular force for the control of crowds and the monitoring of dissidents was undoubtedly a powerful motive behind the movement for the new police. Peterloo in 1819 had shown that, far from containing violence, the deployment of troops could make it even worse.384 One early and much needed boost in institutional support for the Metropolitan Police came in consequence of its success in containing Chartist disturbances in London after the second Lords rejection of the Reform Bill in October 1831. There were no fatalities in London, and wise heads made the contrast between the policing of the capital and the widespread looting and deadly disorder that prevailed in Bristol – despite the presence of a detachment of troops.385 There were plenty of disturbances that a professional police could be used to contain. It would be onerous indeed to try to list all the disturbances in the countryside up until the mid-century, but most important were the ‘Swing’ disturbances in the south-east during the winter of 1830/31 and a decade later the ‘Rebecca’ riots against Welsh turnpikes and other symbols of propertied power. In the towns, strikes, elections, political demands and periods of poor trade each contributed to spasmodic unrest. The attacks of the Luddite hand-workers would, a generation later, burgeon into the better-organised and more persistent campaigns against the new Poor Law, the Corn Laws and above all, the political settlement of 1832, as evidenced by the demands of the People’s Charter. Once disturbances had died down, the tendency was for some to re-assert the utility of the old policing models, but the alarm created during times of crisis enabled reformers to push through the legislation that advanced their cause. Lord Russell, for example, in introducing the County Police Bill in 1839, in the context of the Chartist disturbances of that summer, underplayed the novel nature of his proposals but stressed that it might otherwise be necessary to place undue reliance on the use of the military. With the increasing demands for military force, ‘there was a necessity that magistrates in certain districts should be enabled to appoint a constabulary regularly organized.’386 There were many advantages with a constabulary that could (in time) be trusted not to take the side of demonstrators, but who might be sufficiently familiar with their opponents to reason with them, or in the case of criminality to recognise them thereafter. They could gather intelligence of proposed meetings and demonstrations, station themselves and move in with batons in ways calculated to keep order as long as possible and to isolate outbreaks of violence. Over time they developed their expertise in what was effective, and what counter-productive. The Home Office was eager to wean magistrates away from calling in military force and often reminded agitated mayors and justices of their prime

383 Local Government Act 1888, s 9. 384 See Anon, Peterloo Massacre: Containing a Faithful Narrative of the Events which Preceded, Accompanied and Followed the Fatal Sixteenth of August, 1819 (1819) and R Poole, ‘The March to Peterloo: Politics and Festivity in Late Georgian England’ (2006) 192 P&P 109. 385 J Caple, The Bristol Riots of 1831 and Social Reform in Britain (Mellor, 1990). 386 HPD, 3rd series, vol 49, 24 July 1849. See Philips (1999) (n 345) 139.

574 Crime responsibility for civil order and for maintaining a sufficient police force as a trunk onto which any other support could be grafted. Nevertheless, the military had to be called out to aid the civil power 18 times between 1869 and 1893, and a further six times between 1893 and 1908.387 The difficulty, at least in part, lay with the inadequate strength of some police forces. When a dispute erupted at the Featherstone colliery in 1893, the total strength of the West Riding force stood at 1,042, whereas some 80,000 miners were involved. Of course, not all the members of the police force were available to police the dispute since they had responsibilities elsewhere in the county. Twenty-eight soldiers were eventually deployed to disperse the strikers and killed two of them with a volley.388 What even a coolly commanded police force could achieve in this sphere, however, depended on the attitudes and expectations of those whom they sought to control. In the second half of the nineteenth century, street protests became less violent as the major part of the English working class committed themselves to peaceful protest as a means through which to accomplish legislative change. In turn, upper- and middle-class opinion became much more willing to contemplate an extension of the franchise and the legitimisation of trade unions.389 The declining temper of street politics in England was in dramatic contrast to the violence of anti-English and sectarian feeling in Ireland.390 The experience of English police in crowd-control and associated matters was accordingly gained in increasingly propitious circumstances, which allowed the occasions on which there were serious errors of judgment afterwards to be excused, if not wholly forgotten. As in the previous century, the greatest demonstrations tended to occur in London and to arise out of causes addressed directly to government or Parliament. In the postwar tensions of 1817, when many could still remember the anarchy of the Gordon Riots, Sidmouth’s Seditious Meetings Act had rendered meetings of more than 50 people illegal if they took place within a mile of the Palace of Westminster when Parliament was sitting.391 In 1855, a demonstration was called in Hyde Park against a Sabbatarian Bill which proposed to prohibit all Sunday trading. Mayne, the Metropolitan Police Commissioner, issued a notice banning it. A large crowd nonetheless gathered, which the police eventually attacked with truncheons. A melee ensued, for which the superintendent in charge was blamed by a Royal Commission. But no basic concessions were made after this post mortem.392 In 1866 a banning order was issued by the Commissioners, with the Home Secretary’s approval, against a massive meeting of the Reform League. An angry crowd tore down railings and the Guards had to reinforce the police in restoring order.393 After some years,

387 R Geary, Policing Industrial Disputes: 1893 to 1985 (Cambridge University Press, 1985) 16. 388 Geary (n 387) 6–24. 389 Steedman (1984) (n 381) 316–17. 390 Together with elections, ramifications of Irish tensions continued to be the main source of continuing troubles of the later Victorian period, notably in Fenian terrors and the rabble-rousing of the rabid anti-Catholic, William Murphy – both at the end of the 1860s: DC Richter, Riotous Victorians (Ohio University Press, 1981) chs 2, 3 and 5. 391 Seditious Meetings Act 1817. 392 See PT Smith, Policing Victorian London: Political Policing, Public Order and the London Metropolitan Police (Greenwood Press, 1985) 127–49. 393 The next year, the Home Secretary, Spencer Walpole, refused to act against another such demonstration by the Reform League and was obliged to resign. How far the violent first demonstration contributed to the impetus for the Second Reform Act has been much disputed: cf R Harrison, Before the Socialists (Routledge and Kegan Paul, 1965) ch 3 (stressing its effect); G Himmelfarb, ‘The Politics of Democracy: The English Reform Act of 1867’

Part 2: Criminal Justice Transformed 575 Gladstone’s first government admitted a limited right of meeting in the Royal Parks, under the authorisation of the Commissioners of Works.394 Similar arrangements did not operate for Trafalgar Square, which in the mid-1880s became a collecting point for the unemployed. The ‘Bloody Monday’ meeting in 1886 disintegrated into violence and attacks on shops and clubs in the vicinity, largely because the police organisation was so inept.395 In the following year, a new and authoritarian Commissioner of the Metropolitan Police (Warren) persuaded the Home Secretary (Matthews) that another such meeting should be banned in advance. Despite the ensuing fracas on ‘Bloody Sunday’, the Conservative Government insisted on maintaining a total ban of meetings there, which its opponents continued to denounce as provocatively highhanded.396 Asquith, as Liberal Home Secretary, later resolved the issue by a system of police permissions – a compromise in the same mould as that for Hyde Park. Yet while special arrangements had to be hammered out for the meeting sites of the Metropolis, no general powers of control over demonstrations would be given to the police throughout the country until the Public Order Act 1936. There continued to be a good deal of apprehension about the poor and the slums in the great Victorian cities, but the better classes no longer slept in fear for their safety as many had done a generation earlier. The sobriety and maturity of what had once been ‘the mob’ had earned it a measure of recognition.397

iv. A Critical Consideration of the Role of the Nineteenth-Century Police The changes made to the legal and institutional structures conditioning policing in the nineteenth century invited questions as to whether the meaning of the term ‘policing’ had been completely transformed over the course of the century. What exactly were the new police trying to do? For traditionalists such as Critchley the matter is quite simple. The new police were simply doing much the same job as their amateur precursors, but doing it very much better.398 In essence, this is to accept the picture offered by Peel and others that the existing systems were decayed, venial and ineffectual. As we have seen, this view of the previous system has been challenged and there has in turn been offered a less eulogistic and more sombre appraisal of the abilities of the early ‘professional’ policeman. The term ‘professional’ can itself be misleading. Creating a culture of self-confidence and esteem took a very long time and, for example, very few of the early Metropolitan constables could tolerate the poor conditions, hostility and demands of unremitting virtue and sobriety that were imposed on them.399 Certainly there was an important strand of respectable opinion (1966) 6 JBS 97 (a nuanced view); M Cowling, 1867: Disraeli, Gladstone and Revolution (Cambridge University Press, 1967) (dismissing its role). 394 Royal Parks and Gardens Act 1872. 395 The Government reacted by prosecuting four speakers from the Social Democratic Federation – including HM Hyndman and John Burns – for sedition, with no success: Richter (1981) (n 389) ch 8. 396 After this confrontation, Burns and Cunningham Graham (defended by Asquith) were prosecuted on various charges but convicted only of unlawful assembly: Richter (1981) (n 389) ch 9; for the legal background, see D Williams, Keeping the Peace (Hutchinson, 1967) ch 3. 397 Critchley (1970) (n 113) ch 5. 398 Critchley (1966) (n 84) 22 wrote of ‘a danger of a total relapse into barbarity’ at the end of the eighteenth century. 399 Of 2,800 constables serving in May 1830 only 562 were still employed in 1834: C Emsley, Policing and its Context, 1750–1870 (Macmillan, 1983) 63. As late as the 1860s a quarter of recruits either resigned or were

576 Crime that saw professional policemen as neither particularly desirable in principle nor offering good value for money in practice. For example, two years after the Municipal Corporations Act 1835, there were still 78 out of 171 boroughs that had not set up police forces. Furthermore, amongst those that did there was a varying degree of enthusiasm for the enterprise. By 1844, Liverpool was comparatively well-served with a ratio of police officers to population of 1:420, but in Ipswich it was 1:1,740 and in Newcastle-under-Lyme 1:2,500.400 From the 1970s onwards, a group of revisionist historians have tended to explain the spread of professional policing not in terms of a creative enterprise of the established elites, but rather as a response to the demands of newer entrepreneurial and industrial interests. Put crudely, it is suggested that as well as securing the property of those middling groups bereft of traditional methods of preserving it, the police were the particular instruments of a factory capitalism which required the creation of a subservient, disciplined labour force. On this hypothesis, the new police performed the functions of their predecessors but also enabled and enforced the criminalisation of those areas of popular culture that were identified as inimical to the new industrial society. Storch describes the police as an ‘all-purpose lever of urban discipline’ which ‘brought the arm of municipal and state authorities directly to bear on key institutions of daily life in working-class neighbourhoods.’ One can see, then, why these ‘blue locusts’ would be resented. Williams, for example, observes the vigour of the Sheffield police between 1845 and 1862 in arresting young working-class men for minor offences that had hitherto been tolerated.401 Many activities that had always been frowned upon, but only irregularly proceeded against, now became in some areas the subject of regular crusades – after-hours drinking, for example. Perhaps what is more interesting is the extent to which activities which had not only been tolerated but which had hitherto been an integral part of community life came to be proscribed. In addition to suppressing unlicensed fairs, cock-fighting and the like, the police were required to assist in the proscription of a whole host of established calenderical customs during the n ineteenth century.402 Such activities, it should be pointed out, were manifestations of popular culture rather than as yet working-class culture. Malcolmson’s study of the suppression of the bullrunning at Stamford,403 Etherington’s thesis on the 5 November celebrations at Lewes404 and other studies have shown that customary practices and festivities often enjoyed influential support amongst local elites. The bringing to bear of outside forces was often critical to the success of zealous reformers (often in a minority amongst their social group) in reforming, marginalising or suppressing aspects of this popular culture.

dismissed within their first year and the average length of service was only about four years: H Shpayer-Makov, ‘The Making of a Police Labour Force’ (1990) 24 JSH 109. 400 Taylor (1997) (n 343) 34–35. 401 CA Williams, ‘Counting Crimes or Counting People: Some Implications of Mid-Nineteenth Century British Police Returns’ (2000) 4 Crime, History & Societies 77. 402 To give but a few examples, in 1847 the Shrove tide football at Derby was suppressed. 1852 saw the last Cotswold Games, 1857 the last scouring of the White Horse at Uffington, 1858 the last election of the May Queen at Kirtlington, and 1863 the final garland procession on Oxmoor. Innumerable fairs disappeared during this period. Somerset for example, had some 180 fairs in 1729 and this number actually increased to around 300 by the end of the century but almost all were lost during the nineteenth century leaving only 34 by the 1930s. See Bushaway (2011) (n 52); Banks (2014) (n 104). 403 RW Malcolmson, Popular Recreations in English Society, 1700–1850 (Cambridge University Press, 1973). 404 JE Etherington, ‘The Sociology of a Recurrent Ceremonial Drama: Lewes Guy Fawkes Night 1800–1913’ (PhD thesis, The Open University, 1988).

Part 2: Criminal Justice Transformed 577 Blame laid upon ‘the police’ as a whole must, however, be qualified by the observation that the degree of police officiousness was subject to wide degrees of variation. Furthermore, as a disciplined service they were often obliged to act against their own inclinations. A case in point is that of the Sunday Trading disturbances in London in 1855. Since 1829 the Metropolitan Police Commissioners, Rowan and Mayne, had opposed attempts by Sabbatarians to impose laws which would further restrict working-class recreations and commercial activities. They were well aware that prudent officers often abstained from enforcing restrictive legislation which dated back to Charles II. To Mayne’s dismay in 1854 the Wilson-Patten Act severely curtailed pub hours. Then in 1855 Robert Grosvenor’s Sunday Trading Bill attempted to bar all such Sunday trading and this led to riots in Hyde Park. A Royal Commission resulted which criticised the police handling of the disturbances and Mayne himself. He might fairly have retorted that the riots would not have occurred in the first place had he been listened to.405 Reiner summarises the orthodox view as being that ‘opposition to the police may have been nasty and brutish, but it was blessedly short.’406 At best this must be heavily qualified. Significant resistance was encountered in defence of the aforementioned customary practices and this continued with varying degrees of success until the end of the century. The struggles against bonfire culture are perhaps the best documented,407 but there were many reports similar to the one describing the attempt to ban the football match at Nuneaton in 1881, which concluded with the observation that the police were ‘roughly handled’.408 Wherever authority was unpopular the police incurred some of the opprobrium of having to uphold it. Towards the end of the century a new source of friction arose, with many complaints about a compulsory school system whose calendar took little account of the need for children to assist in seasonal labour or for families to participate in recreational activities. Added to this was the resentment caused by the imposition of sometimes rather savage discipline; the result was a series of school strikes in which the policeman was necessarily seen as the ally of the teacher and the magistrate.409 Their role in enforcing education and in the criminalisation of street activities meant that there were running conflicts between working-class youth and the police to the end of the century and beyond. Throughout this time there were communities and neighbourhoods in which the police had at best a marginal presence. The villagers of Headington Quarry, Oxfordshire took care of themselves: ‘there was no fetching the police, no messing about – they’d have you in the pit … or outside the Chequers.’410 The police visited occasionally, but ‘They hated

405 Smith (1985) (n 391) 127–50. 406 Reiner (2010) (n 338) 43. 407 CS Burne, ‘Bonfires’ (1912) 22 Folklore 417; RD Storch, Popular Culture and Custom in Nineteenth Century England (Routledge, 1982) 71–96. 408 E Coleman, ‘Football at Nuneaton, Warwickshire’ (1881) 3 Notes and Queries (6th series) 207. 409 Humphries (1981) (n 324). For the most overtly threatening aspects of anti-authoritarian street culture see A Davies ‘Youth Gangs, Masculinity and Violence in Late Victorian Manchester and Salford’ (1998) 32 JSH 349; A Davies ‘Youth, Violence and Courtship in Late-Victorian Birmingham: The Case of James Harper and Emily Pimm’ (2006) 11 The History of the Family 107; A Davies, ‘Youth Gangs and Late Victorian Society’ in B Goldson (ed), Youth in Crisis: ‘Gangs’, Territoriality and Violence (Routledge, 2011). 410 R Samuel, ‘Quarry Roughs’: Life and Labour in Headington Quarry, 1860–1920’ in R Samuel (ed), Village Life and Labour (Kegan Paul, 1975) 163.

578 Crime a copper to come through this village. They wouldn’t interfere with ’im, but if he come in there trying to cause a barney, ’ee never went home right.’411 Pockthorpe near Norwich governed itself through its own committee and policemen here were also liable to be discomforted.412 Laurie Lee’s portrait of Slad in Gloucestershire in the 1930s was still that of a community which closed ranks against the police as unwanted intruders.413 It would, however, be no more correct to represent the relationship between the police and working class or rural communities at the close of the nineteenth century as characterised by continuous conflict than it would be to accept the orthodox assertion that the constabularies had by this time won the support of the honest men and women of all classes. Relationships were much more ambiguous. Self-help was still the first response in many circumstances, and Jennifer Davies has rightly remarked that historians have sometimes ‘overestimated the extent to which the nineteenth century state was either able or willing to intervene in the everyday affairs of its subjects.’414 On the other hand, her work has also shown that far from being alienated from authority, the labouring classes often went to the London police courts for advice, charity or the adjudication of neighbourhood or family disputes. The spirit, though, was not one of undue supplication: according to Davies, they had clear expectations as to what should be done. If those expectations were not met, or if the authorities interfered in ways that had not been invited, then ‘they were likely to perceive the law as oppressive and even to oppose its application.’415 For all that, the police performed an important function in protecting the labouring classes from the crimes of which they (then as now) were most likely to be the victim. Taylor observes that ‘the creation of police legitimacy was a painful and protracted process’, but that by the end of the nineteenth century, policing by consent had become a reality, aided by declining interpersonal violence and rising living standards.416 His study of Middlesborough has shown that crime in that town declined sharply after about 1870, that whatever the deep causes, this coincided with the expansion and professionalisation of a force that had secured at least a grudging respect from the labouring classes. There was little a nti-police agitation or evidence of overt oppression in return.417 Believing that revisionists have overemphasised the strength of working-class opposition to the police and their overt role in advancing class interests, Reiner has advanced what he describes as a ‘Neo-Reithian Revisionist Synthesis’; one which acknowledges that the police did secure a significant degree of public support, but which also accepts the contention of revisionists that they were in fact operating in support of a social structure which favoured very particular interests.

411 ibid 151. 412 N MacMaster, ‘The Battle for Mousehold Heath, 1857–1884: Popular Politics and the Public Park’ (1990) 127 P&P 117. 413 Laurie Lee, Cider with Rosie (Hogarth, 1959) ch 6. 414 J Davis, ‘A Poor Man’s System of Justice: The London Police Courts in the Second Half of the Nineteenth Century’ (1984) 27 HJ 309, 314. 415 Davis (n 414) 310. 416 Taylor (2007) (n 343) 137–38. 417 D Taylor, Policing the Victorian Town: The Development of the Police in Middlesborough c 1840–1914 (Palgrave Macmilllan, 2002).

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D. Criminal Law and Procedure: The Fate of a Utilitarian Ideal i. Codification The end of the eighteenth century and the early nineteenth saw a wave of law reform across Europe which resulted in the promulgation of criminal codes in Tuscany (1786), Austria (1787), France (1791 and 1810) and Bavaria (1813). At home, by contrast, the criminal law remained constituted out of a mix of rough general rules (which left much scope to individual judges and juries) and a maze of statutory detail (which sought to delimit the range of the death penalty). The confusing profusion of capital statutes which had accumulated as ‘The Bloody Code’ has already been alluded to. Bentham had sought to strip back the law to its bones, to apply principles of scientific legislation and thus reconstitute it as a more effectual enterprise, but his work had not been received with the acclaim that he had no doubt that it deserved. His An Introduction to the Principles of Morals and Legislation intended to be an introduction to a new penal code was not published until nine years after its completion in 1780. Similarly, his subsequent Of Laws in General, completed in 1782, was not published in his lifetime. Peel later put some order into the statutory profusion with the consolidating Acts which accompanied a reduction of capital punishment,418 but it was not until the 1830s that the desire for branch and root reform gained some real momentum. Significantly, it was to be in the colonies where the executive was stronger vis-à-vis the judiciary that codification was to be most successful. In the 1830s, the Council in India prepared a draft Code (which with amendments would be enacted in 1866).419 In Louisiana, Edward Livingston wrote and saw through a Penal Code.420 Meanwhile at home Brougham as Lord Chancellor secured the appointment of a Benthamic set of Criminal Law Commissioners.421 Their task was to consider both consolidating statute law and the incorporation of common law principles into a single statement of rules.422 As their Digest emerged in four Reports (1839–1843),423 their procedure became apparent: where the existing law was clear they would incorporate it in their rules, though they might well criticise it in their introductions or notes (which often referred to foreign penal codes, notably those of France and Germany). As to punishment, they found the existing morass of statute so confused that they proposed a Bentham-like classification of 45 heads and sought systematically to select an appropriate level for each 418 In his endeavours, he was much aided by the legal writer, Anthony Hammond: see the latter’s evidence to a Select Committee on the subject, PP 1824 (205) IV, 43–54. And see DH Brown, ‘Abortive Attempts to Codify English Criminal Law’ (1992) 11 Parl Hist 1, 14–18; L Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commission’ (2000) 18 L&HR 397, 406–07. 419 The first version was chiefly drafted by TB Macaulay, during his term as Law Commissioner: E Stokes, The English Utilitarians and India (Oxford University Press, 1959) 223–24; E Phillips, ‘The Codification Enterprise: Principled Law Reform and the Indian Penal Code’ [2017] Jersey & Guernsey Law Review 166. 420 Written in 1822 and adopted as the Penal Code of Louisiana, it was quoted substantially by the Criminal Law Commissioners in their First Report. 421 The best study of the activities of these commissioners (and one much used here) is Farmer (n 418). 422 Their first report was a demonstration of the need for codification of common law as well as statute. Their example was the outmoded and contorted law of larceny: PP 1834 (537) XXVI. 423 PP 1839 [168] XIX; 1840 [242] XX; 1841 [316] X; 1843 [448] XIX. There was a further Report containing a procedure code: 1845 [646] XIV. Among the delays were Russell’s requirements that they inquire into the felon’s right to counsel and the need for capital punishment (PP 1836 (343) XXXVI), juvenile offenders (1837 [79] XXXI), and (separately) promulgation of statutes (1835 (406) XXXV).

580 Crime crime in their code. After nine years’ work their Draft Act of Crimes and Punishments stood complete, a monumental restatement that would influence all future treatments of the subject. It proved impossible, however, to pass the code directly into law. The problem lay with the judges and with an English common law ‘which identifies itself in terms of a steadfast resistance to the ideas of codification and legislation and to the historical cataclysms that are thought to have brought these to the continent.’424 When Brougham, as its godfather, promoted a bill for its enactment, Lyndhurst, Tory Lord Chancellor, and Denman, Whig Chief Justice of Queen’s Bench, expressed the widespread unease of the legal community. The subject aroused general interest in the upper chamber, for criminal justice in the shires was a part of aristocratic life.425 Lyndhurst had the draft sent to a newly constituted Commission for revision and the preparation of a code of criminal procedure; and this exercise was completed in five further Reports (1845–49).426 Again, it was Brougham who attempted to obtain legislation and again he failed. When, during his brief Chancellorship in 1852, St Leonards proposed bills drawn from the reports on offences against the person and property, the judges thought it necessary to act in a body. Their determinedly critical comments showed what a formidable opposition they constituted: they held codification to be an instrument which would cast basic principles in too inflexible a mould to allow for necessary development and the eradication of error.427 According to Coleridge J, the public already knew enough about the criminal law and had no need of a code to guide it.428 Moreover, in the view of the Attorney-General, Cockburn, codification would only be successful if it could be so complete as to eliminate all need for judge-made rules.429 It was plain that, for the mid-Victorian generation at least, only consolidation had any hope of success. Cranworth, Palmerston’s Lord Chancellor, dared to envisage a Code Victoria, restating the entire statute law, and a Statute Law Revision Board set about this task, led by the indefatigable Bellenden Ker.430 The grand design came to nothing, but revisions of Peel’s consolidations, aided by the researches of the intervening Commissions, were eventually put through by Westbury as Chancellor.431 These on occasion expressed common law rules which were beyond controversy, and they eliminated some statutory overlaps and inconsistencies, but still they were taken up with eighteenth-century legacies. Much clutter was kept by attempts to define the aggravating circumstances which would justify an increased maximum penalty. The Larceny and Malicious Damage Acts in particular read like inventories of the great objects of mid-Victorian wealth. In the 1870s the codification campaign would again enjoy a brief prominence, when Fitzjames Stephen returned from his term as Law Member of the Governor-General’s 424 Farmer (2000) (n 418) 398. 425 On this factor, see AH Manchester, ‘Simplifying the Sources of the Law: An Essay in Law Reform’ (1973) 2 Anglo-American Law Review 395. 426 PP [1845] 631 XIV; 1846 [709] XXIV; 1847 [830] XV; 1847–48 [940] XXVII; 1849 [1100] XXI. 427 PP 1854 (303) LIII. 428 ‘The truth is you might as well make every man his own lawyer, to any useful purpose, by such means as these; nor do I believe that they would be happier or better if you did’: ibid 401. 429 See eg 1854–1855 [1963] XV, 14. 430 Sir C Carr, A Victorian Law Reformer’s Correspondence (Selden Society Lecture, 1955). 431 Accessories and Abettors Act 1861; Criminal Statutes Repeal Act 1861; Larceny Act 1861; Malicious Damage Act 1861; Forgery Act 1861; Coinage Offences Act 1861; Offences against the Person Act 1861. The main draftsman was CS Greaves QC, whose Criminal Law Consolidation Acts (Stevens & Sons, 1862) rather disparaged the efforts of the Commissioners of 1833–1850.

Part 2: Criminal Justice Transformed 581 Council in India. His draft of a Homicide Bill (1874) and Digest of Criminal Law (1877)432 attracted attention enough for Cairns and Holker, Disraeli’s Lord Chancellor and AttorneyGeneral, to invite him to prepare a draft Code. When, with prodigious energy, he completed it, it was revised by a Royal Commission of which he was a member.433 Yet once again the judges marshalled their opposition just as the end seemed to be in sight. Cockburn, longproclaimed perfectionist and now Chief Justice, wrote to the Attorney-General making detailed criticisms of the drafting, the content and the incompleteness of the proposals on general principles and punishment; and he promised further objections to the rest of the draft.434 The uncompromising tone of the attack – taking every type of debating point – showed that the real leaders of the profession were virtually unmoveable on the subject. Stephen’s draft, now standing as the culmination of a half-century’s Benthamic effort, might be of use to distant parts of Empire;435 but it went unheeded in the settled conditions of the motherland.

ii. Substantive Law Problems and Codification Through codification, the utilitarian reformers claimed the ability to lay down acceptable solutions to problems even in advance of their actual occurrence. This in particular struck many as a monstrous self-assurance; indeed, it became a commonplace that codification could succeed only where case law was sufficiently developed to have provided the necessary answers. By that token, mid-nineteenth century criminal law still had some way to go. To appreciate this it is worth looking at some of the major perplexities which it raised then – many of them long-standing and some still unresolved today. The best examples concern the mental element in the definition of crime. a. Homicide At the end of the eighteenth century, the criminal law recognised two principal categories of homicide offences: murder and manslaughter. Beginning with the second, manslaughter remained a clergyable offence through the eighteenth century, generally punished by a rather token branding on the hand and then discharge. However, towards the end of the century some were imprisoned for the offence. In 1822 the maximum penalty was raised from one to three years’ imprisonment.436 Benefit of clergy for manslaughter was abolished in 1827, and thereafter the Offences Against the Person Act 1828 raised the maximum penalty to t ransportation for life. Two important developments in the first half 432 The Homicide Bill derived from criticisms by the Royal Commission on Capital Punishment of the definition of murder (PP 1866 [3950] XXI); objections to the Bill led Stephen to advocate the need of codifying the whole criminal law. The Digest was a product of Stephen’s appointment as Professor of Common Law to the Inns of Court (as were his Digests of Evidence (1876) and Criminal Procedure (1883)). 433 PP 1878–79 [C 2345] XX; the other members were Lord Blackburn, Lush LJ and Barry J. 434 PP 1878–1879 (232) LIX. Stephen had to rest content with his judgeship, though he wrote a spirited riposte: (1880) 7 Nineteenth Century 1936. See generally, L Radzinowicz, Sir James Fitzjames Stephen 1829–1894, and his Contribution to the Development of Criminal Law (Quaritch, 1957); Brown (n 418) 22–39. 435 It was adopted, more or less completely, in Canada, and in Queensland, Tasmania and Western Australia: B Wright, ‘Criminal Law Codification and Imperial Projects: The Self-Governing Jurisdiction Codes of the 1890s’ (2008) 12 Legal History 19. In England, even a Bill to enact the procedural part fell under the weight of amendments (in 1883). 436 Punishment for Manslaughter Act 1822.

582 Crime of the nineteenth century were that indictments for manslaughter steadily increased and that prosecutions moved from the Quarter Sessions to the Assizes.437 One of the distinctions between murder and manslaughter lay in the fact that the former required both malice and intent. Malice was defined by Holt CJ at the beginning of the eighteenth century as ‘a design of doing mischief to another … he that designs and useth the means to do ill is malicious.’438 However, malice alone did not suffice. Using Lord Ellenborough’s Act 1803 as an example, the defendant had to have been shown to have possessed ‘the intent to murder or rob or to maim, or with intent to do some other grievous bodily harm’.439 Present in the law was the concept of felony murder founded upon constructive malice, whereby a defendant could be convicted of murder if he or she had killed during the commission of a felony, even if he or she had not intended either to kill or to cause grievous bodily harm. Both the Commissioners of the 1833–1850 and those of 1878–1879 criticised the wide embrace of the rule, which found constructive malice aforethought in an intent to do some act other than killing or injury in conditions likely to cause death, however irresponsible it might be.440 In 1839, the proposal was to confine this type of murder to an endeavour to commit a crime of violence to the person or habitation of another. In 1879, the proposal was to make it murder to intend grievous bodily harm for the purpose of facilitating the commission of a list of dangerous offences. Both discussions acknowledged that the law had introduced fictional extensions in pursuit of particular deterrence, and that once this step had been taken there was no obvious stopping point. Indeed, the ongoing argument about the issue stood as a prime example of the difficulties in seeing the Codes into law.441 Constructive malice was to remain within the law until its abolition in 1957.442 Felony murder aside, a principle of proportionality applied. Where the defendant had intended some harm, but harm short of death or grievous bodily harm, then the offence was that of involuntary unlawful act manslaughter. Where the defendant had killed with the requisite mens rea for murder, the offence might still be reduced to manslaughter if he or she could show that the killing had occurred under circumstances of provocation. The key cases considered the paradigm of a quarrel and honourable combat between two gentlemen. Where two men quarreled, one went off to fetch a sword and slew the other, ‘This is murder if it appears that, as a result of the killer’s intentional actions, his blood was able to cool before his return.’443 The killing, then, had to have been done in hot blood. Furthermore, in theory at least, the provocation offered had to have been substantial. In Lord Morley’s Case it was said that ‘if the provocation be slight and trivial, it is all one in law as if there be none.’444 Similarly, in Mawgridge, ‘No words of reproach or infamy are

437 Beattie found only 6 indictments for manslaughter at Surrey Assizes between 1660 and 1800 but in 1852 there were 192 such indictments in England and Wales. See MJ Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge University Press, 2004) 25. 438 R v Mawgridge (1707) Kel 119, 128. For a full discussion see J Horder, ‘The Duel and the English Law of Homicide’ (1992) 12 OJLS 419. 439 Section 1 of the Malicious Shooting or Stabbing Act 1803 (also known as Lord Ellenborough’s Act). 440 Fourth Report, PP 1839 [168] XIX, xxviii–xxix, xl. 441 PP 1878–1879 [C 2345] XX, 23–24, 100. The rather more limited test in the Bill promoting Stephen’s Homicide Code is there discussed. 442 Homicide Act 1957, s 1. 443 R Crompton (ed), Sir A Fitzherbert, L’office et auchtoritie de Justices de Peace (R Tottyl, 1570) 26 a–b. 444 Lord Morley’s Case [1666] St Tr 770, 780.

Part 2: Criminal Justice Transformed 583 sufficient to provoke another to such a degree of anger as to strike or assault the provoking party with a sword.’445 b. Negations of Mens Rea A similar evolution affected possible ‘defences’ to a criminal charge – matters, that is, which in appropriate circumstances might negate the existence of the requisite mens rea for a given crime.446 A few of these had inevitably acquired some prominence in the classic texts. Self-defence, for instance, was a well-recognised concept. When it came to be incorporated in the Draft Code of 1879, distinctions could be drawn from established precedents between what was being defended – one’s own person, some other person, one’s dwelling house, other land or possessions – and between cases where the defendant had, and had not, provoked the situation in which he had then to defend himself.447 It was also acknowledged that mistakes and accidents might excuse, though there was little definition of what would suffice, apart from the rule that mistakes of law would not. But beyond this most was in shadow. Compulsion might in extreme situations excuse homicide, but both sets of Commissioners avoided making any provision for cases of mere necessity. In 1884 the famous case of Dudley and Stephens came before the courts. Following the shipwreck of a yacht, the Mignonette, two crew members had cannibalised the gravely ill cabin boy in order to stay alive. The judges insisted that this remained murder, however much it might be a case for executive c lemency.448 Drunkenness likewise was treated by the judges with the gravest suspicion: if lack of criminal intent could be self-induced, who would not plead it? At most, inebriation might be taken to negative ‘specific intent’, particularly when that went to aggravate the seriousness of a basic offence (as, for example, with the ‘aggravated’ larcenies).449 The most difficult of all the defences, perhaps, was insanity. It was finally settled in 1800 that the jury might return a verdict of not guilty by reason of insanity, particularly to murder charges, and in consequence the accused would be detained at His Majesty’s pleasure.450 In formal terms, however, the plea could succeed only where the accused was ‘totally deprived of his understanding and memory and [did] not know what he [was] doing, no more than

445 R v Mawgridge (1707) Kel 119, 130. 446 For the difficulties relating to the burden of proof in homicide cases, see below 1000. 447 See, esp the ‘Stephen’ Code: PP 1878–1879 [C 2345] XX, ss 55–63. 448 R v Dudley and Stephens (1884) 14 QBD 273; the death sentence was commuted to six months in prison. For the absorbing history of sea practices, and also the determination of the authorities to resolve the case in the way that occurred, see AWB Simpson, Cannibalism and the Common Law (Chicago University Press, 1984). 449 However, jurors were sometimes prone to accept intoxication as a mitigation to prevent having to return a capital verdict. In particular, great leniency, against the direction of judges, was sometimes shown to men who had murdered their spouses whilst in a state of intoxication. See MJ Wiener, ‘Judges v Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England’ (1999) 17 L&HR 467; P Handler, ‘Intoxication and Criminal Responsibility in England, 1819–1920’ (2013) 33 OJLS 243. 450 R v Hadfield (1800) 27 St Tr (NS) 1281. The issue had been discussed by Coke (Institutes, III ch 1) and with considerable perception by Hale (History of the Pleas of the Crown (1736), vol 1, ch 4). For the occurrence of insanity pleas in the Old Bailey Sessions Papers, see N Walker, Crime and Insanity in England: vol 1 The Historical Perspective (Edinburgh University Press, 1968) ch 3. And on the use made of the insanity defence in practice, see also Joel Peter Eigen’s trilogy: Witnessing Insanity: Madness and Mad-Doctors in the English Court (Yale University Press, 1995); Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Johns Hopkins University Press, 2003); Mad-Doctors in the Dock: Defending the Diagnosis, 1760–1913 (Johns Hopkins University Press, 2016).

584 Crime an infant, than a brute or wild beast’; he must not be ‘a man who knew what he was doing good or evil, and understood what he did’.451 The ‘right-from-wrong’ distinction at the nub of this direction to the jury set the issue as one of cognition rather than of emotional drive, and it would have a long appeal to lawyers and laymen alike. But judges might on occasion express some wider sympathy for a defendant who had succumbed to an abnormal wave of feeling. In 1784, Eyre B admitted a notion of irresistible impulse as insanity, describing it as ‘rage which is the effect of distemper … brought upon them by act of God.’452 And at the trial of Hadfield for shooting George III under the delusion that only his execution for treason could save the world, Lord Kenyon CJ invited the jury to find him insane, a clemency permitted despite the fact that Hadfield’s whole motivation stemmed from knowledge that his act would be unlawful.453 The issue took an extraordinary turn in the 1840s, however, when Daniel M’Naghten shot Peel’s secretary, believing him to be the prime minister and so the agent of persecution in his deranged imaginings. After evidence from ‘mad-doctors’454 that he had been ‘deprived of all self-control’ by these delusions, Tindal CJ initially directed an acquittal on the ground of insanity.455 Again, it was by no means clear that the assassin did not appreciate the wrongfulness of what he had done and the verdict provoked a public outcry. In response to a Lords debate, Lyndhurst, the Lord Chancellor, called upon the judges, to their considerable embarrassment, to restate the law in response to five questions. Their answers largely preserved old doctrine, stemming from Coke and Hale, by the well-known formulation that a man is presumed sane until it is proved that he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.456

Generated by this unorthodox procedure, the M’Naghten Rules provided a text of almost legislative authority. Yet it possessed elements of ambiguity, notably on the question whether the issue was the accused’s inability to understand the morality of his action or to comprehend its illegality. The distinction was well-enough appreciated at the time; and indeed the Criminal Law Commissioners changed their minds about which approach

451 So put by Tracy J at the trial of Arnold (1724) 16 St Tr 695. 452 This was recorded only in an Old Bailey Sessions Paper, and so formed no part of inherited precedent: Walker (1968) (n 450) 64. 453 R v Hadfield (1800) 27 St Tr (NS) 1281; cf the similar attitude of Denman CJ trying Oxford 40 years later for shooting at Queen Victoria: (1840) 9 C & P 525, 545; and also the short shrift which Mansfield CJ showed to Bellingham, the man who shot Spencer Perceval in 1811 – on which see Walker (1968) (n 450) App D; J Biggs, The Guilty Mind (Harcourt Brace, 1955) 68–69; KS Goddard, ‘A Case of Injustice? The Trial of John Bellingham’ (2004) 46 AJLH 1. 454 A common description of the time, which nevertheless easily acquired pejorative overtones from the lips of a non-believer such as Lord Campbell: see PD 1843 LXVII 741. 455 Cockburn, for the defence, quoted from Dr Isaac Ray’s Treatise on the Medical Jurisprudence of Insanity (G Henderson, 1839) which had attracted considerable debate by its condemnation of the restrictive, ‘right-fromwrong’ test and argued for a much broader causative test. 456 The other answers concerned (i) insane delusions – the judges held the relevant question to be whether the accused knew that he was acting contrary to law; and (ii) the practice of calling experts who had only seen the accused in court – which was held not to be normal practice and soon died out (after R v Frances (1849) 4 Cox CC 57). On the answer concerning insane delusions, ‘nobody was tactless enough to point out that if the judges’ answers represented the law, then M’Naghten should have been convicted’: Walker (1968) (n 450) 102.

Part 2: Criminal Justice Transformed 585 would be preferable in their Reports.457 More fundamentally, despite the beginnings of medical knowledge of homicidal mania, pyromania and kleptomania, the Commissioners, like the judges, would not allow any direct acknowledgment of the idea of irresistible impulse. Later, Fitzjames Stephen would prove almost alone in favouring an approach that would ask whether the accused had the will power to restrain himself. He was unable to persuade his fellow commissioners of 1879 to include an additional provision to cover the case. As so often before, to do so was said to run ‘the risk of a jury being misled by considerations of so metaphysical a character’.458 Subsequent decisions of the courts would only confirm the Rules in their more restricted interpretation.459 The judges, it is plain, felt the need for a circumscribed law when working with juries who most often had to deal with insanity pleas on capital charges: the Rules must be severe enough to warn against undue sentiment in ‘inappropriate’ cases; there were ways enough outside the Rules for encouraging the exercise of mercy where it was warranted. One danger of a Code was that it might set out some ideal measure that ignored the workaday business of imposing justice in the existing courts. Once again, it was a type of interference which could seem a deep threat to those in charge of the adjudicative system. c. Irrelevance of Mens Rea: Strict Liability The illiberalities of nineteenth-century criminal law by no means ended with the presumption that an accused intended the necessary consequences of his acts. The lack of any over-arching principle requiring the prosecution to establish a prescribed element of intention, recklessness or at least want of due caution, varying with each crime, left open the possibility of criminal offences which could be committed merely by mistake or accident. One foretaste of what might happen emerged with the idea of vicarious criminal liability, which by the end of the eighteenth century had been recognised in those highly political crimes, seditious and blasphemous libel. A printer was not allowed to escape liability for these misdemeanours by showing that a servant had organised the publication of the offensive material without his knowledge.460 Through the decades when governments regularly resorted to these charges to suppress attacks on themselves and the established church, the judges insisted that printers should not be permitted to slough off the blame by such a plea. Only in 1843 did the one-time journalist, Lord Campbell, secure reversal of an oppressive principle.461 After 1832 new bureaucracies began to spread and their attempts to impose new order and standards on society depended a great deal upon their ability to lay down novel summary offences and successfully prosecute those who had committed them. Civil servants, commissioners and inspectors played important roles in advising upon and drafting new legislation, and Parliament was often sympathetic to their needs. It was obvious that new regulations 457 At first, they preferred to allow the defence if the accused believed his act to be legally or morally justified; but subsequently a majority thought the latter issue too uncertain to be determined by a jury: PP 1843 [448] XIX, 31; 1846 [709] XXIV, 9–11, 50–51. 458 Walker (1968) (n 450) 106–07; cf PP 1878–1879 [C 2345] XX 186. 459 See pp 604–5. 460 Originally stated as an evidential presumption by Lord Mansfield (R v Almon (1770) 5 Burr 2686), it became an independent rule in R v Walter (1799) 3 Esp 21 (Kenyon CJ). 461 Libel Act 1843, s 7. By this stage, the idea of vicarious criminal liability had spread to nuisance indictments (R v Medley (1834) 6 C & P 292); and this in turn provided a justification for indicting corporations (R v Great North of England Railway Co (1846) 9 QB 315).

586 Crime potentially created opportunities for defendants to escape the law by pleading mistake or ignorance. Such defendants might readily be believed by borough benches composed of men of a similar class, and thus might the new regulations against selling a dulterated food, operating dangerous machinery, or polluting air and water become dead letters. To prevent this possibility new regulatory statutes often prescribed two tiers of offences. The most serious offences were committed by those who had had intent or at least knowledge of a wrong whilst doing it. However, lesser offences were now specified which could also be committed by mere omission. Of course, the development of such legislation was much deprecated by parties who might be affected and there was much lobbying intended to protect the position of groups such as food producers or to disadvantage their competitors.462 In some instances, particular compromises would be adopted: an innocent defendant might escape liability by naming a servant or other person who was actually responsible;463 or the defendant might be given the burden of proving that he acted with all due diligence.464 But there was not much consistency in practice. The judges were not the originators of the legislation, but their views were decisive in settling what prosecuting authorities and statutory draftsmen could hope to accomplish. For the most part, they reached their judgments under the rules for statutory interpretation, striving to read the edicts of Parliament according to ‘ordinary grammatical meaning’, and seizing on logical clues to resolve an ambiguity. The Commissioners of Excise, for example, were granted a discretion not to prosecute a defendant who acted ‘without any intention to defraud’. The logical corollary was that they could so prosecute such a person if they wished. Thus, at their behest it was held in R v Woodrow465 that a tobacco dealer who had possessed adulterated tobacco was properly convicted even though he had supposed it to be pure. By the 1870s, when the Liberal Government promoted a severer Licensing Act and various pieces of public health legislation, offences requiring wilful conduct or action with knowledge were placed alongside offences which contained no such condition. The latter were interpreted as offences of strict liability.466 At least for summary offences of a regulatory character, it became the usual implication that unless a mental state was specified (or was an inherent part of a particular verb such as ‘permit’) the offence would be strict.467 This was perhaps particularly problematic when the principle was extended to more serious indictable offences. In 1872, Brett J held that a man who remarried, believing that 462 I Paulus, In Search of Pure Food: A Sociology of Legislation in Britain (Martin Robertson, 1974) traces the complex lobbying which occurred where groups of producers had an interest to keep out competitors who made substitute products of different quality or composition (eg margarine in place of butter); see also J Phillips and M French, Cheated not Poisoned?: Food Regulation in the United Kingdom, 1875–1938 (Manchester University Press, 2000); S Rioux, ‘Capitalist Food Production and the Rise of Legal Adulteration: Regulating Food Standards in 19th-Century Britain’ (2019) 19 Journal of Agrarian Change 64. 463 Factory owners secured this type of redirecting protection as early as the Factories Act 1833; cf Factories Act 1844, s 41; and see generally, W Carson, ‘The Institutionalisation of Ambiguity: The Early British Factory Acts’ in G Geis and E Stotland (eds), White Collar Crime: Theory and Research (Sage, 1980). The mine operators, who were even better organised, had a defence to charges under the early mines legislation, where an act was done without their personal consent, concurrence or knowledge: R v Handley (1864) 9 LT (NS) 827. 464 An early instance occurred in the Sale of Food and Drugs Act 1875, s 5; and note also, s 25. 465 (1846) 15 M & W 403. 466 On adulteration of food, see esp Fitzpatrick v Kelly (1873) LR 8 QB 337. On licensing, Mullins v Collins (1874) LR 9 QB 292; Cundy v Le Cocq (1884) 13 QBD 207. 467 For the growth of the modern law, see C Howard, Strict Responsibility (Sweet & Maxwell, 1963); LH Leigh, Strict and Vicarious Liability: A Study in Administrative Criminal Law (Sweet & Maxwell, 1982).

Part 2: Criminal Justice Transformed 587 his first wife was dead, would still be guilty of bigamy.468 In 1875, virtually the whole bench, sitting on a Crown Case Reserved, held the offence of abducting a girl under 16 from her father to be committed by a man who had reasonably believed the girl to have been over 16.469 Some of the judges justified their conclusion by arguing that if the age of the girl had been unknown still the defendant had known that what he was doing was morally wrong. The upshot was that mistakes about age were deemed equally irrelevant to charges of having sexual intercourse (‘carnal knowledge’) with girls under ten, or under 12. There evolved then a number of indictable offences in which reasonable ignorance of a fact within the definition of the offence provided no defence.470 However, there were a number of judges who were worried about the extension of the principle of strict liability into the area of more serious offences. Tolson in 1889 proved to be a test case.471 This concerned a bigamist who believed his first wife to be dead. A majority concluded that a reasonable belief in that circumstance amounted to a good defence. More importantly, the case asserted a presumption in English criminal law that a person could be convicted of an offence only if of a guilty mind. By this time, however, ‘regulatory’ or ‘private offences’ had long been accepted to be subject to the principles of strict liability. Despite some wavering, Tolson did not upset the previous judgments upon such cases. Strict liability remained, albeit mainly confined to lesser offences.472

iii. Criminal Process In comparison with the substantive law, criminal procedure showed greater signs of adaptation, if not of very marked change. In the later eighteenth century, as we have seen, barristers and attorneys were beginning to undertake business in the criminal courts and their involvement would continue to grow thereafter. It took a long time, however, before counsel was employed as a matter of course in either prosecution or defence. There were defendants who could not even afford the fee for a dock brief – even when the charge against them was murder.473 On the prosecution side, the principal change came with the expansion of professional police. Gradually they took over from individual victims of crime, prosecution associations and common informers, as well as their own predecessors in the parishes. However, when the new police instigated prosecutions, they acted as any citizen might, without acquiring special powers or the ability to stop prosecution by others. Successful prosecutions, however, could both advance the careers of individual officers and help to justify the existence of professional forces to the ratepayers. The motives of the new police in bringing prosecutions were oftentimes doubted. There was a particular concern about the practices in which they allegedly engaged, to 468 R v Gibbons (1872) 12 Cox CC 45; Brett J would, however, dissent vigorously in Prince. 469 R v Prince (1875) LR 2 CCR 154; R Cross, ‘Centenary Reflections on Prince’s Case’ (1975) 91 LQR 540. It had already been held that if the man believed that the girl had no father he would have had a defence: R v Hibbert (1869) LR 1 CCR 184. 470 Thus the offence of harbouring lunatics could be committed by persons who reasonably thought they were dealing with the sane: R v Bishop (1880) 5 QBD 259. 471 R v Tolson (1889) 23 QBD 168, reviewing the conflicting case law. 472 Tolson did provoke passing hesitation over a licensing offence (Sherras v De Rutzen [1895] 1 QB 918); but soon an increasing severity was apparent: a person could be guilty of selling adulterated milk, even if a third party had actually added to it after he had dispatched it: Parker v Alder [1899] 1 QB 20. 473 It was not until the enactment of the Trials for Felony Act 1836 that a person accused of felony acquired the clear right to counsel who could address the jury on his behalf. The change was recommended by the Criminal Law Commissioners over the fervent objections of some judges.

588 Crime elicit confessions, and concern about the inducements that the police sometimes offered, to persuade accomplices to turn King’s Evidence. The latter fear was naturally informed by an appreciation that in the past professional thief-takers and informers had readily been induced to give false evidence. However, there was a signal reluctance to create a prosecution service of professional lawyers who would take charge of the prosecution process and thereby act as some check upon the police. This had been advocated by Bentham, Colquhoun and others thereafter.474 After 1850, there would be a stream of bills to secure public prosecutors. But they made no progress until 1879 when the office of Director of Public Prosecutions was set up on a small scale, restricted to dealing with especially serious and difficult cases.475 Any radical departure from the past was prevented by the long-standing attachment to private prosecution and by a legal profession determined to preserve its private practice.476 Traditionally, supervision of the police had been left to the justices. However, the justices’ duties were modified over time, such that they no longer had a duty to take depositions, witness statements, etc, when a crime was complained of. Instead, they were to preside over a preliminary hearing. King’s Bench accepted that an accused person had a right to be present at these proceedings, and to question the prosecutor and his witnesses.477 The role of the justices then was converted from that of organising prosecutions into presiding over hearings that would in some degree protect a putative defendant from unsustainable accusations. Some thought that this merely repeated the process played out before the grand jury and that such a jury was in effect redundant. However, the grand jury was an integral bond between London and the provinces in matters of law and order, and despite the Victorian rearrangements it accordingly survived until 1933.478 With three tiers of due process – justices’ inquiry, grand jury deliberation and trial – most in the legal establishment were unconcerned about any excesses which might be committed by the police. By the 1840s the major concern was the blight of crime, which was allegedly spreading across the country and which the authorities were urged to eradicate.479 A reluctance to concede that such courts might ever be in error explains why there was considerable resistance to the idea of setting up a regular appeal court. From the 1830s bills promoting this cause were presented with weary regularity, but without success. There was an old tradition whereby an assize judge might reserve an issue of law for discussion with his fellows at Serjeants’ Inn. One possible outcome was that a person wrongly convicted might be offered a ‘pardon’ by the Crown. This was modified in 1848 by the setting up of a Court of

474 See JL Edwards, The Law Officers of the Crown (Sweet & Maxwell, 1964) ch 16. 475 On the long campaign, see P Kurland and D Waters, ‘Public Prosecutions in England, 1854–1879’ (1959) 9 Duke Law Journal 493. And on the consequences of the eventual police takeover of public prosecutions after 1879, see B Godfrey, ‘Changing Prosecution Practices and Their Impact on Crime Figures, 1857–1940’ (2008) 48 British Journal of Criminology 171. 476 In particular, attorneys commonly acted as clerks to the justices. 477 R v Arnold (1838) 8 C & P 621; buttressed by the Trials for Felony Act 1836, s 4 and the Indictable Offences Act 1848, s 17. 478 The grand jury was finally abolished, amid lamentations from the counties, as a cost-cutting measure: Administration of Justice (Miscellaneous Provisions) Act, s l. 479 See in particular the evidence collected by the Criminal Law Commissioners, PP 1845 [646] XIV; W Cornish, ‘Defects in Prosecuting – Professional Views in 1845’ in PR Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (Stevens, 1978); WW Pue, ‘The Criminal Twilight Zone’ (1983) 21 Alberta Law Review 335.

Part 2: Criminal Justice Transformed 589 Crown Cases Reserved composed of the common law judges.480 However, the court could pronounce only on questions of law, and it could not revisit the evidence presented before the trial court. Furthermore, cases were only heard in the Court of Crown Cases Reserved if the trial judge had decided to send them on because there was some difficult point of law that he felt should be resolved. As a result, the court heard only a handful of cases each year. There was no forum to which a person could appeal based on the claim that he or she had been wrongly convicted on the evidence, nor could a jury’s verdict be reopened should new evidence emerge. Equally there was no judicial body before which the severity of sentences could be questioned, even though Sir Joshua Jebb, for one, thought the ‘extraordinary diversity’ in the matter ‘the most marked failure of the law’.481 The Home Secretary could exercise his power of pardon in hard cases, but he was naturally reluctant to abnegate the verdicts of juries and the decisions of judges. From time to time there were undeniable miscarriages of justice which occasioned demands for a right of appeal. However, resistance to such a right was formidable and it lasted for a long time. Meanwhile, only those travesties of justice which were both most egregious and also pursued with the greatest tenacity were likely to prove sufficient to induce the Home Secretary to exercise his secretive discretion.482

E. The Causes of Crime Assessing what people thought were the causes of crime is a task fraught with difficulty. At all times there were contending voices offering different explanations. There were those qualified to speak who chose not to do so and those entirely unqualified to speak who had no hesitation in holding forth at every opportunity. Not much has changed there and in addition, as with today, those examining the causes of crime were often seeking an affirmation of their pre-existing views rather than engaging in objective enquiry. However, we certainly do those involved in the criminal justice system an injustice if we suppose that they were less intelligent than their modern-day counterparts. So, for example, there were some very shrewd justices of the peace, policemen and the like who were well able to make the connection between a poor local harvest and a rise in property offences. We might qualify this by observing that one of the characteristics of modern society is that we are habituated to look deeper into causes or further along the length of causal chains – so, for example, it makes sense for us to talk of emotional neglect as a child leading to the attention-seeking criminality of a teenager, but this, of course, would likely have been an incomprehensible idea to a Victorian policeman. For much of our period the immediate, ostensible reason for an act was simply accepted as ‘the cause’. Accepting the complexities, there were changes in the broad public discourse about crime over the course of the period. At the end of the eighteenth century, crime was overwhelmingly seen as a moral problem. For Patrick Colquhoun, crime was the product of idleness, unnecessary wants and improper gratifications: it was the outcome of improper 480 Criminal Law Administration Amendment Act 1848; and see the Select Committee Report on the Bill, PP 1847–48 (523) XVI. The Court’s views were weighty, since all the judges might sit; for general discussion, see P Handler, ‘The Court for Crown Cases Reserved, 1848–1908’ (2011) 29 L&HR 259. 481 In evidence to the Carvarvon Committee: PP 1863 (499) IX, Q 1198. 482 Radzinowicz and Hood (1986) (n 317) vol 5, 758–64.

590 Crime choices made by calculating individuals.483 It was, of course, the poorest who were allegedly most attracted to unnecessary wants and therefore for the most part criminality was firmly to be located at the bottom of society. Colquhoun’s contention that there were very large numbers of people in London subsisting off the proceeds of crime was important in nourishing the belief that there was a criminal underclass who had set themselves professionally against the rest of society.484 Reference has already been made to the bogus specificity of his ‘statistics’ in respect of such persons.485 However, in 1805 the clerks of circuit and assize courts were ordered by the Home Office to provide details of committals for trial on indictment and the number of capital sentences passed and actually carried out. Published from 1810, these statistics gradually came to incorporate lesser offences. When the Home Office took over the collection of criminal statistics in 1834, it divided offences into six classes: offences against the person; offences against property committed with violence; offences against property without violence; malicious offences against property; currency offences; and miscellaneous offences.486 In 1857, statistics from police and prisons were included with those on prosecutions, and a certain amount of material was thus provided about those who were being put through the mill of criminal justice. The information provided by the police, however – notably on the number of crimes known in their area and on the background of prisoners – has to be treated with reserve, for there are signs that some forces used the opportunity to gild their record of investigating and clearing up crime.487 In 1893, the work was taken over at the Home Office by John McDonnell, who brought to it a new degree of intelligence and commitment.488 If poverty was occasionally admitted to be the cause of criminality, many avoided the implications of this by asserting that segments of the poor were tempted into crime because of their own defective characteristics and habits. Thus, a prison chaplain asserted that ‘the passion for intoxicating drink is the cause of almost all crime and misery done or suffered by the working classes’.489 In 1839 the Royal Commissions on a Constabulary Force reported that ‘the notion that any considerable proportion of the crimes against property are caused by blameless poverty we find disproved at every step.’490 The argument that it was the character of some of the poor rather than poverty itself which induced crime was reinforced by the observation that there were many who were poor and yet who were also honest. As the nineteenth century progressed, there was an increasing tendency to separate out honest working society from the criminal classes. Hitherto, the poor and the criminal had often been assumed to be one and the same. Declining radicalism, generally increasing prosperity, and the success of the patriotic imperial enterprise in unifying the nation, eventually served to domesticate the workingman (especially 483 Godfrey and Lawrence (2005) (n 51) 111. 484 See D Philips, ‘Three Moral Entrepreneurs and the Creation of a “Criminal Class” in England, c 1790–1840’ (2003) 7 Crime, History & Societies 79. 485 See p 518. 486 C Emsley, Crime, Police and Penal Policy: European Experiences, 1750–1940 (Oxford University Press, 2007) 119. 487 See esp J Tobias, Crime and Industrial Society in the Nineteenth Century (Batsford, 1967) App; but for the value of what can be extracted from the nineteenth-century records, see VAC Gatrell and TB Hadden, ‘Criminal Statistics and Their Interpretation’ in EA Wrigley (ed), Nineteenth Century Society: Essays in the Use of Quantitative Methods for the Study of Social Data (Cambridge University Press, 1972). 488 See OR McGregor, Social History and Law Reform (Stevens and Sons, 1981) 27–32. 489 Rev J Clay, cited in Godfrey and Lawrence (2005) (n 51) 113. 490 Royal Commission on a Constabulary Force, Parliamentary Papers (1839), XIX, 73 (para 65).

Part 2: Criminal Justice Transformed 591 the skilled workingman) in the eyes of many of his betters. Put simply, such a man did not appear nearly so alien and threatening towards the end of the nineteenth century as he had done at the beginning and it was during this time, of course, that he came to benefit both from state sponsored education and the franchise. Conversely, though, there was increasing emphasis upon the existence of ‘dangerous or perishing classes’ which were quite distinct from the industrious workers. Such classes were feral and they tended to congregate in the worst slums – the rookeries – of the towns. Incapable of productive labour, sometimes their whole families lived by crime.491 For persons living in such idle savagery, colonial metaphors were appropriate: they lived, as William Booth put it, In Darkest England.492 By the final quarter of the nineteenth century, however, there were those who argued that the criminal classes required not merely punishment but also treatment: ‘fears of dambursting anarchy began to be replaced by opposite fears of a disabled society of ineffectual, devitalized, and over-controlled individuals moulded by environmental and biological forces beyond their control.’493 The idea of the individual as a wholly autonomous moral creature was weakening. Much of the effort to rescue juveniles was based on the premise that they must be wholly removed from corrupting surroundings and given adequate food, clothing and bedding, if they were to be made fit for a regular routine of physical work, schooling and the inculcation of moral probity. However, those who had already reached adolescence, in the view of many who took up the cause of punishment, could no longer be reached by a change of environment and moral fervour. A proportion might still be frightened by harshly deterrent imprisonment, but some were incorrigible, and that fact, while in one sense an admission of failure, also opened up the prospect of detaining an habitual offender for long periods to protect the public, for much the reason that many lunatics, criminal or otherwise, were also locked away.494 The first strategy actually adopted was to expand and tighten the requirement that offenders with substantial records report monthly to the police for seven years after discharge. But heavy-handed surveillance of this kind proved largely unworkable.495 The experience would teach that aid societies, and not the police, were the only realistic way of securing cooperation from those discharged. In the late nineteenth century, the theory gained some currency that habitual criminality was biologically determined – an atavistic throwback to an earlier, nastier type in the chain of human evolution. Such ideas had already surfaced within the penal establishment in Britain by the time that the Italian criminologists Lombroso, Ferri and Garafalo purported to give them scientific reinforcement by their relentless measuring of criminals in order to prove their ape-like physical characteristics.496 There was not a little scepticism expressed 491 Henry Mayhew’s detailed portraits of lower-class London life in mid-century contributed significantly to these overall perceptions: London Labour and the London Poor (Griffin, Bohn & Co, 1861–1862) and (with J Binny) The Criminal Prisons of London and Scenes of Prison Life (Griffin, Bohn & Co, 1862). See D Englander, ‘Henry Mayhew and the Criminal Classes of Victorian England: The Case Reopened’ (2002) 17 Criminal Justice History 87 and AL Beier, ‘Identity, Language and Resistance in the Making of the Victorian “Criminal Class”: Mayhew’s Convict Revisited’ (2005) 44 JBS 499. 492 W Booth, In Darkest England and the Way Out (Salvation Army, 1890). 493 Wiener (1990) (n 44) 13. 494 Early exponents of these and other measures were Matthew Davenport Hill and Walter Crofton: Radzinowicz and Hood (1986) (n 317) vol 5, 243–53. 495 Habitual Criminals Act 1869, substantially rewritten by the Prevention of Crimes Acts 1871 and 1879. The new system applied not only to those discharged from penal servitude on ticket-of-leave but also to any second offender, if so ordered by the court. There were also provisions strengthening the Vagrancy Act 1824 against landlords and publicans who harboured thieves. See Wiener (1990) (n 44) 148–51. 496 See Emsley (2007) (n 486) chs 10 and 11.

592 Crime within England as to these experiments, and some had already rejected such claims outright. Dr Charles Goring of the Prison Service undertook a controversial study of 3,000 convicts which eventually disproved the anthropometric thesis of the Italians. But family and social background was also investigated, leading Goring to his own set of deterministic conclusions. He claimed to have shown that the professional criminal in large measure inherited his propensity from his parents, and that beside this all environmental factors, including even the likely lack of moral example in his family circumstances, were of little significance. The study was a landmark in the advance of eugenic thinking and carried with it the overtone, equally to be found in Lombroso, that society would be justified in adopting measures to control and condition its inferior stock, in which individual rights would be subordinate to the administration of ‘treatment’.497 In his turn, Goring had to face criticism from many influential people, who felt some of the sinister implications of his argument, and refused to accept that criminal behaviour could be so categorically related to inherited factors. But even before his Report appeared, growing concern over the recidivist would lead in 1908 to the introduction of additional periods of detention for those found to be ‘habitual criminals’.498 One factor which helped to mark the habitual criminal out for special treatment was the optimistic belief that the Victorian campaign against crime was producing a definite diminution overall. This was a view espoused by Sir Edmund Du Cane, Chairman of the Directors of Convict Prisons. His establishments were certainly less busy. In the final decades of the nineteenth century the numbers of prisoners incarcerated at any one time declined dramatically. The numbers in convict prisons sank from 10,000 in 1877/78 to just 4,383 in 1883/84, and over the same period the numbers in local prisons declined from some 21,000 to some 13,850.499 In part this was the result of a tendency to give shorter sentences in the harsh regime that Du Cane had inaugurated. Historians, however, are inclined to believe that in addition this was a period during which the police had achieved a temporary advantage over organised criminal enterprises and that crime may indeed have been falling.500 Statistics are of course open to manifold interpretations. Critics of Du Cane’s regime concentrated upon evidence of increased recidivism amongst offenders, and argued that in fact crime was on the increase.501 Yet only a minority of those who ran the system doubted Du Cane’s view. There was a general optimism that social 497 L Radzinowicz and R Hood, The Emergence of Penal Policy in Victorian and Edwardian England (Oxford University Press, 1990) 20–27; Emsley (2007) (n 486) 195–96. 498 Radzinowicz and Hood (ibid) 8; Bailey (1997) (n 312) 302–03; C Emsley, Crime and Society in Twentieth Century England (Routledge, 2011) 192. 499 C Harding, ‘The Inevitable End of a Discredited System? The Origins of the Gladstone Committee Report on Prisons, 1895’ (1988) 31 HJ 591, 594. 500 Harding (ibid) 594 observes that the average prison sentence fell from 48 days in 1880 to 34 days in 1893. The declining number of indictments suggests in addition that this may well have been accompanied by a declining number of reported offences; see VAC Gatrell, ‘The Decline of Theft and Violence in Victorian and Edwardian England’ in Gatrell et al (n 199); Wiener (1990) (n 44) 342–43; Bailey (1997) (n 312) 297; Emsley (2007) (n 486) 129–30. 501 In 1892, The Nineteenth Century published an article by the Wandsworth chaplain, WD Morrison, asserting that the evidence suggested crime was rising. The same edition, however, contained a second article by Edward Troup of the Home Office asserting that it was falling. Du Cane defended his corner, but Morrison’s criticisms of the prison regime under Du Cane (esp Crime and its Causes (Sonnenschein & Co, 1891)) were influential in engendering the doubts which led to the Gladstone Committee Report in 1895 and to Du Cane’s replacement by Evelyn Ruggles-Brise.

Part 3: Into the Twentieth Century 593 progress – the rise in real wages, the proper organisation of poor relief, the clearance of slums, the spread of education and o pportunity – had led to a genuine reduction in the crime and disorder that had characterised the early industrial cities and towns. Police forces, in their early years almost as unpopular with the respectable classes as with the rest, had come to be seen as great bastions of decency and authority, as necessary as the prisons in disciplining those recalcitrant elements that refused to embrace the progress of the age. It was during this time of late Victorian confidence that questions began to be asked as to whether the severity of punishment might not be mitigated, especially in respect of those not yet hardened offenders who might benefit from more humane programmes aimed less at punishment and deterrence than rehabilitation.

Part 3: Into the Twentieth Century A. The Police i. Structures of Organisation In 1857, immediately after the counties were obliged to establish professional police, there were over 19,000 paid officers in England and Wales – a third of them in London; slightly fewer in the boroughs; and slightly more in the counties. It is perhaps appropriate to add a qualification to the term ‘professional’, for although these policemen were paid, few stayed in their respective forces long enough to become trained and experienced officers. Turnover was extremely high and many men were dismissed for incompetence, drunkenness or wilful disobedience. For example, of the new officers recruited in Middlesborough between 1854 and 1869, 50 per cent resigned or were dismissed within one year of service and a staggering 97 per cent served less than five years.502 Nonetheless, the total number of officers increased to 44,260 by 1901 and to 60,500 by 1939 in the provinces, if not in London, a rise well ahead of the general increase in population.503 Over time, the particular compromises reached in relations between central government and local authorities, between politicians and the executive heads of the police forces, and between police forces and local magistrates, came to be seen as important pillars of the constitution. The relationship that justices had traditionally maintained with ‘their’ police outlasted the 1888 reforms in which elected county councils replaced the bench of justices in most matters of county government. Special committees created as police authorities were drawn half from the new county councils and half from the Quarter Sessions benches.504 By that time, the system of central grant in return for inspection had become standard. The initial disdain for central funds, which some borough watch committees and county benches had shown, had worn away, and by 1890 all of the 183 forces still in existence were

502 D Taylor, ‘Melbourne, Middlesborough and Morality: Policing Victorian “New Towns” in the Old World and the New’ (2006) 31 SH 15, 26. 503 JM Hart, The British Police (Allen & Unwin, 1951) 34. 504 Local Government Act 1888, ss 9, 30.

594 Crime passed as efficient by the Home Office Inspectors of Constabulary.505 Increasing dependence upon the central grant naturally allowed central government to influence independent forces and so too did occasional steps of rationalisation, such as the centralisation of criminal records with the Criminal Investigation Division of the Metropolitan Police. But there was no real resumption of the campaign, so vigorously mounted by the Commissioners of 1836–1839, for a nationally directed force.506 After WWI, the D esborough Committee did favour compulsory absorption of non-county borough police serving less than 50,000 inhabitants into surrounding forces.507 It was a modest enough proposal in the name of efficiency, but nothing immediate would come of it. During WWII, the Home Secretary required a number of amalgamations for strategic reasons, and this was followed in 1947 by the abolition of 45 separate forces in boroughs that were not county boroughs for local authority purposes.508 Certain additional powers were given to require amalgamation after local inquiry, but it would take another two decades for much to change.509 On no other issue has local suspicion of central pretensions remained so easy to arouse, and with such good reason.510

ii. Social Background of Officers Initially, Victorian forces had been secured largely from the unskilled working class; and to a considerable extent the intermediate positions of command – the sergeants and inspectors – were filled from those in the ranks. As mentioned above, the rigours of police discipline and the general hostility of the public ensured that the average period of service was short, and many constables were dismissed or left the service voluntarily. However, in the final decades of the nineteenth century conditions improved, with the result that a policeman’s lot had, in comparative terms, much to recommend it. Pay was unexceptional but it marginally improved in most forces from the 1870s. An important advantage of police service was that the salary was predictable and payment secure: it was not subject to the extreme fluctuations observable in, for example, agricultural labour. Furthermore, for the ambitious there were genuine prospects for promotion. Pay was supplemented by additional allowances which subsidised lodgings, food and fuel. In addition, free medical attendance, sick leave and sick pay, together with the payment of gratuities in consequence of injuries suffered, offered a degree of security unknown to most workers at the time. Moreover, after the Police Act 1890 policemen were statutorily entitled to pensions after a period of 25 years’ service and these were paid upon the comparatively generous terms of up to two-thirds of their weekly wage.511 Service itself may have become slightly less onerous with the increasing level of public support for the institution and a modest relaxation in the discipline. As Shpayer-Makov has demonstrated in respect of the Metropolitan 505 On central-local relations, see CA Williams, ‘Rotten Boroughs: The Crisis of Urban Policing and the Decline of Municipal Independence 1914–64’ in CA Williams (ed), Police and Policing in the Twentieth Century (Ashgate, 2011). 506 Not till the Willink Commission in 1962 would it even receive much active debate. 507 PP 1920 [Cmd 874] XXII. 508 Under the Police Act 1946; the debates during its passage echoed old fears of nationalisation. 509 There were three voluntary amalgamations at the time. For the forms of amalgamation before and after the 1946 Act, see Critchley (1966) (n 84) 239–45. 510 See Critchley (1966) (n 84) 140–57; Steedman (1984) (n 381) part II. 511 H Shpayer-Makov, ‘The Making of a Police Labour Force’ (1990) 24 JSH 109, 113.

Part 3: Into the Twentieth Century 595 Police, the consequence of all the above was that the number of policemen resigning or being dismissed declined steadily in the last decades of the century.512 The fact remained, though, that whilst the wages of the ordinary constable compared favourably with those of unskilled labourers, they were less than those of skilled artisans, and to many policemen this seemed a poor recompense for all the restrictions to which they were subjected.513 Thirty-nine Metropolitan policemen were dismissed in 1890 for having struck in an attempt to establish a negotiating body for themselves.514 The 1890 reforms took some of the sting out of calls for union representation, but widespread discontent reappeared in the early years of the twentieth century when the police authorities failed to ensure that wages kept pace with the cost of living. In 1913 a Metropolitan Police Union was formed under cover.515 The lot of the average policeman became substantially worse during WWI. Many found their new role as overseer of the morals of servicemen’s wives distasteful, their pay lagged behind wartime inflation, leave was curtailed, and finally, in early 1917, policemen were excluded from the list of reserved occupations – with the Police Union alleging that members of their union were being particularly selected for draft into the military.516 In the summer of 1918, the union called a strike in which some 6,000 out of 18,000 officers walked out. Sir Edward Henry, the Commissioner, was forced to resign and Lloyd George conceded a pay rise. He then appointed the Desborough Committee the following year to enquire further into police pay and conditions.517 The Government accepted its recommendations on pay: that uniform conditions of service should be introduced, and, for instance, that a constable’s starting salary should increase from around 30s to 70s. The Government were, however, determined to resist unionisation of police forces and when a second strike was called upon this issue, those who took part in it were dismissed peremptorily. The Police Act 1919 imposed a structure for future industrial negotiations, comprising a Police Federation to represent the interests of all ranks up to that of inspector and a Police Council to act as a central advisory body. It was, however, a condition of service, spelled out in the Act, that no police officer should join a trade union. The new deal accordingly owed something to Whitleyist hopes for industrial collaboration, and something more to the Government’s determination not to allow unionism to spread to a point where it might penetrate the armed forces. It was a compromise purchased at a price which gave a constable

512 ibid 110 fig 1. For an insight into police culture at this period and the increasing respectability of the constabulary see M Clapson and C Emsley, ‘Street, Beat and Respectability: The Culture and Self-Image of the Late Victorian and Edwardian Urban Policeman’ (2002) 16 Criminal Justice History 107. 513 There were significant regional variations. For London see Shpayer-Makov (1990) (n 511) 115–16; for Middlesborough see D Taylor, ‘The Standard of Living of Career Policemen in Victorian England: The Evidence of a Provincial Borough Force’ (1991) 12 Criminal Justice History 108, 127, table 6. 514 Mason (2004) (n 359) 16. 515 The initial protagonist was an inspector, John Syme, for whom it was one step in a lifetime of personal protest: see GW Rowlands and A Judge, The Night the Police Went on Strike (Weidenfeld and Nicolson, 1968) ch 2 and App 3; and for earlier ‘mutinies’ within the Metropolitan police (in 1872 and 1890), Apps 1 and 2; also Steedman (1984) (n 381) ch 7. 516 For resistance to the Metropolitan Police’s attempts to oversee the behaviour of the wives of soldiers and sailors see SJ Brown, ‘An “Insult to Soldiers’ Wives and Mothers”: The Woman’s Dreadnought’s Campaign Against Surveillance on the Home Front, 1914–1915’ (2016) 7 Journal of Modern Periodical Studies 121. For the removal of reserved occupation status see Emsley (1991) (n 351) 124, and for general discussion of this period, see M Fraser, Policing the Home Front 1914–1918: The Control of the British Population at War (Routledge, 2019). 517 Mason (2004) (n 359) 15–19.

596 Crime half again over an unskilled wage, and in the coming deflation that differential was more than maintained.518 Policemen could now be attracted from a somewhat higher social level with better educational attainments. This was said to be justified by a growing sophistication in police work. Certainly, the business of detecting and preventing crime; of controlling motor traffic as it rapidly expanded; of dealing with motoring offenders, whose social position differed markedly from the general run of criminals; of understanding and applying a growing miscellany of legislation, lent its support to this claim.519 But a change in the quality of the police was welcome to those in authority for other reasons. There had been signs before WWI that social tensions were mounting to a level scarcely known since the 1840s. The police and the army had come under grave strain in keeping order during the massive strikes of 1910–1912,520 and there were other contributory factors, such as manifestations of Irish nationalism and the Suffragettes’ stratagem of confrontation. Continuing industrial agitation during the war left the Government and its supporters wary of the trade unions and worried about the impact of the Russian revolution on working-class loyalties. Concessions to the police meant that the authorities were able to depend upon them during the great strikes of the 1920s. After the General Strike in 1926, subscribers expressed their gratitude for the helpful neutrality of the police to the tune of £250,000, which went into the Police Fund.521 The police were able, in that immense confrontation, to observe the high traditions of Rowan and Mayne, since the leaders of the unions insisted that the rituals of sober, peaceable demonstration be observed. On less public occasions, there were signs of other tactics. The politically suspicious – which for much of the period primarily meant members of the British Communist Party and other organisations of markedly socialist aspiration, such as the National Unemployed Workmen’s Movement – found themselves harassed at speeches and demonstrations;522 and, until a court imposed some curb, they were liable to have the police searching their premises for incriminating material under the pretext of making an arrest.523 By contrast, the first manifestations of rightist militancy attracted much less concern. On one notorious occasion in London’s East End, the police removed a Communist speaker and put a Fascist in his place. Eventually, however, the bully-boy antics of Mosley’s British Union of

518 Rowlands and Judge (n 515) App 4; Critchley (1966) (n 84) 194–98. 519 Much was made of all this by the Desborough Committee in its Second Report, PP 1920 [Cmd 574] XXII. Even after the improvements, there were those, such as Arthur Dixon of the Home Office, and Lord Trenchard, who took charge of the Metropolitan Police in 1930, who were deeply dissatisfied with the quality of senior officers and set about founding an elitist Police College: Critchley (1966) (n 84) 203–09. 520 Notably in the Tonypandy riots in November 1910 and the Liverpool unrest of August 1911: Critchley (1966) (n 84) 179–81. 521 Critchley (1966) (n 84) 198–200. 522 The courts proved ready to support authority: the police were held entitled to move a speaker (from the NUWM) away from a place (outside an Unemployment Training Centre in London) even if it was only on thin evidence that they had reason to believe that a breach of the peace might ensue: Duncan v Jones [1936] 1 KB 218. Equally they were entitled to attend a meeting on private premises (of the International Labour Defence League in Wales) where they feared sedition: Thomas v Sawkins [1935] 2 KB 249. See generally Williams (1967) (n 396) chs 5 and 6. 523 Elias v Pasmore [1934] 2 KB 164: even then, Horridge J held illegally seized evidence to be admissible; some of it (taken from NUWM headquarters) was used to prosecute Elias successfully for inciting disaffection. It was a measure of the Government’s anxiety, that it insisted on pushing through the Incitement to Disaffection Act 1934, a milder but wide-ranging version of the Incitement to Mutiny Act 1797: Williams (n 396) 187–92.

Part 3: Into the Twentieth Century 597 Fascists became truly apparent, particularly after the notorious rally at Olympia in 1934.524 In 1936, the Government finally moved against such manifestations as political parades in militaristic uniform, with the Public Order Act.525 From this time, police treatment of demonstrations became less noticeably partisan. It was taken for granted for all of this period that the police constable would be male. In the Victorian period some women had been engaged as matrons superintending police cells and there were female warders in the appropriate prisons. It was not until WWI, when there was a shortage of male labour and when there was in addition a particular concern about the conduct of wives and sweethearts left behind at home, that women gained some opportunity to enter the world of policing. In addition to a number of armed service auxiliary organisations such as the Voluntary Aid Detachments and the First Aid Nursing Yeomanry, the war spawned two women’s police organisations. The unpaid Women Police Volunteers were first formed in 1914 at the instigation of the Headmistresses Association and under the leadership of Nina Boyle, head of the Political and Military Department of the Women’s Freedom League, and Margaret Damer Dawson, a wealthy Chelsea socialite.526 The two soon fell out and Damer Dawson took control of the renamed Women’s Police Service (WPS). The WPS was uniformed, to a degree disciplined and made the claim to the status of police officers. It had no formal legal position, however, and therefore under Damer Dawson it was particularly concerned to bolster its authority by recruiting ‘educated gentlewomen’.527 To an extent it was rivalled by the Voluntary Women Patrols, a looser affair of occasional volunteers established by the National Union of Women Workers under the direction of Louise Creighton, one-time anti-suffragist and widow of the Bishop of London.528 Both groups spent much of their time engaged in patrolling public spaces to prevent acts of immorality and in tasks such as searching women workers entering and leaving munitions factories.529 Whilst activities such as curfew patrols were popular with the authorities and middling groups, they alienated some working-class women and sat uneasily with the origins of the WPS in particular, in the broad socialist movement. Throughout the war, Damer Dawson’s attempts to get official recognition for the WPS were thwarted not merely because of a p rejudice against the very idea of women officers, but also because of a sense that they might be rather middling busy-bodies apt to stoke up resentment rather than to sustain public order. The utility of having a women’s force was, to a limited extent, acknowledged when in October 1918 Sir Nevil Macready, the new Metropolitan Police Commissioner, formed

524 On the BUF generally, see MF Mandle, Anti-Semitism and the British Union of Fascists (Longman, 1968); R Skidelsky, Oswald Mosley (Macmillan, 1975). After the Suffragettes’ first confrontation with Lloyd George at the Albert Hall in 1908, a Departmental Committee had stated that the police had no right to enter private premises unless invited (PP 1909 [Cd 4673] XXXVI, 6]). This was used by the Government as the reason why Blackshirt stewards were left to police Olympia without external restraint. Thomas v Sawkins was decided only afterwards: Williams (1967) (n 396) 142–44. 525 The Act contained some important strengthening of police powers over those granted by the Public Meeting Act 1908; see Williams (1967) (n 396) chs 6, 7 and 9. 526 See P Levine, ‘Walking the Streets in a Way No Decent Woman Should: Women Police in World War I’ (1994) 66 JMH 34; RM Douglas, Feminist Freikorps: The British Voluntary Women Police, 1914–1940 (Praeger, 1999) 102–11. 527 Douglas (ibid) 20. 528 Douglas (ibid) 14–15. 529 At Gretna, near Carlisle, over 9,000 women were employed to produce munitions and 150 members of the WPS had the responsibility of searching them when they entered and left the factory.

598 Crime a 100-strong Metropolitan Police Women’s Patrol. The Police Act 1916 had allowed the employment of women as professional police constables. but there was a great deal of resistance to the idea. The new force was unsworn and so the women did not exercise any powers of arrest. Furthermore, Macready conspicuously avoided any cooperation with the WPS.530 Thus sidelined, the organisation renamed itself the Women’s Auxiliary Service in 1920 and its volunteers played an important role in maintaining transport services during the 1926 General Strike.531 The idea that general policing could be done as well by women as by men was scarcely entertained in the post-war period – advocates of women police officers were obliged to argue that there might upon occasion be particular tasks which they could more appropriately perform. Even here they generally received short shrift. WWII brought some opportunity with the formation of the Women’s Auxiliary Police Corps, but the thinking was very much that women would temporarily replace men during a time of labour shortage, or that they might do more menial duties in order to free men for more important work. In 1941 the Home Secretary remarked that: It is true that police duty is, for the most part, a man’s job but such work as driving cars, typewriting and attending the telephone can be done by carefully selected women. There is no reason why canteen duties should not be taken over entirely by women.532

After the war most constabularies established units of women police, but they remained limited to particular duties. By 1963 there were some 3,000 women police officers in England and Wales, but this was only about only 3.5 per cent of the total staff and it was not until after the Sex Discrimination Act 1975 that women were absorbed into the general police system and permitted, despite continuing resistance, to perform the full range of policing activities and enjoy the career opportunities therein. The range of policing activities had been utterly transformed by the time that women were effectively able to participate in them. The business of detection had gradually become more elaborate and many forces had set up special detective departments, following the model of the Criminal Investigation Department at Scotland Yard, which was set up in 1878.533 To a degree, the work was improved by advancing technology, notably through the arts of finger-printing and forensic pathology.534 Much of the investigative work, though, continued to consist of keeping contact with criminal circles, interviewing witnesses, organising identifications, interrogating suspects and collecting evidence from the scene of the crime. The Metropolitan Police for their part were naturally much engaged in security work, the threat coming primarily from Fenian bombing campaigns. In 1883 explosions at the Local Government Board and The Times offices inspired the foundation of the Special Irish Branch at Scotland Yard, which in turn became the Special Branch in 1887.535 530 Douglas (1999) (n 526) 70–74. 531 The change of name to the Women’s Auxiliary Service was forced upon the organisation by Macready who successfully argued in a court case that by adopting similar uniforms the WPS was in effect passing itself off as members of his own Women’s Patrol. 532 RD Ingleton, The Gentlemen at War: Policing Britain 1939–1945 (Cranborne, 1994) 173. 533 For the rise of the investigative branches, see H Shpayer-Makov, The Ascent of the Detective: Police Sleuths in Victorian and Edwardian England (Oxford University Press, 2011); GR Rubin, ‘Calling in the Met: Serious Crime Investigation Involving Scotland Yard and Provincial Police Forces in England and Wales, 1906–1939’ (2011) 31 LS 411. 534 Finger-printing, which became established after 1893, made the identification of recidivists much more certain and so stimulated the discussion of how to treat them. 535 In the Met, there had been a small, unpublicised detective department from 1842 onwards. A corruption scandal in the 1870s led to the setting up of the CID in 1878 under Howard Vincent and then the establishment of

Part 3: Into the Twentieth Century 599 Their work soon expanded to include surveillance of international anarchists resident in London, whose activities included the murder of a policeman in the Tottenham Outrage of 1909 and of three more during the Siege of Sydney Street in 1910. In the febrile atmosphere immediately prior to war, suffragettes, socialists and suspected foreign spies came under surveillance.536 The police during this time were mainly unsupervised, with the Director of Public Prosecutions being only occasionally involved in their activity. This sometimes led them to abuse their powers. A Royal Commission, which had to be conceded in 1929 as the result of demonstrated instances of corruption and other suspicious incidents,537 heard a considerable number of complaints – in particular, that the police often detained suspects for unlimited periods of time, and that during interrogations they handed out some rough treatment. The questioning of suspects had long been a difficult issue, over which the judges had sought to exercise some control through the rule that only a confession shown to have been voluntary was admissible in evidence. Beyond that, they had on occasion sought to instruct the police in the limits of acceptable practice, and in 1912 they were moved to issue guidance in the form of Judges’ Rules. The Royal Commission in the main sought to allay fears of untoward police behaviour, dismissing most allegations as nothing more than the occasional over-enthusiasm of young constables. Nevertheless it felt obliged to accuse the CID at Scotland Yard of ‘a tendency … to regard itself as a thing above and apart, to which the restraints and limitations placed upon the Ordinary Police do not, and should not apply.’538 The distrust of the police as the strong arm of a snooping state, which was endemic among the lower working class,539 thus filtered occasionally upwards. Particularly after their partisanship in political demonstration became well publicised, the threat to individual freedom once more became a serious talking point. The National Council of Civil Liberties was formed in 1933 with numerous prominent names among its members.540 The experience of economic collapse and political confrontation roused all the old fears of the respectable against a civil force which was not constantly monitored and publicly criticised.

B. Criminal Law and Procedure i. Altered Procedures As the work of preparing and prosecuting fell increasingly to the police, a larger proportion of cases came to be dealt with entirely before magistrates in petty session. Under the the Scotland Yard Special Irish Branch in 1883. See generally, B Porter, The Origins of the Vigilant State: The London Metropolitan Police Special Branch Before the First World War (Weidenfeld & Nicolson, 1987). 536 Emsley (1991) (n 351) 100–02. 537 In particular, the bribes proved to have been received by Sergeant Goddard, and the curious case of the arrest of Sir Leo Chiozza Money with a Miss Savidge in Hyde Park. 538 Royal Commission on Police Powers and Procedure, PP 1929 [Cmd 3297] IX. 539 A feeling well-captured in the writings of Stephen Reynolds: see esp (with B and T Woolley) Seems So! A Working-Class View of Politics (Macmillan, 1911); see also Humphries (1981) (n 335) ch 6. 540 Its secretary, Ronald Kidd, published British Liberty in Danger (Lawrence and Wishart, 1940); other significant contributions to the movement were WH Thompson, Civil Liberties (Gollancz, 1938); A Barrister, Justice in England (Gollancz, 1938) ch 9; and also the accounts of W Hannington of the NUWM, esp Unemployed Struggles 1919–1936 (Lawrence and Wishart, 1936) and Ten Lean Years (Lawrence and Wishart, 1940). See also C Moores, Civil Liberties and Human Rights in Twentieth-Century Britain (Cambridge University Press, 2017) ch 1.

600 Crime traditional system, all indictable offences went either to Assizes or Quarter Sessions and, unless the accused pleaded guilty, a jury tried the issue. But a first breach had come in Peel’s Larceny Act of 1827; and after that there were a series of expansions, notably (for adults) in 1855 when all larcenies of objects worth less than 5s became triable summarily at the accused’s option; in 1879, the maximum value was raised to £2, in 1915 to £20, and in 1925 it was removed entirely.541 Many defendants chose to go before the magistrates, mostly to plead guilty in the hope that they would get no more than the maximum penalty open to the summary court. Equally, it suited the police to avoid the delays, expense and uncertainties of a jury trial. As common offences such as larceny were opened to summary trial, there was an immediate increase in the number of charges actually proceeded with.542 If the matter could be dealt with before the local bench, the police often carried the whole process through, even to the extent of presenting the case in court. There did not need to be active complicity with the bench, for the police to be able to expect a measure of trust from justices and stipendiaries who often enough were case-hardened to the round of defendants before them; criminal business, after all, had become the central function of their office. Many justices also sat on Watch or Police Committees and took a rather proprietary view of ‘their’ force. There were other important changes in procedure. During the first half of the n ineteenth century, neither parties in a civil case nor defendants in a criminal one were deemed competent to offer testimony. This was a bar designed to prevent perjury, but reform on the civil side around the mid-century made the situation of defendants in criminal cases seem anomalous. The County Courts Act 1846 allowed testimony by parties in the new courts and the Evidence Amendment Act 1853 extended this privilege to the superior courts.543 Defendants in the criminal courts, however, still found themselves impaired. One particular case came to trouble would-be reformers. In 1859 the Rev Henry Hatch, a schoolmaster, was convicted of having molested a girl in his care and sentenced to four years’ hard labour. Neither he nor his wife had been able to give evidence in court and his solicitors had failed to summon defence witnesses. Hatch petitioned for a royal pardon setting out his own statement and the evidence of his wife and other parties. The jury were approached and declared that they would not have convicted had they seen the evidence that was now laid before them. Through public subscription the funds were raised to prosecute the girl for perjury. Hatch and his wife were now, of course, able to take the stand, the girl was convicted and Hatch subsequently pardoned.544 Bentham had argued decades earlier that justice was not served where the defendant had no opportunity to exonerate him- or herself.545 Following on from the Hatch case, there was a particular concern 541 For a concise discussion of the summary and Quarter Sessions in the nineteenth century see P Polden, ‘The Court of Law’ in W Cornish et al, The Oxford History of the Laws of England (Oxford University Press, 2010) vol 11, part 3, ch 13. See also RM Jackson, ‘The Incidence of Jury Trial During the Last Century’ (1937) 1 MLR 132. Other crimes were also added to the list; and for juveniles the range of crimes triable summarily was at all times greater, leading eventually in 1908 to the establishment of juvenile courts in which those under 16 were to be tried. There were also some ‘hybrid’ offences where the prosecutor could choose whether the trial should be summary or on indictment; and some summary offences could be sent by magistrates for trial on indictment. But the division of work was largely dictated by what happened in larceny cases. 542 Jackson (n 541). 543 WE Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (Yale University Press, 2015) 184. 544 Schneider (n 543) 181–82. 545 Bentham’s assaults on the preclusion of evidence by treating potential witnesses as incompetent (in the Treatise and the Rationale of Judicial Evidence) led to the practice being reversed for civil litigation between 1843 and

Part 3: Into the Twentieth Century 601 about the trial of sexual offences where third-party witnesses were seldom available to either side. Whether or not the apprehension was real, gentlemen felt themselves particularly vulnerable to slanderous accusations. In 1885 the Criminal Law Amendment Act reiterated penalties for homosexual conduct, raised the age of consent and laid down new penalties for sexual offences against women and children.546 However, by way of protecting the wrongfully accused, it made defendants, and their spouses, competent to give evidence when accused of offences covered by the act. Whilst the purpose of this concession was clear, it nonetheless gave rise to a number of anomalies which were soon commented upon unfavourably. In certain types of assault, one could give evidence in one’s defence; in other types one could not. In 1897 the Criminal Evidence Bill, making all defendants competent to speak in their own defence, was introduced into the House of Commons. Not all were in favour, however. Some argued that the uneducated were actually protected by the prohibition upon testimony. Clever cross-examination would tie such defendants up in knots and work greatly to their disadvantage. Whatever the truth of it, when the Bill became the Criminal Evidence Act 1898, defendants could not be compelled to take the stand. However, failure to do so was to risk the jury or bench of magistrates drawing adverse inferences.

ii. A Court of Criminal Appeal Appeals in civil cases had been allowed since the seventeenth century, but not in criminal cases. Legislation in 1848 had provided for the creation of a Court of Crown Cases Reserved to which a judge could ‘state’ a case if he so desired.547 The court could, however, only rule on points of law; it could not reconsider evidence, nor could a judge be compelled to put a case before it.548 That a significant constituency felt this to be inadequate is attested to by the 31 bills on the subject of criminal appeal that were considered in Parliament between 1844 and 1906.549 That none succeeded is testimony to the force of the resistance. Arguments against a right of appeal were based in part on the belief that the power of the Home Secretary to commute sentences or grant pardons was a sufficient bulwark against the miscarriage of justice. It was also argued that rights of appeal would both clog up the criminal justice system and undermine the jury system. Less commendably, perhaps, one can also imagine that those on the bench were reluctant to have their own conduct of a case or its outcome subject to scrutiny.

1851. On the criminal side, Bentham had no patience even with a privilege against self-incrimination: GW Keeton and DR Marshall, ‘Bentham’s Influence on the Law of Evidence’ in GW Keeton and G Schwarzenberger (eds), Jeremy Bentham and the Law (Stevens & Sons, 1948); WL Twining, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicolson, 1985) ch 2. 546 The raising of the age of sexual consent for women to sixteen followed a long campaign by pressure groups: MJD Roberts, Making English Morals: Voluntary Association and Moral Reform in England, 1787–1886 (Cambridge University Press, 2004) 263–72. Forty years of additional campaigning to raise it still higher were unsuccessful and the rule was merely restated in the Criminal Law Amendment Act 1922, a failure which resulted from a difference of view between those who wished to protect young women against sexual defilement and those who wished to punish them for sexual immorality: K Stevenson, ‘“Not Just the Ideas of a Few Enthusiasts”: Early Twentieth Century Legal Activism and Reformation of the Age of Sexual Consent’ (2017) 14 Cultural and Social History 219. 547 Criminal Law Administration Amendment Act 1848. 548 See K Whiteway, ‘The Origins of the English Court of Appeal’ (2008) 33 Canadian Law Library Review 309. 549 R Pattenden, English Criminal Appeals, 1844–1944: Appeals Against Conviction and Sentence in England and Wales (Clarendon Press, 1996) 6–16.

602 Crime Newspapers and legal scandals played no small part in dragging the legal horse to water. The Times, The Pall Mall Gazette, The Daily Telegraph and other publications were engaged by the end of the nineteenth century in campaigns against alleged miscarriages of justice. The controversial cases of Lipski (1887) and Maybrick (1889) were followed by the wrongful identification and conviction of Adolf Beck for fraud (1896) and then the highly dubious conviction of the Birmingham solicitor, George Edalji (1903) for maiming a horse.550 The protests of leading figures on behalf of Edalji, such as Sir Arthur Conan Doyle, set the scene for the Criminal Appeal Act 1907 under which a convicted offender would be able to appeal not only as of right on questions of law, but also in order to challenge the jury’s verdict on questions of fact, or mixed law and fact, or to seek a reduction of sentence.551 From this there was to be further appeal to the House of Lords, but only if the Attorney-General certified that a point of law of exceptional public importance was at stake. The conviction might be quashed or maintained, but no power to order a re-trial was introduced. Many of the judges who sat in the new court were amongst those who had been most sceptical of the need to create it.552 However, in the years 1909–1912, the Court heard an annual average of 450 applications to appeal and 170 actual appeals. Of the latter it quashed the conviction in 20 per cent of the cases and varied sentence in another 22 per cent.553 The need for the court would not continue to be questioned. The most apparent progress proved to be in matters of procedure.554 On a variety of fronts, the new court strove to limit the opportunities for oppressive tactics by the prosecution: the simultaneous trial of more than one defendant, of more than one indictment, and of multiple and disparate counts in a single indictment, were in various circumstances held improper; the introduction of rebutting evidence after the defence had closed its case was curtailed; the production of an offender’s record after conviction and before sentence was made to comply with procedures which previously had obtained only on the Northern Circuit. The Court insisted at numerous points that it was not for the judge to invade the jury’s province by converting an issue into a matter of law, or by giving some other mandatory instruction. Nor were judges to hound witnesses or to insist that a defence proceed despite an inadequate prosecution case. It is apparent that the old absence of control had allowed a great deal that was aggressive or slipshod to occur. The new tightening from the centre did much to improve the treatment of those under trial. Over time, the court came to ‘exercise a profound and usually benign influence on the conduct of criminal trials’ as a by-product of its review of cases.555 Equally, the court became regularly engaged in considering and refining the law of evidence as it applied to the protection of defendants. It was at the outset of the Court’s career that the King’s Bench judges conferred official status on the Judges’ Rules laying down 550 Whiteway (2008) (n 548) 10–12. The mistaken identification of Beck as a fraudster, Smith, led to two convictions and prison sentences for defrauding women; Edalji was convicted of attacking a horse, but the attacks continued after he was detained, and there were indications that the police had set out to get him. A Committee of Inquiry into the Beck case recommended a right of appeal only on issues of law, a question about the exclusion of evidence having been crucial to that case: PP 1905 [Cd 2315] LXII. Accordingly it was the Edalji case (also the subject of an inquiry – PP 1907 [Cd 3503] LXVII) which obliged the Government to provide for appeals relating only to the facts. 551 An appeal on sentence, however, risked the possibility of it being increased. The Court came to warn those for whom this was likely when they applied for leave to appeal. 552 Polden (n 541) 805–08. 553 Whiteway (2008) (n 548). 554 But the older predilection for seeking errors or inconsistencies in the record had disappeared. 555 Polden (n 541) 808.

Part 3: Into the Twentieth Century 603 the proper course for police questioning of suspects.556 It then fell to the Court of Criminal Appeal to oversee the Rules in practice. Doctrinally, confessions were inadmissible in evidence unless shown to have been obtained voluntarily. However, the Court did not conclude that a confession was to be automatically excluded because it had been acquired in breach of the Rules. The judge enjoyed a discretion as to whether to admit it. The police complained that uncertainty as to the exercise of this discretion sometimes made their work unduly difficult, whilst defendants, and their representatives, complained that it did little to stop them being pressured and mistreated in police stations.557 The Court strove to make sense of the plethora of case law on the need to show corroboration of the evidence of accomplices, victims of sexual crimes and children not on oath. It achieved a certain clarity by insisting that the judge must advise the jury of the danger of convicting on an accomplice’s word without independent corroboration implicating the accused.558 The same approach was applied to sexual victims and the Court also occasionally upset a conviction where the correct warning had been given, because the conviction appeared ‘unreasonable’.559 Beyond this, there was a whole range of perplexing issues concerning the accused’s previous criminal record and his conduct on other occasions. For all the surprise that it could occasion to foreign observers, it had become the practice to exclude evidence of both matters, for fear that otherwise the jury would too readily infer guilt.560 But equally there was an exception, at least where the defence was accident or misapprehension or other mishap, which allowed the accused’s record to be admitted if it might show that he had in the past pursued a similar course of conduct which might make his defence implausible. An unfortunate tendency set in, to stretch the exception and so downgrade the rule, and nowhere more than in charges of alleged homosexual activity. In these cases, evidence of what had happened or had been discovered on other occasions was held admissible even to defeat a defence of alibi or mistaken identity.561 In connection with the opportunity, first afforded in 1898, for the accused to go into the witness box, there were further problems about the accused’s prior conduct. He could not normally be cross-examined on his past record, but there were exceptions: if the evidence suggested systematic behaviour which raised doubts about his current defence, if he had claimed a good character in court or had attacked the character of prosecution witnesses, then his own prior history might be alluded to.562 Here the Court on the whole 556 They required a caution (‘anything you say may be used in evidence’) to be given when an officer decided to charge a suspect with an offence, when a person in custody was questioned, and when a prisoner wished to volunteer a statement. They derived in particular from Hawkins J’s Preface to (Sir) Howard Vincent’s Police Code and Manual of the Criminal Law (Cassell & Co, 1881). They were issued at the Home Secretary’s request in 1912. The Court later said that they did not have the force of law, but that failure to observe their ‘spirit’ might lead a judge to exclude the confession at trial: R v Voisin [1918] 1 KB 531. 557 For subsequent revisions and criticisms, see Report of the Royal Commission on Criminal Procedure, PP 1980–1981 [Cmnd 8092] XLI, App 13. 558 R v Baskerville [1916] 2 KB 658. 559 R v Dent (1943) 29 Cr App R 120. 560 But the rule about ‘similar facts’ remained uncertain for most of the nineteenth century: J Stone ‘The Rule of Exclusion of Similar Fact Evidence: England’ (1933) 46 Harvard Law Review 954. 561 Thompson v R [1918] AC 221. In upholding the CCA’s decision, Lord Sumner in the HL characterised a whole attitude by saying (at 235): ‘Persons who commit the offences now under consideration, seek the habitual gratification of a particular perverted lust, which not only takes them out of the class of ordinary men gone wrong but stamps them with the hallmark of a special and extra-ordinary class, as much as if they carried on their bodies some physical peculiarity.’ 562 Criminal Evidence Act 1898, s l(f).

604 Crime steered a fair course, allowing the accused a certain scope to pursue his defence without courting the introduction of his previous record. But there were lapses: when the Court held that a doctor accused of manslaughter in the course of an abortion could be asked about his acquittal for a similar offence, the House of Lords fortunately overruled it.563 It is over matters of substantive law that the Court’s record is least adequate. The judges had insisted that the essential elements of criminal law were best left to be developed at their hands and not through any embracing code. Indeed, once the new Court was finally conceded, nothing much would be heard of the codification for which Victorian reformers strove so long and hard. On Lord Loreburn’s initiative, there was some work on statutory consolidation.564 But no permanent review machinery, even of a part-time nature, would be established before the Court reached its half-century. Yet the tone of many of the Court’s decisions on matters of basic principle betray a bluff, and sometimes hasty, dogmatism. Most common lawyers were concerned that there was a danger that the criminal law would become so formal and rigid that it would prevent both judge and jury responding appropriately to the facts of any particular case. So, for example, when the Court was called upon to provide a general test of what acts were sufficient to constitute an attempt to commit a crime, they responded with only a broad, bald distinction between what was ‘immediately connected’ and what was ‘remote’.565 Similarly, whilst the Court acknowledged the existence of the offence of public mischief, it felt no need to precisely define it, and was content to allow judges a generous latitude in considering whether acts complained of fulfilled the definition.566 In other matters, too, the Court was vague, and, for example, failed to adequately articulate the proper scope of crimes of fraudulent appropriation.567 They were more restrictive in respect of provocation as a partial defence to murder – almost the only offence for which the death penalty was now available. A defendant might be entitled to a manslaughter verdict if he could show that he had been provoked by his victim. There had long been limits on this defence, but the Court nonetheless worked to pull it tighter. The partial defence was only to be available where the conduct of the victim had been such as would have provoked the hypothetical reasonable man, and the Court further insisted that the killing should have been done so soon after the provoking conduct as to allow no chance for second thoughts.568 With the growth in psychiatric knowledge, pleas of insanity came to be supported by more sophisticated evidence from experts, but this seemed to cut little ice with the bench. Certainly the Court of Criminal Appeal insisted upon strict adherence to the terms of the M’Naghten Rules. In applying the ‘knowledge of right-from-wrong’ test, it was held to be knowledge of legal, not of moral, wrongfulness which was alone relevant.569 Nor was there scope for now admitting the notion of irresistible impulse. The Court disapproved 563 Maxwell v DPP [1935] AC 309. 564 He created an Advisory Committee on Criminal Law Consolidation, whose work led to the Forgery Act 1913 and the Larceny Act 1916. 565 R v Bloxham (1943) 29 Cr App R 37. 566 R v Manley [1933] 1 KB 529. 567 R v Hudson [1943] KB 458. 568 Culminating in Mancini v DPP [1942] AC 1; Holmes v DPP [1946] AC 588; R v McCarthy [1954] 2 QB 105; Bedder v DPP [1954] 1 WLR 1119. 569 R v Codere (1916) 12 Cr App R 21; and see R v Windle [1952] 2 QB 826.

Part 3: Into the Twentieth Century 605 of a d irection by the idiosyncratic McCardie J, which virtually admitted that conception in the case of Ronald True,570 although his bizarre killing of a prostitute suggested sufficient mental abnormality for the Home Secretary to grant a reprieve from execution. In the ensuing public outcry, the Government was obliged to set up a Committee of Inquiry under Atkin LJ, and this (to the surprise of many) recommended introducing irresistible impulse as a new M’Naghten category.571 However, the Court of Criminal Appeal, led by Lord Hewart CJ, remained opposed to a ‘fantastic theory’ whose introduction would be ‘merely subversive’.572 So nothing happened. The ultimate respect of the common law for the liberty of the individual was often claimed to lie in the principle that a man was presumed innocent until proven guilty. Early in its life, the Court of Criminal Appeal affirmed that, once there was evidence from which a defence might be inferred to a charge of receiving stolen goods, the burden of proof lay with the prosecution.573 The state of affairs in murder appeared, however, to be somewhat different. Where it was claimed that the defendant lacked the necessary malice aforethought (through accident, self-defence, drunkenness or provocation), the classic authorities suggested that the burden lay upon the defence to prove that the requisite mens rea was absent. Until, that is, Woolmington v DPP.574 The case concerned the shooting by a farm labourer of his wife. Although there was strong evidence of premeditation, he claimed that he had been attempting suicide and had somehow killed her instead by accident. At his first trial, Finlay J directed that the onus was on the Crown and the jury disagreed; at the second, Swift J put the burden on the defence and Woolmington was convicted. The Court of Criminal Appeal declined to overturn his direction, citing various precedents.575 However, in the House of Lords Lord Sankey famously and unequivocally declared that it was the prosecution’s duty to prove guilt beyond doubt and that this was the ‘golden thread’ running through English criminal law. Thereafter, it was clear that the prosecution bore the burden on issues of malice aforethought in murder – but this was subject to the exception found within the common law defence of insanity, and to such statutory exceptions that Parliament should see fit to enact.576

C. Punishment: New Ventures i. The Change of Course By the 1890s, frissons of doubt were beginning to shake the established social creed of Victorian England: poverty, for instance, might after all not be curable by helping those who would go back to useful employment and by subjecting the irredeemable to the 570 (1922) 16 Cr App R 164. 571 PP 1923 [Cmd 2005] XII. For this and Lord Darling’s ill-fated attempt to pursue it with a Bill: Walker (n 450) 108–09. 572 R v Kopsch (1925) 19 Cr App R 50. 573 R v Schama and Abramovitch (1914) 11 Cr App R 45. 574 [1935] AC 462. 575 In particular, Foster’s Crown Law (1762) 255 was repeated in subsequent texts and digests. 576 On the evolution of a general presumption of innocence in criminal cases, see A Stein, ‘From Blackstone to Woolmington: On the Development of a Legal Doctrine’ (1993) 14 JLH 14; BP Smith, ‘The Presumption of Guilt and the English Law of Theft, 1750–1850’ (2005) 23 L&HR 133.

606 Crime iscipline of a less eligible workhouse; a sufficient education might not be installed in the d mass of children through ‘payment by results’. And so with the punishment of convicted criminals. The militaristic deterrence of the prisons, the regimented rigour of the reformatories and industrial schools, began to lose their aura of infallibility even before Du Cane’s retirement from the Prison Commission. In 1894 a Departmental Committee on prisons, chaired by William Gladstone’s son, Herbert, was set up in response to jarring criticism.577 Its Report, which would come to be venerated by subsequent penal reformers, certainly faced the basic issues of ideology and policy squarely.578 It began with the question, ‘Is the present Prison System sufficiently deterrent?’ and concluded that, at least for first offenders, it was. The Committee accepted the evidence of a number of experts that a more encouraging set of stages within prisons had a real chance of reclaiming ‘some of [the community’s] worst and most dangerous products’ who had descended into a life of habitual crime. As to how these people would be aided on their return to the outside world, the report had relatively little to say, since ‘the improvement of general social conditions is the work of the community’.579 The document was stamped with that cautious reformism which was beginning to accommodate the state’s manifold interventions to a world in which the working class had acquired a political voice. It did lead to some modification in the severity of the prison regime. Du Cane was retired and a cultured civil servant, Ruggles-Brise, took over the Prison Commission, acting much in the spirit of the Gladstone Report. Furnished with new powers by the Prison Act 1898, the regimes for both penal servitude and imprisonment were modified.580 The former had its initial nine months of separate confinement somewhat reduced – and this would be carried further in 1910, thanks to a public campaign mounted by John Galsworthy, the novelist and playwright.581 The latter, when it took the form of ‘first-class hard labour’ (the usual case), had involved the thankless drudgery dictated by the 1865 Act – this had been condemned by the Gladstone Report and was abandoned. Work, which tended to centre around the needs of the prison itself, was mostly done in associative silence, though this was less severely controlled than it had been. Living conditions were made a little less degrading, there was a small improvement in the diet, and punishments for insubordination and other breaches of rules became less severe, with flogging becoming rare instead of commonplace.582 Nonetheless routines remained drearily standard and would, by the time of Ruggles-Brise’s retirement in 1921, have been severely criticised by a succession of eloquent inmates, including suffragettes and

577 Particularly that of WD Morrison: see n 501; and generally, Radzinowicz and Hood (1986) (n 317) vol 5, 573–83; C Harding el al, Imprisonment in England and Wales: A Concise History (Croom Helm, 1985) 214–17. 578 PP 1895 [C 7702] LVI. The Committee took a bold view of its terms of reference. The Report spawned a number of further official inquiries: into education in prison, dietaries and aid on discharge: see PP 1896 [C 8154] XLIV; 1799 [C 9166 and 9514] XLII; 1897 [C 8299] XL. 579 But it was critical of earlier neglect and offered cautious encouragement to Discharged Prisoners’ Aid Societies which provided charitable help. 580 The Act had been given a stormy passage by Liberals who considered that the Gladstone Report stood for more radical change: Radzinowicz and Hood (1986) (n 317) vol 5, 579–83. 581 In 1899 the period was reduced to six months, only to be split into periods of three, six and nine months for first offenders, intermediates and recidivists in 1905. Galsworthy’s concern, published by his play, Justice, led Churchill, as Home Secretary, to reduce the period to one month for all save recidivists, who got three: Radzinowicz and Hood (1986) (n 317) vol 5, 588–99. ‘Separation’ was abolished in 1922 after Ruggles-Brise’s retirement. 582 For details see Radzinowicz and Hood (1986) (n 317) vol 5, 583–88; Harding et al (n 577) 211–32.

Part 3: Into the Twentieth Century 607 then wartime conscientious objectors.583 Equally, while Ruggles-Brise actively fostered the setting up of special places for the custody of late adolescent convicts (which became named thereafter after the very first at Borstal), he was not greatly concerned to avoid a prison-like atmosphere in them, and they in turn would come under increasing attack, notably from the Borstal Association. In truth, Ruggles-Brise, once a pupil of TH Green, remained suspicious of techniques for rehabilitating criminals which would compromise the notion that they had been sent for a prescribed measure of punishment. Whether that punishment was penal servitude or imprisonment, it should proceed in accordance with general criteria. It was for the individual prisoner to make what he chose of the opportunities those criteria provided. It was dangerous to give the authorities the sort of discretion which would allow them to restrict privileges and retard release until they were satisfied with the prisoner’s ‘progress’.584

ii. Alternatives to Institutions Sir Godfrey Lushington, Permanent Under-Secretary at the Home Office, gave evidence to the Gladstone Committee in more radical vein: ‘the true mode of reforming a man or restoring him to society is exactly in the opposite direction’ from life in prison, where inevitably ‘the status of a prisoner throughout his whole career was unfavourable to reformation’.585 Soon afterwards, Lushington was himself to chair a Committee on Reformatory and Industrial Schools which was heavily critical of the majority of these establishments, for their harsh and discouraging regimen. A minority of the Committee, moreover, denounced the ‘asylum theory’ adopted by some magistrates and school authorities, which led to children being sent to the schools whenever they would be ‘better off ’, and not only when the step was necessary in order to protect them or the public. One result of this criticism was a marked reduction in the numbers being sent, particularly to industrial schools.586 The schools had come to be looked upon with some complacency; their successes led the Gladstone Committee to favour similar institutions for the 16–21 age group, which became the borstals.587 To attack the very idea of institutional isolation, to seek to confine it to the cases of last resort, was accordingly a fundamental challenge. Its adoption by experts both in the prison service and at the Home Office showed how far their professional idealism had carried them from the disciplinary tenets of those who had led the previous generation. Their criticism, however, could make little headway without some practical alternative to offer and this they found primarily in the concept of probation. The idea of releasing a convict back into the community under a measure of supervision had not been entirely unknown in the nineteenth century.588 The justices had long had the power to discharge persons on recognisances to be of good behaviour; dedicated reformers, such as MD Hill, had encouraged experiments in supervised freedom as an alternative to a custodial sentence; the final stage of penal servitude became a release on licence; and

583 Culminating in S Hobhouse and F Brockway (eds), English Prisons Today (Longmans, 1922). 584 See Radzinowicz and Hood (1986) (n 317) vol 5, 596–99. Ruggles-Brise was equally suspicious of the Lombrosian theory of inherited criminality, for which see pp 591–92. 585 Referred to in the Report, PP 1895 [C 7702] LVI, § 25. 586 PP 1896 [C 8204] XLV. 587 Report (n 578). 588 See Radzinowicz and Hood (1986) (n 317) vol 5, 633–42.

608 Crime in 1871, and then again in 1886, legislation made it possible to place offenders under the supervision of the police.589 It was not, however, until the movement to establish university and charity settlements in the working-class districts of London and other great cities, that the concept began to gain real support. ‘Missionaries’ were attached to police courts, originally in pursuit of temperance, but soon enough in a wider role.590 Where offenders were convicted for the first time, or for some other reason might be expected to keep out of crime in future, they might be placed under the supervision of one of these ‘workers’. In 1907, all criminal courts were given power to appoint regular probation officers. Offenders might be placed under their supervision for a set period, the consequence of failure to comply with the order being that offenders could be recalled and sentenced into custody.591 In 1922, such appointments were made mandatory. For some time afterwards, most probation officers would come from charitable bodies dealing with delinquency. Their introduction was part of that larger shift by which voluntary visiting was translated into trained, salaried social work. So far as penal practice is concerned, it constituted the most basic redirection of the Ruggles-Brise era. It gave new impetus to the conception that a proportion of those convicted (and in particular young offenders) could be helped toward lives of social conformity and economic independence by skilled counselling and a degree of watchful supervision.592 And this in turn depended on a perception of crime as largely a social phenomenon – a pattern of behaviour most often stimulated by an unfavourable environment – particularly in family life – but capable of being changed by training in work skills and practice in self-control. The thesis seemed confirmed by the disruptive conditions of WWI, when many mothers went to work in factories. A large increase in the conviction rates of young offenders followed; yet by the 1920s the conviction rates had fallen back to roughly pre-war levels.

iii. The Paterson Era The two decades between wars stand out for the expressions of optimism expressed by the leaders of the move towards penal reform. On Ruggles-Brise’s retirement there emerged a number of dedicated, high-principled leaders – as chairmen of the Prisons Commission, Maurice Waller, Harold Scott and Alexander Maxwell;593 as Chief Inspector of Reformatories and Industrial Schools, Dr Arthur Norris; as assistant in charge of the Home Office’s Children’s Branch, Sydney Harris; and prime among them all, the Prison Commissioner, Alec Paterson.594 589 Prevention of Crimes Act 1871; Probation of First Offenders Act 1887, promoted by Sir Haward Vincent, the creator of Scotland Yard. 590 S Auerbach, ‘“Beyond the Pale of Mercy”: Victorian Penal Culture, Police Court Missionaries, and the Origins of Probation in England’ (2015) 33 L&HR 621. 591 Probation of Offenders Act 1907; Radzinowicz and Hood (1986) (n 317) vol 5, 642–47. A contemporaneous movement succeeded in reducing the number of cases in which fine defaulters would be sent to prison: see the Criminal Justice Administration Act 1914; ibid 648–51. It was also a period when the treatment of the mentally ill, the feeble-minded and the habitually drunk received independent consideration: ibid chs 9 and 10. 592 R Gard, ‘The First Probation Officeers in England and Wales 1906–14’ (2007) 47 British Journal of Criminology 938. 593 The last went on to be Permanent Under-Secretary at the Home Office. 594 The ‘Beveridge’ of the penal system according to V Bailey, Delinquency and Citizenship (Clarendon Press, 1987) 4.

Part 3: Into the Twentieth Century 609 In the minds of such men the punitive, deterrent object of imprisoning, which RugglesBrise had sought to maintain, and to secure in the new borstal institutions, lost way in the face of rehabilitative concerns. In Paterson’s watchword, ‘Men are sent to prison as a punishment and not for punishment.’ Determined efforts were made to provide more varied opportunities for work, with a particular emphasis on training for release. Prison earnings were increased as a real incentive to good behaviour; the lumpy patchwork of after-care arrangements was sewn into an effective cover, maintained by the state and voluntary associations in real coordination. With this drive, the old differences between the two types of custodial sentence were reduced; indeed, penal servitude became uncommon and would be phased out after the next war. To what extent, though, were the more idealistic expressions transformed into a real amelioration of imprisonment? Victor Bailey has suggested that the pace of reform after the Gladstone Committee Report in 1895 was really rather slow.595 The Prison Officer’s Magazine in the interwar period often carried pieces indicating that the rank and file were out of sympathy with the ‘long-haired, water-drinking reformers’ to be found within the Home Office or the Prison Commission.596 There were credible testimonies that emerged after the serious riot at Dartmoor Convict Prison in 1932,597 that prison officers had been in the habit of administering unofficial beatings to recalcitrant prisoners in their cells.598 In its aftermath Cicely Craven, Secretary of the Howard League, asserted that: Constructive reform … has not failed at Dartmoor; it has barely begun … only about a third of the total number of inmates have received visits from unofficial visitors, or attended classes … the men spend from 18–19 hours a day in their cells.599

Nonetheless, financial stringencies obstructed much that was most imaginative in this replanning. A Departmental Committee under Sir Isidore Salmon catalogued the modest level of achievement and helped create a run of opinion in favour of more substantial progress.600 In the 1938–39 session the Government promoted a wide-ranging Criminal Justice Bill, but the outbreak of war would leave it on the shelf until 1948.601 Paterson’s special achievement was in redirecting the thrust of borstal so as to make it primarily a training for older adolescents.602 The regimented discipline and prison-like work schedules were replaced by more substantial periods of education and training, following the pattern of jobs outside. The most promising ‘lads’ were selected for open borstals and the first groups actually built the premises while living in camps.603 Under strong leadership, they appeared to be turning out young men who did not afterwards quickly appear again

595 Bailey (1997) (n 312) 321. 596 Prison Officers’ Magazine, March 1929, XVIII (3): 69. 597 A Brown, Inter-War Penal Policy and Crime in England: The Dartmoor Convict Prison Riot, 1932 (Macmillan, 2013). 598 ibid 35. 599 Saturday Review 151 (3981) 175. 600 Report on the Employment of Prisoners, PP 1933–1934 [Cmd 4462] XV. 601 See p 614. 602 See generally, Bailey (1987) (n 594) Part IV. 603 The small number of girls receiving this sentence could be accommodated in a single borstal (at Aylesbury), but they proved difficult to manage: Bailey (1987) (n 594) 208–10.

610 Crime before the courts.604 The whole initiative radiated success for progressivist ideals. It seemed to demonstrate that the spirit of comradely striving, which those in charge had learned at public school, and applied in the settlements and clubs of the slums and the trenches of France and Flanders, could equally be inculcated at the most difficult social levels.

iv. Juveniles As for children and young offenders, they had come to be separately treated in the juvenile courts set up as distinct units of summary jurisdiction by the ‘Children’s Charter’ of 1908.605 Some of the justices and stipendiaries who sat in these courts took a strong interest in rehabilitative treatments.606 The reformatories and industrial schools which were the main custodial institutions for these age groups came under renewed criticism for their unimaginative regimentation from a Departmental Committee in 1913, and thereafter the pressure did not relent.607 Psychological and psychiatric study suggested that there should be much more careful assessment of the physical and mental condition of juveniles before and during punishment.608 A more sympathetic approach made it easier to equate behaviour which in the lowest classes became crime with the disobedience and daring not uncommon in children of the respectable. There were, of course, divisions of opinion among those who argued for changes of approach. In particular, there were those who opposed custodial treatment so long as any alternative (including now probation) had a chance of working; and those who were convinced that a period in a home at the age of 12 or 13 was much more likely to have an effect than if it were put off for two years or so; and that indeed in some cases it should be possible to send boys and girls to a home for a shorter period in order to bring them up sharp.609 A Departmental Committee on Young Offenders of 1925–27 was chiefly preoccupied with deciding the merits of rival progressive theories and its important recommendations formed the basis of legislation in 1932.610 The most profound question before the Committee arose from the recognition that the retributive content of punishment for juveniles had been drained away. The sentence they received had, in most cases, little to do with the comparative gravity of their offence, and much more to do with their prospects for rehabilitation. If they were sent to a reformatory, their release would become a matter for those then in charge of them, and not the court. It was clear, moreover, that the police, education authorities and social workers were frequently reluctant to involve the courts in dealing with delinquent children, because the process would brand them with the stigma of conviction. According to the Howard League for Penal Reform, for instance, the logical step would be to make the handling of juveniles a guardianship procedure on the model of

604 Another important experiment was the establishment of hostels to which young offenders could be sent as a condition of probation. 605 K Bradley, ‘The Children Act 1908: Centennial Reflections, Contemporary Perspectives’ (2009) 68 HWJ 303. 606 Notable among them were Clarke Hall of London’s East End and Geraldine Cadbury of Birmingham: Bailey (1987) (n 594) 21 and 25. 607 PP 1913 [Cd 6838] XXXIX; Bailey (1987) (n 594) 47–57. 608 The dominant influence was that of the psychologist, Cyril Burt. His The Young Delinquent appeared in 1927: Bailey (1987) (n 594) 12–17, 31–33, 85–90. 609 See Bailey (1987) (n 594) ch 2, 92–95. 610 PP 1927 [Cmd 2831] XII; Bailey (1987) (n 594) 17–21, chs 2–4. The 1932 Act was consolidated with earlier legislation in the Children and Young Persons Act 1933.

Part 3: Into the Twentieth Century 611 Chancery, rather than a criminal process.611 However, the Committee, and some officials of the Home Office, balked at so transparent an acceptance of social welfare ideals, and the latter disliked a rearrangement of strategies which might transfer too much authority to the probation officers and the courts.612 The juvenile courts were therefore retained, though their benches were now specially trained and the words ‘conviction’ and ‘sentence’ were no longer used.613 The distinction between reformatories and industrial schools was abolished, both becoming ‘approved schools’ by virtue of their Home Office inspection. The period of detention was also limited to three years or until school leaving age.614 This had the object of encouraging schools to let their inmates out on licence to start work rather earlier (something which, as private institutions with declining rolls, they were often loath to do). It was hoped thereby to make magistrates less reluctant to send juveniles to the schools, and to encourage local authorities to make more use of the juvenile courts instead of putting children in trouble directly into homes under their own supervision. At the same time, enlarged powers of guardianship were given to local authorities for dealing with cases which did not warrant the intervention of the juvenile court.615 All in all, the new Act confirmed the crucial roles of the new welfare experts in the business of helping a considerable range of those under 16 to employable and law-abiding maturity.

v. Counter-movements Despite this unmistakeable change of tide, old currents were by no means submerged. By the early 1930s, there were statistics showing that rates of prosecutions were once more rising, particularly of juveniles.616 Pessimists, among whom peers, judges, magistrates and senior police officers were prominent, saw in these figures evidence of the ‘futile sloppiness’ of ‘sentimental justice’. They demanded that the arm of the law be strengthened in a number of particulars. Juvenile courts should once more become places of awesome judgment rather than ‘nice consulting rooms’.617 Corporal punishment, particularly for younger offenders, needed to be restored to regular use. When in its 1938 Bill the Government included a welfarist clause to replace beatings entirely as a punishment which a court could order, it became apparent that they would be defeated in the Commons. If they wanted to pursue the argument, they would have to work out some alternative form of ‘short, sharp shock’, perhaps on the lines of the ‘defaulters’ drill’ once proposed by Churchill.618 In consequence, the Criminal Justice Act 1948 would purchase the abolition of corporal punishment sentences with the introduction of detention centres; adolescents between 14

611 cf p 381. 612 See Bailey (1987) (n 594) 22–30, 73–84. 613 Children and Young Persons Act 1933, s 59(l). 614 ibid ss 57, 58, 68–74, 7and 9–83; Bailey (1987) (n 594) 95–103 and 151–52. 615 Children and Young Persons Act 1933, ss 61, 62, 77, 78, 80 and 84–85. 616 One explanation of the increase, of course, was that the 1933 Act had succeeded in encouraging more use of the courts. 617 Bailey (1987) (n 594) 88–121. 618 During his vigorous Home Secretaryship in 1910: Radzinowicz and Hood (1986) (n 317) vol 5, 770–75. The idea continued to attract officials: see generally, Bailey (1987) (n 594) 129–46.

612 Crime and 21 would be sent to these for three- or six-month spells of disciplining redolent of the parade ground.619 Capital punishment for murder and treason continued a prime article of the pessimists’ faith. In 1921, however, the Howard Association and the Penal Reform League merged to form the Howard League for Penal Reform. Initially somewhat ambivalent, the League soon turned decisively against capital punishment, influenced in particular by the controversial hanging of Edith Thompson in 1923.620 A Quaker, Roy Calvert, led the way in the formation of the National Council for the Abolition of the Death Penalty in November 1925. Membership was never more than 1,200 but included many influential Dissenters and establishment Anglicans.621 Calvert expressed deep abhorrence at the idea of the state destroying life, and could find no countervailing evidence that the penalty was a necessary deterrent, pointing particularly to countries which had abolished execution without experiencing an upsurge in the rate of killings. To the central moral argument could be added the objections that the punishment could not be reversed in cases of wrongful conviction, that executions were degrading for those who must carry them out and disturbing for the whole prison community involved, and that the press took a morbid and mercenary pleasure in purveying the details. During the second Labour Government, a Select Committee was in consequence moved to recommend a five-year suspension of hangings.622 But the succeeding National Government took little interest and failed to put an abolition clause in the Criminal Justice Bill of 1938.623 In 1948, the Labour Government also failed to include abolition in its Criminal Justice Bill, but an abolitionist amendment introduced by Sydney Silverman passed through the Commons by 247 votes to 224. That amendment was then defeated in the Lords. Although most Labour MPs were temperamentally inclined towards abolition, the Government refused to adopt a clear abolitionist position, informed as it was by several polls which indicated that more than two-thirds of the public were in favour of retaining the death penalty.624 So too were many bishops, most notably Geoffrey Fisher, Archbishop of Canterbury. As our period draws to a close, the issue was joined but far from resolved. The Gowers Royal Commission was set under way and from its Report in 1953 would flow the compromises of the Homicide Act 1957 and the eventual majority for complete abolition in 1967. In 1950, it could not have been predicted with any certainty that such a point would ever be reached. As the rounds of debate evidenced, advocates of the death penalty for murder were moved by a web of arguments. They believed in its peculiar deterrent value; but often they also wanted to wreak vengeance, a feeling mostly expressed in the retributive mode: life for a life. The conception of just proportion in sentencing generally had achieved a place among ideas of punishment only as the Bloody Code was replaced by measures capable of variation in time or amount. The first Criminal Law Commissioners had given it classic expression, as a necessary part of their Benthamic view of punishment

619 Section 48; Bailey (1987) (n 594) 295–97 and 299–302. 620 H Potter, Hanging in Judgement: Religion and the Death Penalty in England (Continuum, 1993) 120–21; R Weis, Criminal Justice: The True Story of Edith Thompson (Penguin, 2001). 621 ibid 125. In 1927 Calvert published the persuasive and influential Capital Punishment in the Twentieth Century. 622 PP 1930–1931 (15) VI. 623 A Commons resolution calling for its inclusion was passed, but nothing followed. 624 Potter (1993) (n 620) ch 12.

Part 3: Into the Twentieth Century 613 as a deterrent: those who committed more serious crimes should know that they risked severer punishment. Their 45 categories of sentence were attached to the crimes in their code as measures of the regular sentence, from which a court might make reductions for extenuating circumstances.625 Equally, the maxima set in the statutory definitions of the 1820s and 1861 were for some time treated in this light. But gradually sentences became shorter and the maximum was given only for exceptionally aggravated cases (although what constituted the norm still varied very considerably throughout the nineteenth century).626 When the Court of Criminal Appeal was finally created, with a power to review sentences, its very existence emphasised the strength of the retributive ideal. The Court indeed moved cautiously towards the idea of a ‘tariff ’ for typical forms of a crime. The trend held the approval of those most anxious to retain the deterrent impact of the legal machine, as well as those, like Ruggles-Brise, who mistrusted the enthusiasms of the scientific rehabilitators. It was the persistent offender who particularly roused the antagonisms between holders of these different views.627 The appropriate method of dealing with both the hopeless petty offender and the determined major criminal was much in issue at the time of the Gladstone Committee. That Committee acknowledged that a class of criminal did exist who did not respond to the threats of the existing system; but they were vague about who fitted within it and about what special punishments ought in consequence to be introduced. They did, however, hint at the possibility of some indeterminate additional sentence, and in the succeeding discussion various models were proposed.628 In 1908, Herbert Gladstone, now Home Secretary, saw through the Prevention of Crime Act, the second part of which essentially accepted the positivist case that persistent offenders, like those mentally disturbed, should be placed in custody (though their treatment should be somewhat more benign than prison regime in general) until, in the view of an Advisory Board, they had been rehabilitated. As a sop to retributive feeling, and at the same time as a hedge against overloading, those subjected to sentence as an habitual offender would first have to be given (and undergo) penal servitude of at least three years for the crime committed; and the court would set a ceiling on the further detention up to a maximum of ten years (with a minimum of five). To begin with, the Home Office set up facilities for the new sentence at Camp Hill and began to encourage courts to use the new punishment. The Home Office did not, however, meet with any great success owing to resistance from judges. The notion of the length of a sentence being substantially delivered into the hands of an administrative body brought into question established notions of the separation of powers and ultimately the

625 Seventh Report, PP 1843 [448] XIX; see Sir R Cross, ‘The Reports of the Criminal Law Commissioners (1833–1849) and the Abortive Bills of 1853’ in Glazebrook (n 479); Radzinowicz and Hood (1986) (n 317) vol 5, ch 22. 626 On this gradual evolution, DA Thomas Constraints on Judgment: The Search for Structured Discretion in Sentencing, 1860–1910 (University of Cambridge, Institute of Criminology, 1978); DA Thomas, The Penal Equation: Derivations of the Penalty Structure of English Criminal Law (University of Cambridge, Institute of Criminology, 1978); the first text on the subject was EW Cox, The Principles of Punishment (Law Times Office, 1877). See also Radzinowicz and Hood (1986) (n 317) vol 5, ch 23. 627 It used the expression, eg in R v Woodrow (1909) 2 Cr App R 67; Thomas, Penal Equation (n 626) traces the usage back at least to Lush J, PP 1875 [C 1138] LXI 8, and see JF Stephen, ‘Variations in the Punishment of Crime’ (1885) 17 Nineteenth Century 755. 628 Radzinowicz and Hood (1986) (n 317) vol 5, 265–87.

614 Crime role of the judiciary themselves. More broadly, the whole concept of preventative detention offended against the principle of nulla poena sine lege and by 1911 the judges had awarded the additional sentence only 53 times.629 Gladstone had predicted that 6,000 might be held as habituals at any time; but Churchill, as Home Secretary, became an outspoken opponent and ran the scheme very largely into the ground. By 1948, the sentence was virtually defunct and the Criminal Justice Act 1948 attempted a different formula. A scheme of corrective training sought to make available borstal-like conditions for those in the next age group in the scale – those over 21. For those over 30, with at least three previous convictions on indictment since 17 (for two of which there had been a custodial sentence), a sentence of preventive detention between five and 14 years could be passed without any initial period of ordinary imprisonment.630 But this too would not be much used. The idea that punishments should respect the principle of equal treatment was by then too firmly engrained. The 1948 Act was a legislative representation of the extent to which the Victorian penal system had been modified. While it contained new initiatives designed to give bite to its bark – notably the plans for detention centres and preventive detention – its main object was to foster progressive penal reform which Paterson had led between the wars. A careful balance of threats and incentives, administered in humane spirit by idealistic professionals, was the true path towards realisation of Beccaria’s utilitarian model, sketched two centuries before. In the decades which have since passed, every element in the 1948 package has either undergone profound change or has been abandoned. The growth of crime which has accompanied increasing prosperity has given a cutting edge to the jeremiads of the pessimists and has led many in the progressive camp from optimism to scepticism. But when the scheme was enacted it was to take its place beside the other programmes of a protective, watchful state, securing for all a basic income, adequate housing, necessary medical care, education to the limit of potential and care against the other major disasters and difficulties of life. Crime might not be irradicable, any more than poverty, but the community that was rebuilding out of the ashes of war, led by its first majority Labour Government, was thought to have the key to reducing and containing it in the future.

629 T Duve, ‘Global Criminology and the National Tradition: The Impact of Reform Movements on Criminal Systems at the Beginning of the 20th Century’ in M Pifferi (ed), Entanglements in Legal History: Conceptual Approaches (Max Planck Institute, 2014). For the statistics, see Departmental Committee on Persistent Offenders PP 1931–1932 [Cmd 4090] XII, esp App 3. 630 These followed largely from the recommendations of the 1932 Committee.

BIBLIOGRAPHY AND SUGGESTIONS FOR FURTHER READING There are many works of legal, social, economic, political and administrative history which might profitably be consulted for general background or more specific information and opinions about the matters which are surveyed in this book. We have not tried to identify all of these. We have sought only to record the main works that we consulted during the writing of the book, and to suggest further reading materials on the principal topics reviewed in each chapter and some associated topics which we have been unable to discuss owing to space constraints. Our aim has been to provide a resource for readers who wish to undertake further study of the topics listed here. Entries are grouped under thematic headings for each chapter and then arranged in chronological order.

Chapter One: Institutions and Ideas Social Change, 1750–1950 Detailed works on many specific topics are listed under the relevant headings for Chapters 2–8. The following general surveys are also recommended. FML Thompson, The Rise of Respectable Society: A Social History of Victorian Britain, 1830–1900 (Fontana Press, 1988). FML Thompson (ed), The Cambridge Social History of Britain 1750–1950, 3 vols (Cambridge University Press, 1990). J Rendall, Women in an Industrialising Society: England 1750–1880 (Blackwell, 1991). J Harris, Private Lives, Public Spirit: A Social History of Britain 1870–1914 (Oxford University Press, 1993). P O’Brien and R Quinault (eds), The Industrial Revolution and British Society (Cambridge University Press, 1993). P Johnson (ed), Twentieth-Century Britain: Economic, Social and Cultural Change (Pearson, 1994). MJ Daunton, Progress and Poverty: An Economic and Social History of Britain 1700–1850 (Oxford University Press, 1995). J Purvis (ed), Women’s History: Britain, 1850–1945: An Introduction (UCL Press, 1995). R McKibbin, Classes and Cultures: England 1918–1951 (Oxford University Press, 1998). P Clark (ed), The Cambridge Urban History of Britain, vol 2: 1540–1840 (Cambridge University Press, 2000). M Daunton (ed), The Cambridge Urban History of Britain, vol 3: 1840–1950 (Cambridge University Press, 2001). K Gleadle, British Women in the Nineteenth Century (Macmillan, 2001). I Zweiniger-Bargielowska (ed), Women in Twentieth-Century Britain: Social, Cultural and Political Change (Pearson, 2001). S Steinbach, Women in England, 1760–1914: A Social History (Weidenfeld & Nicolson, 2004). M Daunton, Wealth and Welfare: An Economic and Social History of Britain 1851–1951 (Oxford University Press, 2007). F Carnevali and J-M Strange (eds), Twentieth-Century Britain: Economic, Cultural and Social Change, 2nd edn (Pearson, 2007). M Hewitt (ed), The Victorian World (Routledge, 2012). F O’Gorman, The Long Eighteenth Century: British Political and Social History 1688–1832, 2nd edn (Bloomsbury, 2016). M Pugh, State and Society: A Social and Political History of Britain Since 1870, 5th edn (Bloomsbury, 2017). P Thane, Divided Kingdom: A History of Britain, 1900 to the Present (Cambridge University Press, 2018).

616 Bibliography and Suggestions for Further Reading

Economic Development, 1750–1950 (a) The Industrial Revolution: Timing and Location CK Harley, ‘British Industrialization Before 1841: Evidence of Slower Growth During the Industrial Revolution’ (1982) 42 JEH 267. D Cannadine, ‘The Present and the Past in the English Industrial Revolution, 1880–1980’ (1984) 103 P&P 131. J Langton, ‘The Industrial Revolution and the Regional Geography of England’ (1984) 9 TIBG 145. NFR Crafts, British Economic Growth During the Industrial Revolution (Oxford University Press, 1985). J Langton and RJ Morris, Atlas of Industrializing Britain, 1780–1914 (Routledge, 1986). G Turnbull, ‘Canals, Coal, and Regional Growth During the Industrial Revolution’ (1987) 40 Econ HR (2nd series) 537. P Hudson (ed), Regions and Industries: A Perspective on the Industrial Revolution in Britain (Cambridge University Press, 1989). M Berg and P Hudson, ‘Rehabilitating the Industrial Revolution’ (1992) 45 Econ HR (2nd series) 24. NFR Crafts and CK Harley, ‘Output Growth and the British Industrial Revolution: A Restatement of the Crafts-Harley View’ (1992) 45 Econ HR (2nd series) 703. LD Schwarz, London in the Age of Industrialisation: Entrepreneurs, Labour Force, and Living Conditions, 1700–1850 (Cambridge University Press, 1992). CK Harley, ‘Reassessing the Industrial Revolution: A Macro View’ in J Mokyr (ed), The British Industrial Revolution: An Economic Perspective (Oxford University Press, 1993). S Quinn, ‘The Glorious Revolution’s Effect on English Private Finance: A Microhistory, 1680–1705’ (2001) 61 JEH 593. P Antràs and J Voth, ‘Effort or Efficiency? Factor Prices and Productivity Growth During the English Industrial Revolution’ (2003) 40 EEH 5. J Mokyr, ‘Accounting for the Industrial Revolution’, P Hudson, ‘Industrial Organization and Structure’, K Bruland, ‘Industrialization and Technological Change’ and S Quinn, ‘Money, Finance and Capital Markets’, all in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialization 1700–1860 (Cambridge University Press, 2004). L Shaw-Taylor et al, ‘The Occupational Structure of England c 1710 – c 1871’ (2010) Working Paper published online at: www.campop.geog.cam.ac.uk/research/projects/occupations/britain19c/papers/paper3.pdf. L Shaw-Taylor et al, ‘The Occupational Structure of England and Wales c 1817 – 1881’ (2010) Working Paper published online at: www.campop.geog.cam.ac.uk/research/projects/occupations/britain19c/papers/paper4.pdf. E Griffin, ‘Patterns of Industrialisation’ in M Hewitt (ed), The Victorian World (Routledge, 2012). SN Broadberry, BMS Campbell, and B van Leeuwen, ‘When Did Britain Industrialise? The Sectoral Distribution of the Labour Force and Labour Productivity in Britain, 1381–1851’ (2013) 50 EEH 16. L Shaw-Taylor and EA Wrigley, ‘Occupational Structure and Population Change’, CK Harley, ‘The Legacy of the Early Start’ and N Goose, ‘Regions, 1700–1870’, all in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: 1700–1870 (Cambridge University Press, 2014). S Broadberry, BMS Campbell, A Klein, M Overton and B van Leeuwen, British Economic Growth 1270–1870 (Cambridge University Press, 2015) chs 10 and 11. EA Wrigley, The Path to Sustained Growth: England’s Transition from an Organic Economy to an Industrial Revolution (Cambridge University Press, 2016).

(b) New Institutional Economics and English Law, 1700–1850 DC North and BR Weingast, ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England’ (1989) 49 JEH 803. DC North, Institutions, Institutional Change and Economic Performance (Cambridge University Press, 1990). J Getzler, ‘Theories of Property and Economic Development’ (1996) 26 JIH 26. G Clark, ‘The Political Foundations of Modern Economic Growth: England 1540–1800’ (1996) 26 JIH 563. BR Weingast, ‘The Political Foundations of Democracy and the Rule of Law’ (1997) 91 American Political Science Review 245.

Bibliography and Suggestions for Further Reading 617 OE Williamson, ‘The New Institutional Economics: Taking Stock, Looking Ahead’ (2000) 38 Journal of Economic Literature 595. R Harris, ‘The Encounters of Economic History and Legal History’ (2003) 21 L&HR 297. R Harris ‘Government and the Economy, 1688–1850’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialization 1700–1860 (Cambridge University Press, 2004). DS Acemoglu, S Johnson, and JA Robinson, ‘Institutions as the Fundamental Cause of Long-Run Growth’ in P Aghion and S Durlauf (eds), Handbook of Economic Growth (North-Holland, 2005). D North, Understanding the Process of Economic Change (Princeton University Press, 2005). T Beck and R Levine, ‘Legal Institutions and Financial Development’ in C Menard and MM Shirley (eds), Handbook for New Institutional Economics (Springer, 2005). R Richter, ‘The New Institutional Economics: Its Start, Its Meaning, Its Prospects’ (2005) 6 EBOR 161. K Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (Brookings Institution Press, 2006). J Mokyr, ‘The Institutional Origins of the Industrial Revolution’ in E Helpman (ed), Institutions and Economic Performance (Harvard University Press, 2008). D Bogart and G Richardson, ‘Property Rights and Parliament in Industrializing Britain’ (2011) Journal of Law & Economics 241. H-J Chang, ‘Institutions and Economic Development: Theory, Policy and History’ (2011) 7 Journal of Institutional Economics 473. J Hoppit, ‘Compulsion, Compensation and Property Rights in Britain, 1688–1833’ (2011) 210 P&P 93. P O’Brien, ‘The Nature and Historical Evolution of an Exceptional Fiscal State and Its Possible Significance for the Precocious Commercialization and Industrialisation of the British Economy from Cromwell to Nelson’ (2011) 64 Econ HR (2nd series) 408. S Haggerty, ‘Merely for Money’? Business Culture in the British Atlantic, 1750–1815 (Liverpool University Press, 2012). A Musacchio and JD Turner, ‘Does the Law and Finance Hypothesis Pass the Test of History?’ (2013) 55 BH 524. R Harris, ‘Spread of Legal Innovations Defining Private and Public Domains’ in L Neal and JG Williamson (eds), The Cambridge History of Capitalism vol 2: The Spread of Capitalism: From 1848 to the Present (Cambridge University Press, 2014). G Clark, ‘The Industrial Revolution’ in P Agliou and S Durlauf (eds), Handbook of Economic Growth, vol 2A (Elsevier BV, 2014). AL Murphy, ‘The Financial Revolution and Its Consequences’ and J Hoppit, ‘Political Power and British Economic Life, 1650–1870’, both in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: 1700–1870 (Cambridge University Press, 2014). E Sahle, ‘Quakers, Coercion, and Pre-modern Growth: Why Friends’ Formal Institutions for Contract Enforcement Did Not Matter for Early Modern Trade Expansion’ (2018) 71 Econ HR (2nd series) 418.

(c) Economic Performance, 1850–1950 SN Broadberry, The British Economy Between the Wars: A Macroeconomic Survey (Wiley-Blackwell, 1986). B Eichengreen, ‘The British Economy Between the Wars’ in P Johnson (ed), Twentieth Century Britain: Economic, Cultural and Social Change (Routledge, 1994). B Supple, ‘Fear of Failing: Economic History and the Decline of Britain’ (1994) 47 Econ HR (2nd series) 441. SN Broadberry, The Productivity Race: British Manufacturing in International Perspective, 1850–1990 (Cambridge University Press, 1997). P Clarke and C Trebilcock (eds), Understanding Decline: Perspectives and Realities of British Economic Performance (Cambridge University Press, 1997). CK Harley, ‘Trade 1870–1939: From Globalisation to Fragmentation’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain: vol 2, 1860–1939, 3rd edn (Cambridge University Press, 2004). SN Broadberry, Market Services and the Productivity Race, 1850–2000: British Performance in International Perspective (Cambridge University Press, 2006). N Crafts, ‘The British Economy’ and C Schenk, ‘Britain’s Changing Position in the International Economy’ in F Carnevali and J-M Strange (eds), Twentieth-Century Britain: Economic, Cultural and Social Change, 2nd edn (Routledge, 2007).

618 Bibliography and Suggestions for Further Reading NFR Crafts, ‘Economic Growth During the Long Twentieth Century’ and KH O’Rourke, ‘From Empire to Europe: Britain in the World Economy’, both in R Floud, J Humphries and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 2: Growth and Decline, 1870 to the Present (Cambridge University Press, 2014). IT Berend, An Economic History of Twentieth-Century Europe: Economic Regimes from Laissez-Faire to Globalisation, 2nd edn (Cambridge University Press, 2016).

Electoral Reform (a) Electoral Process C O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (Clarendon Press, 1962). F O’Gorman, Voters, Patrons, and Parties: The Unreformed Electoral System of Hanoverian England, 1734–1832 (Clarendon Press, 1989). M Crook and T Crook, ‘The Advent of the Secret Ballot in Britain and France, 1789–1914: From Public Assembly to Private Compartment’ (2007) 92 History 449. G Orr, ‘Suppressing Vote-buying: The “War’ on Electoral Bribery from 1868’ (2006) 27 JLH 289. JC Mitchell, The Organization of Opinion: Open Voting in England, 1832–68 (Palgrave Macmillan, 2008). K Rix, ‘“The Elimination of Corrupt Practices in British Elections”? Reassessing the Impact of the 1883 Corrupt Practices Act’ (2008) 123 EHR 65. C Morris, ‘From “Arms, Malice, and Menacing” to the Courts: Disputed Elections and the Reform of the Election Petitions System’ (2012) 32 LS 226. K Rix, ‘The Second Reform Act and the Problem of Electoral Corruption’ (2017) 36 Parl Hist 64.

(b) Extension of the Franchise Works on women’s suffrage are listed under sub-heading (c). B Keith-Lucas, The English Local Government Franchise: A Short History (Blackwell, 1952). M Pugh, Electoral Reform in War and Peace 1906–18 (Routledge & Kegan Paul, 1978). D Tanner, ‘The Parliamentary Electoral System, the “Fourth” Reform Act, and the Rise of Labour in England’ (1983) 6 BIHR 205. R Blake, ‘The Development of the British Parliamentary System 1861–1901’ and N Gash, ‘The Social and Political Background to the Three British Nineteenth Century Reform Acts’, both in AM Birke and K Kluxen (eds), British and German Parliamentarism (KG Saur, 1985). JK Walton, The Second Reform Act (Methuen, 1987). I Newbould, Whiggery and Reform 1830–41: The Politics of Government (Stanford University Press, 1990). J Hart, Proportional Representation: Critics of the British Electoral System, 1820–1945 (Clarendon Press, 1992). J Parry, The Rise and Fall of Liberal Government in Victorian Britain (Yale University Press, 1996). C Hall, K McClelland and J Rendall (eds), Defining the Victorian Nation, Class, Race, Gender and the British Reform Act of 1867 (Cambridge University Press, 2000). I Machin, The Rise of Democracy in Britain, 1830–1918 (Macmillan, 2000). TR Bromund, ‘Uniting the Whole People: Proportional Representation in Great Britain, 1884–5, Reconsidered’ (2001) 74 HR 77. J Garrard, Democratisation in Britain: Elites, Civil Society and Reform Since 1800 (Palgrave, 2002). A Hawkins, Victorian Political Culture: ‘Habits of Heart and Mind’ (Oxford University Press, 2005) chs 4, 5 and 7. P Salmon, ‘Reform Should Begin at Home: English Municipal and Parliamentary Reform, 1818–32’ in C Jones, P Salmon, and RW Davis (eds), Partisan Politics, Principle and Reform in Parliament, 1689–1880 (Edinburgh University Press, 2005). P Salmon, ‘The English Reform Legislation, 1831–1832’ in D Fisher (ed), The History of Parliament: The House of Commons 1820–1832 (Cambridge University Press, 2009). M Willis, Democracy and the State: 1830–1945 (Cambridge University Press, 2010). R Saunders, Democracy and the Vote in British Politics, 1848–1867: The Making of the Second Reform Act (Routledge, 2011).

Bibliography and Suggestions for Further Reading 619 M Roberts, ‘Resisting “Arithmocracy”: Parliament, Community, and the Third Reform Act’ (2011) 50 JBS 381. R Blackburn, ‘Laying the Foundations of the Modern Voting System: The Representation of the People Act 1918’ (2011) 30 Parl Hist 33. JE Murkens, ‘Unintended Democracy: Parliamentary Reform in the United Kingdom’ in KL Grotke and MJ Prutsch (eds), Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences (Oxford University Press, 2014). S Ball, ‘The Reform Act of 1918: The Advent of Democracy’ (2018) 37 Parl Hist 1.

(c) Women’s Suffrage and Women in Politics M Pugh, ‘Politicians and the Woman’s Vote 1914–1918’ (1974) 59 History 358. JD Fair, ‘The Political Aspects of Women’s Suffrage During the First World War’ (1976) 8 Albion 274. B Harrison, Separate Spheres: The Opposition to Women’s Suffrage in Britain (Croom Helm, 1978). B Harrison, ‘Women in a Men’s House: The Women MPs, 1919–1945’ (1986) 20 HJ 623. S Holton, Feminism and Democracy: Women’s Suffrage and Reform Politics in Britain, 1900–1918 (Cambridge University Press, 1986). P Jalland, Women, Marriage and Politics, 1860–1914 (Clarendon Press, 1986). P Hollis, Ladies Elect: Women in Local Government, 1865–1914 (Oxford University Press, 1987). J Lewis (ed), Before the Vote Was Won: Arguments For and Against Women’s Suffrage (Routledge, 1987). J Rendall (ed), Equal or Different: Women’s Politics 1800–1914 (Blackwell, 1987). K Reynolds, Aristocratic Women and Political Society in Victorian Britain (Oxford University Press, 1987). A Young, ‘“Wild Women”: The Censure of the Suffragette Movement’ (1988) 16 International Journal of the Sociology of Law 279. KS Williams, ‘The Public Law and Women’s Rights: The Nineteenth Century Experience’ (1992) 23 Cambrian Law Review 80. K Gleadle, The Early Feminists: Radical Unitarians and the Origins of the Women’s Rights Movement, c 1831–1851 (Palgrave Macmillan, 1995). A Clark, ‘Gender, Class and the Constitution: Franchise Reform in England, 1832–1928’ in J Vernon (ed), Re-reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth Century (Cambridge University Press, 1996). S Holton, Suffrage Days: Stories from the Women’s Suffrage Movement (Routledge, 1996). KY Stenberg, ‘Working-Class Women in London Local Politics, 1894–1914’ (1998) 9 TCBH 323. M Hausmann, ‘The Impact of the Great War on the Discussion of Women’s Suffrage’ in H Berghoff and R von Friedeburg (eds), Change and Inertia: Britain Under the Impact of the Great War (PHILO-Verlagsgesellschaft, 1998). J Martin, ‘“Women Not Wanted”: The Fight to Secure Political Representation on London Education Authorities, 1870–1907’ in J Goodman and S Harrop (eds), Women, Educational Policy-Making and Administration in England: Authoritative Women Since 1880 (Routledge, 2000). K Gleadle and S Richardson (eds), Women in British Politics, 1760–1860: The Power of the Petticoat (Palgrave Macmillan, 2000). J Rendall, ‘The Citizenship of Women and the Reform Act of 1867’ in C Hall et al (eds), Defining the Victorian Nation: Class, Race, Gender and the British Reform Act of 1867 (Cambridge University Press, 2000). M Pugh, The March of the Women: A Revisionist Analysis of the Campaign for Women’s Suffrage, 1866–1914 (Oxford University Press, 2000). A Vickery (ed), Women, Privilege and Power: British Politics, 1750 to Present (Stanford University Press, 2001). K Hunt and J Hannam, Socialist Women: Britain, 1880s to 1920s (Routledge, 2002). LE Nym Mahall, The Militant Suffrage Movement: Citizenship and Resistance in Britain, 1860–1930 (Oxford University Press, 2003). P Thane, ‘What Difference Did the Vote Make? Women in Public and Private Life in Britain Since 1918’ (2003) 76 HR 268. K Hunt and M Worley, ‘Rethinking British Communist Party Women in the 1920s’ (2004) 15 TCBH 1. M Boussahba-Bravard (ed), Suffrage Outside Suffragism: Women’s Vote in Britain, 1880–1914 (Palgrave Macmillan, 2007). J Bush, Women Against the Vote: Female Anti-Suffragism in Britain (Oxford University Press, 2007).

620 Bibliography and Suggestions for Further Reading M Pugh, ‘Suffrage and Citizenship’ in F Carnevali and J-M Strange (eds), Twentieth-Century Britain: Economic, Cultural and Social Change, 2nd edn (Routledge, 2007). K Gleadle, Borderline Citizens: Women, Gender and Political Culture in Britain, 1815–1867 (Oxford University Press, 2009). B Griffin, The Politics of Gender in Victorian Britain: Masculinity, Political Culture and the Struggle for Women’s Rights (Cambridge University Press, 2012). JV Gottlieb and R Toye (eds), The Aftermath of Suffrage: Women, Gender and Politics in Britain 1918–1945 (Palgrave Macmillan, 2013). B Griffin, ‘Women’s Suffrage’ in D Craig and J Thompson (eds), Languages of Politics in Nineteenth-Century Britain (Palgrave Macmillan, 2013). S Richardson, The Political Worlds of Women: Gender and Politics in Nineteenth Century Britain (Routledge, 2013). S Richardson, ‘Conversations With Parliament: Women and the Politics of Pressure in Nineteenth-Century Britain’ (2018) 37 Parl Hist 35.

Growth of Political Party Organisation M Ostrogorski, Democracy and the Organisation of Political Parties, vol 1: England (Macmillan & Co, 1902). HJ Hanham, Elections and Party Management: Politics in the Time of Disraeli and Gladstone (Longmans, 1959). EJ Feuchtwanger, ‘JE Gorst and Central Organisation of the Conservative Party, 1870–1882’ (1959) 32 BIHR 192. J Cornford, ‘The Transformation of Conservatism in the Late Nineteenth Century’ (1963) 7 VS 35. JA Thomas, ‘The System of Registration and the Development of Party Organisation, 1832–1870’ (1950) 35 History 81. AR Ball, British Political Parties: The Emergence of a Modern Party System (Macmillan, 1981). GW Cox, ‘The Development of a Party-Orientated Electorate in England, 1832–1918’ (1986) 16 British Journal of Political Studies 187. J Lawrence, Speaking for the People: Party, Language and Popular Politics in England, 1867–1914 (Cambridge University Press, 1998). RC Self, Evolution of the British Party System: 1885–1940 (Pearson, 2000). P Salmon, Electoral Reform at Work: Local Politics and National Parties, 1832–1841 (Royal Historical Society/ Boydell Press, 2002). M Worley, Labour Inside the Gate: A History of the British Labour Party Between the Wars (IB Tauris, 2005). A Thorpe, Parties at War: Political Organization in Second World War Britain (Oxford University Press, 2005). J Owen, Labour and the Caucus: Working-class Radicalism and Organised Liberalism in England, 1868–1888 (Liverpool University Press, 2014). K Rix, Parties, Agents and Electoral Culture in England, 1880–1910 (Boydell & Brewer, 2016).

Rise of Cabinet Government and Ministerial Control of Parliament P Fraser, ‘The Growth of Ministerial Control in the Nineteenth Century House of Commons’ (1960) 75 EHR 444. V Cromwell, ‘The Losing of the Initiative by the House of Commons 1780–1914’ (1968) 18 TRHS (5th series) 1. GW Cox, The Efficient Secret: The Cabinet and the Development of Political Parties (Cambridge University Press, 1987). J Hogan, ‘Party Management in the House of Lords 1846–1865’ (1991) 10 Parl Hist 124. GW Cox, ‘The Origin of Whip Votes in the House of Commons’ (1992) 11 Parl Hist 278. GW Cox and JW Ingram III, ‘Suffrage Expansion and Legislative Behaviour in Nineteenth-Century Britain’ (1992) 16 Social Science History 539. GW Cox, ‘The Development of Collective Responsibility in the United Kingdom’ (1994) 13 Parl Hist 32. D Woodhouse, Ministers and Parliament: Accountability in Theory and Practice (Clarendon Press, 1994) ch 1. TA Jenkins, Parliament, Party and Politics in Victorian Britain (Manchester University Press, 1996) esp chs 2 and 3. TA Jenkins, ‘The Whips in the Early Victorian House of Commons’ (2000) 19 Parl Hist 259. M Rush, The Role of the Member of Parliament Since 1868: From Gentlemen to Players (Oxford University Press, 2001). A Hawkins, Victorian Political Culture: ‘Habits of Heart and Mind’ (Oxford University Press, 2005).

Bibliography and Suggestions for Further Reading 621 S Anderson, ‘Parliament’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). A Blick, ‘Prime Minister and Cabinet’ in D Brown et al (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018).

Public Finance S Buxton, Finance and Politics: An Historical Study 1783–1885 (Murray, 1888). UK Hicks, The Finance of British Government 1920–1936 (Oxford University Press, 1938). JED Binney, British Public Finance and Administration, 1774–92 (Clarendon Press, 1958). PGM Dickson, The Financial Revolution in England: A Study of the Development of Public Credit 1688–1756 (Macmillan, 1967). M Wright, Treasury Control of the Civil Service 1854–1874 (Clarendon Press, 1969). BEV Sabine, ‘Great Budgets I: Pitt’s Budget of 1799’ [1970] BTR 201. P Mathias and PK O’Brien, ‘Taxation in England and France, 1715–1810’ (1976) 5 Journal of European Economic History 601. HCG Matthew, ‘Disraeli, Gladstone and the Politics of Mid-Victorian Budgets’ (1979) 22 HJ 615. P Mathias, ‘The Finances of Freedom: British and American Public Finance During the War of Independence’ in P Mathias, The Transformation of England (Methuen, 1979). JV Beckett, ‘Land Tax or Excise: The Levying of Taxation in Seventeenth- and Eighteenth-Century England’ (1985) 100 EHR 285. PK O’Brien, ‘The Political Economy of British Taxation, 1660–1815’ (1988) 44 Econ HR (2nd series) 1. J Brewer, The Sinews of Power: War, Money and the English State, 1688–1783 (Unwin Hyman, 1989). PK O’Brien, ‘Public Finance in the Wars With France, 1793–1815’ in HT Dickinson (ed), Britain and the French Revolution, 1789–1815 (Palgrave Macmillan, 1989). JV Beckett and M Turner, ‘Taxation and Economic Growth in Eighteenth-Century England’ (1990) 43 Econ HR (2nd series) 377. J Raven, ‘The Abolition of the English State Lotteries’ (1991) 34 HJ 371. P Harling and P Mandler, ‘From “Fiscal-Military” State to Laissez-Faire State, 1760–1850’ (1993) 32 JBS 44. J Jeffrey-Cook, ‘The First Finance Act’ [1994] BTR 365. R Walker, ‘Reflections on the Finance Act 1894’ [1994] BTR 368. D Winch, Riches and Poverty: An Intellectual History of Political Economy in Britain, 1750–1834 (Cambridge University Press, 1996). M Daunton, ‘The Political Economy of Death Duties: Harcourt’s Budget of 1894’ in N Harte and R Quinault (eds), Land and Society in Britain 1700–1914 (Manchester University Press, 1996). P Harling, The Waning of the ‘Old Corruption’: The Politics of Economical Reform, 1779–1846 (Clarendon Press, 1996). C Gunter and J Maloney, ‘Did Gladstone Make a Difference? Rhetoric and Reality in Mid-Victorian Finance’ (1999) 9 Accounting, Business & Financial History 325. J Wormell, National Debt in Britain 1850–1930 (Taylor & Francis, 1999). M Daunton, Trusting Leviathan, The Politics of Taxation in Britain, 1799–1914 (Cambridge University Press, 2001). GC Peden, ‘From Cheap Government to Efficient Government: The Political Economy of Public Expenditure on the United Kingdom, 1832–1914’ in D Winch and PK O’Brien (eds), The Political Economy of British Historical Experience, 1688–1914 (Oxford University Press, 2002). WJ Ashworth, Customs and Excise: Trade, Production, and Consumption in England 1640–1845 (Oxford University Press, 2003). D Stasavage, Public Debt and the Birth of the Democratic State: France and Great Britain, 1688–1789 (Cambridge University Press, 2003). W Funnell, ‘Victorian Parsimony and the Early Champions of Modern Public Sector Audit’ (2004) 9 Accounting History 25. M Daunton, Just Taxes: The Politics of Taxation in Britain, 1914–1979 (Cambridge University Press, 2007). JVC Nye, War, Wine, and Taxes: The Political Economy of Anglo-French Trade, 1689–1900 (Princeton University Press, 2007).

622 Bibliography and Suggestions for Further Reading C Stebbings, ‘Consent and Constitutionality in Nineteenth Century English Taxation’ in J Tiley (ed), Studies in the History of Tax Law, vol 3 (Hart, 2009). J Jeffrey-Cook, ‘William Pitt and His Taxes’ [2010] BTR 376. K Smith, ‘Law and Political Economy’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010). J Hoppit, Britain’s Political Economies: Parliament and Economic Life, 1660–1800 (Cambridge University Press, 2017). D Dewar and W Funnell, A History of British National Audit: The Pursuit of Accountability (Oxford University Press, 2017).

Tax Law S Dowell, A History of Taxes and Taxation in England from the Earliest Times to the Present Day (Longmans, 1884). H Hall, A History of the Custom-Revenue of England (Stock, 1885). E Cannan, The History of Local Rates in England, 2nd edn (PS King & Son, 1912). A Hope-Jones, Income Tax in the Napoleonic Wars (Cambridge University Press, 1939). E Hughes, Studies in Administration and Finance, 1558–1825, With Special Reference to the History of Salt Taxation in England (Manchester University Press, 1934). WR Ward, The English Land Tax in the Eighteenth Century (Oxford University Press, 1953). S Dowell, A History of Taxation and Taxes in England (Frank Cass, 1965). BEV Sabine, A History of the Income Tax (Allen & Unwin, 1966). W Phillips, ‘The Origin of Income Tax’ [1967] BTR 113. JH Wiener, The War of the Unstamped: The Movement to Repeal the British Newspaper Tax, 1830–1836 (Cornell University Press, 1969). I Ferrier, ‘The Meaning of the Statute: Mansfield on Tax Avoidance’ [1981] BTR 303. C Stebbings, ‘The Taxation of Mortgage Interest at Source in the Nineteenth Century’ [1989] BTR 349. DP Stopforth, ‘Settlements and the Avoidance of Tax on Income: The Period to 1920’ [1990] BTR 225. DP Stopforth, ‘The First Attack on Settlements Used for Income Tax Avoidance’ [1991] BTR 86. DP Stopforth, ‘1922–36: Halcyon Days for the Tax Avoider’ [1992] BTR 88. B Sabine, ‘Life and Taxes 1932–1992: Part 1: 1932–1945’ [1993] BTR 230. R Kerridge, ‘The Taxation of Trust Income’ (1994) 110 LQR 84. J Chartres, ‘English Landed Society and the Servants Tax of 1777’ in N Harte and R Quinault (eds), Land and Society in Britain, 1700–1914: Essays in Honour of FML Thompson (Manchester University Press, 1996). DP Stopforth, ‘The Legacy of the 1938 Attack on Settlements’ [1997] BTR 276. C Stebbings, ‘The Budget of 1798: Legislative Provision for Secrecy in Income Taxation’ [1998] BTR 651. GE Mingay, ‘Agricultural Taxation’ in EJT Collins (ed), The Agrarian History of England and Wales, vol 7: 1850–1914 (Cambridge University Press, 2000). R Colley, ‘Mid‐Victorian Employees and the Taxman: A Study in Information Gathering by the State in 1860’ (2001) 21 OJLS 593. M Lamb, ‘“Horrid Appealing”: Accounting for Taxable Profits in Mid-Nineteenth Century England’ (2002) 26 Accounting, Organizations and Society 271. M Lamb, ‘Defining “Profits” for British Income Tax Purposes: A Contextual Study of the Depreciation Cases: 1875–1897’ (2002) 29 Accounting Historians Journal 105. WJ Ashworth, Customs and Excise: Trade, Production, and Consumption in England, 1640–1845 (Oxford University Press, 2003). M Burton, ‘Reconciling the Rhetoric of Rights With the Pro Revenue Construction of Tax Legislation in Eighteenth Century Britain’ (2003) 7 Canberra Law Review 27. R Colley, ‘Railways and the Mid-Victorian Income Tax’ (2003) 24 Journal of Transport History 78. M Daunton, ‘What is Income?’, J Tiley, ‘Aspects of Schedule A’, and L Oats and P Sadler, ‘Stamp Duty, Propaganda and the French Revolutionary and Napoleonic Wars’, all in J Tiley (ed), Studies in the History of Tax Law, vol 1 (Hart, 2004). C Steedman, ‘The Servant’s Labour: The Business of Life, England, 1760–1820’ (2004) 29 SH 1. JF Avery-Jones, ‘The Special Commissioners from Trafalgar to Waterloo [2005] BTR 40. JF Avery Jones, ‘The Special Commissioners After 1842: From Administrative to Judicial Tribunal’ [2005] BTR 80.

Bibliography and Suggestions for Further Reading 623 A Likhovski, ‘A Map of Society: Defining Income in British, British Colonial and American Tax Legislation’ [2005] BTR 158. D Williams, ‘Masters of All They Surveyed, 1900–1914’ [2005] BTR 142. D Williams, ‘Surveying Taxes, 1900–1914’ [2005] BTR 233. P Harris, Income Tax in Common Law Jurisdictions, vol 1: From the Origins to 1820 (Cambridge University Press, 2006). J Tiley, ‘Death and Taxes’ [2007] BTR 300. L Oats and P Sadler, ‘Securing the Repeal of a Tax on the “Raw Material of Thought”’ (2007) 17 Accounting, Business & Financial History 355. AE Glantz, ‘A Tax on Light and Air: Impact of the Window Duty on Tax Administration and Architecture, 1696–1851’ (2008) 15 Penn History Review 1. D Parrott and JF Avery Jones, ‘Seven Appeals and an Acquittal: The Singer Family and Their Tax Cases’ [2008] BTR 56. IH Tague, ‘Eighteenth-Century English Debates on a Dog Tax’ (2008) 51 HJ 901. C Stebbings, The Victorian Taxpayer and the Law: A Study in Constitutional Conflict (Cambridge University Press, 2009). M Lamb, ‘Taxation’ in JR Edwards and SP Walker (eds), The Routledge Companion to Accounting History (Routledge, 2009). C Stebbings, ‘Traders, the Excise and the Law: Tensions and Conflicts in Early Nineteenth Century England’ in J Tiley (ed), Studies in the History of Tax Law, vol 4 (Hart, 2010). J Jaconelli, ‘The “Bowles Act” – Cornerstone of the Fiscal Constitution’ (2010) 69 CLJ 582. SA Bank, Anglo-American Corporate Taxation: Tracing the Common Roots of Divergent Approaches (Cambridge University Press, 2011). S Jogarajan, ‘Prelude to the International Tax Treaty Network: 1815–1914 Early Tax Treaties and the Conditions for Action’ (2011) 31 OJLS 679. C Stebbings, ‘An Effective Model of Institutional Taxation: Lunatic Asylums in Nineteenth-century England’ (2011) 32 JLH 31. D de Cogan, ‘Building Incoherence into the Law: A Review of Relief for Tax Losses in the Early Twentieth Century’ [2012] BTR 655. S Jogarajan, ‘Stamp, Seligman and the Drafting of the 1923 Experts’ Report on Double Taxation’ (2013) 5 World Tax Journal 368. JHN Pearce, ‘The Income Tax Law Rewrite Projects: 1907–56’ and D de Cogan, ‘Law and Administration in Capital Allowances Doctrine, 1878–1950’, both in J Tiley (ed), Studies in the History of Tax Law, vol 6 (Hart, 2013). S Utz, ‘Chartism and the Income Tax’ [2013] BTR 192. M Hewitt, The Dawn of the Cheap Press in Victorian Britain: The End of the ‘Taxes on Knowledge’, 1849–1869 (Bloomsbury Academic, 2014). L Hoskins et al, ‘The Death Duties in Britain, 1859–1930: Evidence from the Annual Reports of the Commissioners of the Inland Revenue’ History of Wealth Working Paper No 1 (2014); online at: https://historyofwealth.files. wordpress.com/2013/06/working-paper-1.pdf. JF Avery Jones, ‘The Sources of Addington’s Income Tax’ in P Harris and D de Cogan (eds), Studies in the History of Tax Law, vol 7 (Hart, 2015). JF Avery Jones, ‘Administrative Income Tax Legislation: A Century of the Revenue Following the Letter (But Not the Spirit) of the Legislation’ [2015] BTR 28. D de Cogan, ‘Purposive Interpretation in the Age of Horse Trams’ [2015] BTR 80. WE Oates and RM Schwab, ‘The Window Tax: A Case Study in Excess Burden’ (2015) 29 Journal of Economic Perspectives 163. C Stebbings, ‘The Authority of Law in a Bureaucratic Framework: The Nineteenth-century Medicine Stamp Duty’ in M Godfrey (ed), Law and Authority in British Legal History, 1200–1900 (Cambridge University Press, 2015). C Stebbings, ‘The Equity of the Executive: Fairness in Tax Law in Nineteenth-Century England’ in PG Turner (ed), Equity and Administration (Cambridge University Press, 2015). C Stebbings, Tax, Medicines and the Law: From Quackery to Pharmacy (Cambridge University Press, 2018). C Stebbings, ‘The Impact of Tax on the Landscape: Social Expectations and the Built Environment in Nineteenth-Century England’ in C Macmillan and C Smith (eds), Law: Challenges to Authority and the Recognition of Rights (Cambridge University Press, 2018). K Cousins, ‘The Failure of the First Income Tax: A Tale of Commercial Tax Evaders?’ (2018) 39 JLH 157.

624 Bibliography and Suggestions for Further Reading

Executive Government This topic is sub-divided into ‘Central Administration’ and ‘Local Administration’, rather anachronistic categories for the eighteenth century but apt for later periods.

(a) Central Administration Sir C Ilbert, Legislative Methods and Forms (Clarendon Press, 1901). MW Thomas, ‘The Origins of Administrative Centralization’ [1950] CLP 214. SE Finer, The Life and Times of Sir Edwin Chadwick (Methuen & Co, 1952). DN Chester, ‘Public Corporations and the Classification of Administrative Bodies’ (1953) 1 Political Studies 34. FMG Wilson, ‘Ministries and Boards: Some Aspects of Administrative Development Since 1842’ (1955) 33 Public Administration 43. BB Schaffer, ‘The Idea of the Ministerial Department: Bentham, Mill and Bagehot’ (1957–8) 3 Australian Journal of Politics and History 60. O McDonagh, ‘The Nineteenth-Century Revolution in Government: A Reappraisal’ (1958) 1 HJ 52. D Roberts, Victorian Origins of the British Welfare State (Yale University Press, 1960). H Parris, ‘The Nineteenth Century Revolution in Government: A Reappraisal Reappraised’ (1960) 3 HJ 17. RJ Lambert, ‘A Victorian National Health Service: State Vaccination 1855–71’ (1962) 5 HJ 1. H Parris, Government and the Railways in Nineteenth-Century Britain (Routledge & Kegan Paul, 1965). H Parris, Constitutional Bureaucracy: The Development of British Central Administration Since the Eighteenth Century (Allen & Unwin, 1969). WC Lubenow, The Politics of Government Growth: Early Victorian Attitudes Toward State Intervention, 1833–1848 (David and Charles, 1971). O MacDonagh, Early Victorian Government, 1830–1870 (Weidenfeld & Nicholson, 1977). URQ Henriques, Before the Welfare State: Social Administration in Early Victorian Britain (Longman, 1979). L Hume, Bentham and Bureaucracy (Cambridge University Press, 1979). R Tompson, The Charity Commission and the Age of Reform (Routledge & Kegan Paul, 1979). GE Aylmer, ‘From Office-Holding to Civil Service: The Genesis of Modern Bureaucracy’ (1980) 30 TRHS (5th series) 91. N Chester, The English Administrative System 1780–1870 (Oxford University Press, 1981). R MacLeod (ed), Government and Expertise: Specialists, Administrators and Professionals, 1860–1919 (Cambridge University Press, 1988). J Brewer, The Sinews of Power: War, Money and the English State, 1688–1783 (Unwin Hyman, 1989). PJ Jupp, ‘The Landed Elite and Political Authority in Britain, ca 1760–1850’ (1990) 29 JBS 53. J Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy’ (1990) 40 TRHS (5th series) 63. P Thane, ‘Government and Society in England and Wales, 1750–1914’ in FML Thompson (ed), The Cambridge Social History of Britain, 1750–1950, vol 3 (Cambridge University Press, 1990). J Innes, ‘The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain’ in L Stone (ed), An Imperial State at War: Britain from 1689 to 1815 (Routledge, 1994). D Eastwood, ‘Men, Morals and the Machinery of Social Legislation, 1790–1840’ (1994) 13 Parl Hist 190. C Stebbings, ‘The Clerk to the General Commissioners of Income Tax’ [1994] BTR 61. M Wiener, ‘The Unloved State: Twentieth-Century Politics in the Writing of Nineteenth-Century History’ (1994) 33 JBS 284. J Hoppit, ‘Patterns of Parliamentary Legislation, 1660–1800’ (1996) 39 HJ 109. J Hoppit, Failed Legislation, 1660–1800 (Hambleden Press, 1997). C Hamlin, Public Health and Social Justice in the Age of Chadwick: Britain 1800–1854 (Cambridge University Press, 1998). J Brewer, ‘Servants of the Public – Servants of the Crown: Officialdom of Eighteenth Century Central Government’ in J Brewer and E Hellmuth (eds), Rethinking Leviathan: The Eighteenth-century State in Britain and Germany (Oxford University Press, 1999). P Harling, The Modern British State: An Historical Introduction (Wiley, 2001). J Innes, ‘Central Government “Interference”: Changing Conceptions, Practices and Concerns, c 1700–1850’ in J Harris (ed), Civil Society in British History: Ideas, Identities, Institutions (Oxford University Press, 2003).

Bibliography and Suggestions for Further Reading 625 M Taggart, ‘From “Parliamentary Powers” to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century’ (2005) 55 University of Toronto Law Journal 575. P Jupp, The Governing of Britain, 1688–1848: The Executive, Parliament and the People (Routledge, 2006). P Mandler, ‘Introduction: State and Society in Victorian Britain’, P Harling, ‘The Powers of the Victorian State’, MC Finn, ‘The Authority of the Law’ and P Baldwin, ‘The Victorian State in Comparative Perspective’, all in P Mandler (ed), Liberty and Authority in Victorian Britain (Oxford University Press, 2006). S Matthews, ‘The Administration of the Revenue: The Growth of Bureaucracy 1839–66’ [2008] BTR 170. S Anderson, ‘Central Executive: The Legal Structure of State Institutions’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). S Devereaux, ‘The Historiography of the English State During “the Long Eighteenth Century”’ (2009) 7 History Compass 742 and (2010) 8 History Compass 843. J Innes, ‘Forms of Government Growth, 1780–1830’ and J Parry, ‘The Decline of Institutional Reform in Nineteenth Century Britain’, both in D Feldman and J Lawrence (eds), Structures and Transformations in Modern British History (Cambridge University Press, 2011). D Lemmings, Law and Government in England During the Long Eighteenth Century: From Consent to Command (Palgrave Macmillan, 2011). M Loughlin, ‘Evolution and Gestalt of the State in the United Kingdom’ in A von Bogdandy, PM Huber and S Cassese (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press, 2017). H Pemberton, ‘The Civil Service’ in D Brown et al (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018).

(b) Local Administration J Redlich and FW Hirst, Local Government in England (Macmillan, 1903). S Webb and B Webb, English Local Government: vol I The Parish and the County (Longmans & Co, 1906); vols II–III The Manor and the Borough (Longmans & Co, 1908). FH Spencer, Municipal Origins: An Account of English Private Bill Legislation Relating to Local Government, 1740–1835 (Constable, 1911). HJ Laski, WI Jennings and WA Robson (eds), A Century of Municipal Progress: 1835–1935 (Allen & Unwin, 1935). H Finer, Municipal Trading: A Study in Public Administration (Allen & Unwin, 1941). M Schulz, ‘The Control of Local Authority Borrowing by Central Government’ in CH Wilson (ed), Essays on Local Government (Basil Blackwell, 1948). RM Gutchen, ‘Local Improvements and Centralization in Nineteenth‐Century England’ (1961) 4 HJ 85. RJ Lambert, ‘Central and Local Relations in Mid-Victorian England: The Local Government Act Office, 1858–71’ (1962) 6 VS 121. EP Hennock, ‘Finance and Politics in Urban Local Government in England, 1835–1900’ (1963) 6 HJ 212. E Moir, Local Government in Gloucestershire 1775–1800: A Study of the Justices of the Peace (Bristol & Gloucestershire Archaeological Society, 1969). CHE Zangerl, ‘The Social Composition of the Magistracy in England and Wales 1831–1887’ (1971) 11 JBS 113. EP Hennock, Fit and Proper Persons: Ideal and Reality in Nineteenth Century Urban Government (Edward Arnold, 1973). D Philips, ‘The Black Country Magistracy 1835–1860’ (1976) 3 Midland History 161. J Money, Experience and Identity: Birmingham and the West Midlands, 1760–1800 (Manchester University Press, 1977). JPD Dunbabin, ‘British Local Government Reform: The Nineteenth Century and After’ (1977) 92 EHR 777. B Keith-Lucas and PG Richards, A History of Local Government in the Twentieth Century (Allen & Unwin, 1978). D Fraser, Power and Authority in the Victorian City (Blackwell, 1979). D Fraser, Urban Politics in Victorian England: The Structure of Politics in Victorian Cities (Macmillan, 1979). RJ Olney, Rural Society and County Government in Nineteenth Century Lincolnshire (History of Lincolnshire Committee for the Society for Lincolnshire History and Archaeology, 1979). B Keith-Lucas, The Unreformed Local Government System (Croom Helm, 1980). EP Hennock, Urban History Yearbook 1982: Central-Local Government Relations in England: An Outline, 1850–1950 (Leicester University Press, 1982).

626 Bibliography and Suggestions for Further Reading D Owen, The Government of Victorian London 1855–1889 (Harvard University Press, 1982). J Garrard, Leadership and Power in Victorian Industrial Cities, 1830–1880 (Manchester University Press, 1983). C Martlew, ‘The State and Local Government Finance’ (1983) 61 Public Administration 127. PJ Waller, Town, City and Nation: England 1850–1914 (Oxford University Press, 1983). N Landau, The Justices of the Peace, 1679–1760 (University of California Press, 1984). R Jackman, ‘Local Government Finance’ in M Loughlin, MD Gelfand and K Young (eds), Half a Century of Municipal Decline 1935–1985 (Routledge, 1985). M de Lacy, Prison Reform in Lancashire, 1700–1850: A Study in Local Administration (Manchester University Press, 1986). RS Tompson, ‘The Justices of the Peace and the United Kingdom in the Age of Reform’ (1986) 7 JLH 273. P Hollis, Ladies Elect: Women in English Local Government, 1865–1914 (Clarendon Press, 1987). J Davis, Reforming London: The London Government Problem 1855–1900 (Clarendon Press, 1988). C Bellamy, Administering Central–Local Relations, 1871–1919: The Local Government Board in Its Fiscal and Cultural Context (Manchester University Press, 1988). D Eastwood, ‘“Amplifying the Province of the Legislature”: The Flow of Information and the English State in the Early Nineteenth Century’ (1989) 62 HR 276. R Foster, The Politics of County Power: Wellington and the Hampshire Gentlemen, 1820–1852 (Harvester, 1990). J Prest, Liberty and Locality: Parliament, Permissive Legislation, and Ratepayers’ Democracies in the Nineteenth Century (Clarendon Press, 1990). Sir WTC Skyrme, A History of the Justices of the Peace (Barry Rose, 1991). R Vogler, Reading the Riot Act: The Magistracy, the Police and the Army in Civil Disorder (Open University Press, 1991). P Langford, Public Life and Propertied Englishmen 1689–1798 (Clarendon Press, 1991). M Ogborn, ‘Local Power and State Regulation in Nineteenth Century Britain’ (1992) 17 TIBG 215. R Swift, ‘The English Urban Magistracy and the Administration of Justice During the Early Nineteenth Century: Wolverhampton 1815–1860’ (1992) 17 Midland History 75. P Harling, ‘The Power of Persuasion: Central Authority, Local Bureaucracy and the New Poor Law’ (1992) 107 EHR 30. J Harris, Private Lives, Public Spirit: Britain, 1870–1914 (Oxford University Press, 1993) ch 7. RH Trainor, Black Country Elites: The Exercise of Authority in an Industrialized Area, 1830–1900 (Clarendon Press, 1993). D Eastwood, Governing Rural England: Tradition and Transformation in Local Government 1780–1840 (Oxford University Press, 1994). MJ Turner, ‘Gas, Police and the Struggle for Mastery in Manchester in the Eighteen-Twenties’ (1994) 67 HR 301. P Slack, The English Poor Law, 1531–1782 (Cambridge University Press, 1995). J Garrard, ‘Urban Elites, 1850–1914: The Rule and Decline of a New Squirearchy?’ (1995) 27 Albion 583. A Clinton and P Murray, ‘Reassessing the Vestries: London Local Government, 1855–1900’ and PL Garside, ‘Central Government, Local Authorities and the Voluntary Housing Sector, 1919–1939’, both in A O’Day (ed), Government and Institutions in the Post-1832 UK (Edwin Mellen Press, 1995). R Millward and S Sheard, ‘The Urban Fiscal Problem, 1870–1914: Government Expenditure and Finance in England and Wales’ (1995) 48 Econ HR (2nd series) 501. M Hewitt, The Emergence of Stability in the Industrial City: Manchester 1832–67 (Scolar Press, 1996). M Loughlin, Legality and Locality: The Role of Law in Central-Local Government Relations (Clarendon Press, 1996). D Eastwood, Government and Community in the English Provinces, 1700–1870 (Palgrave Macmillan, 1997). J Innes, ‘The Local Acts of a National Parliament: Parliament’s Role in Sanctioning Local Action in Eighteenth‐Century Britain’ (1998) 17 Parl Hist 23. Byung Khun Song, ‘Landed Interest, Local Government, and the Labour Market in England, 1750–1850’ (1998) 51 Econ HR (2nd series) 465. R Price, British Society, 1680–1880: Dynamism, Containment and Change (Cambridge University Press, 1999) ch 5. J Innes and N Rogers, ‘Politics and Government 1700–1840’ in P Clark (ed), The Cambridge Urban History of Britain, vol 2 1540–1840 (Cambridge University Press, 2000). R Trainor, ‘The “Decline” of British Urban Governance Since 1850: A Reassessment’ in RJ Morris and R Trainor (eds), Urban Governance: Britain and Beyond Since 1750 (Ashgate, 2000). A Kidd, ‘The “Liberal State”: Civil Society and Social Welfare in Nineteenth‐Century England’ (2002) 15 Journal of Historical Sociology 114.

Bibliography and Suggestions for Further Reading 627 D Fletcher, ‘The Parish Boundary: A Social Phenomenon in Hanoverian England’ (2003) 14 Rural History 177. R Sweet, ‘Local Identities and a National Parliament, c 1688–1835’ and J Hoppit, ‘The Landed Interest and the National Interest, 1660–1800’, both in J Hoppit (ed), Parliaments, Nations and Identities in Britain and Ireland, 1660–1850 (Manchester University Press, 2003). R Colls and R Rodger (eds), Cities of Ideas: Civil Society and Urban Governance in Britain 1800–2000. Essays in Honour of David Reeder (Ashgate, 2004). P Harling, ‘The Centrality of Locality: The Local State, Local Democracy, and Local Consciousness in Late‐Victorian and Edwardian Britain’ (2004) 9 Journal of Victorian Culture 216. D Philips, ‘A “Weak” State? The English State, the Magistracy and the Reform of Policing in the 1830s’ (2004) 119 EHR 873. S Devereaux, ‘The Promulgation of the Statutes in Late Hanoverian Britain’ in D Lemmings (ed), The British and Their Laws in the Eighteenth Century (Boydell Press, 2005). JR Moore, The Transformation of Urban Liberalism: Party Politics and Urban Governance in Late Nineteenth-Century England (Ashgate, 2006). JR Moore and J Smith (eds), Corruption in Urban Politics and Society, Britain 1780–1950 (Ashgate, 2007). R Rolf and R Beachy (eds), Who Ran the Cities?: City Elites and Urban Power Structures in Europe and North America, 1750–1914 (Routledge, 2007) Pt I. B Taylor, J Stewart and M Powell, ‘Central and Local Government and the Provision of Municipal Medicine, 1919–39’ (2007) 122 EHR 397. S Anderson, ‘Local Government’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). B Waddell, ‘Governing England through the Manor Courts, 1550–1850’ (2012) 55 HJ 279. D Fletcher, ‘Government Boundary Mapping Policy and the Knowledge Apparatus of the British State, 1841–1889’ (2013) 4 Journal of Policy History 512. RJB Morris, Local Government, Local Legislation: Municipal Initiative in Parliament from 1858 to 1872 (Routledge, 2016). M Loughlin, ‘Evolution and Gestalt of the State in the United Kingdom’ in A von Bogdandy, PM Huber and S Cassese (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (OUP, 2017). I Webster, ‘The Public Works Loan Board and the Growth of the State in Nineteenth-Century England’ (2017) 71 Econ HR (2nd series) 887. RJB Morris, Local Government, Local Legislation: Municipal Initiative in Parliament from 1858 to 1872 (Routledge, 2017). B Weinstein, ‘Local Government’ in D Brown, R Crowcroft and G Pentland (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018).

Public Law and Judicial Review of Administrative Action WA Robson, Justice and Administrative Law: A Study of British Constitution (Macmillan, 1928). SA de Smith, ‘The Prerogative Writs’ (1951) 11 CLJ 40. SA de Smith, ‘Wrongs and Remedies in Administrative Law’ (1952) 15 MLR 189. L Jaffe and E Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 LQR 345. JDB Mitchell, ‘The Causes and Effects of the Absence of a System of Public Law in the United Kingdom’ [1965] PL 95. A Rubinstein, Jurisdiction and Illegality: A Study in Public Law (Oxford University Press, 1975). JM Jacob, ‘The Debates Behind an Act: Crown Proceedings Reform, 1920–1947’ [1992] PL 452. M Loughlin, Public Law and Political Theory (Clarendon Press, 1992). S Sedley, ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 LQR 270. JM Jacob, The Republican Crown: Lawyers and the Making of the State in Twentieth Century Britain (Dartmouth Publishing, 1996). C Stebbings, ‘The Appeal by Case Stated from Determinations of General Commissioners of Income Tax’ [1996] BTR 611. P Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 CLJ 63. C Stebbings, Legal Foundations of Tribunals in the Nineteenth Century (Cambridge University Press, 2006).

628 Bibliography and Suggestions for Further Reading S Sedley, ‘The Long Sleep’ in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford University Press, 2009). S Anderson, ‘Judicial Review’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). TT Arvind, ‘Restraining the State through Tort? The Crown Proceedings Act in Retrospect’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2012). JWF Allison, ‘History to Understand, and History to Reform, English Public Law’ (2013) 72 CLJ 526. C Harlow and R Rawlings, ‘Administrative Law in Context: Restoring a Lost Connection’ [2014] PL 28. S Sedley, Lions Under the Throne: Essays on the History of English Public Law (Cambridge University Press, 2015). P Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) ch 1. P Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016). M Lewans, Administrative Law and Judicial Deference (Hart, 2016) ch 2. TT Arvind and L Stirton, ‘The Curious Origins of Judicial Review’ (2017) 133 LQR 91. P Craig, ‘Proportionality and Judicial Review: A UK Historical Perspective’ in S Vogenauer and S Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Hart, 2017). M Loughlin, ‘Evolution and Gestalt of the State in the United Kingdom’ in A von Bogdandy, PM Huber and S Cassese (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (OUP, 2017). C McCormick, ‘Judicial Review of Administrative Action in the United Kingdom: The Status of Standards Between 1890 and 1910’ (2018) 10 Italian Journal of Public Law 49. K Costello, ‘Drink and the Development of Administrative Law 1820–1910’ [2018] PL 224.

Courts The best general account for the main part of our period is P Polden, ‘The Courts of Law’, Part 3 of WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). Studies of particular courts are listed below.

(a) House of Lords and Privy Council T Beven, ‘The Appellate Jurisdiction of the House of Lords: Part II’ (1901) 17 LQR 357. AS Turberville, The House of Lords in the Eighteenth Century (Clarendon Press, 1927). AS Turberville, ‘The House of Lords as a Court of Law, 1784–1837’ (1936) 52 LQR 189. O Anderson, ‘The Wensleydale Peerage Case and the Position of the House of Lords in the Mid-Nineteenth Century’ (1967) 82 EHR 486. DB Swinfen, ‘Henry Brougham and the Judicial Committee of the Privy Council’ (1974) 90 LQR 396. R Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (University of North Carolina Press, 1978). PA Howell, The Judicial Committee of the Privy Council 1833–1876: Its Origins, Structure, and Development (Cambridge University Press, 1979). RFV Heuston, ‘Judicial Prosopography’ (1984) 100 LQR 90. DB Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (Manchester University Press, 1987). AA Paterson, ‘Scottish Lords of Appeal, 1876–1988’ [1988] JR 235. T Mohr, ‘Law Without Loyalty: The Abolition of the Irish Appeal to the Privy Council’ (2002) 37 Irish Jurist 187. D Hope, ‘Voices from the Past: The Law Lords’ Contribution to the Legislative Process’ (2007) 123 LQR 547. L Blom-Cooper, B Dickson, and G Drewry (eds), The Judicial House of Lords (Oxford University Press, 2009). T Mohr, ‘The Privy Council Appeal as a Minority Safeguard for the Protestant Community of the Irish Free State, 1922–1935’ (2012) 63 NILQ 365. P Mitchell, ‘The Privy Council and the Difficulty of Distance’ (2016) 36 OJLS 26. P O’Brien, ‘Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009’ (2016) 79 MLR 786. P Loft, ‘Litigation, the Anglo-Scottish Union, and the House of Lords as the High Court, 1660–1875’ (2018) 61 HJ 943.

Bibliography and Suggestions for Further Reading 629 (b) Courts of King’s (or Queen’s) Bench and Common Pleas Before 1875 Lord Bowen, ‘Progress in the Administration of Justice During the Reign of Queen Victoria’ in Committee of American Law Schools (ed), Select Essays in Anglo-American Law, vol 1 (Little, Brown & Co, 1907). AS Diamond, ‘The Queen’s Bench Masters’ (1960) 76 LQR 504. JC Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform’ (1987) 8 JLH 148. JW Cairns and G McLeod (eds), The Dearest Birth Right of the People of England: The Jury in the History of the Common People (Hart, 2002). AN May, The Bar and the Old Bailey, 1750–1850 (University of North Carolina Press, 2003). C Hanly, ‘The Decline of Civil Jury Trial in Nineteenth Century England’ (2005) 26 JLH 253. K Costello, ‘The Writ of Certiorari and Review of Summary Criminal Convictions, 1660–1848’ (2012) 128 LQR 443.

(c) Courts of Chancery and Exchequer Before 1875 RE Ball, ‘The Chancery Masters’ (1961) 77 LQR 331. RE Megarry, ‘The Vice-Chancellors’ (1982) 98 LQR 370. H Horwitz, Chancery Equity Records and Proceedings 1649–1841 (HMSO, 1995). H Horwitz and P Polden, ‘Continuity or Change in the Court of Chancery in the Seventeenth and Eighteenth Centuries?’ (1996) 35 JBS 24. H Horwitz, ‘Chancery’s Younger Sister: The Court of Exchequer and its Equity Jurisdiction, 1689–1841’ (1999) 72 HR 160. H Horwitz, Exchequer Equity Records and Proceedings 1689–1841 (PRO, 2001). M Macnair, ‘The Court of Exchequer and Equity’ (2001) 22 JLH 78. FB Burns, ‘Lord Cottenham and the Court of Chancery’ (2003) 24 JLH 187. C Riley, ‘Jeremy Bentham and Equity: The Court of Chancery, Lord Eldon, and the Dispatch Court Plan’ (2018) 39 JLH 29.

(d) Civilian, Probate, Divorce and Admiralty Courts Before 1875 W Senior, Doctors’ Commons and the Old Court of Admiralty: A Short History of the Civilians in England (Longmans, 1922). FL Wiswall, The Development of Admiralty Jurisdiction and Practice Since 1800 (Cambridge University Press, 1970). GD Squibb, Doctors’ Commons (Oxford University Press, 1977). A Horstman, Victorian Divorce (Croom Helm, 1985). SM Waddams, Law, Politics and the Church of England: The Career of Stephen Lushington, 1782–1873 (Cambridge University Press, 1992). SM Waddams, Sexual Slander in Nineteenth Century England: Defamation in the Ecclesiastical Courts 1815–1833 (University of Toronto Press, 2000). BG Hutton, ‘The Reform of the Testamentary Jurisdiction of the Ecclesiastical Courts, 1830–1857’ (PhD thesis, Brunel University, 2003); online at: https://bura.brunel.ac.uk/bitstream/2438/5389/1/FulltextThesis.pdf. RB Outhwaite, The Rise and Fall of the English Ecclesiastical Courts 1500–1860 (Cambridge University Press, 2006).

(e) Supreme Court of Judicature Acts 1873 and 1875 Sir R Evershed, ‘Reflections on the Fusion of Law and Equity After Seventy-Five Years’ (1954) 70 LQR 326. Sir J Jacob, ‘The Judicature Acts 1873–1875: Vision and Reality’ in Sir J Jacob, The Reform of Civil Procedural Law and Other Essays in Civil Procedure (Sweet & Maxwell, 1982). MJ Lobban, ‘Henry Brougham and Law Reform’ (2000) 115 EHR 184. P Polden, ‘Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature’ (2002) 61 CLJ 575. MJ Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery [Parts One and Two]’ (2004) 22 L&HR 389 and 566.

630 Bibliography and Suggestions for Further Reading J Getzler, ‘Chancery Reform and Law Reform’ (2004) 22 L&HR 601. JC Oldham, ‘A Profusion of Chancery Reform’ (2004) 22 L&HR 609. PI Macmahon, ‘Field, Fusion and the 1850s’ in PG Turner (ed), Equity and Administration (Cambridge University Press, 2016).

(f) Courts of Appeal D Seabourne Davies, ‘The Court of Criminal Appeal: The First Forty Years’ (1951) 1 Journal of the Society of Public Teachers of Law 425. R Pattenden, English Criminal Appeals, 1844–1944: Appeals Against Conviction and Sentence in England and Wales (Clarendon Press, 1996). G Drewry, L Blom-Cooper and C Blake, The Court of Appeal (Hart, 2007).

(g) Local Courts T Mathew, ‘The Mayor’s Court, the Sheriffs’ Courts and the Palace Court’ (1919) 31 JR 134. AL Cross, ‘Old English Local Courts and the Movement for their Reform’ (1942) 30 Michigan LR 369. HW Arthurs, ‘“Without the Law”: Courts of Local and Special Jurisdiction in 19th Century England’ (1984) 5 JLH 130. M Slatter, ‘The Norwich Court of Requests – A Tradition Continued’ (1984) 5 JLH 97. MC Finn, ‘Debt and Credit in Bath’s Court of Requests’ (1994) 21 Urban History 211. MC Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2003).

(h) County Courts H Smith, ‘The Resurgent County Court in Victorian Britain’ (1969) 13 AJLH 126. P Polden, ‘Judicial Independence and Executive Responsibilities: The Lord Chancellor’s Department and the County Court Judges, 1846–1971 [Parts 1 and 2]’ (1996) 25 Anglo-American Law Review 1 and 133. P Polden, A History of the County Court, 1846–1971 (Cambridge University Press, 1999).

Judicial Law-Making WS Holdsworth, ‘Case Law’ (1934) 50 LQR 180. J Evans, ‘Precedent in the Nineteenth Century’ in L Goldstein (ed), Precedent in Law (Clarendon Press, 1987). C Croft, ‘Lord Hardwicke’s Use of Precedent in Equity’ in T Watkin (ed), Legal Record and Historical Reality (Hambledon Press, 1989). D Pugsey, ‘London Tramways (1898)’ (1996) 17 JLH 172. M Lobban, ‘Custom, Nature and Authority: The Roots of English Legal Positivism’ in D Lemmings (ed), The British and Their Laws in the Eighteenth Century (Boydell Press, 2005). W Cornish, ‘Sources of Law’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010). N Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2011) ch 2. A Ben-Yishai, Common Precedents: The Presentness of the Past in Victorian Law and Fiction (Oxford University Press, 2013) ch 1.

Law Reporting JW Wallace, The Reporters Arranged and Characterised With Incidental Remarks, 4th edn (Carswell, 1882). WST Daniel, The History and Origin of the Law Reports (W Cloves & Sons, 1883). VV Veeder, ‘English Law Reporting’, in Committee of American Law Schools (ed), Select Essays in Anglo-American Law vol 2 (Little, Brown, 1907).

Bibliography and Suggestions for Further Reading 631 Sir WS Holdsworth, A History of English Law, vol 12 (Methuen, 1938) 101–62. JP Dawson, The Oracles of the Law (University of Michigan Law School, 1968) ch 1. C Stebbings (ed), Law Reporting in Britain (Hambleden Press, 1995). P Polden, ‘The Education of Lawyers’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010) 1211–22. J Oldham, ‘The Law of Contracts as Reported in The Times, 1785–1820’ in D Ibbetson et al (eds), English Legal History and its Sources: Essays in Honour of Sir John Baker (Cambridge University Press, 2019).

Legal Textbooks AWB Simpson, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ (1981) 48 University of Chicago Law Review 632. D Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in WL Twining (ed), Legal Theory and the Common Law (Blackwell, 1986). M Lobban, ‘The English Legal Treatise and English Law in the Eighteenth Century’ (1997) 13 Iuris Scripta Historica 69. TA Baloch, ‘Law Booksellers and Printers as Agents of Unchange’ (2007) 66 CLJ 389. A Fernandez and M Dubber (eds), Law Books in Action: Essays on the Anglo-American Legal Treatise (Hart, 2012). S Waddams, ‘The Authority of Treatises in English Law (1800–1936)’ in M Godfrey (ed), Law and Authority in British Legal History, 1200–1900 (Cambridge University Press, 2016).

Legal Professions R Robson, The Attorney in Eighteenth Century England (Cambridge University Press, 1959). M Birks, Gentlemen of the Law (Stevens, 1960). JLJ Edwards, The Law Officers of the Crown (Sweet & Maxwell, 1964). B Abel-Smith and RB Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750–1965 (Heinemann, 1967). H Kirk, Portrait of a Profession: A History of the Solicitor’s Profession 1100 to the Present Day (Oyez, 1976). R Cocks, The Foundations of the Modern Bar (Sweet & Maxwell, 1983). D Duman, The English and Colonial Bars in the Nineteenth Century (Croom Helm, 1983). P Aylett, ‘A Profession in the Marketplace: The Distribution of Attorneys in England and Wales 1730–1800’ (1987) 5 L&HR 1. R Abel, The Legal Profession in England and Wales (Blackwell, 1988). G Drewry, ‘Lawyers and Statutory Reform in Victorian Government’ in R MacLeod (ed), Government and Expertise: Specialists, Administrators and Professionals, 1860–1919 (Cambridge University Press, 1988). JS Anderson, Lawyers and the Making of English Land Law 1832–1940 (Oxford University Press, 1992). VR Parrott, ‘Pettyfogging to Respectability: A History of the Development of the Profession of Solicitor in the Manchester Area, 1800–1914’ (PhD thesis, University of Salford, 1992); online at: http://usir.salford. ac.uk/14800/1/DX177154.pdf. D Sugarman, ‘Simple Images and Complex Realities: English Lawyers and Their Relationship to Business and Politics, 1750–1950’ (1993) 11 L&HR 257. RI Morgan, ‘The Introduction of Civil Legal Aid in England and Wales 1914–1949’ (1994) 5 TCBH 38. PJ Corfield, Power and the Professions in Britain, 1700–1850 (Routledge, 1995) ch 4. M Lunney, ‘Insurance and the Liability of the Legal Profession: A Case Study’ (1995) 16 JLH 94. D Sugarman, ‘Bourgeois Collectivism, Professional Power, and the Boundaries of the State: The Private and Public Life of the Law Society, 1825–1914’ (1996) 3 International Journal of the Legal Profession 81. T Goriely, ‘Law for the Poor: The Relationship between Advice Agencies and Solicitors in the Development of Poverty Law’ (1996) 3 International Journal of the Legal Profession 215. M Lunney, ‘The Law Society and the Defalcation Scandals of 1900’ (1996) 17 JLH 244. M Lunney, ‘“And the Lord Knows Where That Might Lead” – The Law Society, the Fraudulent Solicitor and the Solicitors Act 1941’ (1997) 4 International Journal of the Legal Profession 235.

632 Bibliography and Suggestions for Further Reading CW Brooks, ‘The Decline and Rise of the English Legal Profession, 1700–1850’ in CW Brooks, Lawyers, Litigation & English Society Since 1450 (Hambleden Press, 1998). CA Corcos, ‘Portia Goes to Parliament: Women and Their Admission to Membership in the English Legal Profession’ (1998) 75 Denver University Law Review 307. DJA Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Clarendon Press, 1999). D Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford University Press, 2000). J Albisetti, ‘Portia Ante Portas: Women and the Legal Profession in Europe, ca 1870–1925’ (2000) 33 JSH 825. AN May, The Bar and the Old Bailey, 1750–1850 (University of North Carolina Press, 2003). J Cooper, Pride Versus Prejudice: Jewish Doctors and Lawyers in England, 1890–1990 (Liverpool University Press, 2003) chs 4, 5, 7 and 8. D Lemmings, ‘Ritual, Majesty and Mystery: Collective Life and Culture Among English Barristers, Serjeants and Judges, c 1500 – c 1830’ in W Pue and D Sugarman (eds), Lawyers and Vampires: Cultural Histories of Legal Professions (Hart, 2003). T Goriely, ‘Gratuitous Assistance to the “Ill-dressed”: Debating Civil Legal Aid in England and Wales from 1914 to 1939’ (2006) 13 International Journal of the Legal Profession 41. A Logan, ‘Professionalism and the Impact of England’s First Women Justices 1920–1950’ (2006) 49 HJ 833. MJ Mossman, The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Hart, 2006) ch 3. M Burrage, Revolution and the Making of the Contemporary Legal Profession: England, France and the United States (Oxford University Press, 2006). P Polden, ‘Portia’s Progress: Women at the Bar in England, 1919–1939’ (2007) 12 International Journal of the Legal Profession 293. P Polden, ‘The Legal Professions’, Part 4 in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press 2010). R Auchmuty ‘Whatever Happened to Miss Bebb? Bebb v The Law Society and Women’s Legal History’ (2011) 31 LS 199. N Lacey, ‘The Way We Lived Then: The Legal Profession and the 19th-Century Novel’ (2011) 33 Sydney Law Review 599. H Heilbron, Rose Heilbron: Legal Pioneer of the 20th Century (Hart, 2012). J Bourne, ‘Helena Normanton and the Opening of the Bar to Women’ (PhD thesis, King’s College London, 2014); online at: https://kclpure.kcl.ac.uk/portal/files/44958035/2014_Bourne_Judith_1069321_ethesis.pdf. WW Pue, Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950 (University of British Columbia Press, 2016). C Steedman, ‘A Lawyer’s Letter: Everyday Uses of the Law in Early Nineteenth-Century England’ (2016) 81 HWJ 62. J Bourne (ed), First Women Lawyers in Great Britain and the Empire Record, vol 1 (St Mary’s University, Twickenham, 2016). A Watson, ‘The Silent Revolution in Methods of Advocacy in English Courts’ (2016) 7 Journal on European History of Law 36. RA Houston, ‘The Composition and Distribution of the Legal Profession, and the Use of Law in Britain and Ireland, c 1500 – c 1850’ (2018) 86 Tijdschrift voor Rechtsgeschiedenis 123. E Rackley and R Auchmuty (eds), Women’s Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland (Hart, 2018). M Lobban, ‘“The Glorious Uncertainty of the Law”: Life at the Bar, 1810–1830’ in D Ibbetson et al (eds), English Legal History and its Sources: Essays in Honour of Sir John Baker (Cambridge University Press, 2019).

Legal, Moral and Political Philosophies AV Dicey, Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century, 2nd edn (Macmillan & Co, 1914). M Beer, History of British Socialism (G Bell & Sons, 1919). E Halévy (trans M Morris), The Growth of Philosophic Radicalism (Faber & Faber, 1928). E Barker, Political Thought in England, 1848–1914, 2nd edn (Oxford University Press, 1928).

Bibliography and Suggestions for Further Reading 633 GDH Cole, History of Socialist Thought (Macmillan, 1953–1960) vols I–V. WE Houghton, The Victorian Frame of Mind, 1830–1870 (Oxford University Press, 1957). AM MacBriar, Fabian Socialism and English Politics 1884–1918 (Cambridge University Press, 1958). C Tsuzuki, HM Hyndman and British Socialism (Oxford University Press, 1961). EP Thompson, The Making of the English Working-Class (Victor Gollancz, 1963). J Hamburger, Intellectuals in Politics: John Stuart Mill and the Philosophic Radicals (Yale University Press, 1965). EE Barry, Nationalisation in British Politics (Jonathan Cape, 1965). JF Burrow, Evolution and Society: A Study in Victorian Social Theory (Cambridge University Press, 1966). LJ Hume, ‘Jeremy Bentham and the Nineteenth-Century Revolution in Government’ (1967) 10 HJ 361. JH Burns, ‘JS Mill and Democracy, 1829–61’ in JB Schneewind (ed), Mill: A Collection of Critical Essays (University of Notre Dame Press, 1968). B Zylstra, From Pluralism to Collectivism: The Development of Harold Laski’s Political Thought (Van Gorcum & Co, 1968). H Collins, ‘The Marxism of the Social Democratic Federation’ in A Briggs and J Saville (eds), Essays in Labour History 1886–1923 (Palgrave Macmillan, 1971). GR Searle, The Quest for National Efficiency: A Study in British Politics and Political Thought, 1899–1914 (Blackwell, 1971). AJ Taylor, Laissez-faire and State Intervention in Nineteenth-century Britain (Macmillan, 1972). SE Finer, ‘The Transmission of Benthamite Ideas, 1820–59’ in G Sutherland (ed), Studies in the Growth of Nineteenth-Century Government (Routledge and Kegan Paul, 1972). S Pierson, Marxism and the Origins of British Socialism: The Struggle for a New Consciousness (Cornell University Press, 1973). W Wolfe, From Radicalism to Socialism: Men and Ideas in the Formation of Fabian Socialist Doctrines, 1881–1891 (Yale University Press, 1975). C Harvie, The Lights of Liberalism: University Liberals and the Challenge of Democracy, 1860–86 (Allen Lane, 1976). I Bradley, The Call to Seriousness: The Evangelical Impact on the Victorians (Macmillan, 1976). GR Searle, Eugenics and Politics in Britain 1900–1914 (Noordhoff, 1976). H Perkin, ‘Individualism Versus Collectivism in Nineteenth Century Britain: A False Antithesis’ (1977) 17 JBS 105. N and J Mackenzie, The First Fabians (Weidenfeld & Nicolson, 1977). HJ Dickinson, Liberty and Property: Political Ideology in 18th Century Britain (Weidenfeld & Nicolson, 1977). K Willis, ‘The Introduction and Critical Reception of Marxist Thought in Britain 1850–1900’ (1977) 20 HJ 417. S Collini, Liberalism and Sociology: LT Hobhouse and Political Argument in England 1880–1914 (Cambridge University Press, 1978). PS Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press, 1979). D Roberts, Paternalism in Early Victorian England (Croom Helm, 1979). W Thomas, The Philosophic Radicals: Nine Studies in Theory and Practice, 1817–1841 (Clarendon Press, 1979). P Weiler, The New Liberalism: Liberal Social Theory in Great Britain, 1889–1914 (Garland, 1982). HLA Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford University Press, 1982). B Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Economic Thought 1795–1865 (Oxford University Press, 1986). M Fielden, Liberalism Divided: A Study in British Political Thought, 1914–1939 (Oxford University Press, 1986). A Vincent (ed), The Philosophy of TH Green (Gower Publishing, 1986). ER Norman, The Victorian Christian Socialists (Cambridge University Press, 1987). KJM Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge University Press, 1988). JR Dinwiddy, Bentham (Oxford University Press, 1989). G Claeys, Citizens and Saints: Politics and Anti-Politics in Early British Socialism (Cambridge University Press, 1989). PP Nicholson, The Political Philosophy of the British Idealists: Selected Studies (Cambridge University Press, 1990). M Lobban, The Common Law and English Jurisprudence, 1760–1850 (Clarendon Press, 1991). A Waterman, Revolution, Economics and Religion: Christian Political Economy 1798–1833 (Cambridge University Press, 1991). A Diamond (ed), The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (Cambridge University Press, 1991). G Himmelfarb, Poverty and Compassion: The Moral Imagination of the Late Victorians (Knopf, 1991).

634 Bibliography and Suggestions for Further Reading M Bevir, ‘The British Social Democratic Federation, 1880–1885’ (1992) 37 International Review of Social History 207. MW Taylor, Men Versus the State: Herbert Spencer and Late Victorian Individualism (Oxford University Press, 1992). D Abraham, ‘Liberty and Property: Lord Bramwell and the Political Economy of Liberal Jurisprudence Individualism, Freedom, and Utility’ (1994) 38 AJLH 288. A Ramasatry, ‘The Parameters, Progressions and Paradoxes of Baron Bramwell’ (1994) 38 AJLH 322. D Lyons, Rights, Welfare and Mill’s Moral Theory (Oxford University Press, 1994). M Taylor, The Decline of British Radicalism 1847–1860 (Oxford University Press, 1995). M Lobban, ‘Was There a Nineteenth-Century “English School of Jurisprudence”’ (1995) 16 JLH 34. M Taylor, ‘The English Face of Karl Marx’ (1996) 1 Journal of Victorian Culture 227. SM den Otter, British Idealism and Social Explanation: A Study in Late Victorian Thought (Clarendon Press, 1996). D Tanner, ‘The Development of British Socialism, 1900–1914’ in E Green (ed), An Age of Transition: British Politics, 1880–1914 (Edinburgh University Press, 1997). M Francis, Ideas and Policies Under Labour, 1945–51: Building a New Britain (Manchester University Press, 1997). J Skorupski (ed), The Cambridge Companion to Mill (Cambridge University Press, 1998). GR Searle, Morality and the Market in Victorian Britain (Oxford University Press, 1998). TJ Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge University Press, 2000). PJ Cain, Hobson and Imperialism: Radicalism, New Liberalism, and Finance 1887–1938 (Oxford University Press, 2002). F Rosen, Classical Utilitarianism from Hume to Mill (Routledge, 2003). N Capaldi, John Stuart Mill: A Biography (Cambridge University Press, 2004). N Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford University Press, 2004). M Goldie and R Wokler (eds), The Cambridge History of Eighteenth-Century Political Thought (Cambridge, 2006). M Pickering, Auguste Comte: An Intellectual Biography, vol 1 (Cambridge University Press, 2006). P Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford University Press, 2006). B Jackson, Equality and the British Left: A Study in Progressive Thought, 1900–64 (Manchester University Press, 2007). J Skorupski, ‘The Philosophy of John Stuart Mill’ (2007) 15 British Journal for the History of Philosophy 181. N Urbinati and A Zakaras (eds), JS Mill’s Political Thought: A Bicentennial Reassessment (Cambridge University Press, 2007). T Dixon, The Invention of Altruism: Making Moral Meanings in Victorian Britain (Oxford University Press, 2008). B Weinstein, ‘“Local Self-Government Is True Socialism”: Joshua Toulmin Smith, the State and Character Formation’ (2008) 123 EHR 1193. I Hont, ‘Adam Smith’s History of Law and Government as Political Theory’ in R Bourke and R Geuss (eds), Political Judgement: Essays for John Dunn (Cambridge University Press, 2009). DB Paul, ‘Darwin, Social Darwinism and Eugenics’ in J Hodge and G Radick (eds), The Cambridge Companion to Darwin, 2nd edn (Cambridge University Press, 2009). D Winch, Wealth and Life: Essays on the Intellectual History of Political Economy in Britain, 1848–1914 (Cambridge Univertsity Press, 2009). M Lobban, ‘Theories of Law and Government’ in WR Cornish et al, The Oxford History of the Laws of England, vol XI: 1820–1914: English Legal System (Oxford University Press, 2010). R McKibbin, Parties and People: England 1914–1951 (Oxford University Press, 2010) ch 5. N Phillipson, Adam Smith: An Enlightened Life (Allen Lane, 2010). M Bevir, The Making of British Socialism (Princeton University Press, 2011). G Stedman Jones and G Claeys (eds), The Cambridge History of Nineteenth-Century Political Thought (Cambridge University Press, 2011). S den Otter, ‘Individual and Social Responsibility in Nineteenth-Century British Political Thought’ in M Lobban and J Moses (eds), The Impact of Ideas on Legal Development (Cambridge University Press, 2012). G Claeys, Mill and Paternalism (Cambridge University Press, 2013). L Goldman, The Life of RH Tawney: Socialism and History (Bloomsbury, 2013). M Philp, Reforming Ideas in Britain: Politics and Language in the Shadow of the French Revolution (Cambridge University Press, 2014). J Scott, ‘Leonard Hobhouse as a Social Theorist’ (2016) 16 Journal of Classical Sociology 349. G Stedman Jones, Karl Marx: Greatness and Illusion (Allen Lane, 2016).

Bibliography and Suggestions for Further Reading 635 D Bell, ‘Democracy and Empire: JA Hobson, LT Hobhouse, and the Crisis of Liberalism’ in D Bell, Reordering the World: Essays on Liberalism and Empire (Princeton University Press, 2016). MJ Turner, Radicalism and Reputation: The Career of Bronterre O’Brien (Michigan State University Press, 2017). T Rogan, The Moral Economists: RH Tawney, Karl Polanyi, EP Thompson, and the Critique of Capitalism (Princeton University Press, 2017). T Carver, Marx (Polity, 2018).

Chapter Two: Land Formations of Land Ownership Before 1750 J Thirsk (ed), The Agrarian History of England and Wales, vol 5: 1640–1750, 1: Regional Farming Systems and 2: Agrarian Change (Cambridge University Press, 1984 and 1985). A Kussmaul, General View of the Rural Economy of England, 1538–1840 (Cambridge University Press, 1990).

Agricultural Productivity, 1700–1900 EL Jones, ‘Agriculture and Economic Growth in England, 1650–1750: Agricultural Change’ (1965) 25 JEH 1. JD Chambers and GE Mingay, The Agricultural Revolution 1750–1880 (BT Batsford, 1966). BA Holderness, ‘Agriculture, 1770–1860’ in CH Feinstein and S Pollard (eds), Studies in Capital Formation in the United Kingdom, 1750–1920 (Oxford University Press, 1988). ADM Phillips, The Underdrainage of Farmland in England During the Nineteenth Century (Cambridge University Press, 1989). RC Allen, Enclosure and the Yeoman: The Agricultural Development of the South Midlands, 1450–1850 (Oxford University Press, 1992). G Clark, ‘Agriculture and the Industrial Revolution: 1700–1850’ in J Mokyr (ed), The British Industrial Revolution: An Economic Perspective (Westview Press, 1993). M Overton, Agricultural Revolution in England: The Transformation of the Agrarian Economy 1500–1850 (Cambridge University Press, 1996). RC Allen, ‘Tracking the Agricultural Revolution in England’ (1999) 52 Econ HR (2nd series) 209. ME Turner, JV Beckett and B Afton, Farm Production in England 1700–1914 (Oxford University Press, 2001). JV Beckett and ME Turner, ‘Agricultural Productivity in England, 1700–1914’ in M Olsson and P Svensson (eds), Growth and Stagnation in European Historical Agriculture (Brepols, 2011).

Agricultural Productivity and Industrialisation, 1750–1900 J Saville, ‘Primitive Accumulation and Early Industrialisation in Britain’ (1969) 6 Socialist Register 247. EA Wrigley, ‘Urban Growth and Agricultural Change: England and the Continent in the Early Modern Period’ (1985) 15 JIH 683. NFR Crafts, British Economic Growth During the Industrial Revolution (Oxford University Press, 1985). EA Wrigley, Continuity, Chance and Change: The Character of the Industrial Revolution in England (Cambridge University Press, 1988). G Clark, ‘Labour Productivity in English Agriculture, 1300–1860’ in B Campbell and M Overton (eds), Land, Labour and Livestock: Historical Studies in European Agricultural Productivity (Manchester University Press, 1991). RC Allen, ‘Agriculture During the Industrial Revolution, 1700–1850’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation, 1700–1860 (Cambridge University Press, 2004). NFR Crafts and CK Harley, ‘Precocious British Industrialisation: A General-Equilibrium Perspective’ in L Prados de la Escosura (ed), Exceptionalism and Industrialisation: Britain and Its European Rivals, 1688–1815 (Cambridge University Press, 2004). J Mokyr, The Enlightened Economy: Britain and the Industrial Revolution, 1700–1850 (Yale University Press, 2009) ch 9.

636 Bibliography and Suggestions for Further Reading RC Allen, The British Industrial Revolution in Global Perspective (Cambridge University Press, 2009) ch 3. CK Harley, ‘British and European Industrialization’ in L Neal and JG Williamson (eds), The Cambridge History of Capitalism vol 1: The Rise of Capitalism: from Ancient Origins to 1848 (Cambridge University Press, 2014).

Consolidation of Estates and Estate Management, 1600–1900 GE Mingay, ‘The Size of Farms in the Eighteenth Century’ (1962) 14 Econ HR (2nd series) 469. M Spufford, Contrasting Communities: English Villagers in the Sixteenth and Seventeenth Centuries (Cambridge University Press, 1974) chs 3 and 4. JR Wordie, ‘Social Change on the Leveson-Gower Estates, 1714–1832’ (1974) 27 Econ HR (2nd series) 593. P Roebuck, Yorkshire Baronets, 1640–1760: Families, Estates and Fortunes (Oxford University Press, 1980). JR Wordie, Estate Management in Eighteenth-Century England: The Building of the Leveson-Gower Fortune (Royal Historical Society, 1982). P Glennie, ‘In Search of Agrarian Capitalism: Manorial Land Markets and the Acquisition of Land in the Lea Valley, c 1450 – c 1560’ (1988) 3 Community & Change 11. G Nair, Highley, 1660–1880 (Oxford University Press, 1988). B English, Great Landowners of East Yorkshire 1530–1910 (Harvester Wheatsheaf, 1990). R Hoyle, ‘Tenure and the Land Market in Early Modern England: Or a Late Contribution to the Brenner Debate’ (1990) 43 Econ HR (2nd series) 1. RC Allen, Enclosure and the Yeoman: The Agricultural Development of the South Midlands, 1450–1850 (Oxford University Press, 1992). JV Beckett, ‘The Decline of the Small Landowner in England and Wales 1660–1900’ in FML Thompson (ed), Landowners, Capitalists and Entrepreneurs (Clarendon Press, 1994). PE Edwards, ‘The Decline of the Small Farmer: The Case of Rushock, Worcestershire’ (1996) 21 Midland History 73. J Broad, ‘The Fate of the Midland Yeoman: Tenants, Copyholders, and Freeholders as Farmers in North Buckinghamshire, 1620–1800’ (1999) 14 C&C 325. HR French and RW Hoyle, ‘The Land Market of a Pennine Manor: Slaidburn, 1650–1780’ (1999) 14 C&C 349. JV Beckett, ‘Agricultural Landownership and Estate Management’ in EJT Collins (ed), The Agrarian History of England and Wales, vol 7 1850–1914 (Cambridge University Press, 2000). J Whittle, The Development of Agrarian Capitalism: Land and Labour in Norfolk 1440–1580 (Oxford University Press, 2000). J Broad, Transforming English Rural Society: The Verneys and the Claydons, 1600–1820 (Cambridge University Press, 2004). J Whittle, ‘Tenure and Landholding in England 1440–1580’ in BJP van Bavel and P Hoppenbrouwers (eds), Landholding and Land Transfer in the North Sea Area (Brepols, 2004). HR French and RW Hoyle, The Character of English Rural Society: Earls Colne, 1550–1750 (Manchester University Press, 2007). D Oldroyd, Estates, Enterprise and Investment at the Dawn of the Industrial Revolution: Estate Management and Accounting in the North-East of England, c 1700–1780 (Ashgate, 2007). S Wade Martins, Coke of Norfolk, 1754–1842 (Boydell Press, 2009). J Morrin ‘The Transfer to Leasehold on Durham Cathedral Estate, 1541–1626’ and JS Holt, ‘The Financial Rewards of Winning the Battle for Secure Customary Tenure’, both in J Whittle (ed), Landlords and Tenants in Britain, 1440–1660 (Boydell & Brewer, 2013). AT Brown, ‘Estate Management and Institutional Constraints in Pre-Industrial England: The Ecclesiastical Estates of Durham, c 1400–1640’ (2014) 67 Econ HR (2nd series) 699. S Dimmock, The Origin of Capitalism in England, 1400–1600 (Brill, 2014) Part 2. B McDonagh, Elite Women and the Agricultural Landscape, 1700–1830 (Routledge, 2018).

The Brenner Debate R Brenner, ‘Agrarian Class Structure and Economic Development in Pre-Industrial Europe’ (1976) 70 P&P 30. P Croot and D Parker, ‘Agrarian Class Structure and Economic Development in Pre-industrial Europe’ (1978) 78 P&P 37. R Brenner, ‘The Agrarian Roots of European Capitalism’ (1982) 97 P&P 16.

Bibliography and Suggestions for Further Reading 637 TH Aston and CHE Philpin (eds), The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-Industrial Europe (Cambridge University Press, 1987). R Hoyle, ‘Tenure and the Land Market in Early Modern England: Or a Late Contribution to the Brenner Debate’ (1990) 43 Econ HR (2nd series) 1. ME Mate, ‘The East Sussex Land Market and Agrarian Class Structure in the Late Middle Ages’ (1993) 139 P&P 46. SR Epstein, Freedom and Growth: The Rise of States and Markets in Europe, 1300–1750 (Routledge, 2000). J Whittle, The Development of Agrarian Capitalism: Land and Labour in Norfolk 1440–1580 (Oxford University Press, 2000). S Hipkin, ‘Tenant Farming and Short-Term Leasing on Romney Marsh, 1587–1705’ (2000) 53 Econ HR (2nd series) 646. J Hatcher and M Bailey, Modelling the Middle Ages: The History and Theory of England’s Economic Development (Oxford University Press, 2001). J Whittle, ‘Tenure and Landholding in England 1440–1580’ in BJP van Bavel and P Hoppenbrouwers (eds), Landholding and Land Transfer in the North Sea Area (Brepols, 2004). SH Rigby, ‘Social Structure and Economic Change and Late Medieval England’ in R Horrox and WM Ormrod (eds), A Social History of England, 1200–1500 (Cambridge University Press, 2006). J Morrin ‘The Transfer to Leasehold on Durham Cathedral Estate, 1541–1626’ and JS Holt, ‘The Financial Rewards of Winning the Battle for Secure Customary Tenure’, both in J Whittle (ed), Landlords and Tenants in Britain, 1440–1660 (Boydell & Brewer, 2013). S Dimmock, The Origin of Capitalism in England, 1400–1600 (Brill, 2014) Part 1.

Strict Settlements, 1700–1900 HJ Habakkuk, ‘English Landownership, 1680–1740’ (1940) 10 Econ HR (1st series) 2. HJ Habakkuk, ‘Marriage Settlements in the Eighteenth Century’ (1950) 32 TRHS (4th series) 15. FML Thompson, ‘English Landownership: The Ailesbury Trust’ (1958) 11 Econ HR (2nd series) 121. HJ Habakkuk, ‘The English Land Market in the Eighteenth Century’ in JS Bromley and E Kossman (eds), Britain and the Netherlands, vol 1 (Chatto & Windus, 1960). E Spring, ‘The Settlement of Land in Nineteenth Century England’ (1963) 8 AJLH 209. C Clay, ‘Marriage, Inheritance and the Rise of the Great Estates in England, 1660–1815’ (1968) 21 Econ HR (2nd series) 503. BA Holderness, ‘The English Land Market in the Eighteenth Century: The Case of Lincolnshire’ (1974) 27 Econ HR (2nd series) 557. JV Beckett, ‘English Landownership in the Later Seventeenth and Eighteenth Centuries: The Debate and the Problems’ (1977) 30 Econ HR (2nd series) 567. R Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century (Academic Press, 1978). L Bonfield, ‘Marriage Settlements and the “Rise of Great Estates”: The Demographic Aspect’ (1979) 32 Econ HR (2nd series) 483. C Clay, ‘Property Settlements, Financial Provision for the Family, and the Sale of Land by the Greater Landowners 1660–1790’ (1981) 21 JBS 18. L Bonfield, Marriage Settlements 1601–1740: The Adoption of the Strict Settlement (Cambridge University Press, 1983). B English and J Saville, Strict Settlement: A Guide for Historians (University of Hull Press, 1983). L Stone and JC Fawtier Stone, An Open Elite? England, 1540–1880 (Clarendon Press, 1984). M Chesterman, ‘Family Settlements on Trust: Landowners and the Rising Bourgeoisie’ in G Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984). L Bonfield, ‘Affective Families, Open Elites and Strict Family Settlements in Early Modern England’ (1986) 39 Econ HR (2nd series) 341. AWB Simpson, A History of the Land Law, 2nd edn (Clarendon Press, 1986) ch 9. E Spring, ‘The Strict Settlement: Its Role in Family History (1988) 41 Econ HR (2nd series) 454. L Bonfield ‘The Strict Settlement: A Differing View’ (1988) 41 Econ HR (2nd series) 461. JV Beckett, ‘Landownership and Estate Management’ in GE Mingay (ed) The Agrarian History of England and Wales, vol 6 (Cambridge University Press, 1989).

638 Bibliography and Suggestions for Further Reading E Spring, Law, Land, and Family: Aristocratic Inheritance in England, 1300–1800 (University of North Carolina Press, 1993). J Habakkuk, Marriage, Debt, and the Estates System: English Landownership 1650–1950 (Clarendon Press, 1994). D Cannadine, Aspects of Aristocracy: Grandeur and Decline in Modern Britain (Yale University Press, 1994) ch 2. AWB Simpson, ‘Legal Science and Legal Absurdity: Jee v Audley (1787)’ in AWB Simpson, Leading Cases in the Common Law (Clarendon Press, 1995). A Pottage, ‘Proprietary Strategies: The Legal Fabric of Aristocratic Settlements’ (1998) 61 MLR 162. M Rothery and J Stobart, ‘Inheritance Events and Spending Patterns in the English Country House: The Leigh Family of Stoneleigh Abbey, 1738–1806’ (2012) 27 C&C 379. H French and M Rothery, Man’s Estate: Landed Gentry Masculinities, 1660–1900 (Oxford University Press, 2012). Sir J Baker, An Introduction to English Legal History, 5th edn (Oxford University Press, 2019) ch 16. H French and M Rothery, ‘Male Anxiety Among Younger Sons of the English Landed Gentry, 1700–1900’ (2019) 62 HJ (forthcoming).

Land Stewards and Estate Agents, 1700–1900 E Hughes, ‘The Eighteenth Century Estate Agent’ in HA Cronne, TW Moody and DB Quinn (eds), Essays in British and Irish History in Honour of James Eadie Todd (Frederick Muller, 1949). R Robson, The Attorney in Eighteenth Century England (Cambridge University Press, 1959). D Spring, The English Landed Estate in the Nineteenth Century: Its Administration (University of Johns Hopkins Press, 1963). GE Mingay, ‘The Eighteenth Century Land Steward’ in EL Jones and GE Mingay (eds), Land, Labour and Population in the Industrial Revolution (Edward Arnold, 1967). TJ Raybould, ‘The Dudley Estate: Its Rise and Decline Between 1774 and 1947’ (PhD thesis, University of Kent, 1970); online at: https://ethos.bl.uk/OrderDetails.do?did=1&uin=uk.bl.ethos.528434. E Richards, ‘The Land Agent’ in GE Mingay (ed), The Victorian Countryside, vol 2 (Routledge & Kegan Paul, 1981). P Horn, ‘An Eighteenth-Century Land Agent: The Career of Nathaniel Kent (1737–1810)’ (1982) 30 Ag HR 1. PJ Nunn, ‘The Management of Some South Yorkshire Landed Estates in the Eighteenth and Nineteenth Centuries, Linked With the Central Economic Development of the Area (1700–1850)’ (PhD thesis, University of Sheffield, 1985) esp ch 3; online at: http://etheses.whiterose.ac.uk/2988/2/DX079732_1.pdf. P Aylett, ‘Attorneys and Clients in Eighteenth Century Cheshire: A Study in Relationships 1740–1785’ (1987) 32 Bulletin of the John Rylands Library 69. AJ Schmidt, ‘The Country Attorney in Late Eighteenth-Century England: Benjamin Smith of Horbling’ (1990) 8 L&HR 237. S Webster, ‘Estate Improvement and the Professionalization of Land Agents on the Egremont Estates in Sussex and Yorkshire, 1770–1835’ (2007) 18 Rural History 47. C Beardmore, S King and G Monks (eds), The Land Agent in Britain: Past, Present and Future (Cambridge Scholars, 2016).

Purchase of Land by Merchants, Businessmen and Industrialists, 1700–1900 RG Wilson, ‘The Denisons and Milneses: Eighteenth Century Merchant Landowners’ in JT Ward and RG Wilson (eds), Land and Industry: The Landed Estate and the Industrial Revolution (David and Charles, 1971). L Stone and JC Fawtier Stone, An Open Elite? England, 1540–1880 (Clarendon Press, 1984). FML Thompson, ‘Business and Landed Elites in the Nineteenth Century’ in FML Thompson (ed), Landowners, Capitalists and Entrepreneurs (Clarendon Press, 1994). WD Rubinstein, ‘Businessmen into Landowners: The Question Revisited’ in N Harte and R Quinault (eds), Land and Society in Britain, 1700–1914 (Manchester University Press, 1996). T Nicholas, ‘Businessmen and Land Ownership in the Late Nineteenth Century’ (1999) 52 Econ HR (2nd series) 27. JA Smith, ‘Land Ownership and Social Change in Late Nineteenth-Century Britain’ (2000) 53 Econ HR (2nd series) 776. FML Thompson, Gentrification and the Enterprise Culture: Britain, 1780–1980 (Oxford University Press, 2001).

Bibliography and Suggestions for Further Reading 639 MJ Wiener, English Culture and the Decline of the Industrial Spirit, 1850–1980, 2nd edn (Cambridge University Press, 2004) ch 7. D Brown, ‘New Men of Wealth and the Purchase of Land in Great Britain and Ireland, 1780 to 1879’ (2015) 63 Ag HR 286.

Mortgages, 1700–1914 WS Holdsworth, A History of English Law, vol 3 (Methuen, 1923) 128–130; vol 5 (Methuen, 1924) 330–32; vol 6 (Methuen, 1924) 663–65; vol 7 (Methuen, 1925) 375–76. RW Turner, The Equity of Redemption (Cambridge University Press, 1931). DEC Yale (ed), Lord Nottingham’s Chancery Cases, vol II (1961) 79 Selden Society 31–62. JL Barton, ‘The Common Law Mortgage’ (1967) 83 LQR 229. AWB Simpson, A History of the Land Law, 2nd edn (Clarendon Press, 1986). JS Anderson, ‘Mortgages’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010).

Copyhold and Customary Tenure, 1700–1914 WS Holdsworth, A History of English Law vol 7 (Methuen, 1925) 296–312. CM Gray, Copyhold, Equity and the Common Law (Harvard University Press, 1963). CE Searle, ‘Custom, Class Conflict and Agrarian Capitalism: The Cumbrian Customary Economy in the Eighteenth Century’ (1986) 110 P&P 106. N Gregson, ‘Tawney Revisited: Custom and the Emergence of Capitalist Class Relations in North-East Cumbria, 1600–1830’ (1989) 42 Econ HR (2nd series) 18. ME Turner and JV Beckett, ‘The Lingering Survival of Ancient Tenures in English Agriculture in the 19th Century’ in CE Núñez (ed), Land, Labour and Tenure: The Institutional Arrangements of Conflict and Co-operation in Comparative Perspective (University of Seville, 1998). ME Turner, ‘Corporate Strategy or Individual Priority? Land Management, Income and Tenure on Oxbridge Agricultural Land in the Mid-Nineteenth Century’ (2000) 42 BH 1. JV Beckett and ME Turner, ‘Freehold from Copyhold and Leasehold: Tenurial Transition in England between the Sixteenth and Nineteenth Centuries’ in BJP van Bavel and P Hoppenbrouwers (eds), Landholding and Land Transfer in the North Sea Area (Brepols, 2004). R Houston, ‘Custom in Context: Medieval and Early Modern Scotland and England’ (2011) 211 P&P 35. H Garrett-Goodyear, ‘Common Law and Manor Courts: Lords, Copyholders and Doing Justice in Early Tudor England’ and CW Brooks, ‘The Agrarian Problem in Revolutionary England’, both in J Whittle (ed), Landlords and Tenants in Britain, 1440–1660 (Boydell & Brewer, 2013).

Agricultural Leases, 1700–1914 WS Holdsworth, A History of English Law vol 7 (Methuen, 1925) 238–96. R Stanes, ‘Landlord and Tenant and Husbandry Covenants in Eighteenth-Century Devon’ in W Minchinton (ed), Agricultural Improvement: Medieval and Modern (University of Exeter, 1981). A Offer, ‘Farm Tenure and Land Values in England, c 1750–1950’ (1991) 44 Econ HR (2nd series) 1. ME Turner, JV Beckett and B Afton, Agricultural Rent in England 1690–1914 (Cambridge University Press, 1997). SW Martins and T Williamson, ‘The Development of the Lease and Its Role in the Agricultural Improvement in East Anglia, 1660–1870’ (1998) 46 Ag HR 127. DR Stead, ‘The Mobility of English Tenant Farmers, c 1700–1850’ (2003) 51 Ag HR 173. DR Stead, ‘Risk and Risk Management in English Agriculture, c 1750–1850’ (2004) 57 Econ HR (2nd series) 334. DR Stead, ‘Fixed Rent Contracts in English Agriculture, 1750–1850: A Conjecture’ (University of York Discussion Paper in Economics, No 2005/01); online at: https://www.york.ac.uk/media/economics/documents/ discussionpapers/2005/0501.pdf.

640 Bibliography and Suggestions for Further Reading JS Anderson, ‘Leases, Mortgages and Servitudes’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010). S Peplow, ‘Agricultural Rent in the Early Victorian Era’ (PhD thesis, University of British Columbia, 2012); online at: https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0071823. J Rhodes, ‘Subletting in Eighteenth-century England: A New Methodological Approach’ (2018) 66 Ag HR 67.

Common Rights, 1700–1900 MW Barley, ‘East Yorkshire Manorial Bye-Laws’ (1943) 35 Yorkshire Archaeological Journal 35. RS Dilley, ‘The Cumberland Court Leet and Use of the Common Lands’ (1967) 67 Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society 125. WO Ault, Open-field Farming in Medieval England: A Study of Village By-Laws (Allen & Unwin, 1972). EP Thompson, Customs in Common (Merlin Press, 1991). JM Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge University Press, 1993). M Turner and D Woodward, ‘Theft from the Common Man: The Loss of “Common” Use Rights in England’ in T Brotherstone and G Pelling (eds), History, Economic History and the Future of Marxism (Porcupine Press, 1996). S Birtles, ‘Common Land, Poor Relief and Enclosure: The Use of Manorial Resources in Fulfilling Parish Obligations 1601–1834’ (1999) 165 P&P 74. AJL Winchester, ‘Upland Commons in Northern England’ and L Shaw-Taylor, ‘The Management of Common Lands in the Lowlands of Southern England c 1500 to c 1850’, both in M De Moor, L Shaw-Taylor and P Warde (eds), The Management of Common Land in North West Europe, c 1500–1850 (Brepols, 2002). N Kane, ‘Twelve Honest and Lawful Men in the Land of Mist and Malaria: Jury Regulation of Common Rights in the English Fens at the Time of Enclosure’ (2012) 19 New York University Environmental Law Journal 553.

Enclosure, 1700–1900 EM Leonard, ‘The Inclosure of Common Fields in the Seventeenth Century’ (1905) 19 TRHS (2nd series) 101. JL Hammond and B Hammond, The Village Labourer, 1760–1832: A Study in the Government of England Before the Reform Bill (Longmans, 1927). GN Clark, ‘Enclosure by Agreement at Marston, near Oxford’ (1927) 42 EHR 87. WE Tate, ‘Members of Parliament and the Proceedings Upon Enclosure Bills’ (1942) 12 Econ HR (1st series) 68. WE Tate, ‘Parliamentary Counter-Petitions During the Enclosure of the Eighteenth and Nineteenth Centuries’ (1944) 59 EHR 392. WE Tate, ‘The Cost of Parliamentary Enclosure in England (With Special Reference to the County of Oxford)’ (1952) 5 Econ HR (2nd series) 258. JD Chambers, ‘Enclosure and the Labour Supply in the Industrial Revolution’ (1953) 5 Econ HR (2nd series) 319. EP Thompson, The Making of the English Working Class (Victor Gollancz, 1963). JM Martin, ‘The Cost of Parliamentary Enclosure in Warwickshire’ (1964) 9 University of Birmingham Historical Journal (2nd series) 144. EL Jones, ‘Agriculture and Economic Growth in England, 1650–1750: Agricultural Change’ (1965) 25 JEH 1. B Loughbrough, ‘An Account of a Yorkshire Enclosure: Staxton, 1803’ (1965) 13 Ag HR 106. JD Chambers and GE Mingay, The Agricultural Revolution 1750–1880 (BT Batsford, 1966). WE Tate, The English Village Community and the Enclosure Movements (Victor Gollancz, 1967). M Williams, ‘The Enclosure and Reclamation of Waste Land in England and Wales in the Eighteenth and Nineteenth Centuries’ (1970) 51 TIBG 55. B Reaney, The Class Struggle in 19th Century Oxfordshire: The Social and Communal Background to the Otmoor Disturbances of 1830 to 1835 (History Workshop, 1971). ME Turner, ‘The Cost of Parliamentary Enclosure in Buckinghamshire’ (1973) 21 Ag HR 35. JM Martin, ‘The Small Landowner and Parliamentary Enclosure in Warwickshire’ (1979) 32 Econ HR (2nd series) 328. ME Turner, English Parliamentary Enclosure: Its Historical Geography and Economic History (Dawson, 1980). DH Morgan, Harvesters and Harvesting 1840–1900: A Study of the Rural Proletariat (Croom Helm, 1982).

Bibliography and Suggestions for Further Reading 641 RC Allen, ‘The Efficiency and Distributional Consequences of Eighteenth-Century Enclosures’ (1982) 92 Economic Journal 937. JR Wordie, ‘The Chronology of English Enclosures’ (1983) 36 Econ HR (2nd series) 36. JM Neeson, ‘The Opponents of Enclosure in Eighteenth Century Northamptonshire’ (1984) 105 P&P 114. KDM Snell, Annals of the Labouring Poor: Social Change and Agrarian England, 1660–1900 (Cambridge University Press, 1985). BA Holderness, ‘Agriculture, 1770–1860’ in CH Feinstein and S Pollard (eds), Studies in Capital Formation in the United Kingdom, 1750–1920 (Oxford University Press, 1988). P King, ‘Gleaners, Farmers and the Failure of Legal Sanctions in England 1750–1850’ (1989) 125 P&P 116. EA Wasson, ‘A Progressive Landlord. The Third Earl Spencer, 1782–1845’ in CW Chalkin and JR Wordie (eds), Town and Countryside. The English Landowner in the National Economy, 1660–1860 (Unwin Hyman, 1989). F Sharman, ‘An Introduction to the Enclosure Acts’ (1989) 10 JLH 45. J Humphries, ‘Enclosure, Common Rights and Women: The Proletarianization of Families in the Late Eighteenth and Early Nineteenth Centuries’ (1990) 50 JEH 26. P King, ‘Customary Rights and Women’s Earnings: The Importance of Gleaning to the Rural Labouring Poor, 1750–1850’ (1991) 44 Econ HR (2nd series) 461. P King, ‘Legal Change, Customary Right and Social Conflict in Late 18th Century England: The Origins of the Great Gleaning Case of 1788’ (1992) 10 L&HR 1. G Rogers, ‘Custom and Common Right: Waste Land Enclosure and Social Change in West Lancashire’ (1993) 41 Ag HR 137. JM Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge University Press, 1993). G Clark, ‘Agriculture and the Industrial Revolution: 1700–1850’ in J Mokyr (ed), The British Industrial Revolution: An Economic Perspective (Westview Press, 1993). CE Searle, ‘Customary Tenants and the Enclosure of the Cumbrian Commons’ (1993) 29 Northern History 126. D Brown and F Sharman, ‘Enclosure: Agreements and Acts’ (1994) 15 JLH 269. J Chapman and S Seeliger, ‘Formal Agreements and the Enclosure Process: The Evidence from Hampshire’ (1995) 43 Ag HR 35. S Birtles, ‘Common Land, Poor Relief and Enclosure: The Use of Manorial Resources in Fulfilling Parish Obligations’ (1995) 165 P&P 74. D Eastwood, ‘Communities, Protest and Police in Early Nineteenth-Century Oxfordshire: The Enclosure of Otmoor Reconsidered’ (1996) 44 Ag HR 3. M Overton, Agricultural Revolution in England: The Transformation of the Agrarian Economy 1500–1850 (Cambridge University Press, 1996). GE Mingay, Parliamentary Enclosure in England: An Introduction to Its Causes, Incidence and Impact 1750–1850 (Longman, 1997). S Hindle, ‘Persuasion and Protest in the Caddington Common Enclosure Dispute 1635–1639’ (1998) 158 P&P 37. G Clark, ‘Commons Sense: Common Property Rights, Efficiency and Institutional Change’ (1998) 58 JEH 73. G Clark, ‘Renting the Revolution’ (1998) 58 JEH 206. A Wood, The Politics of Social Conflict: The Peak Country, 1520–1770 (Cambridge University Press, 1999) chs 6 and 7. RC Allen, ‘Tracking the Agricultural Revolution in England’ (1999) 52 Econ HR (2nd series) 209. D Brown, ‘Reassessing the Influence of the Aristocratic Improver: The Example of the Fifth Duke of Bedford (1765–1802)’ (1999) 47 Ag HR 182. JM Neeson, ‘English Enclosures and British Peasants: Current Debates About Rural Social Structure in Britain c 1750–1870’ (2000) 2 Jahrbuch für Wirtschaftsgesichte 15. J Chapman and S Seeliger, Enclosure, Environment and Landscape in Southern England (Tempus, 2001). ME Turner, JV Beckett and B Afton, Farm Production in England 1700–1914 (Oxford University Press, 2001) esp ch 7. L Shaw-Taylor, ‘Parliamentary Enclosure and the Emergence of an English Agricultural Proletariat’ (2001) 61 JEH 640. L Shaw-Taylor, ‘Labourers, Cows, Common Rights and Parliamentary Enclosure: The Evidence of Contemporary Comment c 1760–1810’ (2001) 171 P&P 95. G Clark and A Clark, ‘Common Rights to Land in England, 1475–1839’ (2001) 61 JEH 1009. ES Tan, ‘“The Bull is Half the Herd”: Property Rights and Enclosures in England, 1750–1850’ (2002) 39 EEH 470. I Whyte, ‘“Wild, Barren and Frightful” – Parliamentary Enclosure in an Upland County: Westmorland 1767–1890’ (2003) 14 Rural History 21.

642 Bibliography and Suggestions for Further Reading L Shaw-Taylor, ‘Access to Land by Labourers and Tradesmen in 18th-Century England’ in BJP van Bavel and P Hoppenbrouwers (eds), Landholding and Land Transfer in the North Sea Area (Brepols, 2004). I Whyte, ‘Parliamentary Enclosure and Changes in Landownership in an Upland Environment: Westmorland, c 1770–1860’ (2006) 54 Ag HR 240. SJ Thompson, ‘Parliamentary Enclosure, Property, Population and the Decline of Classical Republicanism in Eighteenth-Century Britain’ (2008) 51 HJ 621. BAK McDonagh, ‘Women, Enclosure and Estate Improvement in Eighteenth-Century Northamptonshire’ (2009) 20 Rural History 143. JV Beckett and ME Turner, ‘Agricultural Productivity in England, 1700–1914’ in M Olsson and P Svensson (eds), Growth and Stagnation in European Historical Agriculture (Brepols, 2011). A Howkuns, ‘The Commons, Enclosure and Radical Histories’ in D Feldman and J Lawrence (eds), Structures and Transformations in Modern British History: Essays for Gareth Stedman Jones (Cambridge University Press, 2011). M Cragoe and B McDonagh, ‘Parliamentary Enclosure, Vermin and the Cultural Life of English Parishes, 1750–1850’ (2013) 28 C&C 27. A Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge University Press, 2013) ch 3. R Tennyson, ‘From Unanimity to Proportionality: Assent Standards and the Parliamentary Enclosure Movement’ (2013) 31 L&HR 199. J Goldstein, ‘Terra Economica: Waste and the Production of Enclosed Nature’ (2013) 4 Antipode 357.

Tithe C Hill, The Economic Problems of the Church, from Archbishop Whitgift to the Long Parliament (Oxford University Press, 1956). GFA Best, Temporal Pillars. Queen Anne’s Bounty, the Ecclesiastical Commissioners, and the Church of England (Cambridge University Press, 1964). WO Ault, ‘The Village Church and the Village Community in Medieval England’ (1970) 45 Speculum 197. WR Ward, Religion and Society in England 1790–1850 (Schocken Books, 1973). EJ Evans, The Contentious Tithe: The Tithe Problem and English Agriculture 1750–1850 (Routledge & Kegan Paul, 1976). EJ Evans, ‘Tithes’ in J Thirsk (ed), The Agrarian History of England and Wales, vol 5: 1640–1750 (Cambridge University Press, 1985). RJP Kain and HC Prince, The Tithe Surveys of England and Wales (Cambridge University Press, 1985). GM Ditchfield, ‘Parliament, the Quakers and the Tithe Question, 1750–1835’ (1985) 4 Parl Hist 87. AW Purdue, ‘An Oxford College, Two Parishes and a Tithe-Farmer: The Modernisation of Tithe Collection’ (1997) 8 Rural History 1. EJ Evans and AG Crosby, Tithes: Maps, Apportionments and the 1836 Act: A Guide for Local Historians (British Association for Local History, 1997) chs 1 and 2. RH Helmholz, The Oxford History of the Laws of England, vol 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford University Press, 2004) ch 8. R Lee, Rural Society and the Anglican Clergy, 1815–1914: Encountering and Managing the Poor (Boydell Press, 2006). A Lewis, ‘When Is a Tax Not a Tax But a Tithe?’ in J Tiley (ed), Studies in the History of Tax Law, vol 2 (Hart, 2007). D Cummins, ‘The Social Significance of Tithes in Eighteenth-Century England’ (2013) 128 EHR 1129. M Blakstad, ‘The Tithing of Turnips: A Hampshire Village in the Westminster Spotlight’ (East Meon History Society, 2016); online at: https://www.eastmeonhistory.org.uk/wp-content/uploads/2016/08/The-Tithing-ofTurnips-Illustrated.pdf.

Urban Leases, 1750–1914 H Cubitt, Building in London (Constable & Co, 1911) 269–78. D Spring, ‘The English Landed Estate in the Age of Coal and Iron: 1830–1880’ (1951) 11 JEH 3. RS Neale, ‘An Equitable Trust in the Building Industry in 1794’ (1965) 7 BH 94.

Bibliography and Suggestions for Further Reading 643 HJ Dyos, ‘The Speculative Builders and Developers of Victorian London’ (1968) 11 VS 641. CW Chalkin, ‘Urban Housing Estates in the Eighteenth Century’ (1968) 5 Urban Studies 67. MJ Mortimore, ‘Landownership and Urban Growth in Bradford and Its Environs in the West Riding Conurbation, 1850–1950’ (1969) 46 TIBG 105. D Spring, ‘English Landowners and Nineteenth-Century Industrialism’ and RW Sturgess, ‘Landowners, Mining and Urban Development in Nineteenth-Century Staffordshire’, both in JT Ward and RG Wilson (eds), Land and Industry: The Landed Estate and the Industrial Revolution (David and Charles, 1971). CW Chalkin, The Provincial Towns of Georgian England: A Study of the Building Process 1740–1820 (Edward Arnold, 1974). D Cannadine, Lords and Landlords: The Aristocracy and the Towns, 1774–1967 (Leicester University Press, 1980). P Kemp, ‘Housing Landlordism in Late Nineteenth-century Britain’ (1982) 14 Environment and Planning 1437. MJ Daunton, House and Home in the Victorian City: Working-Class Housing 1850–1914 (Edward Arnold, 1983). D Englander, Landlord and Tenant in Urban Britain: The Politics of Housing Reform, 1838–1918 (Clarendon Press, 1983). D Cruikshank and N Burton, Life in the Georgian City (Viking, 1990). A Kenney, ‘Sources for the History of Housing in English Provincial Towns in the Eighteenth and Nineteenth Centuries (1990) 6 Construction History 63. G Power, ‘Entail in Two Cities: A Comparative Study of Long Term Leases in Birmingham, England and Baltimore, Maryland 1700–1900’ (1992) 9 Journal of Architectural and Planning Research 315. D Englander, ‘Urban House Tenure and Litigation in Nineteenth-Century Britain’ in W Steinmetz (ed), Private Law and Social Inequality in the Industrial Age (Oxford University Press, 2000). J Anderson, ‘The Operation of the Early Nineteenth-Century Property Market’ (2009) 24 Construction History 63. JS Anderson, ‘Leases, Mortgages, and Servitudes’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010). J Boulton, ‘“Turned Into the Street With My Children Destitute of Every Thing”: The Payment of Rent and the London Poor, 1600–1850’ in J McEwan and P Sharpe (eds), Accommodating Poverty: The Housing and Living Arrangements of the English Poor, c 1600–1850 (Palgrave Macmillan, 2011).

Restrictive Covenants, 1830–1914 WS Holdsworth, A History of English Law vol 7 (Methuen, 1925) 287–92. JS Anderson, ‘Leases, Mortgages and Servitudes’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010) 159–78. B McFarlane, ‘Tulk v Moxhay (1848)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). B McFarlane, ‘Keppell v Bailey (1834); Hill v Tupper (1863): The Numerus Clausus and the Common Law’ in N Gravells (ed), Landmark Cases in Land Law (Hart, 2013).

Suburban Development, 1800–1950 HJ Dyos, Victorian Suburb: A Study of the Growth of Camberwell (1961). FML Thompson, Hampstead. Building a Borough, 1650–1964 (Routledge & Kegan Paul, 1974). R Dennis, English Industrial Cities of the Nineteenth Century (Cambridge University Press, 1984). G Malcolm, ‘The Suburbs of Victorian Oxford’ (PhD thesis, University of Leicester, 1985); online at: https://lra. le.ac.uk/handle/2381/8427. FML Thompson, ‘The Rise of Suburbia’ in RJ Morris and R Rodger (eds), The Victorian City: A Reader in British Urban History 1820–1914 (Longman, 1993). M Clapson, ‘Suburbanisation and Social Change in England and North America, 1870–1970’ in D Englander (ed), Britain and America: Studies in Comparative History, 1760–1970 (Yale University Press, 1997). DR Green and A Owens, ‘Metropolitan Estates of the Middle Class, 1800–50’ (1997) 70 HR 294. M Reed, ‘The Transformation of Urban Space 1700–1840’ in P Clark (ed), The Cambridge Urban History of Britain vol 2: 1540–1840 (Cambridge University Press, 2000). M Clapson, ‘The Suburban Aspiration in England Since 1919’ (2000) 14 CBH 151. E Hopkins, Birmingham: The Making of the Second City, 1850–1939 (History Press, 2001).

644 Bibliography and Suggestions for Further Reading JWR Whitehand and CMH Carr, Twentieth‐century Suburbs: A Morphological Approach (Routledge, 2001). N Barratt, Greater London: The Story of the Suburbs (Random House, 2012). C Wildman, Urban Redevelopment and Modernity in Liverpool and Manchester, 1918–1939 (Bloomsbury Academic, 2016).

Building Societies, 1800–1950 EJ Cleary, The Building Society Movement (Elek Books, 1965). SD Chapman and M Bartlett, ‘The Contribution of Building Clubs and Freehold Land Societies to Working-Class Housing in Birmingham’ in SD Chapman (ed), The History of Working Class Housing: A Symposium (1971). MH Yeadell, ‘Building Societies in the West Riding of Yorkshire and Their Contribution to Housing Provision in the Nineteenth Century’ in M Doughty (ed), Building the Industrial City (Leicester University Press, 1986). J Humphries, ‘Inter-War House Building, Cheap Money and Building Societies: The Housing Boom Revisited’ (1987) 29 BH 325. E Hopkins, Working-Class Self-Help in Nineteenth-Century England: Responses to Industrialisation (UCL Press, 1995). CG Pooley and M Harmer, Property Ownership in Britain c 1850–1950: The Role of the Bradford Equitable Building Society and the Bingley Building Society in the Development of Home Ownership (Cambridge University Press, 1999). P Scott and L Newton, ‘Advertising, Promotion, and the Rise of a National Building Society Movement in Interwar Britain’ (2012) 54 BH 399. A Samy, The Building Society Promise: Access, Risk and Efficiency 1880–1939 (Oxford University Press, 2016).

Compulsory Purchase, 1750–1900 (a) Highways S Webb and B Webb, English Local Government from the Revolution to the Municipal Corporations Act, vol 5: The Story of the King’s Highway (Longmans, Green and Co, 1913). W Albert, The Turnpike Road System in England, 1663–1840 (Cambridge University Press, 1972). E Pawson, Transport and Economy: The Turnpike Roads of Eighteenth Century Britain (Academic Press, 1977). R Harris, Industrialising English Law: Entrepreneurship and Business Organisation, 1720–1844 (Cambridge University Press, 2000). D Bogart, ‘Did Turnpike Trusts Increase Transportation Investment in Eighteenth-Century England?’ (2005) 65 JEH 439.

(b) Canals H Malet, The Canal Duke: A Biography of Francis, 3rd Duke of Bridgewater (David & Charles, 1961). JR Ward, The Finance of Canal Building in Eighteenth Century England (Clarendon Press, 1974). R Harris, Industrialising English Law: Entrepreneurship and Business Organisation, 1720–1844 (Cambridge University Press, 2000).

(c) Railways H Pollins, ‘A Note on Railway Constructional Costs 1825–1850’ (1952–53) 19 Economica (new series) 395. H Pollins, ‘Railway Contractors and the Finance of Railway Development in Britain’ (1957) 3 Journal of Transport History 41 and 103. S Broadbridge, Studies in Railway Expansion and the Capital Market in England, 1825–1873 (Frank Cass & Co, 1970). G Channon, ‘A Nineteenth Century Investment Decision: The Midland Railway’s London Extension’ (1972) 3 Econ HR (2nd series) 448.

Bibliography and Suggestions for Further Reading 645 RJ Irving, ‘The Capitalisation of Britain’s Railways 1830–1914’ (1984) 5 Journal of Transport History (3rd series) 1. TR Gourvish, ‘Railways 1830–1870: The Formative Years’ in MJ Freeman and DH Aldcroft (eds), Transport in Victorian Britain (Manchester University Press, 1988). R Kostal, Law and English Railway Capitalism, 1825–1875 (Clarendon Press, 1994) ch 4. S Jack and A Jack, ‘Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases’ (2003) 24 JLH 59.

Nuisance, 1800–1914 JF Brenner, ‘Nuisance Law and the Industrial Revolution’ (1973) 3 JLS 403. AE Dingle, ‘“The Monster Nuisance of All”: Landowners, Alkali Manufacturers, and Air Pollution, 1828–64’ (1982) 35 Econ HR (2nd series) 529. JPS Maclaren, ‘Nuisance Law and the Industrial Revolution: Some Lessons from Social History’ (1983) 3 OJLS 155. AS Wohl, Endangered Lives: Public Health in Victorian Britain (Dent, 1983). B Luckin, Pollution and Control: A Social History of the Thames in the Nineteenth Century (Adam Hilger, 1986). JG Williamson, Coping With City Growth During the British Industrial Revolution (Cambridge University Press, 1990). R Hawes, ‘The Control of Alkali Pollution in St Helens, 1862–1890’ (1995) 1 Environment and History 159. AWB Simpson, ‘Bursting Reservoirs and Victorian Tort Law: Rylands and Horrocks v Fletcher’ and ‘Victorian Judges and the Problem of Social Cost: Tipping v St Helen’s Smelting Company (1865)’, both in AWB Simpson, Leading Cases in the Common Law (Oxford University Press, 1996). R Cocks, ‘Victorian Foundations?’ in J Lowry and R Edmunds (eds), Environmental Protection and the Common Law (Hart, 2000). B Luckin, ‘Pollution in the City’ in M Daunton (ed), The Cambridge Urban Hisory of Britain, vol III: 1840–1950 (Cambridge University Press, 2001). H-J Voth, ‘Living Standards and the Urban Environment’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation, 1700–1860 (Cambridge University Press, 2004). K Oliphant, ‘Rylands v Fletcher and the Emergence of Enterprise Liability in the Common Law’ in H Koziol and BC Steininger (eds), European Tort Law 2004 (Springer, 2005). L Rosenthal, ‘Economic Efficiency, Nuisance and Sewage: New Lessons from Attorney General v Council of the Borough of Birmingham, 1858–95’ (2007) 36 JLS 27. B Pontin, ‘The Secret Achievements of Nineteenth Century Nuisance Law: Attorney-General v Birmingham Corporation (1858–95) in Context’ (2007) 19 Environmental Law and Management 271 and 276. M Lobban, ‘Nuisance’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010). B Pontin, ‘Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence’ (2012) 75 MLR 101. L Tomory, ‘The Environmental History of the Early British Gas Industry, 1812–1830 (2012) 17 Environmental History 29. B Pontin, ‘The Common Law Clean Up of the “Workshop of the World”: More Realism about Nuisance Law’s Historic Environmental Achievements’ (2013) 40 JLS 173. A Kasuga, ‘Views of Smoke in England, 1800–1830’ (PhD thesis, University of Nottingham, 2013); online at: http://eprints.nottingham.ac.uk/13991/1/Thesis_final_draft_after_viva_for_online.pdf. L Rosenthal, The River Pollution Dilemma in Victorian England: Nuisance Laws Versus Economic Efficiency (Ashgate, 2014).

Public Health and Urban Amenities, 1832–1914 See also the entries on public health and state medicine listed under the relevant heading for Chapter 6. SE Finer, The Life and Times of Sir Edwin Chadwick (Methuen & Co, 1952). RA Lewis, Edwin Chadwick and the Public Health Movement, 1832–1854 (Longmans, Green & Co, 1952).

646 Bibliography and Suggestions for Further Reading B Keith-Lucas, ‘Some Influences Affecting the Development of Sanitary Legislation in England’ (1954) 6 Econ HR (2nd series) 290. EP Hennock, ‘Urban Sanitary Reform a Generation Before Chadwick’ (1957) 10 Econ HR (2nd series) 113. A Briggs, Victorian Cities (Odhams Press, 1963) ch 5. R Lambert, Sir John Simon, 1816–1904, and English Social Administration (Macgibbon & Kee, 1963) ch 4. RM Macleod, ‘The Alkali Acts Administration, 1863–84: The Emergence of a Civil Scientist’ (1965) 9 Victorian Studies 85. C Flick, ‘The Movement for Smoke Abatement in Nineteenth-Century Britain’ (1980) 21 Technology and Culture 29. SM Gaskell, Building Control: National Legislation and the Introduction of Local Bye-Laws in Victorian England (Bedford Square Press, 1983). RH Harper, Victorian Building Regulations: Summary Tables of the Principal English Building Acts and Model Bye-Laws, 1840–1914 (Mansell, 1985). B Luckin, Pollution and Control: A Social History of the Thames in the Nineteenth Century (Hilger, 1986) ch 8. A Brundage, England’s “Prussian Minister”: Edwin Chadwick and the Politics of Government Growth, 1832–1854 (Pennsylvania State University Press, 1988). C Hamlin, ‘Edwin Chadwick and the Engineers, 1842–1854: Systems and Anti-Systems in the Pipe-and-Brick Sewers War’ (1992) 33 Technology and Culture 680. R Hawes, ‘The Control of Alkali Pollution in St Helens, 1862–1890’ (1995) 1 Environment and History 159. R Millward and S Sheard, ‘The Urban Fiscal Problem, 1870–1914: Government Expenditure and Finance in England and Wales’ (1995) 48 Econ HR (2nd series) 501. N Goddard, ‘“A Mine of Wealth”? The Victorians and the Agricultural Value of Sewage’ (1996) 22 Journal of Historical Geography 274. C Hamlin, Public Health and Social Justice in the Age of Chadwick: Britain 1800–1854 (Cambridge University Press, 1998). D Sunderland, ‘“A Monument to Defective Administration?” The London Commissions of Sewers in the Early Nineteenth Century’ (1999) 26 Urban History 349. S Sheard and H Power (eds), Body and City: Histories of Urban Public Health (Routledge, 2000). AJ Ley, A History of Building Control in England and Wales 1840–1990 (RICS Books, 2000). C Bowler and P Brimblecombe, ‘Control of Air Pollution in Manchester Prior to the Public Health Act, 1875’ (2000) 6 Environment and History 71. S Mosley, The Chimney of the World: A History of Smoke Pollution in Victorian and Edwardian Manchester (White Horse Press, 2001). C Hamlin, ‘Public Sphere to Public Health: The Transformation of “Nuisance”’ in S Sturdy (ed), Medicine, Health and the Public Sphere in Britain, 1600–2000 (Routledge, 2002). C Garwood, ‘Green Crusaders or Captives of Industry? The British Alkali Inspectorate and the Ethics of Environmental Decision-Making, 1864–95’ (2004) 61 Annals of Science 99. JG Hanley, ‘The Metropolitan Commissioners of Sewers and the Law, 1812–1847’ (2006) 33 Urban History 350. R Thorsheim, Inventing Pollution: Coal, Smoke and Culture in Britain Since 1800 (Ohio University Press, 2006) ch 8. T Crook, ‘Sanitary Inspection and the Public Sphere in Late Victorian and Edwardian Britain: A Case Study in Liberal Governance’ (2007) 32 SH 369. R Cocks, ‘Health for the Public’ in WR Cornish et al, The Oxford History of the Laws of England vol XIII: 1820–1914 Fields of Development (Oxford University Press, 2010). N Morag-Levine, ‘Is Precautionary Regulation a Civil Law Instrument? Lessons from the History of the Alkali Act’ (2011) 23 Journal of Environmental Law 1. P Thorsheim, ‘The Corpse in the Garden: Burial, Health, and the Environment in Nineteenth-Century London’ (2011) 16 Environmental History 38. L Tomory, ‘The Environmental History of the Early British Gas Industry, 1812–1830’ (2012) 17 Environmental History 29. M Lobban, ‘Tort Law, Regulation and River Pollution: The Rivers Pollution Prevention Act and its Implementation, 1876–1951’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2013). C Hamlin, ‘Nuisances and Community in Mid-Victorian England: The Attractions of Inspection’ (2013) 38 SH 346. A Kasuga, ‘The Introduction of the Steam Press: A Court Case on Smoke and Noise Nuisances in a London Mansion, 1824’ (2015) 42 Urban History 405.

Bibliography and Suggestions for Further Reading 647 T Crook, Governing Systems: Modernity and the Making of Public Health in England, 1830–1910 (University of California Press, 2016). JG Hanley, Healthy Boundaries: Property, Law, and Public Health in England and Wales, 1815–1872 (University of Rochester Press, 2016).

The Land Question, 1867–1914 EP Lawrence, Henry George in the British Isles (Michigan State University Press, 1957). FML Thompson ‘Land and Politics in England in the Nineteenth Century’ (1964) 47 TRHS (4th series) 23. HJ Perkin, ‘Land Reform and Class Conflict in Victorian Britain’ in J Butt and IF Clark, The Victorians and Social Protest (David and Charles, 1973). JR McQuiston, ‘Tenant Right: Farmer Against Landlord in Victorian England 1847–1883’ (1973) 47 Ag HR 95. R Douglas, Land, People and Politics: A History of the Land Question in the United Kingdom, 1878–1952 (Allison & Busby, 1976). JR Fisher, ‘The Farmers’ Alliance: An Agricultural Protest Movement of the 1880s’ (1978) 26 Ag HR 15. D Cannadine, The Decline and Fall of the British Aristocracy (Yale University Press, 1990). FML Thompson, ‘English Landed Society in the Twentieth Century, I: Property, Collapse and Survival’ (1990) 40 TRHS (5th series) 1. M Chase, ‘Out of Radicalism: The Mid-Victorian Freehold Land Movement’ (1991) 106 EHR 319. CAM Duncan, ‘Legal Protection for the Soil of England: The Spurious Context of Nineteenth-Century “Progress”’ (1992) 66 Agricultural History 75. P Barnes, Norfolk Landowners Since 1880 (Centre for East Anglia Studies, UEA, 1993) ch 4. P Mandler, The Fall and Rise of the Stately Home (Yale University Press, 1997) ch 6. AM Hadfield, The Chartist Land Company (Square Edge Books, 2000). I Packer, Lloyd George, Liberalism and the Land: The Land Issue and Party Politics in England, 1906–1914 (Boydell Press, 2001). FML Thompson, ‘Changing Perceptions of Land Tenures in Britain, 1750–1914’ in D Winch and P O’Brien (eds), The Political Economy of the British Historical Experience, 1688–1914 (Oxford University Press, 2002). M Chase, ‘“Wholesome Object Lessons”: The Chartist Land Plan in Retrospect’ (2003) 118 EHR 59. A Taylor, Lords of Misrule: Hostility to Aristocracy in Late Nineteenth- and Early Twentieth Century Britain (Palgrave Macmillan, 2004). P Readman, ‘Jesse Collings and Land Reform, 1886–1914’ (2008) 81 HR 292. P Readman, Land and Nation in England: Patriotism, National Identity, and the Politics of Land, 1880–1914 (Boydell Press, 2008). JS Anderson, ‘Property Rights in Land: Reforming the Heritage’ and ‘Land Transactions: Settlements and Sales’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010). M Cragoe and P Readman (eds), The Land Question in Britain, 1750–1950 (Palgrave Macmillan, 2010). DW Howell, ‘The Land Question in Nineteenth-Century Wales, Ireland and Scotland: A Comparative Study’ (2013) 61 Ag HR 83. L Bonfield, ‘Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter With Forced Heirship’ (2018) 58 AJLH 479. M Tichelar, The Failure of Land Reform in Twentieth Century England: The Triumph of Private Property (Routledge, 2019) chs 1 and 2.

Conveyancing, 1832–1940 JER de Villiers, The History of the Legislation concerning Real and Personal Property During the Reign of Queen Victoria (CJ Clay & Sons, 1901) chs 1 and 2. A Offer, Property and Politics 1870–1914: Landownership, Law, Ideology and Urban Development in England (Cambridge University Press, 1981). JS Anderson, Lawyers and the Making of English Land Law: 1832–1940 (Oxford University Press, 1992). A Offer, ‘Lawyers and Land Law Revisited’ (1994) 14 OJLS 268.

648 Bibliography and Suggestions for Further Reading J Howell, ‘Deeds Registration in England: A Complete Failure?’ (1999) 58 CLJ 366. JS Anderson, ‘Property Rights in Land: Reforming the Heritage’, ‘Land Transactions: Settlements and Sales’, and ‘Changing the Nature of Real Property Law’ in WR Cornish et al, The Oxford History of the Laws of England vol XII: 1820–1914 Private Law (Oxford University Press, 2010). J Roche, ‘Historiography and the Law of Property Act 1925: The Return of Frankenstein’ (2018) 77 CLJ 600.

Housing, 1850–1950 SP Saul, ‘House-building in England 1890–1914’ (1962) 15 Econ HR (2nd series) 119. JP Lewis, Building Cycles and Britain’s Growth (Macmillan, 1965). G Stedman Jones, Outcast London: A Study in the Relationship Between Classes in Victorian Society (Clarendon Press, 1971) ch 8. AS Wohl, The Eternal Slum: Housing and Social Policy in Victorian London (Edward Arnold, 1977). LF Orbach, Homes for Heroes: A Study of the Evolution of British Public Housing 1915–1921 (Seeley, 1977). S Merrett, State Housing in Britain (Routledge & Kegan Paul, 1979). R Finnigan, ‘Housing Policy in Leeds between the Wars’ in J Melling (ed), Housing, Social Policy and the State (Croom Helm, 1980). P Dickens and P Gilbert, ‘Interwar Housing Policy: A Study of Brighton’ (1981) 3 Southern History 201. MJ Daunton, House and Home in the Victorian City: Working Class Housing, 1850–1914 (Edward Arnold, 1983). D Englander, Landlord and Tenant in Urban Britain: The Politics of Housing Reform, 1838–1918 (Clarendon Press, 1983). M Daunton (ed), Councillors and Tenants: Local Authority Housing in English Cities 1919–1939 (Leicester University Press, 1984). J Burnett, A Social History of Housing, 1815–1985 (Methuen, 1986). JA Yelling, Slums and Slum Clearance in Victorian London (Allen & Unwin, 1986). M Daunton, A Property-Owning Democracy? (Faber & Faber, 1987). AE Holmans, Housing Policy in Britain: A History (Croom Helm, 1987). R Rodger, Housing in Urban Britain 1780–1914 (Macmillan, 1989). M Daunton, ‘Housing’ in FML Thompson (ed), The Cambridge Social History of Britain 1750–1950, vol 2: People and Their Environment (Cambridge University Press, 1990). M McKenna, ‘The Suburbanization of the Working Class Population of Liverpool between the Wars’ (1991) 16 SH 173. S Lowe and D Hughes (eds), A New Century of Social Housing (Leicester University Press, 1991). CG Pooley, ‘England and Wales’ in CG Pooley (ed), Housing Strategies in Europe, 1880–1930 (Leicester University Press, 1992). D Byrne, ‘Working-Class Owner-Occupation and Social Differentiation on Inter-War Tyneside’ in B Lancaster (ed), Working-Class Housing on Tyneside, 1850–1939 (Bewick Press, 1994). A Ravetz with R Turkington, The Place of Home: English Domestic Environments, 1914–2000 (E & FN Spon, 1995). A Olechnowicz, Working Class Housing in England Between the Wars: The Becontree Estate (Oxford University Press, 1997). A O’Carroll, ‘Tenements to Bungalows: Class and the Growth of Home Ownership Before World War II’ (1997) 24 Urban History 221. M Clapson, ‘Working Class Women’s Experiences of Moving to New Housing Estates in England Since 1919’ (1999) 10 TCBH 345. G Speight, ‘Who Bought the Interwar Semi? The Socio-economic Characteristics of New House Buyers in the 1930s’ (2000) 38 University of Oxford Discussion Papers in Economic and Social History; online at: https:// www.nuff.ox.ac.uk/Economics/History/paper38/speight.pdf. N Hayes, ‘Civic Perceptions: Housing and Local Decision Making in English Cities in the 1920s’ (2000) 27 Urban History 211. A Ravetz, Council Housing and Culture: The History of a Social Experiment (Routledge, 2001). K Morgan, ‘The Conservative Party and Mass Housing, 1918–39’, in S Ball and I Holliday (eds), Mass Conservatism: The Conservatives and the Public Since the 1880s (Routledge, 2002). H Meller, ‘Housing and Town Planning’ in C Wrigley (ed), A Companion to Early Twentieth-Century Britain (Blackwell, 2003).

Bibliography and Suggestions for Further Reading 649 AE Holman ‘Historical Statistics of Housing in Britain’ (University of Cambridge Centre for Housing and Planning Research, 2005); online at: https://www.cchpr.landecon.cam.ac.uk/Projects/Start-Year/2005/ Other-Publications/Historical-Statistics-of-Housing-in-Britain. E Laurie, ‘The Origins of Central Control Over Local Authority Housing Allocations: Principle or Pragmatism’ (2005) 26 JLH 305. P Shapely, The Politics of Housing: Power, Consumers and Urban Culture (Manchester University Press, 2007). P Scott, ‘Marketing Mass Home Ownership and the Creation of the Modern Working Class Consumer in Interwar Britain’ (2008) 50 BH 4. B Jones, ‘Slum Clearance, Privatization and Residualization: The Practices and Politics of Council Housing in Mid-Twentieth-Century England’ (2010) 21 TCBH 510. TJ Hulme, ‘Urban Governance and Civic Responsibility: Interwar Council Housing in Buxton’ (2010) 35 Midland History 237. C Wildman, ‘Urban Transformation in Liverpool and Manchester, 1918–1939’ (2012) 55 HJ 119. P Scott, The Making of the Modern British Home: The Suburban Semi and Family Life between the Wars (Oxford University Press, 2013). P Broxholme, ‘Back to the Future? The Tory Party, Paternalism, and Housing Policy in Nottingham 1919–1932’ (2013) 38 Midland History 99. J Boughton, Municipal Dreams: The Rise and Fall of Council Housing (Verso, 2018).

Urban Planning, 1850–1950 W Ashworth, The Genesis of Modern British Town Planning: A Study in Economic and Social History of the Nineteenth and Twentieth Centuries (Routledge & Kegan Paul, 1954). GE Cherry, The Evolution of Town Planning (Wiley, 1974). G McDougall, ‘The State, Capital and Land: The History of Town Planning Revisited’ (1979) 3 International Journal of Urban and Regional Research 361. A Sutcliffe (ed), British Town Planning: The Formative Years (Leicester University Press, 1981). FJC Amos, ‘The Town and Country Planning Act 1947’ (1987) 30 Planning Outlook 12. PL Garside, ‘“Unhealthy Areas”: Town Planning and Eugenics in the Slums 1890–1914’ (1988) 3 Planning Perspectives 24. A Sutcliffe, ‘Britain’s First Town Planning Act: A Review of the 1909 Achievement’ (1988) 59 Town Planning Review 289. GE Cherry, Cities and Plans: The Shaping of Urban Britain in the Nineteenth and Twentieth Centuries (Edward Arnold, 1988). D Hardy, From Garden Cities to New Towns: Campaigning for Town and Country Planning, 1899–1946 (Spon Press, 1991). M Simpson et al, British Planning History 1900–1952 (Altair, 1992). J Hasegawa, Replanning the Blitzed City Centre: A Comparative Study of Bristol, Coventry and Southampton 1941–50 (Open University Press, 1992). N Bullock, ‘Ideas, Priorities and Harsh Realities: Reconstruction and the LCC, 1945–51’ (1994) 9 Planning Perspectives 87. GE Cherry, Town Planning in Britain Since 1900: The Rise and Fall of the Planning Ideal (Wiley, 1996). R Haywood, ‘Railways, Urban Form and Town Planning in London: 1900–1947’ (1997) 12 Planning Perspectives 37. P Booth, ‘From Regulation to Discretion: The Evolution of Development Control in the British Planning System 1909–1947’ (1999) 14 Planning Perspectives 277. R Cocks, ‘Enforced Creativity: Noel Hutton and the New Law for Development Control, 1945–47’ (2001) 22 JLH 21. PJ Larkham and KD Lilley, Planning the ‘City of Tomorrow’: British Reconstruction Planning, 1939–1952: An Annotated Bibliography (Inch’s Books, 2001). JA Yelling, ‘Land, Property and Planning’ in M Daunton (ed), The Cambridge Urban History of Britain Volume 3: 1840–1950 (Cambridge University Press, 2008). MP Collins, ‘Development Plan Coverage in England 1909–2012’ (2013) 12 Journal of Planning & Environment Law 1482. E Marmaras, Planning London for the Post-War Era 1945–1960 (Springer, 2015). LE Hewitt, ‘Ordering the Urban Body: Professional Planning in Early Twentieth-Century Britain’ (2016) 41 SH 304.

650 Bibliography and Suggestions for Further Reading

Chapter Three: Commerce and Industry Contract Law, 1750–1950 SJ Stoljar, ‘Conditions, Warranties and Descriptions of Quality in Sale of Goods’ (1952) 15 MLR 425 and (1953) 16 MLR 174. LA Sheridan, Fraud in Equity: A Study in English and Irish Law (Pitman, 1957). MJ Horwitz, ‘The Historical Foundations of Modern Contract Law’ (1974) 87 Harvard Law Review 917. AWB Simpson, ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 LQR 247. R Danzig, ‘Hadley v Baxendale: A Study in the Industrialisation of the Law’ (1975) 4 JLS 249. MJ Horwitz, The Transformation of American Law, 1780–1860 (Harvard University Press, 1977) ch 6. JN Adams, ‘The Standardization of Commercial Contracts, or the Contractualization of Standard Forms’ (1978) 7 Anglo-American Law Review 136. JH Baker, ‘From Sanctity of Contract to Reasonable Expectation?’ (1979) 32 CLP 17. AWB Simpson, ‘The Horwitz Thesis and the History of Contracts’ (1979) 46 University of Chicago Law Review 533. PS Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press, 1979). F Dawson, ‘Metaphors and Anticipatory Breach of Contract’ (1981) 40 CLJ 83. JL Barton, ‘The Enforcement of Hard Bargains’ (1987) 103 LQR 118. JL Barton, ‘Contractual Damages and the Rise of Industry’ (1987) 7 OJLS 40. JD Wladis, ‘Common Law and Uncommon Events: The Development of the Doctrine of Impossibility of Performance in English Contract Law’ (1987) 75 Georgetown Law Journal 1575. J Gordley, The Philosophical Origins of Modern Contract Doctrine (Clarendon Press, 1991). S Gardner, ‘Trashing With Trollope: A Deconstruction of the Postal Rules in Contract’ (1992) 12 OJLS 170. VV Palmer, The Paths to Privity: The History of Third-Party Beneficiary Contracts at English Law (Austin and Winfield, 1992). M Lobban, ‘Nineteenth Century Frauds in Company Formation: Derry v Peek in Context’ (1996) 112 LQR 287. S Hedley, ‘The “Needs of Commercial Litigants” in Nineteenth and Twentieth Century Contract Law’ (1997) 18 JLH 85. AWB Simpson, ‘The Beauty of Obscurity: Raffles v Wichelhaus and Busch (1864)’ and ‘Quackery and Contract Law: Carlill and Carbolic Smoke Ball Company (1893)’, both in AWB Simpson, Leading Cases in the Common Law (Clarendon Press, 1997). M Lobban, ‘Contractual Fraud in Law and Equity, c 1750 – c 1850’ (1997) 17 OJLS 441. D Lieberman, ‘Contract Before “Freedom of Contract”’ in HN Schreiber (ed), The State and Freedom of Contract (Stanford University Press, 1998). A Phang, ‘Implied Terms, Business Efficacy and the Officious Bystander – A Modern Essay’ [1998] JBL 1. D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) chs 11–13. P Mitchell, ‘The Development of Quality Obligations in Sale of Goods’ (2001) 117 LQR 645. W Swain, ‘The Changing Nature of the Doctrine of Consideration, 1750–1850’ (2005) 26 JLH 55. C Smith, ‘Allcard v Skinner (1887)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Restitution (Hart, 2006). S Waddams, ‘What Were the Principles of Nineteenth-century Contract Law?’ and W Swain, ‘The Will Theory of Contract in the Nineteenth Century: Its Influence and Its Limitations’, both in A Lewis, P Brand and P Mitchell (eds), Law in the City: Proceedings of the Seventeenth British Legal History Conference 2005 (Four Courts Press, 2007). G McMeel, ‘Pillans v Van Mierop (1765)’, P Mitchell, ‘Hochster v De La Tour (1853)’, and C MacMillan, ‘Taylor v Caldwell (1863)’, all in C Mitchell and P Mitchell, Landmark Cases in the Law of Contract (Hart, 2008). D Ibbetson, ‘English Law Before 1900’ and ‘English Law: Twentieth Century’, both in J Hallebeek and H Dondorp (eds), Contracts for a Third-Party Beneficiary: A Historical and Comparative Account (Martinus Nijhoff, 2008). R Austen-Baker, ‘Implied Terms in English Contract Law: The Long History of The Moorcock’ (2009) 38 Common Law World Law Review 56. M Lobban, ‘Contract’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). C MacMillan, Mistakes in Contract Law (Hart, 2010). Qiao Liu, Anticipatory Breach (Hart, 2011).

Bibliography and Suggestions for Further Reading 651 C MacMillan, ‘Earl of Aylesford v Morris (1873)’ and J Edelman, ‘Nocton v Lord Ashburton (1914)’, both in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). S Waddams, ‘Equity in English Contract Law: The Impact of the Judicature Acts (1873–75)’ (2012) 33 JLH 185. W Swain, ‘Horse Sales: The Problem of Consumer Contracts from a Historical Perspective’ in J Devenney and M Kenny (eds), European Consumer Protection Theory and Practice (Cambridge University Press, 2012). W Swain, ‘Reshaping Contractual Unfairness in England 1670–1900’ (2014) 35 JLH 120. C MacMillan, ‘English Contract Law and the Great War: The Development of a Doctrine of Frustration’ (2014) 2 Comparative Legal History 278. S Thomas, ‘The Development of the Implied Terms on Quantity in the Law of Sale of Goods’ (2014) 35 JLH 281. W Swain, The Law of Contract, 1670–1870 (Cambridge University Press, 2015). PD Finn, ‘Equity as Tort?’ in K Barker, R Grantham, and W Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart, 2015). K Lewins, ‘Maritime Arbitration, Maritime Cases and the Common Law: The Early Development of the Doctrine of Frustration’ [2017] JBL 589. S Waddams, ‘Good Faith, Good Conscience and the Taking of Unfair Advantage’ in A Dyson et al (eds), Defences in Contract Law (Hart, 2017). K Fairweather, ‘Redressing Inequality in Personal Credit Transactions: 1700–1974’ and W Swain, ‘Power, History and the Law of Contract in Eighteenth Century England’, both in K Barker et al (eds), Private Law and Power (Hart, 2017). C Kennefick, ‘The Contribution of Contemporary Mathematics to Contractual Fairness in Equity, 1751–1867’ (2018) 39 JLH 307.

Negotiable Instruments, 1700–1900 WTC King, History of the London Discount Market (Routledge, 1936). TS Ashton, ‘The Bill of Exchange and Private Banks 1790–1830’ (1945) 15 Econ HR (1st series) 25. JM Holden, The History of Negotiable Instruments in English Law (Athlone Press, 1955). JS Rogers, The Early History of the Law of Bills and Notes: A Study of the Origins of Anglo-American Commercial Law (Cambridge University Press, 1995). JS Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004) ch 6. S Quinn, ‘Money, Finance and Capital Markets’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialization 1700–1860 (Cambridge University Press, 2004). M Lobban, ‘Negotiable Instruments’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). M Dylag, ‘The Negotiability of Promissory Notes and Bills of Exchange in the Time of Chief Justice Holt’ (2010) 31 JLH 149. W Swain, The Law of Contract, 1670–1870 (Cambridge University Press, 2015). I Frame, ‘“Country Rag Merchants” and English Local Currencies in the Late Eighteenth and Early Nineteenth Century’ (2015) 42 JLS 58. RC Michie, British Banking: Continuity and Change from 1694 to the Present (Oxford University Press, 2016) ch 2.

Insurance, 1700–1900 C Walford, The Insurance Cyclopædia (C and E Layton, 1871). F Martin, The History of Lloyd’s and of Marine Insurance in Great Britain (MacMillan & Co, 1876). H Raynes, A History of British Insurance, 2nd edn (Isaac Pitman, 1964). C Trebilcock, Phoenix Assurance and the Development of British Insurance, vol 1: 1782–1870 (Cambridge University Press, 1985). R Evans, ‘The Early History of Fire Insurance’ (1987) 8 JLH 88. TL Alborn, A Calculating Profession: Victorian Actuaries Among the Statisticians’ (1994) 7 Science in Context 433. G Clark, Betting on Lives: The Culture of Life Assurance in England, 1695–1775 (Manchester University Press, 1999). TL Alborn, ‘The First Fund Managers: Life Insurance Bonuses in Victorian Britain’ (2002) 45 VS 67. R Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain 1700–1850 (Ashgate, 2004).

652 Bibliography and Suggestions for Further Reading JS Oldham, English Common Law in the Age of Mansfield (University of North Carolina Press, 2004) ch 5. PM Booth, ‘ “Freedom With Publicity” – The Actuarial Profession and United Kingdom Insurance Regulation from 1844 to 1945’ (2007) 2 Annals of Actuarial Science 115. TS Alborn, Regulated Lives: Life Assurance and British Society, 1800–1914 (University of Toronto Press, 2009). M Lobban, ‘The Law of Insurance’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914: Private Law (Oxford University Press, 2010). C O’Brien and P Fenn, ‘Mutual Life Insurers: Origins and Performance in pre-1900 Britain’ (2012) 54 BH 325. P Rawlings, ‘What Can History Tell Us About Insurance Regulation?’ in A Georgosouli and M Goldby (eds), Systemic Risk and the Future of Insurance Regulation (Informa Law from Routledge, 2015). P Hellwege, ‘A Comparative History of Insurance Law in Europe’ (2016) 56 AJLH 66. G Chet, ‘Britain and America 1650–1850: Harmonising Government and Commerce’ in A Leonard (ed), Marine Insurance: Origins and Institutions, 1300–1850 (Palgrave Macmillan, 2016). P Rawlings, ‘Bubbles, Taxes, and Interests: Another History of Insurance Law, 1720–1825’ (2016) 36 OJLS 799. DR Bellhouse, Leases for Lives: Life Contingent Contracts and the Emergence of Actuarial Science in 18th-Century England (Cambridge University Press, 2017). C Turnbull, A History of British Actuarial Thought (Palgrave Macmillan, 2017). P Rawlings, ‘“A Sacred Trust for the Future”: Regulating Insurance, 1800–70’ (2018) 77 CLJ 570.

Commercial Arbitration, 1750–1900 JPH Soper, A Treatise on the Law and Practice of Arbitrations and Awards (Sweet and Maxwell, 1907). ES Wolaver, ‘The Historical Background of Commercial Arbitration’ (1934) 83 University of Pennsylvania Law Review 132. EJ Cohn, ‘Commercial Arbitration and the Rules of Law: A Comparative Study’ (1941) 4 University of Toronto Law Journal 1. H Barty-King, Food for Man and Beast: The Story of the London Corn Trade Association, the London Cattle Food Trade Association and the Grain and Feed Trade Association 1878–1978 (Hutchinson, 1978). RB Ferguson, ‘The Adjudication of Commercial Disputes and the Legal System in Modern England’ (1980) 7 British Journal of Law and Society 141. H Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in 19th-Century England (University of Toronto Press, 1985) chs 2–3. AWB Simpson, ‘The Origins of Futures Trading in the Liverpool Cotton Market’ in J Stapleton and P Cane (eds), Essays for Patrick Selim Atiyah (Clarendon Press, 1991). VV Veeder and B Dye, ‘Lord Bramwell’s Arbitration Code 1884–1889’ (1992) 8 Arbitration International 329. H Horwitz and J Oldham, ‘John Locke, Lord Mansfield and Arbitration During the Eighteenth Century’ (1993) 36 HJ 137. VV Veeder ‘Two Arbitral Butterflies: Bramwell and David’ in M Hunter, A Marriott and VV Veeder (eds), The Internationalisation of International Arbitration: The LCIA Centenary Conference (Graham and Trotman, 1995). JC Betancourt, ‘The Chartered Institute of Arbitrators (1915–2015): The First 100 Years’ (2015) 81 Arbitration 375. CR Burset, ‘Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire’ (2016) 34 L&HR 615. S Brekoulakis, ‘The Historical Treatment of Arbitration Under English Law and the Development of the Policy Favouring Arbitration’ (2019) 39 OJLS 124.

Consumer Credit and Debt, 1750–1950 GR Rubin, ‘Law, Poverty and Imprisonment for Debt, 1869–1914’ and ‘The County Courts and the Tally Trade, 1846–1914’, both in GR Rubin and D Sugarman (eds), Law, Economy and Society. Essays in the History of English Law 1750–1914 (Professional Books, 1984). B Kercher, ‘The Transformation of Imprisonment for Debt in England, 1828 to 1838’ (1984) 2 Australian Journal of Law and Society 60. P Johnson, ‘Class Law in Victorian England’ (1993) 141 P&P 147.

Bibliography and Suggestions for Further Reading 653 P Johnson, ‘Small Debts and Economic Distress in England and Wales, 1857–1913’ (1993) 46 Econ HR (2nd series) 65. MC Finn, ‘Debt and Credit in Bath’s Court of Requests’ (1994) 21 Urban History 211. E Rappaport, ‘A Husband and His Wife’s Dresses: Consumer Credit and the Debtor Family in England, 1864–1914’ in V De Grazia (ed), The Sex of Things: Gender and Consumption in Historical Perspective (University of California Press, 1996). MC Finn, ‘Working Class Women and the Contest for Consumer Control in Victorian County Courts’ (1998) 161 P&P 116. N Wood, ‘Debt, Credit and Business Strategy: The Law and the Local Economy, 1850–1900’ (PhD thesis, University of Leicester, 1999); online at: https://core.ac.uk/download/pdf/42016422.pdf. A Taylor, Working-Class Credit and Community Since 1918 (Palgrave Macmillan, 2002). MC Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2003). C Muldrew and S King, ‘Cash, Wages and the Economy of Makeshifts in England, 1650–1800’ in P Scholliers and L Schwarz (eds), Experiencing Wages: Social and Cultural Aspects of Wage Forms in Europe Since 1500 (Berghahn Books, 2003). S O’Connell, Credit and Community: Working-Class Debt in the UK Since 1880 (Oxford University Press, 2009). J White, ‘Pain and Degradation in Georgian London: Life in Marshalsea Prison’ (2009) 68 HWJ 69. M Lobban, ‘Consumer Credit and Debt’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914 (Oxford University Press, 2010). W Swain and K Fairweather, ‘Usury and the Judicial Regulation of Financial Transactions in Seventeenth and Eighteenth Century England’ in M Kenny et al (eds), Unconscionability in European Private Financial Transactions (Cambridge University Press, 2010). P Johnson, Making the Market: Victorian Origins of Corporate Capitalism (Cambridge University Press, 2010) ch 2. J White, Mansions of Misery: A Biography of the Marshalsea Debtors’ Prison, London (Bodley Head, 2016).

Pawnbroking, 1750–1950 JH Treble, Urban Poverty in Britain 1830–1914 (Batsford, 1979). K Hudson, Pawnbroking (Bodley Head, 1982). M Tebbutt, Making Ends Meet: Pawnbroking and Working-Class Credit (Leicester University Press, 1983). B Lemire, ‘From Petty Pawns and Informal Lending: Gender and the Transformation of Small Scale Credit in England, circa 1600–1800’ in K Bruland and P O’Brien (eds), From Family Firms to Corporate Capitalism: Essays in Business and Industrial History in Honour of Peter Mathias (Oxford University Press, 1998). B Lemire, The Business of Everyday Life: Gender, Practice and Social Politics in England, c 1600–1900 (Manchester University Press, 2005) ch 2. A Tomkins, The Experience of Urban Poverty, 1732–1782: Parish, Charity and Credit (Manchester University Press, 2006) ch 6. W Swain and K Fairweather, ‘The Legal Regulation of Pawnbroking in England: A Brief History’ in J Devenney and M Kenny (eds), Consumer Credit, Debt and Investment in Europe (Cambridge University Press, 2012).

Bankruptcy and Insolvency, 1750–1950 E Welbourne, ‘Bankruptcy Before the Era of Victorian Reform’ (1932) 16 Cambridge Historical Journal 51. J Cohen, ‘The History of Imprisonment for Debt and Its Relation to the Development of Discharge in Bankruptcy’ (1982) 3 JLH 153. VM Batzel, ‘Parliament, Businessmen and Bankruptcy, 1825–1883: A Study in Middle Class Alienation’ (1983) 18 Canadian Journal of History 171. IPH Duffy, Bankruptcy and Insolvency in London During the Industrial Revolution (Garland, 1985). J Hoppit, Risk and Failure in English Business 1700–1800 (Cambridge University Press, 1987). DA Kent, ‘Small Businessmen and Their Credit Transactions in Early Nineteenth-Century Britain’ (1994) 36 BH 47. VM Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding Up in Nineteenth Century England (Oxford University Press, 1995).

654 Bibliography and Suggestions for Further Reading D Graham and J Tribe, ‘Bankruptcy in Crisis: A Regency Saga (Parts 1–4)’ (2004) 17 Insolvency Intelligence 6 and 150, (2007) 20 Insolvency Intelligence 38, and (2009) 22 Insolvency Intelligence 132. P Di Martino, ‘Law, Class and Entrepreneurship: Bankruptcy and Debt Discharge in England and Wales, c 1890–1939’ (2008) 64 Manchester Papers in Economic and Social History. M Lobban, ‘Bankruptcy and Insolvency’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914 (Oxford University Press, 2010). E Kaddens, ‘The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law’ (2010) 59 Duke Law Journal 1229. J Sgard, ‘Bankruptcy Law, Majority Rule and Private Ordering in England and France (Seventeenth-Nineteenth Century)’ OXPO Working Paper (2010); published online at: https://www.politics.ox.ac.uk/materials/centres/ oxpo/working-papers/wp_09-10/OXPO_WP09-10b_Sgard.pdf. P di Martino, ‘Legal Institutions, Social Norms, and Entrepreneurship in Britain (c1890 – c1939)’ (2012) 65 Econ HR (2nd series) 120.

Companies, 1700–1950 F Evans, ‘The Evolution of the English Joint Stock Limited Trading Company’ (1908) 8 Columbia Law Review 339. RR Formoy, The Historical Foundations of Modern Company Law (Sweet & Maxwell, 1923). JB Jefferys, ‘Business Organisation in Great Britain 1856–1914’ (PhD thesis, University of London, 1930; reprinted Arno Press, 1977). HA Shannon, ‘The Coming of General Limited Liability’ (1931) 2 Economic History 267. G Todd, ‘Some Aspects of Joint Stock Companies, 1844–1900’ (1932) 4 Econ HR (1st series) 46. HA Shannon, ‘The First Five Thousand Limited Liability Companies and Their Duration’ (1932) 2 Economic History 396. BC Hunt, The Development of the Business Corporation in England, 1800–1867 (Harvard University Press, 1936). H Heaton, ‘Financing the Industrial Revolution’ (1937) 11 Bulletin of the Business History Society 1. AB Dubois, The English Business Company After the Bubble Act, 1720–1800 (Commonwealth Fund, 1938). JB Jefferys, ‘The Denomination and Character of Shares, 1855–1885’ (1946) 16 Econ HR (1st series) 435. CA Cooke, Corporation, Trust and Company (Harvard University Press, 1950). LCB Gower, ‘The English Private Company’ (1953) 18 Law and Contemporary Problems 535. L Pressnell, Country Banking in the Industrial Revolution (Oxford University Press, 1956). J Saville, ‘Sleeping Partnerships and Limited Liability 1850–56’ (1956) 8 Econ HR (2nd series) 418. PS Florence, Ownership, Control and Success of Large Corporations: An Analysis of English Industrial Structure and Policy, 1936–1951 (Sweet and Maxwell, 1961). S Pollard, ‘Fixed Capital in the Industrial Revolution in Britain’ (1964) 24 JEH 299. S Pollard, The Genesis of Modern Management: A Study of the Industrial Revolution in Great Britain (Edward Arnold, 1965). PL Payne, ‘The Emergence of the Large-Scale Company in Great Britain, 1870–1914’ (1967) 20 Econ HR (2nd series) 519. P Mathias, ‘Capital, Credit and Enterprise in the Industrial Revolution’ (1973) 2 Journal of European Economic History 121. MC Reed, Investment in Railways in Britain, 1820–44: A Study in the Development of the Capital Market (Clarendon Press, 1975). PL Payne, ‘Industrial Entrepreneurship and Management in Great Britain’ in P Mathias and MM Postan (eds), The Cambridge Economic History of Europe, vol 8 (Cambridge University Press, 1978). M Collins and P Hudson, ‘Provincial Bank Lending in Yorkshire and Merseyside, 1826–1860’ (1979) 31 Bulletin of Economic Research 69. PL Cottrell, Industrial Finance 1830–1914: The Finance and Organization of English Manufacturing Industry (Methuen, 1979). SD Chapman, ‘Financial Restraints on the Growth of Firms in the Cotton Industry, 1790–1850’ (1979) 32 Econ HR (2nd series) 50. P Mirowski, ‘The Rise (and Retreat) of a Market: English Joint Stock Shares in the Eighteenth Century’ (1981) 41 JEH 559.

Bibliography and Suggestions for Further Reading 655 R Cameron, ‘Banking and Industrialisation in Britain in the Nineteenth Century’ in A Slaven and DH Aldcroft (eds), Business, Banking and Urban History (John Donald, 1982). L Hannah, The Rise of the Corporate Economy, 2nd edn (Methuen, 1983). GR Rubin, ‘Aron Salomon and His Circle’ and P Ireland, ‘The Triumph of the Company Form, 1856–1914’, both in J Adams (ed), Essays for Clive Schmitthoff (Professional Books, 1983). JG Williamson, ‘Why Was British Growth So Slow During the Industrial Revolution?’ (1984) 44 JEH 687. JR Edwards, Legal Regulation of British Company Accounts 1836–1900 (Garland, 1986). C Stebbings, ‘The Legal Nature of Shares in Landowning Joint Stock Companies in the Nineteenth Century’ (1987) 8 JLH 25. AM Carlos and S Nicholas, ‘Giants of an Earlier Capitalism: The Early Chartered Trading Companies as Modern Multinationals’ (1988) 62 Business History Review 398. J Armstrong, ‘The Rise and Fall of the Company Promoter and the Financing of British Industry’ in JJ Van Helten and Y Cassis (eds), Capitalism in a Mature Economy: Financial Institutions, Capital Exports and British Industry 1870–1939 (Edward Elgar, 1990). GR Searle, Entrepreneurial Politics in Mid-Victorian Britain (Oxford University Press, 1993). J Foreman-Peck and R Millward, Public and Private Ownership of British Industry 1820–1990 (Clarendon Press, 1994). RW Kostal, Law and English Railway Capitalism,1825–1875 (Clarendon Press, 1994). AM Carlos and S Nicholas, ‘Seventeenth-Century Joint-Stock Chartered Trading Companies’ (1996) 56 JEH 916. SRH Jones and SP Ville, ‘Efficient Transactions or Rent-Seeking Monopolists? The Rationale for Early Chartered Trading Companies’ (1996) 56 JEH 818. P Ireland, ‘Capitalism Without the Capitalist: The Joint Stock Company and the Emergence of the Modern Doctrine of Separate Corporate Personality’ (1996) 17 JLH 40. M Lobban, ‘Corporate Identity and Limited Liability in France and England 1825–67’ (1996) 25 Anglo-American Law Review 397. M Lobban, ‘Nineteenth Century Frauds in Company Formation: Derry v Peek in Context’ (1996) 112 LQR 287. R Bryer, ‘The Mercantile Laws Commission of 1854 and the Political Economy of Limited Liability’ (1997) 50 Econ HR (2nd series) 37. JB Baskin and PJ Miranti, A History of Corporate Finance (Cambridge University Press, 1997). TL Alborn, Conceiving Companies: Joint Stock Politics in Victorian England (Routledge, 1998). R La Porta, F Lopez-De-Silanes, A Shleifer and RW Vishny, ‘Law and Finance’ (1998) 106 Journal of Political Economy 1113. R Harris, Industrializing English Law: Entrepreneurship and Business Organization, 1720–1844 (Cambridge University Press, 2000). AC Storrar and KC Pratt, ‘Accountability vs Privacy, 1844–1907: The Coming of the Private Company’ (2000) 10 Accounting Business & Financial History 259. P Barnes and RJ Firman, ‘Difficulties in Establishing a Limited Liability Company in Great Britain During the 1860s and the Role of Financial Information: A Case History’ (2001) 8 Financial History Review 143. R Pearson and D Richardson, ‘Business Networking in the Industrial Revolution’ (2001) 54 Econ HR (2nd series) 657. DC Itzkowitz, ‘Fair Enterprise or Extravagant Speculation: Investment, Speculation, and Gambling in Victorian England’ (2002) 45 VS 121. R Pearson, ‘Shareholder Democracies? English Stock Companies and the Politics of Corporate Governance During the Industrial Revolution’ (2002) 117 EHR 840. P Hudson, ‘Industrial Organization and Structure’ and PL Cottrell, ‘Domestic Finance, 1860–1914’, both in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1 Industrialization, 1700–1860 (Cambridge University Press, 2004). J Franks, C Mayer and S Rossi, ‘Spending Less Time With the Family: The Decline of Family Ownership in the United Kingdom’ in RK Morck (ed), A History of Corporate Governance around the World: Family Business Groups to Professional Managers (University of Chicago Press, 2005). J Getzler and M Macnair, ‘The Firm as an Entity Before the Companies Acts’ in P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference (Four Courts Press, 2005). R Harris, ‘The English East India Company and the History of Company Law’ in E Gapken-Jager, G Van Sollinge and L Timmerman (eds), VOC 1602–2002 – 400 Years of Company Law (Kluwer, 2005).

656 Bibliography and Suggestions for Further Reading J Taylor, Creating Capitalism: Joint Stock Enterprise in British Politics and Culture, 1800–1870 (Royal Historical Society / Boydell Press, 2006). L Brunt, ‘Rediscovering Risk: Country Banks as Venture Capital Firms in the First Industrial Revolution’ (2006) 66 JEH 74. G Elliott, The Mystery of Overend and Gurney: A Financial Scandal in Victorian London (Methuen, 2006). L Newton, ‘Regional Bank–Industry Relations During the Mid-Nineteenth Century: Links between Bankers and Manufacturing in Sheffield, c 1850 to c 1885’ (2006) 38 BH 64. D Sunderland, Social Capital, Trust and the Industrial Revolution (Routledge, 2007). TW Guinnane, R Harris, NR Lamoreaux and J Rosenthal, ‘Putting the Corporation in its Place’ (2007) 8 Enterprise and Society 687. BR Cheffins, Corporate Ownership and Control: British Business Transformed (Oxford University Press, 2008). P Ireland, ‘Limited Liability, Shareholder Rights and the Problem of Corporate Irresponsibility’ (2008) 34 Cambridge Journal of Economics 437. R McQueen, A Social History of Company Law (Ashgate, 2009). J Franks, C Mayer, and S Rossi, ‘Ownership: Evolution and Regulation’ (2009) 22 Review of Financial Studies 4009. J Armour, S Deakin, P Lele and M Siems, ‘How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of Shareholder, Creditor, and Worker Protection’ (2009) 57 American Journal of Comparative Law 579. B Cheffins, ‘Law, the Market and Corporate Enterprise: The Case of the Industrial Revolution’ in J Armour and J Payne (eds), Rationality in Company Law: Essays in Honour of DD Prentice (Hart, 2009). P Johnson, Making the Market: Victorian Origins of Corporate Capitalism (Cambridge University Press, 2010) chs 4, 5 and 6. M Lobban, ‘Joint Stock Companies’ in WR Cornish et al, The Oxford History of the Laws of England, vol XII: 1820–1914 (Oxford University Press, 2010). C Mackie, ‘From Privilege to Right – Themes in the Emergence of Limited Liability’ [2011] JR 293. J Rutterford, ‘“Propositions Put Forward by Quite Honest Men”: Company Prospectuses and Their Contents, 1856 to 1940’ (2011) 53 BH 866. J Maltby, DR Green, S Ainscough and C van Mourik, ‘The Evidence for “Democratization” of Share Ownership in Great Britain in the Early Twentieth Century’ in DR Green, A Owens, J Maltby and J Rutterford (eds), Men, Women and Money: Perspectives on Gender, Wealth and Investment (Oxford University Press, 2011). GG Acheson, CR Hickson, and JD Turner, ‘Does Limited Liability Matter? Evidence from Nineteenth-Century British Banking’ (2011) 6 Review of Law and Economics 247. J Rutterford, DR Green, J Maltby and A Owens, ‘Who Comprised the Nation of Shareholders? Gender and Investment in Great Britain, c 1870–1935’ (2011) 64 Econ HR (2nd series) 157. D Foucauld, ‘The Impact of the Companies Act of 1862 Extending Limited Liability to the Banking and Financial Sector in the English Crisis of 1866’ (2011) 62 Revue Économique 867. M Freeman, R Pearson and J Taylor, Shareholder Democracies? Corporate Governance in Britain and Ireland Before 1850 (University of Chicago Press, 2012). J Foreman-Peck and L Hannah, ‘Extreme Divorce: The Managerial Revolution in UK Companies Before 1914’ (2012) 65 Econ HR (2nd series) 121. GG Acheson, JD Turner and Q Ye, ‘The Character and Denomination of Shares on the British Equity Market’ (2012) 65 Econ HR (2nd series) 862. R Harris, ‘The Private Origins of the Private Company: Britain 1862–1907’ (2013) 33 OJLS 339. M Djelic, ‘When Limited Liability was (Still) an Issue: Mobilization and Politics of Signification in 19th-Century England’ (2013) 34 Organization Studies 595. A Musacchio and JD Turner, ‘Does the Law and Finance Hypothesis Pass the Test of History?’ (2013) 55 BH 524. J Foreman-Peck and L Hannah, ‘Some Consequences of the Early Twentieth-Century British Divorce of Ownership from Control’ (2013) 55 BH 543. M Freeman, R Pearson and J Taylor, ‘Law, Politics and the Governance of English and Scottish Joint-Stock Companies, 1600–1850’ (2013) 55 BH 636. L Hannah, ‘Corporations in the US and Europe 1790–1860’ (2014) 56 BH 865. G Acheson, G Campbell, JD Turner, and N Vanteeva, ‘Corporate Ownership and Control in Victorian Britain’ (2015) 68 Econ HR (2nd series) 911. R Bubb, ‘Choosing the Partnership: English Business Organization Law During the Industrial Revolution’ (2015) 38 Seattle University Law Review 337.

Bibliography and Suggestions for Further Reading 657 J Morley, ‘The Common Law Corporation: The Power of the Trust in Anglo-American Business History’ (2016) 116 Columbia Law Review 2156. G Acheson, G Campbell, JD Turner, and N Vanteeva, ‘Corporate Ownership, Control, and Firm Performance in Victorian Britain’ (2016) 76 JEH 1. J Foreman-Peck and L Hannah, ‘UK Corporate Law and Corporate Governance Before 1914: A Re-Interpretation’ in M Hollow, F Akinbami, and R Michie (eds), Complexity and Crisis in the Financial System: Critical Perspectives on the Evolution of American and British Banking (Edward Elgar, 2016). RJ Bennett, ‘Interpreting Business Partnerships in Late Victorian Britain’ (2016) 69 Econ HR (2nd series) 1199. GG Acheson, G Campbell and JD Turner, ‘Who Financed the Expansion of the Equity Market? Shareholder Clienteles in Victorian Britain’ (2017) 59 BH 607. H Barker, Family and Business During the Industrial Revolution (Oxford University Press, 2017). C Gerner-Beuerle, ‘Law and Finance in Emerging Economies: Germany and Britain 1800–1913’ (2017) 80 MLR 263. C Mackie, ‘A Tale of Unintended Consequence: Corporate Membership in Early UK Company Law’ (2017) 17 Journal of Corporate Law Studies 1. TW Guinnane, R Harris, and NR Lamoreaux, ‘Contractual Freedom and Corporate Governance in Britain in the Late Nineteenth and Early Twentieth Centuries’ (2017) 91 Business History Review 227. L Hannah, ‘Banks and Business Finance in Britain Before 1914: A Comparative Evaluation’ in P di Martino et al (eds), People, Places and Business Cultures: Essays in Honour of Francesca Carnevali (Boydell Press, 2017). J Rutterford, DP Sotiropoulos and C van Lieshout, ‘Individual Investors and Local Bias in the UK, 1870–1935’ (2017) 70 Econ HR (2nd series) 1291. V Barnes, ‘Judicial Intervention in Early Corporate Governance Disputes: Vice-Chancellor Shadwell’s Lost Judgment in Mozley v Alston (1847)’ (2018) 58 AJLH 394. P Lipton, ‘The Introduction of Limited Liability into the English and Australian Colonial Companies Acts: Inevitable Progression or Chaotic History’ (2018) 41 Melbourne University Law Review 1278. JD Turner, ‘The Development of English Company Law Before 1900’ in H Wells (ed), Research Handbook on the History of Corporate and Company Law (Edward Elgar, 2018). DP Sotiropoulos and J Rutterford, ‘Individual Investors and Portfolio Diversification in Late Victorian Britain: How Diversified Were Victorian Financial Portfolios?’ (2018) 78 JEH 435. JR Edwards, A History of Corporate Financial Reporting in Britain (Routledge, 2019). A Televantos, Commercial Funds in the Age of Lord Eldon (forthcoming).

Legal Control of Anti-Competitive Activity, 1700–1950 JG Matthews & HM Adler, The Law Relating to Covenants in Restraints of Trade, 2nd edn (Sweet & Maxwell, 1907). WA Sanderson, Restraint of Trade in English Law (Sweet & Maxwell, 1926). W Herbruck, ‘Forestalling, Regrating and Engrossing’ (1929) 27 Michigan Law Review 365. WL Letwin, ‘The English Common Law Concerning Monopolies’ (1954) 21 University of Chicago Law Review 355. D Dewey, ‘The Common-Law Background of Antitrust Policy’ (1957) 41 Virginia Law Review 759. A Martin, Restrictive Trade Practices and Monopolies (Routledge & Kegan Paul, 1957). J Jewkes, ‘British Monopoly Policy 1944–56’ (1958) 1 Journal of Law and Economics 1. RB Stevens, ‘Experience and Experiment in the Legal Control of Competition in the United Kingdom’ (1961) 70 Yale Law Journal 867. RB Stevens and BS Yamey, The Restrictive Practices Court: A Study of the Judicial Process and Economic Policy (Weidenfeld & Nicolson, 1965). WR Cornish, ‘Legal Control Over Cartels and Monopolisation, 1880–1914: A Comparison’ in N Horn and J Kocka (eds), Law and the Formation of the Big Enterprises in the Nineteenth and Early Twentieth Centuries (Vandenhoek & Ruprecht, 1979). L Hannah, ‘The Political Economy of Mergers in Manufacturing Industry in Britain between the Wars’ (DPhil thesis, University of Oxford, 1972); online at: https://ora.ox.ac.uk/objects/uuid:07ddbb62-a20f-4375b100-49046dfe4d87/download_file?safe_filename=602326804.pdf&file_format=application%2Fpdf&type_of_ work=Thesis. DC Mowery, ‘Firm Structure, Government Policy, and the Organization of Industrial Research: Great Britain and the United States, 1900–1950’ (1984) 58 Business History Review 584.

658 Bibliography and Suggestions for Further Reading MJ Trebilcock, The Common Law of Restraint of Trade: A Legal and Economics Analysis (Carswell, 1986). B Elbaum, ‘The Steel Industry Before World War 1’ in B Elbaum and W Lazonick (eds), The Decline of the British Economy (Oxford University Press, 1986). EV Morgan, Monopolies, Mergers and Restrictive Trade Practices: UK Competition Policy 1948–1987 (David Hume Institute, 1987). W Mass and W Lazonick, ‘The British Cotton Industry and International Competitive Advantage: The State of the Debates’ (1990) 32 BH 9. G Jones and MW Kirby (eds), Competitiveness and the State: Government and Business in Twentieth-century Britain (Manchester University Press, 1991). T Freyer, Regulating Big Business: Antitrust in Great Britain and America 1880–1980 (Cambridge University Press, 1992). H Mercer, Constructing a Competitive Order: The Hidden History of British Anti-Trust Policies (Cambridge University Press, 1994). S Smith, ‘Reconstructing Restraint of Trade’ (1995) 15 OJLS 565. T Freyer, ‘Legal Restraints on Economic Coordination: Antitrust in Great Britain and America, 1880–1920’ in NR Lamoreaux and DMG Raff (eds), Coordination and Information: Historical Perspectives on the Organisation of Enterprise (University of Chicago Press, 1995). JD Heydon, The Restraint of Trade Doctrine, 2nd edn (Butterworths, 1999). DJ Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford University Press, 2001). B Cheffins, ‘Mergers and Corporate Ownership Structure: The United States and Germany at the Turn of the Twentieth Century’ (2003) 51 American Journal of Comparative Law 273. B Cheffins, ‘Competition Law and Corporate Ownership Structure: A European Research Agenda’ (2003) EBOR 4. F Braggion, N Dwarkasing and L Moore, ‘Increasing Market Concentration in British Banking, 1885–1925’ in A Greif, L Kiesling and JVC Nye (eds), Institutions, Innovation and Industrialization (Princeton University Press, 2015). C Dent, ‘Nordenfelt v Maxim-Nordenfelt: An Expanded Reading’ (2015) 36 Adelaide Law Review 329. J Greaves, Industrial Reorganization and Government Policy in Interwar Britain (Routledge, 2017).

Technological Change and the Patent System, 1700–1900 F Machlup and E Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10 JEH 1. DS Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge University Press, 1969). E Robinson, ‘James Watt and the Law of Patents’ (1971) 12 Technology and Culture 115. VM Batzel, ‘Legal Monopoly in Liberal England: The Patent Controversy in the Mid Nineteenth Century’ (1980) 22 BH 189. GN von Tunzlemann, ‘Technical Progress During the Industrial Revolution’ in R Floud and D McCloskey (eds), The Economic History of Britain Since 1700, vol 1: 1700–1860 (Cambridge University Press, 1981). HI Dutton, The Patent System and Inventive Activity During the Industrial Revolution 1750–1852 (Manchester University Press, 1984). D Van Zyl Smit, ‘“Professional” Patent Agents and the Development of the English Patent System’ (1985) 13 International Journal of Society & Law 79. SRH Jones, ‘Technology, Transaction Costs and the Transition to Factory Production in the British Silk Industry, 1700–1870’ (1987) 47 JEH 71. C MacLeod, Inventing the Industrial Revolution: The English Patent System 1600–1800 (Cambridge University Press, 1988). EP Hennock, ‘Technological Education in England, 1850–1926: The Uses of a German Model’ (1990) 19 History of Education 299. M Berg, ‘Commerce and Creativity in Eighteenth-Century Birmingham’ in M Berg (ed), Markets and Manufactures in Early Industrial Europe (Routledge, 1991). C MacLeod, ‘The Paradoxes of Patenting: Invention and Its Diffusion in 18th- and 19th-Century Britain, France, and North America’ (1991) 32 Technology and Culture 885.

Bibliography and Suggestions for Further Reading 659 C MacLeod, ‘Strategies for Innovation: The Diffusion of New Technology in Nineteenth Century British Industry’ (1992) 45 Econ HR (2nd series) 285. M Coulter, Property in Ideas: The Patent Question in Mid-Victorian Britain (Thomas Jefferson Press, 1992). C MacLeod, ‘Concepts of Invention and the Patent Controversy in Victorian Britain’ and P O’Brien, T Griffiths, and P Hunt, ‘Technological Change During the First Industrial Revolution: The Paradigm Case of Textiles, 1688–1851’, both in R Fox (ed), Technological Change: Methods and Themes in the History of Technology (Harwood Academic Publishers, 1996). JR Harris, Industrial Espionage and Technology Transfer. Britain and France in the Eighteenth Century (Ashgate, 1998). ZB Khan and KL Sokoloff, ‘Patent Institutions, Industrial Organization and Early Technological Change: Britain and the United States, 1790–1850’ in M Berg and K Bruland (eds), Technological Revolutions in Europe, Historical Perspectives (Edward Elgar, 1998). C MacLeod, ‘Negotiating the Rewards of Invention: The Shop-Floor Inventor in Victorian Britain’ (1999) 41 BH 17. I Inkster, ‘Machinofacture and Technical Change: The Patent Evidence’ in I Inkster et al (eds), The Golden Age: Essays in British Social and Economic History, 1850–1870 (Ashgate, 2000). J Andrew et al, ‘Steam Power Patents in the Nineteenth Century: Innovations and Ineptitudes’ (2001) 17 Transactions of the Newcomen Society 72. M Berg, ‘From Imitation to Invention: Creating Commodities in Eighteenth-Century Britain’ (2002) 55 Econ HR (2nd series) 1. K Bruland, ‘Industrialisation and Technological Change’ in R Floud and P Johnson (eds), The Cambridge Economic History of Modern Britain, vol 1: Industrialisation, 1700–1860 (Cambridge University Press, 2004). A Guagnini, ‘Patent Agents, Legal Advisers and Guglielmo Marconi’s Breakthrough in Wireless Telegraphy’ (2004) 24 History of Technology 171. A Nuvolari, ‘Collective Invention During the British Industrial Revolution: The Case of the Cornish Pumping Engine’ (2004) 28 Cambridge Journal of Economics 347. M Fisher, ‘Classical Economics and Philosophy of the Patent System’ [2005] IPQ 1. D Brennan, ‘The Evolution of English Patent Claims as Property Definers’ [2005] IPQ 361. DP Miller, ‘Watt in Court: Specifying Steam Engines and Classifying Engineers in the Patent Trials of the 1790s’ (2006) 27 History of Technology 43. C MacLeod and A Nuvolari, ‘Inventive Activities, Patents and Early Industrialisation: A Synthesis of Research Issues’, Druid Working Paper 06-28 (2006); online at: https://ideas.repec.org/p/aal/abbswp/06-28.html. C Wadlow, ‘The British Empire Patent 1901–1923: The “Global” Patent that Never Was’ [2006] IPQ 311. C MacLeod, Heroes of Invention: Technology, Liberalism and British National Identity 1750–1914 (Cambridge University Press, 2007). D Greasley and L Oxley, ‘Patenting, Intellectual Property Rights and Sectoral Outputs in Industrial Revolution Britain, 1780–185’ (2007) 139 Journal of Econometrics 340. J Mokyr, ‘The Institutional Origins of the Industrial Revolution’ in E Helpman (ed), Institutions and Economic Performance (Harvard University Press, 2008). DP Miller, ‘Principle, Practice and Persona in Isambard Kingdom Brunel’s Patent Abolitionism’ (2008) 41 British Journal for the History of Science 43. PM Jones, Industrial Enlightenment: Science, Technology and Culture in Birmingham and the West Midlands, 1760–1820 (Manchester University Press, 2008). J Mokyr, The Enlightened Economy: An Economic History of Britain, 1700–1850 (Yale University Press, 2009). WR Cornish, ‘Industrial Property: Patents for Invention’ in WR Cornish et al, The Oxford History of the Laws of England, vol XIII: 1820–1914: Fields of Development (Oxford University Press, 2010). H Gubby, ‘Developing a Legal Paradigm for Patents: The Attitude of Judges to Patents During the Early Phase of the Industrial Revolution in England (1750s – 1830s)’ (PhD thesis, Erasmus University Rotterdam, 2011); online at: https://repub.eur.nl/pub/22239/PS_Gubby_def.pdf. A Guagnini, ‘Patent Agents in Britain at the Turn of the Twentieth Century: Themes and Perspectives’ (2012) 31 Technology and Culture 145. C MacLeod, ‘Reluctant Entrepreneurs: Patents and State Patronage in New Technosciences, circa 1870–1930’ (2012) 103 Isis 328. L Bently, ‘Patents and Trade Secrets in England: The Case of Newbery v James (1817)’ in R Dreyfuss and J Ginsburg (eds), IP at the Edge (Cambridge University Press, 2013).

660 Bibliography and Suggestions for Further Reading G Dutfield, ‘Collective Invention and Patent Law Individualism, 1877–2012 – or, the Curious Persistence of Inventor’s Moral Right’, E Bruton, ‘Something in the Air: The Post Office and Early Wireless, 1882–1899’ and S Arapostathis, ‘Contested Inventors: British Patent Disputes and the Culture of Invention in the Late Nineteenth Century’, all in S Arapostathis and G Dutfield (eds), Knowledge Management and Intellectual Property: Concepts, Actors and Practices from the Past to the Present (Edward Elgar, 2013). A Nuvolari and J Sumner, ‘Inventors, Patents and Inventive Activities in the English Brewing Industry, 1634–1850’ (2013) 87 Business History Review 95. S Arapostathis and G Gooday, Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain (MIT Press, 2013). S Bottomley, The British Patent System and the Industrial Revolution 1700–1852 (Cambridge University Press, 2014). R Burrell and C Kelly, ‘Public Rewards and Innovation Policy: Lessons from the Eighteenth and Early Nineteenth Centuries’ (2014) 77 MLR 858. R Burrell and C Kelly, ‘Parliamentary Rewards and the Evolution of the Patent System’ (2015) 74 CLJ 423. C Beauchamp, Invented by Law: Alexander Graham Bell and the Patent That Changed America (Harvard University Press, 2015) ch 5. C Dent, ‘Nineteenth Century Patent Law and Classical Economics: Patents as Exchangeable Sites of Value’ [2016] IPQ 103. L Tomory, ‘Technology in the British Industrial Revolution’ (2016) 14 History Compass 152. JC Lai, ‘The Changing Function of Patents: A Reversion to Privileges?’ (2017) 37 LS 807. S Mauskopf, ‘Nobel’s Explosives Company Ltd v Anderson (1894)’ in J Bellido (ed), Landmark Cases in Intellectual Property Law (Hart, 2017). SD Billington, ‘Patent Costs and the Value of Inventions: Explaining Patenting Behaviour Between England, Ireland and Scotland, 1617–1852’, Queen’s University Belfast Centre for Economic History Working Paper 2018–10; online at http://www.quceh.org.uk/uploads/1/0/5/5/10558478/wp18-10.pdf.

Chapter 4: Labour Relations Agricultural Labour E Collins, ‘Harvest Technology and Labour Supply in Britain, 1790–1870’ (1969) 22 Econ HR (2nd series) 453. A Kussmaul, Servants in Husbandry in Early Modern England (Cambridge University Press, 1981). KDM Snell, Annals of the Labouring Poor: Social Change and Agrarian England 1660–1900 (Cambridge University Press, 1985) ch 1. A Howkins, ‘Labour History and the Rural Poor, 1850–1980’ (1990) 1 Rural History 113. A Mutch, ‘The “Farming Ladder” in North Lancashire, 1840–1914: Myth or Reality?’ (1991) 27 Northern History 162. A Howkins, ‘Peasants, Servants and Labourers: The Marginal Workforce in British Agriculture, c 1870–1914’ (1994) 42 Ag HR 49. G Moses, ‘“Rustic and Rude’: Hiring Fairs and Their Critics in East Yorkshire c 1850–75’ (1996) 7 Rural History 155. S Caunce, ‘Farm Servants and the Development of Capitalism in English Agriculture’ (1997) 45 Ag HR 49. D Woodward, ‘Early Modern Servants in Husbandry Revisited’ (2000) 48 Ag HR 141. AJ Gritt, ‘The “Survival” of Service in the English Agricultural Labour Force: Lessons from Lancashire, c 1650–1851’ (2002) 50 Ag HR 25. J Draper, ‘“Never-to-be-Forgotten Acts of Oppression … by Professing Christians in the Year 1874’: Joseph Arch’s Agricultural Labourers’ Union in Dorset, 1872–4’ (2005) 53 Ag HR 41. J Burnette, ‘How Skilled Were English Agricultural Workers in the Early Nineteenth Century?’ (2006) 59 Econ HR (2nd series) 688. N Goose, ‘Farm Service, Seasonal Unemployment and Casual Labour in Mid Nineteenth-Century England’ (2006) 54 Ag HR 274. A Howkins and N Verdon, ‘Adaptable and Sustainable? Male Farm Service and the Agricultural Labour Force in Midland and Southern England, c 1850–1925’ (2008) 61 Econ HR (2nd series) 467. J Burnette, ‘The Seasonality of English Agricultural Employment: Evidence from Farm Accounts, 1740–1850’ in RW Hoyle (ed), The Farmer in England 1650–1980 (Ashgate, 2014).

Bibliography and Suggestions for Further Reading 661

Creation and Condition of the Working Class JL & B Hammond The Town Labourer, 2nd edn (Longman, 1925). WO Henderson, The Lancashire Cotton Famine, 1861–1865 (Manchester University Press, 1934). D Roberts, Victorian Origins of the Welfare State (Yale University Press, 1962). R Robson (ed), Ideas and Institutions of Victorian Britain (Bell, 1967). P Horn, The Rise and Fall of the Victorian Servant (St Martin’s, 1975). JA Schmiechen, ‘State Reform and the Local Economy: An Aspect of Industrialisation in Late Victorian and Edwardian London’ (1975) 28 Econ HR (2nd series) 413. G Crossick, An Artisan Elite in Victorian Society: Kentish London 1840–1880 (Croom Helm, 1978). J Rickard, ‘The Anti-Sweating Movement in Britain and Victoria. The Politics of Empire and Social Reform’ (1979) 18 Historical Studies 582. CR Dobson, Masters and Journeymen (Rowman & Littlefield, 1980). RQ Gray, The Aristocracy of Labour in Nineteenth-Century Britain (Macmillan, 1981). J Morris, ‘State Reform and the Local Economy’ (1982) 35 Econ HR (2nd series) 292. JA Schmiechen, Sweated Industries and Sweated Labour (Croom Helm, 1984). JFC Harrison, Late Victorian Britain 1875–1900 (Fontana Press, 1990). E Hopkins, Working Class Self-Help in Nineteenth Century England (UCL Press, 1995). AJ Reid, Social Classes and Social Relations in Britain 1850–1914 (Cambridge University Press, 1995). D Fraser, The Evolution of the British Welfare State: A History of Social Policy Since the Industrial Revolution, 4th edn (Palgrave Macmillan, 2009). AJ Reid, The Tide of Democracy: Shipyard Workers and Social Relations in Britain, 1870–1950 (Manchester University Press, 2010). GG Field, Blood, Sweat, and Toil: Remaking the British Working Class, 1939–1945 (Oxford University Press, 2011). J Field, Working Men’s Bodies: Work Camps in Britain, 1880–1940 (Oxford University Press, 2013). C Steedman, An Everyday Life of the English Working Class: Work, Self and Sociability in the Early Nineteenth Century (Cambridge University Press, 2013). CJ Griffin, ‘The Culture of Combination: Solidarities and Collective Action Before Tolpuddle’ (2015) 58 HJ 443. M Levine-Clark, Unemployment, Welfare, and Masculine Citizenship: ‘So Much Honest Poverty’ in Britain 1870–1930 (Palgrave Macmillan, 2015). S Todd, The People: The Rise and Fall of the Working Class 1910–2010 (John Murray, 2015). MW Steinberg, England’s Great Transformation: Law, Labour, and the Industrial Revolution (University of Chicago Press, 2016).

Women in the Labour Force J Morris, Women Workers and the Sweated Trades: The Origins of Minimum Wages Legislation (Gower, 1986). AV John, Unequal Opportunities: Women’s Employment in England 1800–1918 (Blackwell, 1986). M Savage, ‘Trade Unionism, Sex Segregation, and the State: Women’s Employment in “New Industries” in Inter-War Britain’ (1988) 13 SH 209. M Valverde, ‘“Giving the Female a Domestic Turn”: The Social, Legal and Moral Regulation of Women’s Work in British Cotton Mills, 1820–1850’ (1988) 21 JSH 619. M Vicinus, Independent Women: Work and Community for Single Women, 1850–1920 (University of Chicago Press, 1988). M Glucksmann, Women Assemble: Women Workers and the New Industries in Inter-war Britain (Routledge, 1990). J Rendall, Women in an Industrialising Society: England 1750–1880 (Oxford University Press, 1990). D Valenze, The First Industrial Woman (Oxford University Press, 1995). M Berg, ‘What Difference Did Women’s Work Make to the Industrial Revolution?’ (1993) 35 HWJ 22. S Horrell and J Humphries, ‘Women’s Labour Force Participation and the Transition to the Male-Breadwinner Family, 1790–1865’ (1995) 48 Econ HR (2nd series) 89. HL Smith, ‘British Feminism and the Equal Pay Issue in the 1930s’ (1996) 5 Women’s History Review 97. S Horrell and J Humphries, ‘The Origins and Expansion of the Male Breadwinner Family: The Case of Nineteenth-Century Britain’ (1997) 42 International Review of Social History 25. P Sharpe and H Bradley (eds), Gender and Work (1998) 63 Labour History Review (special issue). CA Culleton, Working Class Culture: Women and Britain 1914–1921 (St Martin’s, 2000).

662 Bibliography and Suggestions for Further Reading D Thom, Nice Girls and Rude Girls: Women Workers in World War One (IB Taurus, 2000). K Honeyman, Women, Gender and Industrialisation in England, 1700–1870 (Macmillan, 2000). K Hunt, ‘Gender and Labour History in the 1990s’ (2002) 27 Mitteilungsblatt des Soziale Bewegungen 185. N Verdon, Rural Women Workers in Nineteenth-century England: Gender, Work and Wages (Boydell Press, 2002). I Pinchbeck, Women Workers in the Industrial Revolution, 2nd revised edn (Routledge, 2004). P Lane, N Raven and KDM Snell (eds), Women, Work, and Wages in England, 1600–1850 (Boydell Press, 2004). J Schwarzkopf, Unpicking Gender: The Social Construction of Gender in the Lancashire Cotton Weaving Industry, 1880–1914 (Ashgate, 2004). K Cowman and LA Jackson (eds), Women and Work Culture: Britain, c 1850–1950 (Ashgate, 2005). B Hill, Women, Work and Sexual Politics In Eighteenth-Century England (Routledge, 2005). S Todd, Young Women, Work, and Family in England 1918–1950 (Oxford University Press, 2005). L Shaw-Taylor, ‘Diverse Experiences: The Geography of Adult Female Employment in England and the 1851 Census’ in N Goose (ed), Women in Industrialising England (Local Population Studies, 2007). J Greenlees, Female Labour Power: Women Workers’ Influences on Business Practice in the British and American Cotton Industries, 1780–1860 (Ashgate, 2007). J Burnette, Gender, Work and Wages in Industrial Revolution Britain (Cambridge University Press, 2008). U de la Mare, ‘Necessity and Rage: The Factory Women’s Strikes in Bermondsey, 1911’ (2008) 66 HWJ 62. S Todd, ‘Domestic Service and Class Relations in Britain, 1900–1950’ (2009) 203 P&P 181. N Verdon, ‘Agricultural Labour and the Contested Nature of Women’s Work in Interwar England and Wales’ (2009) 52 HJ 109. L Raw, Striking a Light: The Bryant and May Matchwomen and Their Place in History, 2nd edn (Continuum, 2011). G Sutherland, In Search of the New Woman: Middle-Class Women and Work in Britain 1870–1914 (Cambridge University Press, 2015). H Glew, Gender, Rhetoric and Regulation: Women’s Work in the Civil Service and the London County Council, 1900–55 (Manchester University Press, 2016). SO Rose and S Brady, ‘Rethinking Gender and Labour History’ in J Arnold, M Hilton and J Rüger (eds), History After Hobsbawm: Writing the Past for the Twenty-First Century (Oxford University Press, 2018).

Child Labour S Horrell and J Humphries, ‘“The Exploitation of Little Children”: Children’s Work and the Family Economy in the British Industrial Revolution’ (1995) 32 EEH 485. C Tuttle, Hard at Work in Factories and Mines: The Economics of Child Labor During the British Industrial Revolution (Westview Press, 1999). M Lavalette, A Thing of the Past? Child Labour in Britain in the Nineteenth and Twentieth Centuries (Liverpool University Press, 1999). J Humphries, ‘Child Labour: Lessons from the Historical Experience of Today’s Industrial Economies’ (2003) 17 World Bank Economic Review 175. P Kirby, Child Labour in Britain, 1750–1870 (Palgrave Macmillan, 2003). J Humphries, Childhood and Child Labour in the British Industrial Revolution (Cambridge University Press, 2010). J Burnette, ‘Child Day-Labourers in Agriculture: Evidence from Farm Accounts, 1740–1850’ (2012) 65 Econ HR (2nd series) 1077. P Kirby, Child Workers and Industrial Health in Britain 1780–1850 (Boydell, 2013). N Goose and K Honeyman (eds), Childhood and Child Labour in Industrial England: Diversity and Agency, 1750–1914 (Ashgate, 2013).

Apprenticeship IO Dunlop and RD Denman, English Apprenticeship and Child Labour: A History (Macmillan, 1912). TK Deny, ‘The Repeal of the Apprenticeship Clauses of the Statute of Apprentices’ (1931) 3 Econ HR (1st series) 67. JR Kellett, ‘The Breakdown of Guild and Corporation Control Over the Handicraft and Retail Trade in London’ (1978) 10 Econ HR (2nd series) 381. J Lane, ‘Apprenticeship in Warwickshire Cotton Mills, 1790–1830’ (1979) 10 Textile History 161.

Bibliography and Suggestions for Further Reading 663 KDM Snell, Annals of the Labouring Poor: Social Change and Agrarian England 1660–1900 (Cambridge University Press, 1985) chs 5 and 6. IK Ben-Amos, ‘Women Apprentices in the Trades and Crafts of Early Modern Bristol’ (1991) 6 C&C 227. P Sharpe, ‘Poor Children as Apprentices in Colyton, 1598–1830’ (1991) 6 C&C 253. J Lane, Apprenticeship in England 1600–1914 (UCL Press, 1996). KDM Snell, ‘The Apprenticeship System in British History: The Fragmentation of a Cultural Institution’ (1996) 25 History of Education 303. J Humphries, ‘English Apprenticeship: A Neglected Factor in the First Industrial Revolution’ in PA David and M Thomas (eds), The Economic Future in Historical Perspective (Oxford University Press, 2006). K Honeyman, Child Workers in England, 1780–1820: Parish Apprentices and the Making of the Early Industrial Labour Force (Ashgate, 2007). P Wallis, ‘Apprenticeship and Training in Pre-modern England’ (2008) 68 JEH 832. J Humphries, Childhood and Child Labour in the British Industrial Revolution (Cambridge University Press, 2010) ch 9. A Levene, ‘Parish Apprenticeship and the Old Poor Law in London’ (2010) 63 Econ HR (2nd series) 915. C Minns and P Wallis, ‘Rules and Reality: Quantifying the Practice of Apprenticeship in Early Modern England’ (2012) 65 Econ HR (2nd series) 556.

Labour Relations in the 17th and 18th Centuries G Wallas, The Life of Francis Place, 1771–1854, 3rd edn (Allen & Unwin, 1918). GDH Cole, Life of Robert Owen (Macmillan, 1926). JR Hicks, ‘The Early History of Industrial Conciliation in England’ (1930) 10 Economica 25. WHB Court, The Rise of the Midland Industries (Oxford University Press, 1938). MW Flinn (ed), The Lawbook of the Crawley Ironworks (Surtees Society, 1957). GW Hilton, The Truck System (Cambridge University Press, 1960). N McKendrick, ‘Josiah Wedgewood and Factory Discipline’ (1961) 4 HJ 30. D Bythell, The Handloom Weavers (Cambridge University Press, 1969). B Inglis, Poverty and the Industrial Revolution (Hodder, 1971). C Dobson, Masters and Journeymen: A Pre-History of Industrial Relations 1717–1800 (Croom Helm, 1980). J Rule, The Experience of Labour in Eighteenth-Century Industry (Croom Helm, 1981). J Moher, ‘From Suppression to Containment: The Roots of Trade Union Law to 1825’ in J Rule (ed), British Trade Unionism, 1750–1850 (Longmans, 1988). H Southall, ‘Towards a Geography of Unionisation: The Spatial Organisation and Distribution of Early British Trade Unions’ (1988) 13 TIBG 466. GR Boyer, An Economic History of the English Poor Law, 1750–1850 (Cambridge University Press, 1990). A Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776–1809 (Cambridge University Press, 1991). J Rule, ‘Trade Unions, the Government and the French Revolution, 1789–1802’ in J Rule and R Malcolmson (eds), Protest and Survival: The Historical Experience: Essays for EP Thompson (Merlin, 1993). J Boulton, ‘Wage Labour in Seventeenth-Century London’ (1996) 49 Econ HR (2nd series) 268. M Gorsky, ‘The Growth and Distribution of English Friendly Societies in the Early Nineteenth Century’ (1998) 51 Econ HR (2nd series) 48. M Gorsky, ‘Mutual Aid and Civil Society: Friendly Societies in Nineteenth-century Bristol’ (1998) 25 Urban History 302. D Hay, ‘Master and Servant in England: Using the Law in the Eighteenth and Nineteenth Centuries’ in W Steinmetz (ed), Private Law and Social Inequality in the Industrial Age (Oxford University Press, 2000). C Evans, O Jackson and G Rydén, ‘Baltic Iron and the British Iron Industry in the Eighteenth Century’ (2002) 55 Econ HR (2nd series) 642. S Ogilivie, ‘Guilds, Efficiency, and Social Capital: Evidence from German Proto-Industry’ (2004) 57 Econ HR (2nd series) 286. A Randall, Riotous Assemblies: Popular Protest in Hanoverian England (Oxford University Press, 2006). J Mokyr and JVC Nye, ‘Distributional Coalitions, the Industrial Revolution, and the Origins of Economic Growth in Britain’ (2007) 71 Southern Economic Journal 50. C Steedman, ‘At Every Bloody Level: A Magistrate, a Framework Knitter and the Law’ (2012) 30 L&HR 387.

664 Bibliography and Suggestions for Further Reading

Luddism E Hobsbawm and G Rudé, Captain Swing (Penguin, 1973). MI Thomis, The Luddites: Machine-Breaking in Regency England (David and Charles, 1970). CJ Griffin, ‘“There Was No Law to Punish that Offence”: Re-assessing “Captain Swing”: Rural Luddism and Rebellion in East Kent, 1830–31’ (2000) 22 Southern History 131. A Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776–1809 (Cambridge University Press, 2002). K Binfield (ed), Writings of the Luddites (John Hopkins University Press, 2004). K Navickas, ‘The Search for “General Ludd”: The Mythology of Luddism’ (2005) 30 SH 281. P Jones, ‘Finding Captain Swing: Protest, Parish Relations, and the State of the Public Mind in 1830’ (2009) 54 International Review of Social History 429. K Navickas, ‘Luddism, Incendiarism and the Defence of Rural “Task-Scapes” in 1812’ (2011) 48 Northern History 59. CJ Griffin, The Rural War: Captain Swing and the Politics of Protest (Manchester University Press, 2012). CJ Griffin, Protest, Politics and Work in Rural England, 1700–1850 (Palgrave, 2014). M Roberts, ‘Rural Luddism and the Makeshift Economy of the Nottinghamshire Framework Knitters’ (2017) 42 SH 365. K Navickas, Protest and the Politics of Space and Place, 1789–1848 (Manchester University Press, 2017).

Trade Unions and Labour Relations in the 19th and 20th Centuries S and B Webb, Industrial Democracy (Longmans, 1898). WM Geldart, ‘The Report of the Royal Commission on Trade Disputes’ (1906) 16 Economic Journal 189. S Webb and B Webb, A History of Trade Unionism (Longmans, 1920). MD George, ‘The Combination Laws Reconsidered’ (1927) 6 Econ HR (1st series) 214. RY Hedges and A Winterbottom, The Legal History of Trade Unionism (Longmans, 1930). O Kahn-Freund, ‘Legislation Through Adjudication’ (1948) 11 MLR 270. A Aspinall, The Early English Trade Unions (Blatchworth Press, 1949). GDH Cole, Attempts at General Union (Macmillan, 1953). AJ Taylor, ‘The Miner’s Association of Great Britain and Ireland, 1842–1848: A Study in the Problem of Integration’ (1955) 22 Economica 45. A Flanders and H Clegg, The British System of Industrial Relations (Blackwell, 1956). A Fox, History of the National Union of Boot and Shoe Operatives (Blackwell, 1958). O Kahn-Freund, ‘Labour Law’ in M Ginsberg, (ed), Law and Opinion in England in the 20th Century (Stevens & Sons, 1959). H Phelps Brown, The Growth of British Industrial Relations (Macmillan, 1959). HA Turner, Trade Union Growth, Structure and Policy (Allen & Unwin, 1962). PS Bagwell, The Railwaymen (Allen & Unwin 1963). VL Allen, ‘The Origins of Industrial Conciliation and Arbitration’ (1964) 9 International Review of Social History 237. H Clegg, A Fox, and A Thompson, A History of British Trade Unions Since 1889 (Oxford University Press, 1964). EJ Hobsbawm, Labouring Men: Studies in the History of Labour (Weidenfeld and Nicolson, 1964). A Briggs and J Saville (eds), Essays in Labour History, vol I (Macmillan, 1960); vol II (Macmillan, 1971). AE Musson, British Trade Unions 1800–1875 (Macmillan, 1972). R Charles, The Development of Industrial Relations in Britain, 1911–1939 (Hutchinson, 1973). KD Brown (ed), Essays in Anti-Labour History (Macmillan, 1974). K Burgess, The Origins of British Industrial Relations (Croom Helm, 1975). O Kahn-Freund, ‘Blackstone’s Neglected Child: The Contract of Employment’ (1977) 93 LQR 508. S Lewenhak, Women and Trade Unions: An Outline History of Women in the British Trade Union Movement (St Martin’s Press, 1977). C Behagg, ‘Custom, Class and Change: The Trade Societies of Birmingham’ (1979) 4 SH 455. EH Hunt, British Labour History 1815–1914 (Weidenfeld and Nicolson, 1981). JV Orth, ‘English Law and Striking Workmen: The Molestation of Workmen Act, 1859’ (1981) 2 JLH 238.

Bibliography and Suggestions for Further Reading 665 R Kidner, ‘Lessons in Trade Union Law Reform: The Origins and Passage of the Trade Disputes Act 1906’ (1982) 2 LS 34. H Pelling, ‘The Origins of the Osborne Judgment’ (1982) 25 HJ 889. CJ Wrigley (ed), A History of British Industrial Relations, 1875–1914 (Harvester, 1982). D Woods, ‘The Enforcement of the Master and Servant Acts in the Black Country 1858–1875’ (1982) 7 Midland History 93. EJ Hobsbawm, Worlds of Labour (Weidenfeld and Nicolson, 1984). A Fox, History and Heritage (Allen & Unwin, 1985). J Bornat, ‘Lost Leaders: Women, Trade Unionism and the Case of the General Union of Textile Workers, 1875–1914’ in A John (ed), Unequal Opportunities: Women’s Employment in England 1800–1918 (Blackwell, 1986). R Dickson, ‘The Tolpuddle Martyrs: Guilty or Not Guilty?’ (1986) 7 JLH 178. MJ Klarman, ‘Parliamentary Reversal of the Osborne Judgement’ (1989) 32 HJ 893. WJ Morgan, ‘The Miners’ Welfare Fund in Britain 1920–1952’ (1990) 24 Social Policy and Administration 199. J Ballhatchet, ‘The Police and the London Dock Strike of 1889’ (1991) 32 History Workshop 54. JV Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721–1906 (Clarendon Press, 1991). J Spain, ‘Trade Unionists, Gladstonian Liberals, and the Labour Law Reforms of 1875’ in E Biagini and A Reid (eds), Currents of Radicalism: Popular Radicalism, Organized Labour and Party Politics in Britain 1850–1914 (Cambridge University Press, 1991). C Wrigley, ‘Trade Unionists, Employers and the Cause of Industrial Unity and Peace, 1916–1921’ in C Wrigley and J Shepherd (eds), On the Move: Essays in Labour and Transport History Presented to Philip Bagwell (Hambleden, 1991). S Deakin, ‘Wage Protection Before and After Delaney v Staples’ (1992) 55 MLR 848. H Pelling, A History of British Trade Unionism (Penguin, 1992). J Breuilly, Labour and Liberalism in Nineteenth-century Europe: Essays in Comparative History (Manchester University Press, 1992) ch 5. R Kidner, ‘The Development of the Picketing Immunity: 1825–1906’ (1993) 13 LS 103. N Kirk, Labour and Society in Britain and the USA, 1780–1850 (Scolar, 1994). J Saville, ‘The Trade Disputes Act of 1906’ (1996) 1 HSIR 11. S Deakin, ‘The Evolution of the Contract of Employment 1900–1950: The Influence of the Welfare State’ in N Whiteside and R Salais (eds), Governance, Industry and Labour Markets in Britain and France: The Modernising State in the Mid-twentieth Century (Routledge, 1998). R Vorspan, ‘The Political Power of Nuisance Law: Labour Picketing and the Courts in Modern England, 1871-Present’ (1998) 46 Buffalo Law Review 593. J Charlton, ‘It Just Went Like Tinder’: Mass Movement and New Unionism in Britain 1889 (Redwords, 1999). WH Fraser, A History of British Trade Unionism, 1700–1998 (Macmillan, 1999). S Deakin, ‘Legal Origins of Wage Labour: The Evolution of the Contract of Employment from Industrialisation to the Welfare State’ in L Clarke, P de Gijsel, and J Janssen (eds), The Dynamics of Wage Relations in the New Europe (Kluwer, 2000). JA Jaffe, Striking a Bargain: Work and Industrial Relations in England, 1815–1865 (Manchester University Press, 2000). W Steinmetz, ‘Was There a Dejuridification of Employment Relations in Britain?’ in W Steinmetz (ed), Private Law and Social Inequality in the Industrial Age (Oxford University Press, 2000). CJ Wrigley, ‘Churchill and the Trade Unions’ (2001) 11 TRHS (6th series) 273. D Brodie, A History of British Labour Law 1867–1945 (Hart, 2003). AJ Reid, United We Stand: A History of Britain’s Trade Unions (Allen Lane, 2004). M Curthoys, Governments, Labour and the Law in Mid-Victorian Britain (Oxford University Press, 2005). C Frank, ‘“Let But One of Them Come Before Me, and I’ll Commit Him”: Trade Unions, Magistrates and the Law in Mid-Nineteenth Century Staffordshire’ (2005) 44 JBS 64. J McIlroy, A Campbell, K Laybourn and Q Outram, ‘The General Strike and Mining Lockout of 1926: A Select Bibliography’ (2006) 21 HSIR 183. S Blackburn, A Fair Day’s Wage for a Fair Day’s Work? Sweated Labour and the Origins of Minimum Wage Legislation in England (Ashgate, 2007). W Cornish, ‘Labour Law’ in W Cornish et al, The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development (Oxford University Press, 2010).

666 Bibliography and Suggestions for Further Reading C Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–1865 (Ashgate, 2010). S Naidu and N Yuchtman, ‘Coercive Contract Enforcement: Law and the Labour Market in Nineteenth Century Industrial Britain’ (2013) 103 American Economic Review 107. CJ Griffin, ‘The Culture of Combination: Solidarities and Collective Action Before Tolpuddle’ (2015) 58 HJ 443. LH Mates, The Great Labour Unrest: Rank-and-file Movements and Political Change in the Durham Coalfield (Oxford University Press, 2016). A Williamson, ‘The Trade Disputes and Trade Unions Act 1927 Reconsidered’ (2016) 37 HSIR 33. A Williamson, ‘Lyons v Wilkins and the Right to Peacefully Persuade’ (2018) 39 HSIR 41.

The Factory Acts BL Hutchins and A Harrison, A History of Factory Legislation (PS King & Son, 1926). TK Djang, Factory Inspection in Great Britain (Allen and Unwin, 1942). MW Thomas, The Early Factory Legislation (Thames Bank Publishing, 1948). RK Webb, ‘A Whig Inspector’ (1955) 27 JMH 352. M Blaug, ‘The Classical Economists and the Factory Acts: A Re-examination’ (1958) 72 Quarterly Journal of Economics 211. WG Carson, ‘White Collar Crime and the Enforcement of Factory Legislation’ (1970) 10 British Journal of Criminology 383. URQ Henriques, The Early Factory Acts and Their Enforcement (Historical Association, 1971). O MacDonagh, Early Victorian Government (Holmes & Meier, 1977). HP Marvel, ‘Factory Regulation: A Reinterpretation of Early English Experience’ (1977) 20 Journal of Law and Economics 379. WG Carson, ‘The Conventionalisation of Early Factory Crime’ (1979) 7 International Journal of the Sociology of Law 37. C Nardinelli, ‘The Successful Prosecution of the Factory Acts: A Suggested Explanation’ (1985) 38 Econ HR (2nd series) 428. S Field, ‘Without the Law? Professor Arthurs and the Early Factory Inspectorate’ (1990) 17 Journal of Law and Society 445. G Clark, ‘Factory Discipline’ (1994) 54 JEH 128. MW Dupree, Family Structure in the Staffordshire Potteries 1840–1880 (Oxford University Press, 1995) chs 5 and 6. J Innes, ‘Origins of the Factory Acts: The Health and Morals of Apprentices Act 1802’ in N Landau (ed), Law, Crime and English Society, 1660–1830 (Cambridge University Press, 2002). KA Moos, ‘The Political Economy of State Regulation: The Case of the English Factory Acts’ UMass Economics Working Papers 2017–17; online at: umass.edu/economics/publications/2017-17.pdf.

Labour in Wartime JL and B Hammond, British Labour Conditions and Legislation During the War (Oxford University Press, 1919). W Hannington, Industrial History in Wartime (Lawrence & Wishart, 1940). HL Smith, ‘The Problem of Equal Pay for Equal Work in Great Britain During World War II’ (1981) 53 JMH 652. A Reid, ‘Dilution, Trade Unionism and the State During the First World War’ in S Tolliday and J Zeitlin (eds), Shop Floor Bargaining and the State. Historical and Comparative Perspectives (Cambridge University Press, 1985). GR Rubin, War, Law and Labour: The Munitions Acts, State Regulation, and the Unions, 1915–1921 (Clarendon Press, 1987). B Millman, Managing Domestic Dissent in First World War Britain (Frank Cass, 2000). JA Jaffe, ‘The Ambiguities of Compulsory Arbitration and the Wartime Experience of Order 1305’ (2003) 15 HSIR 1. S Brooke, Labour’s War: The Labour Party and the Second World War (Oxford University Press, 2011).

Bibliography and Suggestions for Further Reading 667 D Swift, ‘Labour and the War Emergency: The Workers’ National Committee During the First World War’ (2016) 81 HWJ 84. J Pattinson, A McIvor and L Robb, Men in Reserve: British Civilian Masculinities in the Second World War (Manchester University Press, 2017). L Bland and R Carr (eds), Labour, British Radicalism and the First World War (Manchester University Press, 2018). N Redfern, Social-Imperialism in Britain: The Lancashire Working Class and Two World Wars (Brill, 2018).

The General Strike Sir John Simon, Three Speeches on the General Strike (Macmillan, 1926). AL Goodhart, ‘The Legality of the General Strike in Britain’ (1927) 36 Yale Law Journal 464. K Laybourn, The General Strike of 1926 (Manchester University Press, 1993). Q Outram, ‘The General Strike and the Development of British Capitalism’ (2006) 21 HHSIR 121. J McIlroy et al, ‘The General Strike and Mining Lockout of 1926: A Select Bibliography’ (2006) 21 HSIR 183. H Barron, The 1926 Miners’ Lockout: Meanings of Community in the Durham Coalfield (Oxford University Press, 2010). S Bruley, The Women and Men of 1926: A Social and Gender History of the General Strike and Miners’ Lockout of 1926 in South Wales (University of Wales Press, 2010). RH Saltzman, A Lark for the Sake of Their Country: The 1926 General Strike Volunteers in Folklore and Memory (Manchester University Press, 2012).

Chapter 5: Family Ideas About the Concept of Family and Family Law RH Graveson and FR Crane (eds), A Century of Family Law (Sweet & Maxwell, 1957). L Stone, The Family, Sex and Marriage in England, 1500–1800 (Weidenfeld & Nicolson, 1977). R Trumbach, The Rise of the Egalitarian Family (Academic Press, 1978). R Hurley (trans), J Donzelot, The Policing of Families (Random House, 1979). SM Cretney, Law, Law Reform and the Family (Oxford University Press, 1998). JR Gillis, A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Harvard University Press 1998). S Waddams, ‘English Matrimonial Law on the Eve of Reform’ (2000) 21 JLH 59. G Douglas, An Introduction to Family Law (Oxford University Press, 2001). N Tadmor, Family and Friends in Eighteenth-Century England (Cambridge University Press, 2001). S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003). W Müller-Freienfels, ‘The Emergence of Droit de Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England’ (2003) 28 JFH 31. R Probert, ‘Family Law – A Modern Concept?’ (2004) Family Law 901. D Wright, ‘“Well-Behaved Women Don’t Make History”: Rethinking Family, Law, and History Through an Analysis of the First Nine Years of the English Divorce and Matrimonial Causes Court (1858–1866)’ (2005) Wisconsin Women’s Law Journal 211. H Berry and E Foyster (eds) The Family in Early Modern England (Cambridge University Press, 2007). B Griffin, L Delap and A Wills, ‘Introduction’ in L Delap, B Griffin and A Wills (eds), The Politics of Domestic Authority in Britain Since 1800 (Palgrave Macmillan, 2009). J Bailey, ‘Family Relationships’ in E Foyster and J Marten (eds), A Cultural History of Childhood and Family in the Age of Enlightenment (Bloomsbury, 2010). G Douglas, Obligation and Commitment in Family Law (Hart, 2018). E Rackley and R Auchmuty (eds), Women’s Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland (Bloomsbury, 2018).

668 Bibliography and Suggestions for Further Reading

Demographic and Social Background A Briggs, Victorian People: A Reassessment of Persons and Themes, 1851–67 (1954; Penguin, 1965). H Perkin, The Origins of Modern English Society, 1780–1880 (Routledge & Kegan Paul, 1969). G Stedman Jones, Outcast London: A Study in the Relationship Between Classes in Victorian Society (1971; Penguin, 1992). P Laslett, Family Life and Illicit Love in Earlier Generations (Cambridge University Press, 1977). EA Wrigley and D Levine, Family Formation in an Age of Nascent Capitalism (Academic Press, 1977). RS Schofield, The Population History of England 1541–1871 (E Arnold, 1981). R Wall, Family Forms in Historic Europe (Cambridge University Press, 1983). M Anderson, ‘The Emergence of the Modern Life Cycle in Britain’ (1985) 10 SH 69. R Schofield, ‘“Did the Mothers Really Die?” Three Centuries of Maternal Mortality in “the World We Have Lost”’ in L Bonfield, R Smith and K Wrightson (eds), The World We Have Gained: Histories of Population and Social Structure (Oxford University Press, 1986). FML Thompson, The Rise of Respectable Society: A Social History of Victorian Britain, 1830–1900 (Fontana Press, 1988). G Himmelfarb, Marriage and Morals Among the Victorians and Other Essays (IB Tauris & Co, 1989). MJ Daunton, Progress and Poverty: An Economic and Social History of Britain 1700–1850 (Oxford University Press, 1995). H Cook, The Long Sexual Revolution: English Women, Sex, and Contraception 1800–1975 (Oxford University Press, 2004). KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge University Press, 2006). R Probert and J Snape (eds), A Cultural History of Law in the Age of Enlightenment (Bloomsbury, 2019).

Religious Background WO Chadwick, The Victorian Church (Black, 1970). S Waddams, Law, Politics and the Church of England: The Career of Stephen Lushington (Cambridge University Press, 1992). M Hinton, The Anglican Parochial Clergy: A Celebration (SCM Press, 1994). CG Brown, The Death of Christian Britain: Understanding Secularism, 1800–2000 (Routledge, 2001). W Gibson and J Begiato, Sex and the Church in the Long Eighteenth Century (IB Tauris, 2017).

Forming a Family: Marriage MJ Cullen, ‘The Making of the Civil Registration Act of 1836’ (1974) 25 Journal of Ecclesiastical History 39. RH Helmholz, Marriage Litigation in Medieval England (Cambridge University Press, 1974). O Anderson, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1975) 69 P&P 50. R Floud and P Thane, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1979) 84 P&P 146. O Anderson, ‘A Rejoinder’ (1979) 84 P&P 155. RL Brown, ‘The Rise and Fall of the Fleet Marriage’ in RB Outhwaite, Marriage and Society (Europa Publications Ltd, 1981). NF Anderson, ‘The “Marriage With a Deceased Wife’s Sister” Controversy: Incest Anxiety and the Defense of Family Purity in Victorian England’ (1982) 21 JBS 67. A Macfarlane, Marriage and Love in England: Modes of Reproduction, 1300–1840 (Blackwell, 1986). M Ingram, Church Courts, Sex and Marriage in England 1570–1640 (Cambridge University Press, 1987). S Wolfram, In-Laws and Outlaws: Kinship and Marriage in England (Palgrave Macmillan, 1987). C Durston, ‘“Unhallowed Wedlocks”: The Regulation of Marriage During the English Revolution’ (1988) 31 HJ 45. L Stone, Road to Divorce: A History of the Making and Breaking of Marriage in England (Oxford University Press, 1990). M Morganroth Gullette, ‘The Puzzling Case of the Deceased Wife’s Sister: Nineteenth-Century England Deals With a Second-Chance Plot’ (1990) 31 Representations 142.

Bibliography and Suggestions for Further Reading 669 J Boulton, ‘Itching After Private Marryings? Marriage Customs in Seventeenth-century London’ (1991) 16 London Journal 15. J Boulton, ‘Clandestine Marriages in London: An Examination of a Neglected Urban Variable’ (1993) 20 Urban History 191. EJ Carlson, Marriage and the English Reformation (Blackwell, 1994). G Frost, Promises Broken: Courtship, Class and Gender in Victorian England (University Press of Virginia, 1995). RB Outhwaite, Clandestine Marriage in England, 1500–1850 (The Hambledon Press, 1995). D Cressy, Birth, Marriage & Death: Ritual, Religion and the Life-Cycle in Tudor and Stuart England (Oxford University Press, 1999). ER Gruner, ‘Born and Made: Sisters, Brothers, and the Deceased Wife’s Sister Bill’ (1999) 24 Signs 423. N Rogers, ‘Money, Marriage, Mobility: The Big Bourgeoisie of Hanoverian London’ (1999) 24 JFH 19. KDM Snell, ‘English Rural Societies and Geographical Marital Endogamy, 1700–1837’ (2002) 55 Econ HR (2nd series) 262. M Collins, Modern Love: An Intimate History of Men and Women in Twentieth Century Britain (Atlantic Books, 2003). S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003). M Waites, The Age of Consent: Young People, Sexuality and Citizenship (Palgrave Macmillan, 2005). R Schoen and V Canudas-Romo, ‘Timing Effects on First Marriage: Twentieth-century Experience in England and Wales and the USA’ (2005) 59 Population Studies 135. R Probert and L D’Arcy Brown, ‘The Impact of the Clandestine Marriages Act: Three Case-Studies in Conformity’ (2008) 23 C&C 309. R Probert, ‘Control Over Marriage in England and Wales, 1753–1823: The Clandestine Marriages Act of 1753 in Context’ (2009) 27 L&HR 413. R Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge University Press, 2009). S Lettmaier, Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800–1940 (Oxford University Press, 2010). M Sokol, Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (Continuum, 2011). E Griffin, ‘A Conundrum Resolved? Rethinking Courtship, Marriage and Population Growth in Eighteenth-Century England’ (2012) 215 P&P 125. J Witte Jr, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, 2nd edn (Westminster John Knox Press, 2012). M Harding, ‘The Curious Incident of the Marriage Act (No 2) 1537 and the Irish Statute Book’ (2012) 32 LS 78. K Fisher, ‘Marriage and Companionate Ideals Since 1750’ in S Toulalan and K Fisher (eds), The Routledge History of Sex and the Body (Routledge, 2013). R Probert, ‘The Evolving Concept of Non-marriage’ [2013] 25 CFLQ 314. G Newton, ‘Clandestine Marriage in Early Modern London: When, Where and Why?’ (2014) 29 C&C 151. J Haskey, ‘Marriage Rites – Trends in Marriages by Manner of Solemnisation and Denomination in England and Wales, 1841–2012’ in J Miles, P Mody and R Probert (eds), Marriage Rites and Rights (Hart, 2015). S Lettmaier, ‘Marriage Law and the Reformation’ (2017) 35 L&HR 461. R Probert, M Harding and B Dempsey, ‘A Uniform Law of Marriage? The 1868 Royal Commission Reconsidered’ [2018] 30 CFLQ 217. R Probert, ‘State and Law’ in P Puschmann (ed) A Cultural History of Marriage in the Age of Empires (Bloomsbury, forthcoming).

Property Ownership Within Marriage B Leigh-Smith (later Bodichon), A Brief Summary in Plain Language of the Most Important Laws concerning Women (J Chapman, 1854). JL Barton, ‘The Enforcement of Financial Provisions’ in RH Graveson and FR Crane (eds), A Century of Family Law (Sweet & Maxwell, 1957). L Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (University of Toronto Press, 1983). M Lyndon Shanley, Feminism, Marriage and the Law in Victorian England, 1850–1895 (IB Tauris & Co, 1989).

670 Bibliography and Suggestions for Further Reading S Staves, Married Women’s Separate Property in England, 1660–1833 (Harvard University Press, 1990). AL Erickson, Women and Property in Early Modern England (Routledge, 1993). E Spring, Law, Land and Family: Aristocratic Inheritance in England, 1300 to 1800 (University of North Carolina Press, 1993). M Finn, ‘Women, Consumption and Coverture in England, c 1760–1860’ (1996) 39 HJ 703. M Hunt, The Middling Sort: Commerce, Gender, and the Family in England, 1680–1780 (University of California Press, 1996). J Bailey, ‘Favoured or Oppressed? Married Women, Property and “Coverture” in England, 1660–1800’ (2002) C&C 351. L Davidoff and C Hall, Family Fortunes: Men and Women of the English Middle Classes 1780–1850, 2nd edn (Routledge, 2002). S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003). MB Combs, ‘Cui Bono? The 1870 British Married Women’s Property Act, Bargaining Power and the Distribution of Resources Within Marriage’ (2006) 12 Feminist Economics 51. A Vickery, ‘His and Hers: Gender Consumption and Household Accounting in Eighteenth-Century England’ (2006) 1 (supplement 1) P&P 13. M Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge University Press, 2007). J Hurl-Eamon, ‘The Fiction of Female Dependence and the Makeshift Economy of Soldiers, Sailors, and Their Wives in Eighteenth-century London’ (2008) 49 Labor History 481. AA Tait, ‘The Beginning of the End of Coverture: A Reappraisal of the Married Woman’s Separate Estate’ (2014) 26 Yale Journal of Law and Feminism 165.

Violence Within Marriage N Tomes, ‘A “Torrent of Abuse”: Crimes of Violence Between Working-Class Men and Women in London’ (1978) 11 JSH 328. E Ross, ‘“Fierce Questions and Taunts”: Married Life in Working-Class London Before World War 1’ (1983) 15 Feminist Studies 575. ME Doggett, Marriage, Wife-Beating and the Law in Victorian England (Weidenfeld and Nicholson, 1992). AJ Hammerton, Cruelty and Companionship in Nineteenth-Century Married Life (Routledge, 1992). G Behlmer, ‘Summary Justice and Working-Class Marriage in England, 1870–1940’ (1994) 12 L&HR 229. E Foyster, ‘At the Limits of Liberty: Married Women and Confinement in Eighteenth-century England’ (2002) 17 C&C 39. FE Dolan, ‘Battered Women, Petty Traitors, and the Legacy of Coverture’ (2003) 29 Feminist Studies 249. J Bailey, ‘“I Dye [sic] by Inches”: Locating Wife Beating in the Concept of a Privatization of Marriage and Violence in Eighteenth-century England’ (2006) 31 SH 273. J Bailey and L Giese, ‘Marital Cruelty: Reconsidering Lay Attitudes in England, c 1580 to 1850’ (2013) 18 The History of the Family 289. L Bibbings, Binding Men: Stories About Violence and Law in Late Victorian England (Routledge, 2014). K Pearlston, ‘Male Violence, Marital Unity, and the History of the Interspousal Tort Immunity’ (2015) 36 JLH 260.

Parenting PH Pettit, ‘Parental Control and Guardianship’ in RH Graveson and FR Crane (eds), A Century of Family Law (Sweet & Maxwell, 1957). LA Pollock, Forgotten Children: Parent-child Relations from 1500 to 1900 (Cambridge University Press, 1983). S Abramowicz, ‘English Child Custody Law, 1660–1839: The Origins of Judicial Intervention in Paternal Custody’ (1999) 99 Columbia Law Review 1344. DC Wright, ‘De Manneville v De Manneville: Rethinking the Birth of Custody Law Under Patriarchy’ (1999) 17 L&HR 247. DC Wright, ‘The Crisis of Child Custody: A History of the Birth of Family Law in England’ (2002) 11 Columbia Journal of Gender and the Law 175. S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003).

Bibliography and Suggestions for Further Reading 671 G Frost, “The Black Lamb of the Black Sheep”: Illegitimacy in the English Working Class’ (2003) 37 JSH 293. H Brewer, By Birth or Consent: Children, Law & the Anglo-American Revolution in Authority (University of North Carolina Press, 2005). A Levene, T Nutt and S Williams (eds), Illegitimacy in Britain, 1700–1920 (Palgrave Macmillan, 2005). J Bailey, Parenting in England, 1760–1830: Emotion, Identity, & Generation (Oxford University Press, 2012). A Hofri-Winogradow, ‘Parents, Children and Property in Late 18th Century Chancery’ (2012) 32 OJLS 741. DC Wright, ‘Policing Sexual Morality: Percy Shelley and the Expansive Scope of the Parens Patriae in the Law of Custody of Children’ (2012) 8 Nineteenth-Century Gender Studies [online]. J Begiato, ‘The History of Mum and Dad: Recent Historical Research on Parenting in England’ (2014) 12 History Compass 489. GS Frost, Illegitimacy in English Law and Society, 1860–1930 (Manchester University Press, 2016).

Child Welfare and State Intervention URQ Henriques, ‘Bastardy and the New Poor Law’ (1967) 37 P&P 103. V George, Foster Care, Theory and Practice (Routledge, 1970). I Pinchbeck and M Hewitt, Children in English Society (Routledge and Kegan Paul, 1973). L Rose, The Massacre of the Innocents, Infanticide in Britain 1800–1939 (Routledge & Keagan Paul, 1986). H Cunningham, The Children of the Poor (Blackwell, 1991). C Smart, ‘Disruptive Bodies and Unruly Sex: The Regulation of Reproduction and Sexuality in the Nineteenth Century’ in C Smart (ed), Regulating Womanhood: Historical Essays on Marriage, Motherhood and Sexuality (Routledge, 1992). H Hendrick, Child Welfare: England 1872–1989 (Routledge 1994). G Behlmer, Friends of the Family: The English Home and Its Guardians, 1850–1940 (Stanford University Press, 1998). J Lewis, ‘The Problem of Lone-mother Families in Twentieth-century Britain’ (1998) 20 JSWFL 251. S Cretney, ‘The State as a Parent: The Children Act 1948 in Retrospect’ (1998) 114 LQR 419. NV Lowe, ‘English Adoption Law: Past, Present and Future’ in SN Katz, J Eekelaar and M Maclean (eds), Cross Currents: Family Law and Policy in the US and England (Oxford University Press, 2000). K Stevenson, ‘Fulfilling Their Mission: The Intervention of Voluntary Societies in Cases of Sexual Assault in the Victorian Criminal Process’ (2004) 8 Crime, History & Societies 93. N Wikeley, Child Support: Law and Policy (Hart, 2006). K Callan Martin, Hard and Unreal Advice: Mothers, Social Science and the Victorian Poverty Experts (Palgrave Macmillan, 2008). J Keating, A Child for Keeps: The History of Adoption in England, 1918–45 (Palgrave Macmillan, 2008). P Thane and T Evans, Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth-Century England (Oxford University Press, 2012). S Williams, ‘The Maintenance of Bastard Children in London, 1790–1834’ (2016) 69 Econ HR (2nd series) 945. J-F Mignot, ‘Full Adoption in England and Wales and France: A Comparative History of Law and Practice (1926–2015)’ (2017) 41 Adoption & Fostering 142. S Williams, Unmarried Motherhood in the Metropolis, 1700–1850: Pregnancy, the Poor Law and Provision (Palgrave Macmillan, 2018).

Separation and Divorce C Norton, English Laws for Women (Printed for Private Circulation, 1854). C Norton, A Letter to the Queen on Lord Cranworth’s Marriage and Divorce Bill (Longman, Brown, Green and Longmans, 1855). ESP Haynes, Divorce Problems of Today (Heffer, 1910). Women’s Co-operative Guild, Working Women and Divorce: An Account of the Evidence Given on Behalf of the Women’s Co-operative Guild Before the Royal Commission on Divorce (David Nutt, 1911). OR McGregor, Divorce in England (Heinemann 1957).

672 Bibliography and Suggestions for Further Reading G Rowntree and NH Carrier, ‘The Resort to Divorce in England and Wales, 1858–1957’ (1958) 11 Population Studies 188. MK Woodhouse, ‘The Marriage and Divorce Bill of 1857’ (1959) 3 AJLH 273. O McGregor, L Blom-Cooper and C Gibson, Separated Spouses (Duckworth & Co, 1970). SP Menefee, Wives for Sale (Blackwell, 1981). D Stetson, A Woman’s Issue: The Politics of Family Law Reform in England (Greenwood Press, 1982). S Staves, ‘Money for Honor: Damages for Criminal Conversation’ (1982) 11 Studies in Eighteenth-Century Culture 279. S Anderson, ‘Legislative Divorce – Law for the Aristocracy?’ in GR Rubin and D Sugarman (eds), Law, Economy and Society (Professional Books Ltd, 1984). A Horstmann, Victorian Divorce (Croom Helm, 1985). S Wolfram, ‘Divorce in England 1700–1857’ (1985) 5 OJLS 155. G Savage, ‘Divorce and the Law in England and France Prior to the First World War’ (1988) 21 JSH 499. R Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge University Press, 1988). J Perkin, Women and Marriage in Nineteenth-Century England (Routledge, 1989). M Lyndon Shanley, Feminism, Marriage and the Law in Victorian England, 1850–1895 (IB Tauris & Co, 1989). DA Kent, ‘“Gone for a Soldier”: Family Breakdown and the Demography of Desertion in a London Parish, 1750–91’ (1990) 45 Local Population Studies 27. L Stone, Road to Divorce: A History of the Making and Breaking of Marriage in England (Oxford University Press, 1990). GL Savage, ‘“Intended Only for the Husband”: Gender, Class, and the Provision for Divorce in England, 1858–1868’ in K Ottesen Garrigen (ed), Victorian Scandals: Representations of Gender and Class (Ohio University Press, 1992). S Redmayne, ‘The Matrimonial Causes Act 1937: A Lesson in the Art of Compromise’ (1993) 13 OJLS 183. C Gibson, Dissolving Wedlock (Routledge, 1994). L Stone, Uncertain Unions and Broken Lives: Marriage and Divorce in England, 1660–1857 (Oxford University Press, 1995). CA Moyse, ‘Reform of Marriage and Divorce Law in England and Wales, 1909–37’ (PhD thesis, University of Cambridge, 1996); online at https://www.repository.cam.ac.uk/handle/1810/251606. MS Lovell, A Scandalous Life: The Biography of Jane Digby (Fourth Estate, 1996). O Anderson, ‘Hansard’s Hazards: An Illustration from Recent Interpretations of the Married Women’s Property Law and the 1857 Divorce Act’ (1997) 112 EHR 1202. G Savage, ‘Erotic Stories and Public Decency: Newspaper Reporting of Divorce Proceedings in England’ (1998) 41 HJ 511. A Sumner Holmes, ‘“Don’t Frighten the Horses”: The Russell Divorce Case’ in G Robb and N Erber (eds), Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century (Palgrave Macmillan, 1999). G Frost, ‘A Shock to Marriage? The Clitheroe Case and the Victorians’ in G Robb and N Erber (eds), Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century (Palgrave Macmillan, 1999). R Probert, ‘The Controversy of Equality and the Matrimonial Causes Act 1923’ (1999) 11 CFLQ 33. R Probert, ‘The Double Standard of Morality in the Divorce and Matrimonial Causes Act 1857’ (1999) 28 Anglo-American Law Review 73. J Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge University Press, 2003). S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, 2003). G Savage, ‘“… The Instrument of an Animal Function”: Marital Rape and Sexual Cruelty in the Divorce Court, 1858–1908’ in L Delap, B Griffin and A Wills (eds), The Politics of Domestic Authority in Britain Since 1800 (Palgrave Macmillan, 2009). G Savage, ‘They Would if They Could: Class, Gender, and Popular Representation of English Divorce Litigation, 1858–1908’ (2011) 36 JFH 173. M Sokol, Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (Continuum, 2011). R Probert, ‘The Roos Case and Modern Family Law’ in S Gilmore, J Herring and R Probert (eds), Landmark Cases in Family Law (Hart, 2011). D James, ‘Parliamentary Divorce, 1700–1857’ (2012) 31 Parl Hist 169. S Jenkinson, ‘The Co-Respondent’s Role in Divorce Reform After 1923’ in R Probert and C Barton (eds), Fifty Years in Family Law: Essays for Stephen Cretney (Intersentia, 2012).

Bibliography and Suggestions for Further Reading 673 R Probert, J Shaffer and J Bailey, A Noble Affair: The Remarkable True Story of the Runaway Wife, the Bigamous Earl, and the Farmer’s Daughter (Brandram, 2013). J Shaffer, ‘Bastardy and Divorce Trials, 1780–1809’ in R Probert (ed), Cohabitation and Non-marital Births in England and Wales, 1600–2012 (Palgrave Macmillan, 2014). M Parker, ‘The Draft Nuptial Agreements Bill and the Abolition of the Common Law Rule: “Swept Away” or Swept Under the Carpet?’ (2015) 27 CFLQ 63. R Probert, ‘Double Trouble: The Rise and Fall of the Crime of Bigamy’ (Selden Society, 2015). R Probert, Divorced, Bigamist, Bereaved? The Family Historian’s Guide to Marital Breakdown, Separation, Widowhood, and Remarriage: from 1600 to the 1970s (Takeaway, 2015). H Kha and W Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’ (2016) 37 JLH 303. R Probert, ‘R v Hall and the Changing Perceptions of the Crime of Bigamy’ (2019) 39 LS 1.

Cohabitation G Frost, Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester University Press, 2008). S Szreter and K Fisher, Sex Before the Sexual Revolution: Intimate Life in England, 1918–1963 (Cambridge University Press, 2010). R Probert, The Changing Legal Regulation of Cohabitation: From Fornicators to Family, 1600–2010 (Cambridge University Press, 2012). R Probert (ed), Cohabitation and Non-marital Births in England and Wales, 1600–2012 (Palgrave Macmillan, 2014).

Wills, Death and Bereavement AG Guest, ‘Family Provision and the Legitima Portio’ (1957) 73 LQR 74. R Houlbrooke (ed), Death, Ritual and Bereavement (Routledge, 1989). A Owens, ‘Property, Gender and the Life Course: Inheritance and Family Welfare Provision in Early Nineteenth-century England’ (2001) 26 SH 299. RJ Morris, Men, Women and Property in England, 1780–1870: A Social and Economic History of Family Strategies amongst the Leeds Middle Classes (Cambridge University Press, 2005). R Probert, ‘Disquieting Thoughts: Who Will Benefit When We Are Gone?’ in B Häcker and C Mitchell (eds), Current Issues in Succession Law (Hart, 2016).

Gender Issues K O’Donovan, ‘The Male Appendage – Legal Definitions of Women’ in S Burman (ed), Fit Work for Women (Croom Helm, 1979). D Stetson, A Woman’s Issue: The Politics of Family Law Reform in England (Greenwood Press, 1982). P Jalland, Women, Marriage and Politics, 1860–1914 (Oxford University Press, 1986). M Lyndon Shanley, Feminism, Marriage and the Law in Victorian England, 1850–1895 (IB Tauris & Co, 1989). P Levine, Feminist Lives in Victorian England: Private Roles and Public Commitment (Basil Blackwell, 1990). A Vickery, ‘Golden Age to Separate Spheres: A Review of the Categories and Chronology of English Women’s History’ (1993) 36 HJ 383. P Levine, Victorian Feminism, 1850–1900 (University Press of Florida, 1994). RB Shoemaker, Gender in English Society 1650–1850: The Emergence of Separate Spheres (Longman, 1998). J Tosh, A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (Yale University Press, 1999). A Vickery, The Gentleman’s Daughter: Women’s Lives in Georgian England (Yale University Press, 2003). J Tosh, Manliness and Masculinities in Nineteenth-century Britain (Pearson Longman, 2004). R Probert, ‘Family Law Reform and the Women’s Movement in England and Wales, 1830–1914’ in S Meder and C-E Mecke (eds), Family Law in Early Women’s Rights Debates (Böhlau Verlag, 2012). M Lane, ‘Not the Boss of One Another: A Reinterpretation of Working-class Marriage in England, 1900 to 1970’ (2014) 11 Cultural and Social History 441.

674 Bibliography and Suggestions for Further Reading

Chapter Six: Poverty and Education The Poor Laws M Nolan, Laws of Relief and Settlement of the Poor, 4th edn (Maxwell, 1825). GA Lewin, A Summary of the Law of Settlement (Sweet, 1827). S Webb and B Webb, English Poor Law History, Part I: The Old Poor Law (Longman, 1927); Part II: The Last Hundred Years (Longman, 1929). W Hannington, Ten Lean Years (Gollancz, 1940). EC Midwinter, Social Administration in Lancashire 1830–1860: Poor Law, Public Health, Police (Manchester University Press, 1969). NC Edsall, The Anti-Poor Law Movement 1834–1844 (Manchester University Press, 1971). I Anstruther, The Scandal of the Andover Workhouse (G Bles, 1973). P Dunkley, ‘The Landed Interest and the New Poor Law: A Critical Note’ (1973) 88 EHR 836. P Dunkley, ‘The Hungry Forties and the Poor Law: A Case Study’ (1974) 17 HJ 329. M Flinn, ‘Medical Services Under the New Poor Law’ in D Fraser (ed), The New Poor Law in the Nineteenth Century (Macmillan, 1976). A Digby, Pauper Palaces (Routledge, 1978). A Brundage, The Making of the New Poor Law: The Politics of Inquiry, Enactment and Implementation, 1832–39 (Hutchinson, 1978). P Dunkley, ‘Paternalism, the Magistracy and Poor Relief in England, 1795–1834’ (1979) 24 International Review of Social History 371. MW Greenslade, Before the Welfare State: Social Administration in Early Industrial Britain (Longman, 1979). J Walton, ‘The Treatment of Pauper Lunatics in Victorian England: The Case of Lancaster Asylum, 1816–70’ in A Schull (ed), Madhouses, Mad Doctors and Madmen: The Social History of Psychiatry in the Victorian Era (University of Pennsylvania Press, 1981). K Williams, From Pauperism to Poverty (Routledge, 1981). W Apfel and P Dunkley, ‘English Rural Society and the New Poor Law: Bedfordshire, 1834–47’ (1985) 10 SH 37. JW Ely, ‘The Eighteenth Century Poor Laws in the West Riding of Yorkshire’ (1986) 30 AJLH 1. GR Boyer, An Economic History of the English Poor Law, 1750–1850 (Cambridge University Press, 1990). F Driver, Power and Pauperism: The Workhouse System, 1834–1884 (Cambridge University Press, 1993). D Eastwood, Governing Rural England: Tradition and Transformation in Local Government, 1780–1840 (Clarendon Press, 1994). B Forsythe, J Melling and R Adair, ‘The New Poor Law and the County Pauper Lunatic Asylum: The Devon Experience 1834–1884’ (1996) 9 Social History of Medicine 335. R Suggett, ‘Festivals and Social Structure in Early Modern Wales’ (1996) 152 P&P 79. GR Boyer, ‘Poor Relief, Informal Assistance and Short Time During the Lancaster Cotton Famine’ (1997) 34 EEH 56. R Richardson and B Hurwitz, ‘Joseph Rogers and the Reform of Workhouse Medicine’ (1997) 43 HWJ 218. R Adair, B Forsythe and J Melling, ‘A Danger to the Public? Disposing of Pauper Lunatics in Late-Victorian and Edwardian England: Plympton St Mary Union and the Devon County Asylum, 1867–1914’ (1998) 42 Medical History 1. D Englander, Poverty and Poor Law Reform in Nineteenth-Century Britain, 1834–1914 (Longman, 1998). P Bartlett, The Poor Law of Lunacy: The Administration of Pauper Lunatics in Mid-Nineteenth-Century England (Leicester University Press, 1999). P Bartlett, ‘The Asylum and the Poor Law: The Productive Alliance’ in J Melling and B Forsythe (eds), Insanity, Institutions, and Society, 1800–1914: A Social History of Madness in Comparative Perspective (Routledge, 1999). L Charlesworth, ‘Why is it a Crime to be Poor?’ (1999) 21 Liverpool Law Review 149. J Melling and R Turner, ‘The Road to the Asylum: Institutions, Distance and the Administration of Pauper Lunacy in Devon, 1845–1914’ (1999) 25 Journal of Historical Geography 298. BK Song, ‘Continuity and Change in English Rural Society: The Formation of Poor Law Unions in Oxfordshire’ (1999) 114 EHR 314. A Tanner, ‘The Casual Poor and the City of London Poor Law Union, 1837–1869’ (1999) 42 HJ 183. ET Hurren, ‘Agricultural Trade Unionism and a Crusade Against Outdoor Relief: Poor Law Politics in the Brixworth Union, Northamptonshire, 1870–75’ (2000) 48 Ag HR 200. DR Green, ‘Medical Relief and the New Poor Law in London’ in OP Grell, A Cunningham, and R Jütte (eds), Health Care and Poor Relief in Eighteenth and Nineteenth Century Northern Europe (Ashgate, 2002).

Bibliography and Suggestions for Further Reading 675 J Innes, ‘The Distinctiveness of the English Poor Laws, 1750–1850’ in D Winch and PK O’Brien (eds), The Political Economy of British Historical Experience, 1688–1914 (Oxford University Press, 2002). R Wells, ‘Andover Antecedents: Hampshire New Poor-Law Scandals, 1834–1842’ (2002) 24 Southern History 91. D Feldman, ‘Migrants, Immigrants and Welfare from the Old Poor Law to the Welfare State’ (2003) 13 TRHS (6th series) 79. R Hall, ‘A Poor Cotton Weyver: Poverty and the Cotton Famine in Clitheroe’ (2003) 28 SH 227. P Carter (ed), ‘Bradford Poor Law Union: Papers and Correspondence With the Poor Law Commission, October 1834–January 1839’ (2004) 157 Yorkshire Archaeological Society Record Series. D Jones, ‘The Fate of the Paupers: Life in the Bangor and Beaumaris Union Workhouse 1845–71’ (2005) 66 Transactions of the Caernarvonshire Historical Society 94. S Williams, ‘Poor Relief, Labourers’ Households and Living Standards in Rural England, c 1770–1834: A Bedfordshire Case Study’ (2005) 58 Econ HR (2nd series) 485. PA Fideler, Social Welfare in Pre-Industrial England: The Old Poor Law Tradition (Macmillan, 2006). KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales (Cambridge University Press, 2006). ET Hurren, Protesting About Pauperism: Poverty, Politics and Poor Relief in Late-Victorian England, 1870–1900 (Royal Historical Society / Boydell Press, 2007). P Jones, ‘Swing, Speenhamland and Rural Social Relations: The “Moral Economy” of the English Crowd in the Nineteenth Century’ (2007) 32 SH 271. R Wells, ‘The Poor Law Commission and the Disposal of Parochially-Owned Housing Accommodation, 1834–1847’ (2007) 55 Ag HR 181. R Ellis, ‘The Asylum, the Poor Law and the Growth of County Asylums in Nineteenth-Century Yorkshire’ (2008) 45 Northern History 279. R Dyson, ‘Welfare Provision in Oxford During the Latter Stages of the Old Poor Law, 1800–1834’ (2009) 52 HJ 943. L Charlesworth, Welfare’s Forgotten Past: A Socio-Legal History of the Poor Law (Routledge, 2010). DR Green, Pauper Capital: London and the Poor Law, 1790–1870 (Ashgate, 2010). A Levene, ‘Poor Families, Removals and “Nurture” in Late Old Poor Law London’ (2010) 25 C&C 233. S King, ‘Negotiating the Law of Poor Relief in England, 1800–1840’ (2011) 96 History 410. S Williams, Poverty, Gender and Life-Cycle Under the English Poor Law, 1760–1834 (Royal Historical Society/ Boydell Press, 2011). A Eccles, Vagrancy in Law and Practice Under the Old Poor Law (Ashgate, 2012). J Reinarz and L Schwarz (eds), Medicine and the Workhouse (University of Rochester Press, 2013). JP Ward, Culture, Faith, and Philanthropy: Londoners and Provincial Reform in Early Modern England (Palgrave Macmillan, 2013). K Costello, ‘“More Equitable Than the Judgment of the Justices of the Peace”: The King’s Bench and the Poor Law 1630–1800’ (2014) 35 JLH 3. T Hitchcock, A Crymble and L Falcini, ‘Loose, Idle and Disorderly: Vagrant Removal in Late Eighteenth-Century Middlesex’ (2014) 39 SH 509. C Newman, ‘To Punish or Protect: The New Poor Law and the English Workhouse’ (2014) 18 International Journal of Historical Archaeology 122. HR French, ‘How Dependent Were the ‘Dependent Poor’? Poor Relief and the Life-course in Terling, Essex, 1762–1834’ (2015) 30 C&C 1. J Harley, ‘Material Lives of the Poor and Their Strategic Use of the Workhouse During the Final Decades of the English Old Poor Law’ (2015) 30 C&C 71. P Jones and S King (eds), Obligation, Entitlement and Dispute Under the English Poor Laws, 1600–1900 (Cambridge Scholars, 2015). K Price, Medical Negligence in Victorian Britain: The Crisis of Care Under the English Poor Law, c 1834–1900 (Bloomsbury, 2015). SA Shave, Pauper Policies: Poor Law Practice in England, 1780–1850 (Manchester University Press, 2017). S King, Sickness, Medical Welfare and the English Poor, 1750–1834 (Manchester University Press, 2018). SA Shave, ‘“Great Inhumanity”: Scandal, Child Punishment and Policymaking in the Early Years of the New Poor Law Workhouse System’ (2018) 33 C&C 339. S Williams, Unmarried Motherhood in the Metropolis, 1700–1850: Pregnancy, the Poor Law and Provision (Springer International, 2018). J Harley, ‘Pauper Inventories, Social Relations, and the Nature of Poor Relief Under the Old Poor Law, England, c 1601–1834’ (2019) 62 HJ 375.

676 Bibliography and Suggestions for Further Reading

Nineteenth Century Mixed Economy of Welfare (a) Self-Help A Taylor (trans), JM Baernreither, English Associations of Working Men (Swan Sonnenschein & Co, 1889). WH Beveridge, Voluntary Action: A Report on Methods of Social Advance (Allen & Unwin, 1948). PHJH Gosden, The Friendly Societies in England 1815–1875 (Manchester University Press, 1971). PHJH Gosden, Self-Help: Voluntary Associations in the 19th Century (Batsford, 1973). D Thomson, ‘I Am Not My Father’s Keeper: Families and the Elderly in Nineteenth Century England’ (1984) 2 L&HR 265. DG Green, Working Class Patients and the Medical Establishment: Self-Help in Britain from the Mid-Nineteenth Century to 1948 (St Martin’s Press, 1985). C Chinn, They Worked All Their Lives. Women of the Urban Poor in England 1880–1939 (Manchester University Press, 1988). D Neave, Mutual Aid in the Victorian Countryside: Friendly Societies in the Rural East Riding, 1830–1914 (Hull University Press, 1991). J Davis Smith, ‘The Voluntary Tradition: Philanthropy and Self-help in Britain 1500–1945’ in J Davis Smith, C Rochester and R Hedley (eds), An Introduction to the Voluntary Sector (Routledge, 1995). E Hopkins, Working-Class Self-Help in Nineteenth-Century England: Responses to Industrialization (UCL Press, 1995). J Lewis, ‘Family Provision of Health and Welfare in the Mixed Economy of Care in the Late Nineteenth and Twentieth Centuries’ (1995) 8 Social History of Medicine 1. M Gorsky, ‘The Growth and Distribution of English Friendly Societies in the Early Nineteenth Century’ (1998) 51 Econ HR (2nd series) 489. M Gorsky, ‘Mutual Aid and Civil Society: Friendly Societies in Nineteenth-century Bristol’ (1998) 25 Urban History 302. G Scott, Feminism and the Politics of Working Women: The Women’s Co-operative Guild, 1880s to the Second World War (UCL Press, 1998). P Bartlett and D Wright (eds), Outside the Walls of the Asylum: The History of Care in the Community 1750–2000 (Athlone Press, 1999). J Lewis, ‘Voluntary and Informal Welfare’ in RM Page and R Silburn (eds), British Social Welfare in the Twentieth Century (Palgrave, 1999). C Jones and T Novak, ‘Class Struggle, Self-Help and Popular Welfare’ in M Lavalette and G Mooney (eds), Class Struggle and Social Welfare (Routledge, 2000). S Cordery, British Friendly Societies, 1750–1914 (Palgrave Macmillan, 2003). B Harris, The Origins of the British Welfare State: Social Welfare in England and Wales, 1800–1945 (Palgrave Macmillan, 2004) ch 6. A Borsay and P Shapely (eds), Medicine, Charity and Mutual Aid: The Consumption of Health and Welfare in Britain, c 1550–1950 (Ashgate, 2007). D Weinbren, ‘Supporting Self-Help: Charity, Mutuality and Reciprocity in Nineteenth-Century Britain’ in B Harris and P Bridgen (eds), Charity and Mutual Aid in Europe and North America Since 1800 (Routledge, 2007). MA Busteed, The Irish in Manchester c 1750–1921: Resistance, Adaptation and Identity (Manchester University Press, 2016) esp ch 3. B Harris, ‘Social Policy by Other Means? Mutual Aid and the Origins of the Modern Welfare State in Britain During the Nineteenth and Twentieth Centuries’ (2018) 30 Journal of Policy History 202. P Ismay, Trust Among Strangers: Friendly Societies in Modern Britain (Cambridge University Press, 2018). S Agnew, ‘Trusts as Pension Pots: A Legal-Historical Perspective, 1810-1925’ in S Agnew, P Davies and C Mitchell (eds), Pensions: Law, Policy and Practice (Hart, forthcoming).

(b) Charitable Trusts: Law and Regulation CS Kenny, The True Principles of Legislation With Regard to Charitable Uses (Reeves & Turner, 1880). H Gray, ‘The History and Development in England of the Cy-Près Principle in Charities’ (1953) 33 Boston University Law Review 30. CL Mowat, The Charity Organisation Society 1869–1913: Its Ideas and Work (Methuen, 1961). B Hargrove, ‘The Reform of the Law and the Administration of Charities in the Nineteenth Century’ (PhD thesis, University of London, 1963).

Bibliography and Suggestions for Further Reading 677 GH Jones, History of the Law of Charity 1532–1827 (Cambridge University Press, 1969). SR Mealing, ‘The British Charity Commission and the Cy-Près Doctrine, 1853–94: A Study in the Decline of Reforming Zeal’ (1973) 6 SH 5. MR Chesterman, Charities, Trusts and Social Welfare (Weidenfeld & Nicolson, 1979). RS Tompson, The Charity Commission and the Age of Reform (University of Toronto Press, 1979). M Baker and M Collins, ‘The Governance of Charitable Trusts in the Nineteenth Century: The West Riding of Yorkshire’ (2002) 27 SH 162. JJ Fishman, ‘Charitable Accountability and Reform in Nineteenth-Century England: The Case of the Charity Commission’ (2005) 80 Chicago-Kent Law Review 724. JJ Fishman, ‘Charity Scandals as a Catalyst of Legal Change and Literary Imagination in Nineteenth Century England’ [2005] Michigan State Law Review 369. J Getzler, ‘Morice v Bishop of Durham (1805)’ in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart, 2012). J Picton, ‘Moggridge v Thackwell: Defining the Nature of the Courts’ Scheme-Making Power’ (2013) 15 Charity Law & Practice Review 59. C Mitchell, ‘Charitable Endowment and Social Change: Cy-Près Orders and Schemes, 1837–1901’ (2020) 41 JLH (forthcoming).

(c) The Moving Frontier Between Philanthopic and State Provision This topic is also treated in many of the works on hospitals listed under the next sub-heading (d). D Owen, English Philanthropy, 1660–1960 (Harvard University Press, 1964). S Yeo, Religion and Voluntary Organisations in Crisis (Croom Helm, 1976). MJ Moore, ‘Social Work and Social Welfare: The Organization of Philanthropic Resources in Britain, 1900–1914’ (1977) 14 JBS 85. A Summers, ‘A Home from Home: Women’s Philanthropic Work in the Nineteenth Century’ in S Burman (ed), Fit Work for Women (Croom Helm, 1979). FK Prochaska, Women and Philanthropy in Nineteenth Century England (Oxford University Press, 1980). AJ Kidd, ‘Charity Organization and the Unemployed in Manchester c 1870–1914’ (1984) 9 SH 45. K Gregson, ‘Poor Law and Organised Charity: The Relief of Exceptional Distress in North-east England, 1879–1910’ in M Rose (ed), The Poor and the City: The English Poor Law in its Urban Context, 1834–1914 (Leicester University Press, 1985). G Finlayson, ‘A Moving Frontier: Voluntarism and the State in British Social Welfare, 1911–1949’ (1990) 1 TCBH 183. F Prochaska, ‘Philanthropy’ in FML Thompson (ed), Cambridge Social History of Britain, 1750–1950, vol 3: Social Agencies and Institutions (Cambridge University Press, 1990). G Himmelfarb, Poverty and Compassion: The Moral Imagination of the Late Victorians (Knopf, 1991). MB Simey, Charity Rediscovered: A Study of Philanthropic Effort in Nineteenth Century Liverpool (Liverpool University Press, 1992). G Finlayson, Citizen, State and Social Welfare in Britain, 1830–1990 (OUP, 1994). B Harris, ‘Responding to Adversity: Government-Charity Relations and the Relief of Unemployment in Interwar Britain’ (1995) 9 Contemporary Record 529. R Humphreys, Sin, Organised Charity and the Poor Law in Victorian England (Macmillan, 1995). J Lewis, The Voluntary Sector, the State and Social Work in Britain: The Charity Organisation Society / Family Welfare Association Since 1869 (Edward Elgar, 1995). J Lewis, ‘The Boundary Between Voluntary and Statutory Social Service in the Late Nineteenth and Early Twentieth Centuries’ (1996) 39 HJ 155. DT Critchlow and CH Parker (eds), With Us Always: A History of Private Charity and Public Welfare (Oxford University Press, 1998). G Mooney, ‘“Remoralizing” the Poor? Gender, Class and Philanthropy in Victorian Britain’ in G Lewis (ed), Forming Nation, Framing Welfare (Routledge, 1998). A Kidd, ‘A Mixed Economy of Welfare’ in A Kidd (ed), State, Society and the Poor in Nineteenth Century England (Palgrave, 1999). B Harris, The Origins of the British Welfare State: Social Welfare in England and Wales, 1800–1945 (Palgrave Macmillan, 2004) ch 5.

678 Bibliography and Suggestions for Further Reading M Gorsky and S Sheard (eds), Financing Medicine: The British Experience Since 1750 (Routledge, 2006) part 3. B Harris, ‘Charity and Poor Relief in England and Wales, circa 1750–1914’ in B Harris and P Bridgen (eds), Charity and Mutual Aid in Europe and North America Since 1800 (Routledge, 2007). K Bradley, Poverty, Philanthropy and the State: Charities and the Working Classes in London, 1918–79 (Manchester University Press, 2009). M Brown, ‘Medicine, Reform and the “End” of Charity in Early Nineteenth-Century England’ (2009) 124 EHR 1353. CM Mangion, ‘Faith, Philanthropy and the Aged Poor in Nineteenth-century England and Wales’ (2012) 19 European Review of History 515. AG Poole, Philanthropy and the Construction of Victorian Women’s Citizenship (University of Toronto Press, 2014). P Grant, Philanthropy and Voluntary Action in the First World War: Mobilizing Charity (Routledge, 2014). S Flew, Philanthropy and the Funding of the Church of England, 1856–1914 (Routledge, 2016). GAC Ginn, Culture, Philanthropy and the Poor in Late-Victorian London (Routledge, 2017). GC Gosling, Payment and Philanthropy in British Healthcare, 1918–48 (Manchester University Press, 2017). E Colpus, Female Philanthropy in the Interwar World: Between Self and Other (Bloomsbury Academic, 2018). S Roddy, J Strange and B Taithe, The Charity Market and Humanitarianism in Britain, 1870–1912 (Bloomsbury Academic, 2019). J Stewart, ‘The Mixed Economy of Welfare in Historical Context’ in M Powell (ed), Understanding the Mixed Economy of Welfare 2nd edn (Policy Press, 2019).

(d) Hospitals B Abel-Smith, The Hospitals 1800–1948, A Study in Social Administration in England and Wales (Harvard University Press, 1964). J Woodward, To Do the Sick No Harm: A Study of the British Voluntary Hospital System to 1875 (Routledge and Kegan Paul, 1974). J Pickstone, Medicine and Industrial Society: A History of Hospital Development in Manchester and its Region, 1752–1946 (Manchester University Press, 1985). G Rivett, The Development of the London Hospital System, 1823–1982 (King Edward’s Hospital Fund for London, 1986). R Porter, ‘The Gift Relation: Philanthropy and Provincial Hospitals in Eighteenth-Century England’ in L Granshaw and R Porter (eds), The Hospital in History (Routledge, 1989). J Barry and C Jones (eds), Medicine and Charity Before the Welfare State (Routledge, 1991). S Cherry, ‘Change and Continuity in the Cottage Hospitals c 1859–1948’ (1992) 36 Medical History 271. M Powell, ‘Hospital Provision Before the National Health Service: A Geographic Study of the 1945 Hospital Surveys’ (1992) 5 Social History of Medicine 483. F Prochaska, Philanthropy and the Hospitals of London: The King’s Fund 1897–1990 (Clarendon Press, 1992). S Cherry, ‘Beyond National Health Insurance: The Voluntary Hospitals and Hospital Contributory Schemes’ (1993) 5 Social History of Medicine 455. S Cherry, ‘Accountability, Entitlement and Control Issues and Voluntary Hospital Funding c 1860–1939’ (1996) 9 Social History of Medicine 215. S Cherry, ‘Before the National Health Service: Financing the Voluntary Hospitals, 1900–39’ (1997) 50 Econ HR 305. M Powell, ‘An Expanding Service: Municipal Acute Medicine in the 1930s’ (1997) 8 TCBH 3. A Borsay, Medicine and Charity in Georgian Bath: A Social History of the General Infirmary, c 1739–1830 (Ashgate, 1999). K Waddington, Charity and the London Hospitals, 1850–1898 (Boydell & Brewer, 2000). M Gorsky and J Mohan, ‘London’s Voluntary Hospitals in the Interwar Period: Growth, Transformation, or Crisis?’ (2001) 30 Nonprofit and Voluntary Sector Quarterly 247. M Gorsky, J Mohan and M Powell, ‘The Financial Health of Voluntary Hospitals in Inter-War Britain’ (2002) 55 Econ HR (2nd series) 533. J Mohan, Planning, Markets and Hospitals (Routledge, 2002) ch 2. A Wilson, ‘The Birmingham General Hospital and Its Public, 1765–79’ in S Sturdy (ed), Medicine, Health and the Public Sphere in Britain, 1600–2000 (Routledge, 2002). K Siena, Venereal Disease, Hospitals and the Urban Poor: London’s “Foul Wards”, 1600–1800 (University of Rochester Press, 2004).

Bibliography and Suggestions for Further Reading 679 M Gorsky and J Mohan, with T Willis, Mutualism and Health Care: British Hospital Contributory Schemes in the Twentieth Century (Manchester University Press, 2006). M Gorsky and S Sheard (eds), Financing Medicine: The British Experience Since 1750 (Routledge, 2006) parts 1 and 2. A Tomkins, The Experience of Urban Poverty, 1732–1782: Parish, Charity and Credit (Manchester University Press, 2006) ch 4. P Bridgen, ‘Voluntary Failure, the Middle Classes and the Nationalisation of the British Voluntary Hospitals, 1900–1946’ in B Harris and P Bridgen (eds), Charity and Mutual Aid in Europe and North America Since 1800 (Routledge, 2007). A Levene, ‘Between Less Eligibility and the NHS: The Changing Face of Poor Law Hospitals in England and Wales, 1929–39’ (2009) 20 TCBH 322. GC Gosling, ‘“Open the Other Eye”: Payment, Civic Duty and Hospital Contributory Schemes in Bristol, c 1927–1948’ (2010) 54 Medical History 475. BM Doyle, The Politics of Hospital Provision in Early Twentieth-Century Britain (Pickering and Chatto, 2014). M Whitfield, The Dispensaries: Healthcare for the Poor Before the NHS (AuthorHouse, 2016).

State Medicine and Public Health See also the entries on public health and urban amenities listed under the relevant heading for Chapter 2. RM McLeod, ‘Law, Medicine and Public Opinion: The Resistance to Compulsory Health Legislation, 1870–1907’ [1967] PL 107. SJ Novak, ‘Professionalism and Bureaucracy: English Doctors and the Victorian Public Health Administration’ (1973) 6 SH 440. J Walkowitz, Prostitution and Victorian Society: Women, Class and the State (CUP, 1980). L Bland, ‘“Cleansing the Portals of Life”: The Venereal Disease Campaign in the Early Twentieth Century’ in M Langan and B Schwarcz (eds), Crises in the British State, 1880–1930, (Harper Collins, 1985). J Lewis, What Price Community Medicine? The Philosophy, Practice and Politics of Public Health Since 1919 (Wheatsheaf, 1986). C Davies, ‘The Health Visitor as “Mother’s Friend” A Woman’s Place in Public Health, 1900–1914’ (1988) 1 Social History of Medicine 39. D Porter and R Porter, ‘The Politics of Prevention: Anti-vaccination and Public Health in 19th Century England (1988) 32 Medical History 231. D Evans, ‘Tackling the Hideous Scourge: The Creation of the Venereal-Disease Treatment Centres in Early 20th-Century Britain’ (1992) 5 Social History of Medicine 413. A Hardy, The Epidemic Streets: Infectious Diseases and the Rise of Preventive Medicine 1856–1900 (Clarendon Press, 1993). C Hamlin, ‘State Medicine in Great Britain’ in D Porter (ed), The History of Public Health and the Modern State (Editions Ropi BV, 1994). JM Eyler, Sir Arthur Newsholme and State Medicine, 1885–1935 (Cambridge University Press, 1997). G Mooney, ‘Public Health Versus Private Practice: The Contested Development of Compulsory Infectious Disease Notification in Late Nineteenth-Century Britain’ (1999) 73 Bulletin of the History of Medicine 238. A Digby, The Evolution of British General Practice, 1850–1948 (Clarendon Press, 1999). N Durbach, ‘“They Might as Well Brand Us”: Working-Class Resistance to Compulsory Vaccination in Victorian England’ (2000) 13 Social History of Medicine 45. F Mort, Dangerous Sexualities: Medico-Moral Politics in England Since 1830, 2nd edn (Routledge, 2000). L Hall, ‘Venereal Diseases and Society in Britain, from the Contagious Diseases Acts to the National Health Service’ in R Davidson and L Hall (eds), Sex, Sin and Suffering: Venereal Disease and European Society Since 1870 (Routledge, 2001). J Lane, A Social History of Medicine: Health, Healing and Disease in England, 1750–1950 (Routledge, 2001). A Hardy, ‘Professional Advantage and Public Health: British Veterinarians and State Veterinary Services, 1865–1939’ (2003) 14 TCBH 1. N Durbach, Bodily Matters: The Anti-Vaccination Movement in England, 1853–1907 (Duke University Press, 2005). AM Stern and H Markel, ‘The History of Vaccines and Immunization: Familiar Patterns, New Challenges’ (2005) 24 Health Affairs 611.

680 Bibliography and Suggestions for Further Reading K Waddington, The Bovine Scourge: Meat, Tuberculosis and Public Health, 1850–1914 (Boydell Press, 2006). P Cox, ‘Compulsion, Voluntarism, and Venereal Disease: Governing Sexual Health in England After the Contagious Diseases Acts’ (2007) 46 JBS 91. B Taylor, J Stewart and M Powell, ‘Central and Local Government and the Provision of Municipal Medicine, 1919–39’ (2007) 122 EHR 397 D Brunton, The Politics of Vaccination: Practice and Policy in England, Wales, Ireland and Scotland, 1800–1874 (University of Rochester Press, 2008). A Levene and M Powell, Cradle to Grave: Municipal Medicine in Interwar England and Wales (Peter Lang, 2011). J Lewis, ‘Health and Healthcare in the Progressive Era’ and C Webster, ‘Medicine and the Welfare State, 1930–1970’, both in R Cooter and J Pickstone (eds), Companion to Medicine in the Twentieth Century (Harwood Academic Publishers, 2000). G Mooney, Intrusive Interventions: Public Health, Domestic Space, and Infectious Disease Surveillance in England, 1840–1914 (University of Rochester Press, 2015). T Crook, Governing Systems: Modernity and the Making of Public Health in England, 1830–1910 (University of California Press, 2016).

Nineteenth- and Twentieth-Century Welfare Reforms E Wight Bakke, Insurance or Dole! (Yale University Press, 1935). HC Emmerson and ECP Lascelles, Guide to Unemployment Insurance Acts, 5th edn (Longmans, 1939). J Millett, The Unemployment Assistance Board (Allen & Unwin, 1940). RSW Pollard, Administrative Tribunals at Work (Stevens & Sons, 1950). M Ginsberg (ed), Law and Opinion in England in the 20th Century (Stevens & Sons, 1959). RJ Lambert, Sir John Simon, 1816–1904, and English Social Administration (MacGibbon & Kee, 1963). BB Gilbert, British Social Policy, 1914–1939 (Cornell University Press, 1970). J Harris, William Beveridge (Clarendon Press, 1977). J Fulbrook, Administrative Justice and the Unemployed (Mansell, 1978). T Lynes, ‘Unemployment Assistance Tribunals in the 1930s’ in M Adler and A Bradley (eds), Justice Discretion and Poverty (Professional Books, 1978). PA Ryan, ‘Popularism, 1894–1930’ in P Thane (ed), The Origins of British Social Policy (Croom Helm, 1978). N Branson, Popularism 1919–1925 (Lawrence & Wishart, 1979). URQ Henriques, Before the Welfare State (Longman, 1979). J MacNicol, The Movement for Family Allowances 1918–1945 (Heinemann, 1980). AI Ogus, ‘Great Britain’ in PA Kohler and H Zacher (eds), The Evolution of Social Insurance, 1881–1981: Studies of Germany, France, Great Britain, Austria, and Switzerland (Macmillan, 1982). N Whiteside, ‘Private Agencies for Public Purposes: Some New Perspectives on Policy Making in Health Insurance between the Wars’ (1983) 12 Journal of Social Policy 165. R Cranston, Legal Foundations of the Welfare State (Weidenfeld and Nicolson, 1985). A Digby and N Bosanquet, ‘Doctors and Patients in an Era of National Health Insurance and Private Practice, 1913–1938’ (1988) 41 Econ HR (2nd series) 74. F Honigsbaum, Health, Happiness and Security: The Creation of the National Health Service (Routledge, 1989). C Pierson, Beyond the Welfare State (Polity, 1991). J Harris, ‘Political Thought and the Welfare State, 1870–1930: An Intellectual Framework for British Social Policy’ (1992) 135 P&P 116. CA Linsley and CL Linsley, ‘Booth, Rowntree, and Llewelyn-Smith: A Reassessment of Interwar Poverty’ (1993) 46 Econ HR (2nd series) 88. P Thane, ‘Women in the British Labour Party and the Construction of State Welfare, 1906–1939’ in S Koven and S Michel (eds), Mothers of a New World: Maternalist Politics and the Origins of Welfare States (Routledge, 1993). J Hills, J Ditch and H Glennerster, Beveridge and Social Security: An International Retrospective (Clarendon Press, 1994). D Cooper, ‘Institutional Illegality and Disobedience: Local Government Narratives’ (1996) 16 OJLS 255. P Thane, The Foundations of the Welfare State, 2nd edn (Longmans, 1996). J Stewart, The Battle for Health: The Political History of the Socialist Medical Association (Ashgate, 1999). P Thane, Old Age in English History (Oxford University Press, 2000).

Bibliography and Suggestions for Further Reading 681 M Pugh, ‘Working-Class Experience and State Social Welfare, 1908–1914: Old Age Pensions Reconsidered’ (2002) 45 HJ 775. D Bonner, ‘From Whence the Social Security Commissioners? The Creation of the National Insurance Commissioner and the Industrial Injuries Commissioner’ (2002) 9 Journal of Social Security Law 11. C Webster, The National Health Service: A Political History 2nd edn (OUP, 2002). HD Hendrick, Child Welfare: England 1872–1989 (Routledge, 2003). GR Boyer ‘The Evolution of Unemployment Relief in Great Britain’ (2004) 34 JIH 393. B Harris, The Origins of the British Welfare State: Social Welfare in England and Wales, 1800–1945 (Palgrave Macmillan, 2004). TT Hellwig, ‘The Origins of Unemployment Insurance in Britain’ (2005) 29 Social Science History 107. CR Lowe, The Welfare State in Britain Since 1945, 3rd edn (Palgrave Macmillan, 2005). P Hennessy, Never Again: Britain 1945–1951, 2nd edn (Penguin, 2006). A Gillie, ‘Identifying the Poor in the 1870s and 1880s’ (2008) 61 Econ HR (2nd series) 302. M Heller, ‘The National Insurance Acts 1911–1947, the Approved Societies and the Prudential Assurance Company’ (2008) 19 TCBH 1. J Booth, Guilty and Proud of It: Poplar’s Rebel Councillors and Guardians 1919–1925 (Merlin, 2009). GR Boyer and TP Schmidle, ‘Poverty Among the Elderly in Late Victorian England’ (2009) 62 Econ HR (2nd series) 249. D Fraser, The Evolution of the British Welfare State: A History of Social Policy Since the Industrial Revolution, 4th edn (Palgrave Macmillan, 2009). C Mulholland, A Socialist History of the NHS: The Economic and Social Forces that Have Shaped the National Health Service (VDM Verlag, 2009). SD Green, The Passing of Protestant England: Secularisation and Social Change, c 1920–1960 (Cambridge University Press, 2011). P Thane, ‘The Making of National Insurance, 1911’ (2011) 19 Journal of Poverty and Social Justice 211. J Gulland, ‘“Fitting Themselves to Become Wage-earners’: Conditionality and Incapacity for Work in the Early 20th Century’ (2012) 19 Journal of Social Security Law 54. N Hayes, ‘Did We Really Want a National Health Service? Hospitals, Patients and Public Opinions Before 1948’ (2012) 127 EHR 625. S Ward, Unemployment and the State in Britain: The Means Test and Protest in 1930s South Wales and North-East England (Manchester University Press, 2014). E Baigen and B Cowell, Octavia Hill, Social Activism and the Remaking of British Society (IHR, 2016). J Moses, ‘Social Policy, Welfare and Social Identities’ in N Doumanis (ed), The Oxford Handbook of European History, 1914–1945 (Oxford University Press, 2016). P Thane, ‘Welfare and the State’ in D Brown, R Crowcroft and G Pentland (eds), The Oxford Handbook of Modern British Political History, 1800–2000 (Oxford University Press, 2018). GR Boyer, The Winding Road to the Welfare State: Economic Insecurity and Social Welfare Policy in Britain (Princeton University Press, 2019).

Education Before 1850 MG Jones, The Charity School Movement (Cambridge University Press, 1938). B Simon, Studies in the History of Education 1780–1870 (Lawrence and Wishart, 1960). HC Barnard, A History of English Education from 1760 (Hodder & Stoughton, 1961). N Ball, Her Majesty’s Inspectorate 1839–1849 (Oliver & Boyd, 1963). L Stone, ‘Literacy and Education in England, 1640–1900’ (1969) 42 P&P 69. RS Tompson, Classics or Charity: Dilemma of the Eighteenth Century Grammar School (Manchester University Press, 1971). T Laqueur, Religion and Respectability: Sunday Schools and Working-Class Culture, 1780–1850 (Yale University Press, 1976). J Roach, A History of Secondary Education in England 1800–1870 (Longman, 1986). C Heward, ‘The Class Relations of Compulsory School Attendance: The Birmingham Jewellery Quarter, 1851–86’ (1989) 29 History of Education Quarterly 215. M Sanderson, Education, Economic Change and Society in England 1780–1870 (Palgrave Macmillan, 1991).

682 Bibliography and Suggestions for Further Reading GF Bartle, ‘The Role of the British and Foreign Schools Society in the Education of the Poor Children of the Metropolis During the First Half of the Nineteenth Century’ (1992) 24 Journal of Educational Administration and History 74. GF Bartle, ‘The Impact of the British and Foreign Schools Society on Elementary Education in the Main Textile Areas of the Industrial North’ (1993) 22 History of Education 33. S Skedd, ‘Women Teachers and the Expansion of Girls’ Schooling in England, c 1760–1820’ in H Barker and E Chalus (eds), Gender in Eighteenth-Century England (Addison Wesley Longman, 1997). N Morris, The Politics of English Elementary School Finance, 1833–1870 (EMP, 2003). J Martin and J Goodman, Women and Education, 1800–1980 (Palgrave Macmillan, 2004) chs 2 and 3. D Payne, ‘London’s Charity School Children: The “Scum of the Parish”?’ (2006) 29 British Journal for Eighteenth-Century Studies 383. M Hilton, Women and the Shaping of the Nation’s Young: Education and Public Doctrine in England, 1750–1850 (Ashgate, 2007). L Louden, Distinctive and Inclusive: The National Society and Church of England Schools, 1811–2011 (The National Society, 2012). J McDermid, The Schooling of Girls in Britain and Ireland, 1800–1900 (Routledge, 2012). R Crone, ‘Educating the Labouring Poor in Nineteenth-century Suffolk’ (2018) 43 SH 161. LA Ryan, John Wesley and the Education of Children: Gender, Class and Piety (Routledge, 2018).

Education After 1850 JE Floud (ed), Social Class and Educational Opportunity (Heinemann, 1956). PHJH Gosden, ‘The Board of Education Act, 1899’ (1962) 11 British Journal of Educational Studies 44. P Stansky, ‘Lyttelton and Thring: A Study in Nineteenth-Century Education’ (1962) 5 VS 205. P Gordon, ‘Some Sources for the History of the Endowed Schools Commission, 1869–1900’ (1966) 14 British Journal of Educational Studies 59. AJ Marcham, ‘The Myth of Benthamism, the Second Reform Act and the Extension of Popular Education’ (1970) 2 Journal of Educational Administration and History 20. L Andrews, The Education Act 1918 (Routledge, 1976). M Bryant, The Unexpected Revolution: A Study in the History of the Education of Women and Girls (University of London, Institute of Education, 1979). J Senders Peterson, ‘The Reform of Women’s Secondary and Higher Education. Institutional Change and Social Values in Mid and Late Victorian England’ (1979) 19 History of Education Quarterly 61. S Fletcher, Feminists and Bureaucrats: A Study in the Development of Girls’ Education (Cambridge University Press, 1980). S Humphries, Hooligans or Rebels? An Oral History of Working Class Childhood and Youth, 1889–1939 (Blackwell, 1981). F Hunt (ed), Lessons for Life: The Schooling of Women and Girls, 1850–1950 (Blackwell, 1987). E Jordan, ‘“Making Good Wives and Mothers”? The Transformation of Middle-Class Girls’ Education in Nineteenth-Century Britain’ (1991) 31 History of Education Quarterly 439. J Roach, Secondary Education in England 1870–1902: Public Activity and Private Enterprise (Routledge, 1991). DF Mitch, The Rise of Popular Literacy in Victorian England: The Influence of Private Choice and Public Policy (University of Pennsylvania Press, 1992). J Rose, ‘Willingly to School: The Working-Class Response to Elementary Education in Britain, 1875–1918’ (1993) 32 JBS 114. C Dyhouse, No Distinction of Sex? Women in British Universities, 1907–39 (Routledge, 1995). J McDermid, ‘Women and Education’ in J Purvis (ed), Women’s History: Britain, 1850–1945 (Routledge, 1995). A Davin, Growing Up Poor: Home, School and Street in London 1870–1914 (Rivers Oram Press, 1996). WB Stephens, Education in Britain, 1750–1914 (Palgrave Macmillan, 1998). M Sanderson, Education and Economic Decline in Britain, 1870s to the 1990s (Cambridge University Press, 1999). KDM Snell, ‘The Sunday School Movement in England and Wales: Child Labour, Denominational Control and Working-Class Culture’ (1999) 164 P&P 122. M Vlaeminke, The English Higher Grade Schools: A Lost Opportunity (Woburn, 2000). N Dennis, Uncertain Trumpet: A History of School Education to AD 2001 (Civitas, 2001).

Bibliography and Suggestions for Further Reading 683 M Cowling, Religion and Public Doctrine in Modern England, vol 3: Accommodations (Cambridge University Press, 2001). C Dyhouse, ‘Going to University in England between the Wars: Access and Funding’ (2002) 31 History of Education 1. W Robinson, ‘Historiographical Reflections on the 1902 Education Act’ (2002) 28 Oxford Review of Education 159. J Martin and J Goodman, Women and Education, 1800–1980 (Palgrave Macmillan, 2004) chs 4–7. K Vernon, Universities and the State in England, 1850–1939 (Routledge Falmer, 2004). J Bush, ‘“Special Strengths for Their Own Special Duties”: Women, Higher Education and Gender Conservatism in Late Victorian Britain’ (2005) 34 History of Education 387. S Hamilton and J Schroeder, Nineteenth-century British Women’s Education, 1840–1900: Education of Working Women and of Middle Class Girls (Routledge, 2007). DM Thompson, K Dix, and A Ruston (eds), Protestant Nonconformist Texts: The Twentieth Century (Ashgate, 2007). J Robinson, Bluestockings: The Remarkable Story of the First Women to Fight for an Education (Viking, 2009). M Freeman, ‘The Decline of the Adult School Movement Between the Wars’ (2010) 39 History of Education 481; and ‘Erratum’ (2011) 40 History of Education 133. EG Tenbus, English Catholics and the Education of the Poor, 1847–1902 (Pickering & Chatto, 2010). L Brockliss and N Sheldon (eds), Mass Education and the Limits of State Building, c 1870–1930 (Palgrave MacMillan, 2012). N Daglish, Education Policy Making in England and Wales: The Crucible Years, 1895–1911, 2nd edn (Routledge, 2013). DW Bebbington, The Nonconformist Conscience (Routledge, 2014). MR Watts, The Dissenters: Volume III: The Crisis and Conscience of Nonconformity (Oxford University Press, 2015). H Midgley, ‘Payment by Results in Nineteenth-Century British Education: A Study in How Priorities Change’ (2016) 28 Journal of Policy History 680. N Harte, J North and G Brewis, The World of UCL (UCL, 2018).

Chapter Seven: Accidents What Is an ‘Accident’? K Figlio, ‘What Is an Accident?’ in P Weindling (ed), The Social History of Occupational Health (Croom Helm, 1985). B Luckin, ‘Accidents, Disasters and Cities’ (1993) 20 Urban History 177. N Doran, ‘From Embodied “Health” to Official “Accidents”: Class, Codification and British Factory Legislation 1831–1844’ (1996) 5 Social & Legal Studies 523. R Cooter and B Luckin, ‘Accidents in History: An Introduction’ in R Cooter and B Luckin (eds), Accidents in History: Injuries, Fatalities and Social Relations (Editions Rodopi BV, 1997). RA Vieira, ‘The Epistemology and Politics of the Accidental: Connecting the Accident’s Intellectual and Cultural Historiography’ (2013) 11 History Compass 227. P Cane, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 2013) ch 1. J Moses, The First Modern Risk: Workplace Accidents and the Origins of European Social States (Cambridge University Press, 2018).

New or Increased Risks of Injury (a) Industry P Bartrip and S Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford University Press, 1983). N Doran, ‘From Embodied “Health” to Official “Accidents”: Class, Codification and British Factory Legislation 1831–1844’ (1996) 5 Social and Legal Studies 523. J Bronstein, Caught in the Machinery: Workplace Accidents and Injured Workers in Nineteenth-Century Britain (Stanford University Press, 2008).

684 Bibliography and Suggestions for Further Reading (b) Railways H Parris, Government and the Railways in Nineteenth-Century Britain (Routledge & Kegan Paul, 1965). D Howell, ‘Railway Safety and Labour Unrest: The Aisgill Railway Disaster of 1913’ in C Wrigley and J Shepherd (eds), On the Move: Essays in Labour and Transport History Presented to Philip Bagwell (Hambledon Press, 1991). R Kostal, Law and English Railway Capitalism 1825–1875 (Oxford University Press, 1997) ch 7. N Daly, ‘Railway Novels: Sensation Fiction and the Modernization of the Senses’ (1999) 66 English Literary History 461. R Harrington, ‘The Railway Accident: Trains, Trauma and Technological Crisis in Nineteenth-Century Britain’ in M Micale and P Lerner (eds), Traumatic Pasts: History, Psychiatry, and Trauma in the Modern Age, 1870–1930 (Cambridge University Press, 2001). BM Hutter, Regulation and Risk: Occupational Health and Safety on the Railways (Oxford University Press, 2001). R Harrington, ‘Railway Safety and Railway Slaughter: Railway Accidents, Government and Public in Victorian Britain’ (2003) 8 Journal of Victorian Culture 187. KM Odden, ‘ “Able and Intelligent Medical Men Meeting Together”: The Victorian Railway Crash, Medical Jurisprudence, and the Rise of Medical Authority’ (2003) 8 Journal of Victorian Culture 33. R Harrington, ‘On the Tracks of Trauma: Railway Spine Reconsidered’ (2003) 16 Social History of Medicine 209. S Bradley, The Railways: Nation, Network and People (Profile, 2015). DG Gifford, ‘Technological Triggers to Tort Revolutions: Steam Locomotives, Autonomous Vehicles, and Accident Compensation’ (2018) 11 Journal of Tort Law 71.

(c) Road Traffic S Webb and B Webb, English Local Government: The Story of the King’s Highway (Longmans, Green & Co, 1913). WT Jackman, The Development of Transportation in Modern England (Cambridge University Press, 1916). W Plowden, The Motor Car and Politics in Britain (Bodley Head, 1973). J Foreman-Peck, ‘Death on the Roads: Changing National Responses to Motor Accidents’ in T Barker (ed), The Economic and Social Effects of the Spread of Motor Vehicles (Macmillan, 1987). S O’Connell, The Car in British Society: Class, Gender and Motoring, 1896–1939 (Manchester University Press, 1998). P Thorold, The Motoring Age: The Automobile and Britain, 1896–1939 (Profile, 2003). J Moran, ‘Crossing the Road in Britain, 1931–1976’ (2006) 49 HJ 477. R Bagshaw, ‘The Development of Traffic Liability in England and Wales’ in W Ernst (ed), Comparative Studies in the Development of the Law of Torts in Europe, vol 5: The Development of Traffic Liability (Cambridge University Press, 2010). P Bartrip, ‘Pedestrians, Motorists and No-Fault Compensation for Road Accidents in 1930s Britain’ (2010) 31 JLH 45. P Bartrip, ‘No-Fault Compensation on the Roads in Twentieth Century Britain’ (2010) 69 CLJ 263.

(d) New Technology PWJ Bartrip, ‘The State and the Steam-Boiler in Nineteenth-Century Britain’ (1980) 25 International Review of Social History 77. B Rieger, Technology and the Culture of Modernity in Britain and Germany, 1890–1945 (Cambridge University Press, 2005). M Esbester, ‘Administration, Technology and Workplace Safety in the Early Twentieth Century’ (2008) 20 Jahrbuch für europäische Verwaltungsgeschichte 95. J Morgan, ‘Technological Change and the Development of Liability for Fault in England and Wales’ in M Martin-Casals (ed), The Development of Liability in Relation to Technological Change (Cambridge University Press, 2010). K Oliphant, ‘Tort Law, Risk, and Technological Innovation in England’ (2014) 59 McGill Law Journal 819.

Bibliography and Suggestions for Further Reading 685

Compensation by Civil Suits (a) Negligence PH Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 LQR 184. PH Winfield, ‘Duty in Tortious Negligence’ (1934) 34 Columbia Law Review 41. O Kahn-Freund, ‘Expectation of Happiness’ (1941–1942) 5 MLR 81. M Prichard, ‘Trespass, Case and the Rule in Williams v Holland’ (1964) 22 CLJ 234. D Ibbetson, ‘“The Law of Business Rome”: Foundations of the Anglo-American Tort of Negligence’ (1999) 52 CLP 74. D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) chs 8–10. D Ibbetson, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 UNSWLJ 475. M Prichard ‘Scott v Shepherd and the Emergence of the Tort of Negligence’ (Selden Society, 1976). D Ibbetson, ‘George v Skivington (1869)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart Publishing, 2010). S Hedley, ‘Tort and Personal Injuries, 1850 to the Present’ in TT Arvind and J Steele, Tort Law and the Legislature (Hart, 2013). P Mitchell, A History of Tort Law 1900–1950 (Cambridge University Press, 2015).

(b) Vicarious Liability JH Wigmore, ‘Responsibility for Tortious Acts: Its History’ in Committee of American Law Schools (ed), Select Essays in Anglo-American Legal History (Boston, Little Brown & Co, 1909). T Baty, Vicarious Liability (Clarendon Press, 1916). HH Seiler, ‘Die deliktische Gehilfenhaftung in historischer Sicht’ (1967) 22 Juristen Zeitung 525. M Lobban, ‘Daniel v Metropolitan Railway Company (1871)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart, 2010).

(c) Contributory Negligence P Mitchell, A History of Tort Law 1900–1950 (Cambridge University Press, 2015) ch 13.

(d) Common Employment LM Friedman and J Ladinsky, ‘Social Change and the Law of Industrial Accidents’ (1967) 67 Columbia Law Review 50. T Ingman, ‘The Rise and Fall of the Doctrine of Common Employment’ [1978] JR 106. H Smith, ‘Judges and the Lagging Law of Compensation for Personal Injuries in the Nineteenth Century’ (1981) 2 JLH 258. AWB Simpson, ‘A Case of First Impression: Priestley v Fowler (1837)’ in AWB Simpson, Leading Cases in the Common Law (Oxford University Press, 1996). M Stein, ‘Priestley v Fowler (1837) and the Emerging Tort of Negligence’ (2002–2003) 44 Boston College Law Review 689. M Stein, ‘Victorian Tort Liability for Workplace Injuries’ [2008] University of Illinois Law Review 933. N Duxbury, ‘Lord Wright and Innovative Traditionalism’ (2009) 59 University of Toronto Law Journal 265.

(e) Death PH Winfield, ‘Death as Affecting Liability in Tort’ (1929) 29 Columbia Law Review 239. T Smedley, ‘Wrongful Death: Bases of the Common Law Rules’ (1959–1960) 13 Vanderbilt Law Review 605. WS Malone, ‘The Genesis of Wrongful Death’ (1965) 17 Stanford Law Review 1043. H Smith, ‘From Deodand to Dependency’ (1967) 11 AJLH 389. J Hostettler, ‘Thomas Wakley: An Enemy of Injustice’ (1984) 5 JLH 60.

686 Bibliography and Suggestions for Further Reading E Cawthon, ‘New Life for the Deodand: Coroners’ Inquests and Occupational Deaths in England, 1830–1846’ (1989) 33 AJLH 137. T Sutton, ‘The Deodand and Responsibility for Death’ (1997) 18 JLH 44. R Kidner, ‘A History of the Fatal Accidents Acts’ (1999) 50 NILQ 318. JF Witt, ‘From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family’ (2000) 25 Law and Social Inquiry 717. P Handford, ‘Lord Campbell and the Fatal Accidents Act’ (2013) 129 LQR 420. D Nolan, ‘The Fatal Accidents Act 1846’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2013).

Planning Against Accidents (a) Insurance WA Dinsdale, History of Accident Insurance in Great Britain (Stone & Cox, 1954). TS Alborn, ‘Senses of Belonging: The Politics of Working-class Insurance in Britain, 1880–1914’ (2001) 73 JMH 561. M Gorsky, ‘Friendly Society Health Insurance in Nineteenth-century England’ in M Gorsky and S Sheard (eds), Financing Medicine: The British Experience Since 1750 (Routledge, 2006). TS Alborn, Regulated Lives: Life Assurance and British Society, 1800–1914 (University of Toronto Press, 2009). M Lobban, ‘The Law of Insurance’ in W Cornish et al, The Oxford History of the Laws of England Volume 12, 1820–1914: Private Law (Oxford University Press, 2010). P Rawlings, ‘“Without Feeling and Without Remorse”? Making Sense of Employers’ Liability and Insurance in the Nineteenth Century’ (2013) 126 British Insurance Law Association Journal 1.

(b) Accident and Disaster Funds J Benson, ‘Colliery Disaster Funds, 1860–1897’ (1974) 19 International Review of Social History 73. J Benson, ‘English Coal‐Miners’ Trade‐Union Accident Funds, 1850–1900’ (1975) 28 Econ HR (2nd series) 401. J Benson, ‘The Thrift of English Coal‐Miners, 1860–95’ (1978) 31 Econ HR (2nd series) 410. E Hopkins, Working Class Self-Help in Nineteenth-Century England: Responses to Industrialisation (UCL Press, 1995). J Benson, ‘Coalminers, Coalowners and Collaboration: The Miners’ Permanent Relief Fund Movement in England, 1860–1895’ (2003) 68 Labour History Review 184. D Turner and D Blackie, Disability in the Industrial Revolution: Physical Impairment in British Coalmining, 1780–1880 (Manchester University Press, 2018) ch 3.

(c) Safety Legislation BL Hutchins and A Harrison, A History of Factory Legislation (PS King & Son, 1926). TK Djang, Factory Inspection in Great Britain (Allen & Unwin, 1942). MW Thomas, The Early Factory Legislation: A Study in Legislative and Administrative Evolution (Thames Bank Publishing Co, 1948). R Dickson, ‘Legal Aspects of the Factory Act of 1856’ (1981) 2 JLH 276. P Bartrip and S Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford University Press, 1983). AE Peacock, ‘The Successful Prosecution of the Factory Acts, 1833–55’ (1984) 37 Econ HR (2nd series) 197. R Dickson, ‘Industrial Safety: The Political Challenge’ (1986) 7 JLH 188. R Gray, The Factory Question and Industrial England, 1830–1860 (Cambridge University Press, 1996). A McIvor, ‘State Intervention and Work Intensification: The Politics of Occupational Health and Safety in the British Cotton Industry, c 1880–1914’ in A Knotter, B Altena and D Damsma (eds), Labour, Social Policy and the Welfare State (Internationaal Instituut voor Sociale Geschiedenis, 1997).

Bibliography and Suggestions for Further Reading 687 E Knox, ‘Blood on the Tracks: Railway Employers and Safety in Late-Victorian and Edwardian Britain’ (2001) 12 HSIR 1. DM Williams, ‘Advances in Safety at Sea in the Nineteenth Century: The British Experience and Influence’, in D Starkey and M Hahn-Pederson (eds), Bridging Troubled Waters: Conflict and Cooperation in the North Sea Region Since 1550 (Fiskeri- og Søfartsmuseets, 2005). N Jones, The Plimsoll Sensation: The Great Campaign to Save Lives at Sea (Little, Brown, 2006). K Honeyman, Child Workers in England, 1780–1820: Parish Apprentices and the Making of the Early Industrial Labour Force (Routledge, 2007) ch 3. EP Hennock, The Origin of the Welfare State in England and Germany, 1850–1914: Social Policies Compared (Cambridge University Press, 2007) chs 3 and 6. C Mills, Regulating Health and Safety in the British Mining Industries, 1800–1914 (Ashgate, 2009).

Employer’s Liability and Workmen’s Compensation Acts A Wilson and H Levy, Workmen’s Compensation (Oxford University Press, 1939). RA Epstein, ‘The Historical Origins and Economic Structure of Workers’ Compensation Law’ (1982) 16 Georgia Law Review 775. P Bartrip and S Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford University Press, 1983). PWJ Bartrip, Workmen’s Compensation in Twentieth Century Britain: Law, History and Social Policy (Gower, 1987). A McIvor, ‘Employers, the Government, and Industrial Fatigue in Britain, 1890–1918’ (1987) 44 British Journal of Industrial Medicine 724. R Fitzgerald, British Labour Management and Industrial Welfare, 1846–1939 (Croom Helm, 1988). E Cawthorn, Job Accidents and the Law in England’s Early Railway Age: Origins of Employer Liability and Workmen’s Compensation (Edwin Mellon Press, 1997). J Benson and R Sykes, ‘Trade Unionism and the Use of the Law: English Coalminers’ Unions and Legal Redress for Industrial Accidents, 1860–97’ (1997) 3 HSIR 27. V Markham Lester, “The Employers’ Liability / Workmen’s Compensation Debate of the 1890s Revisited” (2001) 44 HJ 471. R Asher, ‘Experience Counts: British Workers, Accident Prevention and Compensation, and the Origins of the Welfare State’ (2003) 15 Journal of Policy History 359. EP Hennock, The Origin of the Welfare State in England and Germany, 1850–1914: Social Policies Compared (Cambridge University Press, 2007) ch 5. R Gorski, ‘Employers’ Liability and the Victorian Seaman’ (2009) 95 Mariner’s Mirror 62. P Bartrip, ‘The Impact of Institutions and Professions on Compensation for Occupational Injury in England’ in P Mitchell (ed), The Impact of Institutions and Professions on Legal Development (Cambridge University Press, 2012). S Deakin, ‘Tort Law and Workmen’s Compensation Legislation: Complementary or Competing Models?’ in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart, 2013). J Moses, The First Modern Risk: Workplace Accidents and the Origins of European Social States (Cambridge University Press, 2018).

Occupational Disease A Ineson and D Thom, ‘TNT Poisoning and the Employment of Women Workers in the First World War’ in P Weindling (ed), The Social History of Occupational Health (Croom Helm, 1985). AJ McIvor, ‘Manual Work, Technology, and Industrial Health, 1918–1939’ (1987) 31 Medical History 160. N Wikeley, ‘Measurement of Asbestos Dust Levels in British Asbestos Factories in the 1930s’ (1993) 24 American Journal of Industrial Medicine 509. D Jeremy, ‘Corporate Responses to the Emergent Recognition of a Health Hazard in the UK Asbestos Industry: The Case of Turner & Newall, 1920–1960’ (1995) 24 Business and Economic History 254. PWJ Bartrip, ‘“Petticoat Pestering”: The Women’s Trade Union League and Lead Poisoning in the Staffordshire Potteries, 1890–1914’ (1996) 2 HSIR 3.

688 Bibliography and Suggestions for Further Reading B Harrison, Not Only The Dangerous Trades: Women’s Work and Health In Britain 1880–1914 (Taylor & Francis, 1996). HA Waldron, ‘Occupational Health During the Second World War: Hope Deferred or Hope Abandoned?’ (1997) 41 Medical History 197. N Wikeley, ‘Turner & Newall: Early Organizational Responses to Litigation Risk’ (1997) 24 Journal of Law and Society 252. N Wikeley, ‘The First Common Law Claim for Asbestosis: Kelly v Turners & Newall Ltd (1950)’ [1998] Journal of Personal Injury Law 197. PWJ Bartrip, The Way from Dusty Death: Turner & Newall and the Regulation of Occupational Health in the British Asbestos Industry, 1890s–1970s (Athlone Press, 2001). G Tweedale, Magic Mineral to Killer Dust: Turner & Newall and the Asbestos Hazard (Oxford University Press, 2001). PWJ Bartrip, The Home Office and the Dangerous Trades: Regulating Occupational Disease in Victorian and Edwardian Britain (Rodopi, 2002). S Bowden and G Tweedale, ‘Mondays Without Dread: The Trade Unions’ Response to Byssinosis in the Lancashire Cotton Industry in the Twentieth Century’ (2003) 16 Social History of Medicine 79. C Malone, Women’s Bodies and Dangerous Trades in England, 1880–1914 (Boydell / Royal Historical Society, 2003). MW Bufton and J Melling, ‘“A Mere Matter of Rock”: Organised Labour, Scientific Evidence and British Government Schemes for Compensation of Silicosis and Pneumoconiosis Among Coalminers, 1926–1940’ (2005) 49 Medical History 155. MW Bufton and J Melling, ‘Coming Up for Air: Experts, Employers, and Workers in Campaigns to Compensate Silicosis Sufferers in Britain, 1918–1939’ (2005) 18 Social History of Medicine 63. J Greenlees, ‘“Stop Kissing and Steaming!”: TB and the Occupational Health Movement in the Massachusetts and Lancashire Cotton Weaving Industries, 1870–1918’ (2005) 32 Urban History 223. S Morrison, ‘The Factory Inspectorate and the Silica Dust Problem in UK Foundries, 1939–1970’ (2005) 40 Scottish Labour History Journal 31. A McIvor and R Johnston, Miners’ Lung: A History of Dust Disease in British Coal Mining (Ashgate, 2007). D Walker, ‘Occupational Health and Safety in the British Chemical Industry, 1914–1974’ (PhD thesis, University of Strathclyde, 2007); online at https://strathprints.strath.ac.uk/6429/7/strathprints006429.pdf. C Mills, Regulating Health and Safety in the British Mining Industries, 1800–1914 (Ashgate, 2010). V Long, The Rise and Fall of the Healthy Factory: The Politics of Industrial Health in Britain, 1914–60 (Palgrave MacMillan, 2011).

Chapter Eight: Crime Execution D Hay, P Linebaugh, and EP Thompson (eds), Albion’s Fatal Tree (Random House, 1975). P Spierenburg, The Spectacle of Suffering (Cambridge University Press, 1984). LP Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (Oxford University Press, 1989). R Chadwick, Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain (Garland, 1992). VAC Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford University Press, 1994). B Faulk, ‘The Public Execution: Urban Rhetoric and Victorian Crowds’ and FS Schwarzbach, ‘All the Hideous Apparatus of Death: Dickens and Executions’, both in WB Thesig (ed), Executions and the British Experience from the 17th to the 20th Century (MacFarland, 1990). P Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Allen Lane, 1991). H Potter, Hanging in Judgement: Religion and the Death Penalty in England (Continuum, 1993). B Hilton, ‘The Gallows and Mr Peel’ in TCW Blanning and D Cannadine (eds), History and Biography: Essays in Honour of Derek Beales (Cambridge University Press, 1996). V Bailey, ‘The Shadow of the Gallows: The Death Penalty and the British Labour Government, 1945–51’ (2000) 18 L&HR 305.

Bibliography and Suggestions for Further Reading 689 R McGowen, ‘History, Culture and the Death Penalty: The British Debates, 1840–1870’ (2003) 29 Historical Reflections 229. S Devereaux, ‘Peel, Pardon and Punishment: The Recorder’s Report Revisited’ and GT Smith, ‘‘‘I Could Hang Anything You Can Bring Before Me”: England’s Willing Executioners in 1883’, both in P Griffiths and S Devereaux (eds), Penal Practice and Culture, 1500–1900: Punishing the English (Palgrave Macmillan, 2004). P Handler, ‘Forging the Agenda: The 1819 Select Committee on the Criminal Laws Revisited’ (2004) 25 JLH 249. S Devereaux, ‘The Abolition of the Burning of Women in England Reconsidered’ (2005) 9 Crime, History & Societies 73. P Handler, ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’ (2005) 48 HJ 683. S Devereaux, ‘Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789’ (2007) 25 L&HR 101. R McGowen, ‘Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821’ (2007) 25 L&HR 241. S Devereaux, ‘Recasting the Theatre of Execution: The Abolition of the Tyburn Ritual’ (2009) 202 P&P 127. KJ Kesselring, ‘Felony Forfeiture in England, c 1170–1870’ (2009) 30 JLH 201. J Gregory, Victorians Against the Gallows: Capital Punishment and the Abolitionist Movement in Nineteenth Century Britain (IB Tauris, 2012). L Seal, Capital Punishment in Twentieth-Century Britain: Audience, Justice, Memory (Routledge, 2014). S Tarlow, ‘The Technology of the Gibbet’ (2014) 18 International Journal of Historical Archaeology 668. P King and R Ward, ‘Rethinking the Bloody Code in Eighteenth-Century Britain: Capital Punishment at the Centre and on the Periphery’ (2015) 228 P&P 159. R Ward, ‘The Criminal Corpse, Anatomists, and the Criminal Law: Parliamentary Attempts to Extend the Dissection of Offenders in Late Eighteenth-Century England’ (2015) JBS 63. S Devereaux, ‘The Bloodiest Code: Counting Executions and Pardons at the Old Bailey, 1730–1837’ (2016) 6 Law, Crime and History 83. S Devereaux, ‘Execution and Pardon at the Old Bailey 1730–1837’ (2017) 57 AJLH 447. P King, Punishing the Criminal Corpse, 1700–1840: Aggravated Forms of the Death Penalty in England (Palgrave Macmillan, 2017).

Transportation AGL Shaw, Convicts and the Colonies (Faber and Faber, 1966). JB Hirst, Convict Society and Its Enemies: A History of Early New South Wales (Allen & Unwin, 1986). R Hughes, The Fatal Shore: A History of Transportation of Convicts to Australia 1787–1868 (Collins Harvill, 1987). J Innes, ‘The Role of Transportation in Seventeenth and Eighteenth-Century Penal Practice’ in G Bridge (ed), New Perspectives in Australian History (London Institute for Commonweath Studies, 1990). A Atkinson, ‘The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire’ (1994) 144 P&P 88. D Oxley, Convict Maids: The Forced Migration of Women to Australia (Cambridge University Press, 1996). I Duffield and JE Bradley, Representing Convicts: New Perspectives on Convict Forced Labour Migration (Leicester University Press, 1997). A Fogelman, ‘From Slaves, Convicts and Servants to Free Passengers: The Transformation of Immigration in the Era of the American Revolution’ (1998) 85 Journal of American History 43. B Kercher, ‘Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850’ (2003) 21 L&HR 527. G Morgan and P Ruston, Eighteenth Century Transportation: The Formation of the Criminal Atlantic (Macmillan, 2004). JJ Willis, ‘Transportation Versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State’ (2005) 39 Law & Society Review 171. G Durston, ‘Magwitch’s Forbears: Returning from Transportation in Eighteenth-Century London’ (2005) 9 Australian Journal of Legal History 137. E Christopher, A Merciless Place: The Lost Story of Britain’s Convict Disaster in Africa (Oxford University Press, 2011). AT Rubin, ‘The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London’ (2012) 46 Law & Society Review 815.

690 Bibliography and Suggestions for Further Reading P Harling, ‘The Trouble With Convicts: From Transportation to Penal Servitude, 1840–1867’ (2014) 53 JBS 80. M Ward, ‘A Tale of Transportation: The Case of David Moore’ (2015) 22 Clogher Record 43. R Tuffin, ‘Convicts of the “Proper Description”: The Appropriation and Management of Skilled Convict Labour’ (2018) 114 Labour History 69. HM Carey, Empire of Hell: Religion and the Campaign to End Convict Transportation in the British Empire, 1788–1875 (Cambridge University Press, 2019).

Imprisonment S Webb and B Webb, English Prisons Under Local Government (Longmans, 1922). W Branch Johnson, The English Prison Hulks (Christopher Johnson, 1957). J Kent, Elizabeth Fry (Batsford, 1962). URQ Henriques, ‘The Rise and Decline of the Separate System of Prison Discipline’ (1972) 54 P&P 61. JE Thomas, The English Prison Officer Since 1850: A Study in Conflict (Routledge and Kegan Paul, 1972). R Morgan, ‘Divine Philanthropy: John Howard Reconsidered’ (1977) 62 History 388. TR Forbes, ‘Coroners’ Inquisitions on the Deaths of Prisoners in the Hulks at Portsmouth, 1817–1827’ (1978) 33 Journal of the History of Medicine 356. M Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850 (Macmillan, 1978). PWJ Bartrip, ‘Public Opinion and Law Enforcement: The Ticket-of-Leave Scares in Mid-Victorian Britain’ in V Bailey (ed), Policing and Punishment in Nineteenth-Century Britain (Croom Helm, 1981). S McConville, A History of English Prison Administration (Routledge, 1981). R Evans, The Fabrication of Virtue: English Prison Architecture, 1750–1840 (Cambridge University Press, 1982). C Harding, B Hines, R Ireland and P Rawlings, Imprisonment in England and Wales (Routledge, 1985). P Priestly, Victorian Prison Lives: English Prison Biography, 1830–1914 (Methuen, 1985). D Roberts, ‘The Scandal at Birmingham Borough Gaol 1853: A Case for Penal Reform’ (1986) 7 JLH 315. J Bender, Imagining the Penitentiary: Fiction and the Architecture of Mind in Eighteenth-Century England (Chicago University Press, 1987). J Innes, ‘Prisons for the Poor: English Bridewells 1555–1800’ in FG Snyder and CD Hay (eds), Labour, Law, and Crime: An Historical Perspective (Tavistock Publications, 1987). RW Ireland, ‘Theory and Practice Within the Medieval English Prison’ (1987) 31 AJLH 56. C Harding, ‘The Inevitable End of a Discredited System? The Origins of the Gladstone Committee Report on Prisons, 1895’ (1988) 31 HJ 591. WJ Forsythe, Penal Discipline, Reformatory Projects and the English Prison Commission, 1895–1939 (Exeter University Press, 1991). RW England, ‘Who Wrote John Howard’s Text? The State of the Prisons as a Dissenting Enterprise’ (1993) 33 British Journal of Criminology 203. B Forsythe, ‘Women Prisoners and Women Penal Officials 1840–1921’ (1993) 33 British Journal of Criminology 525. B Forsythe, ‘The Garland Thesis and the Origins of Modern English Prison Discipline: 1835 to 1939’ (1995) 34 Howard Journal of Crime and Justice 259. S McConville, English Local Prisons 1860–1900: Next Only to Death (Routledge, 1995). R McGowen, ‘The Well-ordered Prison: England 1760–1865’ and S McConville, ‘The Victorian Prison: England, 1865–1965’, both in N Morris and DJ Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society (Oxford University Press, 1995). G Fisher, ‘The Birth of the Prison Retold’ (1995) 104 Yale Law Journal 1235. M Ogborn, ‘Discipline, Government and Law: Separate Confinement in the Prisons of England and Wales, 1830–1877’ (1995) 20 TIBG 295. J Purvis, ‘The Prison Experiences of the Suffragettes in Edwardian Britain’ (1995) 4 Women’s History Review 103. V Bailey, ‘English Prisons, Penal Culture and the Abatement of Imprisonment, 1895–1922’ (1997) 36 JBS 285. S Devereaux, ‘The Making of the Penitentiary Act, 1775–1779’ (1999) 42 HJ 405. C Campbell, The Intolerable Hulks: British Shipboard Confinement, 1776–1857, 2nd edn (Fenestra Books, 2001). R Follet, Evangelicalism, Penal Theory and the Politics of Criminal Law Reform in England, 1808–1830 (Macmillan, 2001). D Wilson, ‘Millbank, the Panopticon and Their Victorian Audiences’ (2002) 41 Howard Journal of Crime and Justice 364

Bibliography and Suggestions for Further Reading 691 A Brown, English Society and the Prison: Time, Culture, and Politics in the Development of the Modern Prison, 1850–1920 (Boydell Press, 2003). N Johnston, ‘The World’s Most Important Prison: Success or Failure?’ (2004) 84 The Prison Journal 20. A Brown, ‘The Amazing Mutiny at the Dartmoor Convict Prison’ (2007) 47 British Journal of Criminology 276. P Hardman, ‘The Origins of Late Eighteenth-Century Prison Reform in England’ (PhD thesis, University of Sheffield, 2007); online at https://core.ac.uk/download/pdf/9554704.pdf. RW Ireland, ’A Want of Order and Good Discipline’: Rules, Discretion and the Victorian Prison (University of Wales Press, 2007). K Soothill, ‘Prison Histories and Competing Audiences, 1776–1966’ in Y Jewkes (ed), Handbook on Prisons (Willan Publishing, 2007). H Johnston, ‘“Reclaiming the Criminal”: The Role and Training of Prison Officers in England, 1877 to 1914’ (2008) 47 Howard Journal of Crime and Justice 297. L Throness, A Protestant Purgatory: Theological Origins of the Penitentiary Act, 1779 (Ashgate, 2008). A Barton and A Brown, ‘Dartmoor: Penal and Cultural Icon’ (2011) 50 Howard Journal of Crime and Justice 478. JE Crimmins, ‘The Principles of Utilitarian Penal Law in Beccaria’ in P Koritansky (ed), The Philosophy of Punishment and the History of Political Thought (University of Missouri Press, 2011). Y Jewkes, ‘The English Prison During the First and Second World Wars: Hidden Lived Experiences of War’ (2011) 198 Prison Service Journal 47. A Brown, Inter-War Penal Policy and Crime in England: The Dartmoor Convict Prison Riot, 1932 (Macmillan, 2013). T Duve, ‘Global Criminology and the National Tradition: The Impact of Reform Movements on Criminal Systems at the Beginning of the 20th Century’ in M Pifferi (ed), Entanglements in Legal History (Max Planck Institute, 2014). D Cox, B Godfrey, H Johnston and J Turner, ‘On Licence: Understanding Punishment, Recidivism and Desistance in Penal Policy, 1853–1945’ in V Miller and J Campbell (eds), Transnational Penal Cultures: New Perspectives on Discipline, Punishment and Desistance (Routledge, 2014). H Johnston, ‘Gendered Prison Work: Female Prison Officers in the Local Prison System, 1877–1939’ (2014) 53 Howard Journal of Crime and Justice 193. B Godfrey, DJ Cox, and H Johnston, Victorian Convicts: 100 Criminal Lives (Pen & Sword, 2016). N Davie, The Penitentiary Ten: The Transformation of the English Prison, 1770–1850 (Bardwell Press, 2016). C Davies, Bad Girls: A History of Rebels and Renegades (John Murray, 2018). JM Moore, ‘Labouring Out of Adversity: Maconochie, Political Economy and Penal Labour’ (2018) 57 Howard Journal of Crime and Justice 182. H Johnston, ‘Imprisoned Mothers in Victorian England, 1853–1900: Motherhood, Identity and the Convict Prison’ (2019) 19 Criminology & Criminal Justice 215.

Probation D Bochel, Probation and After-care: Its Development in England & Wales (Scottish Academic Press, 1976). P Young, ‘A Sociological Analysis of the Early History of Probation’ (1976) 3 British Journal of Law and Society 44. W McWilliams, ‘The Mission to the English Police Courts 1876–1936’ (1983) 22 Howard Journal of Criminal Justice 129. W McWilliams, ‘The Mission Transformed: Professionalism of Probation Between the Wars’ (1985) 24 Howard Journal of Criminal Justice 257. M Page, Crime Fighters of London. A History of the Origins and Development of the London Probation Service 1876–1965 (Inner London Probation Service Development Trust, 1992). J Rimmer, ‘How Social Workers and Probation Officers in England Conceived Their Roles and Responsibilities in the 1930s and 1940s’ in J Schweiso and P Pettit (eds), Aspects of the History of British Social Work (University of Reading, 1995). M Vanstone, ‘Mission Control: The Origins of a Humanitarian Service’ (2004) 51 Probation Journal 34. P Whitehead and R Statham, The History of Probation: Politics, Power and Cultural Change 1876–2005 (Shaw & Sons, 2006). R Gard, ‘The First Probation Officers in England and Wales 1906–14’ (2007) 47 British Journal of Criminology 938. M Nellis, ‘Humanising Justice: The English Probation Service up to 1972’ in L Gelsthorpe and R Morgan (eds), Handbook of Probation (Willan, 2007).

692 Bibliography and Suggestions for Further Reading A Worrall, ‘Gender and Probation in the Second World War: Reflections on a Changing Occupational Culture’ (2008) 8 Criminology & Criminal Justice 317. G Mair and L Burke, Redemption, Rehabilitation and Risk Management: A History of Probation (Routledge, 2012) chs 1–4. R Gard, Probation and Rehabilitation in England and Wales, 1876–1962 (Bloomsbury Academic, 2014). S Auerbach, ‘“Beyond the Pale of Mercy”: Victorian Penal Culture, Police Court Missionaries, and the Origins of Probation in England’ (2015) 33 L&HR 621.

Crime and Society C Kirby, ‘The English Game Law System’ (1932–3) 38 American Historical Review 241. FO Darvall, Popular Disturbances and Public Order in Regency England (Oxford University Press, 1934). G Rusche and O Kirchheimer, Punishment and Social Structure (Columbia University Press, 1939). FC Mather, Public Order in the Age of the Chartists (Manchester University Press, 1959). JJ Tobias, Crime and Industrial Society in the Nineteenth Century (Batsford, 1967). J Stevenson, Popular Disturbances in England 1700–1870 (Longman, 1970). MI Thomis, The Luddites: Machine-Breaking in Regency England (David and Charles, 1970). R Samuel, ‘“Quarry Roughs”: Life and Labour in Headington Quarry, 1860–1920’ in R Samuel (ed), Village Life and Labour (Kegan Paul, 1975). AP Donajgrodski (ed), Social Control in Nineteenth Century Britain (Croom Helm, 1977). R Wells, ‘The Revolt of the South-West 1800–1801: A Study in English Popular Protest’ (1977) 2 SH 713. A Howkins, ‘Economic Crime and Class Law: Poaching and the Game Laws, 1840–1880’ in SB Burman and BE Harrell-Bond (eds), The Imposition of Law (Academic Press, 1979). J Brewer and J Styles (eds), An Ungovernable People: The English and Their Law in the Seventeenth- and Eighteenth-Centuries (Hutchinson, 1980). J Davis, ‘The London Garrotting Panic of 1862: A Moral Panic and the Creation of a Criminal Class in Mid-Victorian England’ and VAC Gatrell ‘The Decline of Theft and Violence in Victorian and Edwardian England’, both in VAC Gatrell, B Lenman and G Parker (eds), Crime and the Law: The Social History of Crime in Western Europe Since 1500 (Europa, 1980). PB Munsche, Gentlemen and Poachers: The English Game Laws 1671–1831 (Cambridge University Press, 1981). D Hay, ‘War, Dearth and Theft in the Eighteenth Century’ (1982) 95 P&P 117. RD Storch, Popular Culture and Custom in Nineteenth Century England (Routledge, 1982). RD Storch, ‘Popular Festivity and Consumer Protest: Food Price Disturbance in the Southwest and Oxfordshire in 1867’ (1982) 14 Albion 209. R Sindall, ‘Middle-class Crime in Nineteenth-century England’ (1983) 4 Criminal Justice History 23. H Hopkins, The Long Affray: The Poaching Wars in Britain 1760–1914 (Secker & Warburg, 1986). L Rose, The Massacre of the Innocents: Infanticide in Britain 1800–1939 (Routledge and Kegan Paul, 1986). O Anderson, Suicide in Victorian and Edwardian England (Clarendon Press, 1987). J Keown, Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982 (Cambridge University Press, 1988). J Caple, The Bristol Riots of 1831 and Social Reform in Britain (Mellor, 1990). MJ Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge University Press, 1990). N MacMaster, ‘The Battle for Mousehold Heath, 1857–1884: “Popular Politics” and the Victorian Public Park’ (1990) 127 P&P 117. JS Cockburn, ‘Patterns of Violence in English Society: Homicide in Kent 1560–1985’ (1991) 130 P&P 70. A Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776–1809 (Cambridge University Press, 1991). G Robb, White-Collar Crime in Modern England: Financial Fraud and Business Morality, 1845–1929 (Cambridge University Press, 1992). P Alldridge, ‘“Attempted Murder of the Soul”: Blackmail, Privacy and Secrets’ (1993) 13 OJLS 368. V Bailey, ‘The Fabrication of Deviance: Dangerous Classes and Criminal Class in Victorian England’ in J Rule and R Malcolmson (eds), Protest and Survival: The Historical Experience: Essays for EP Thompson (Merlin Press, 1993).

Bibliography and Suggestions for Further Reading 693 G Morley, The Smuggling War: The Government’s Fight Against Smuggling in the 18th and 19th Centuries (Sutton, 1994). DD Friedman, ‘Making Sense of English Law Enforcement in the Eighteenth Century’ (1995) 2 University of Chicago Law School Roundtable 475. K Wilson, The Sense of The People: Press Politics, Culture and Imperialism in England (Past and Present Publications, 1995). J Rule and R Wells (eds), Crime, Protest and Popular Politics in Southern England 1740–1850 (Hambleden Press, 1997). NM Goldsmith, Worst of Crimes: Homosexuality and the Law in Eighteenth-Century London (Ashgate, 1998). J Warner and F Ivis, ‘“Damn You, You Informing Bitch.” Vox Populi and the Unmaking of the Gin Act of 1736’ (1999) 33 JSH 299. LA Jackson, Child Sexual Abuse in Victorian England (Routledge, 2000). V Slater, High Life, Low Morals, The Duel that Shook Stuart Society (Pimlico Press, 2000). K Hipper, Smugglers All (Larks Press, 2001). D Englander, ‘Henry Mayhew and the Criminal Classes of Victorian England: The Case Reopened’ (2002) 17 Criminal Justice History 87. WJ Ashworth, Customs and Excise: Trade, Production and Consumption in England, 1640–1845 (Oxford University Press, 2003). T Shakesheff, Rural Conflict, Crime, and Protest: Herefordshire, 1800 to 1860 (Boydell Press, 2003). J Carter Wood, Violence and Crime in Nineteenth-century England: The Shadow of Our Refinement (Routledge, 2004). D Rabin, Identity, Crime and Legal Responsibility in Eighteenth-Century England (Palgrave Macmillan, 2004). MJ Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge University Press, 2004). AL Beier, ‘Identity, Language and Resistance in the Making of the Victorian “Criminal Class”: Mayhew’s Convict Revisited’ (2005) 44 JBS 499. R Colley, ‘The Shoreditch Tax Frauds: A Study of the Relationship between the State and Civil Society in 1860’ (2005) 78 HR 540. C Frank, ‘“Let But One of Them Come Before Me, and I’ll Commit Him”: Trade Unions, Magistrates and the Law in Mid-Nineteenth Century Staffordshire’ (2005) 44 JBS 64. DD Friedman, Crime and Justice 1750–1950 (Willan, 2005). G Morgan and P Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718–1820 (Routledge, 2005). K Navickas, ‘The Search for “General Ludd”: The Mythology of Luddism’ (2005) 30 SH 281. J Anderson, ‘The Legal Response to Prize Fighting in Nineteenth Century England and America’ (2006) 57 NILQ 265. HG Cocks, ‘Making the Sodomite Speak: Voices of the Accused in English Sodomy Trials, c 1800–98’ (2006) 18 Gender & History 87. T O’Gorman, ‘The Paine Burnings of 1792–3’ (2006) 193 P&P 111. R Poole, ‘The March to Peterloo: Politics and Festivity in Late Georgian England’ (2006) 192 P&P 109. R Shoemaker, ‘The Street Robber and the Gentleman Highwayman: Changing Representations and Perceptions of Robbery in London, 1690–1800’ (2006) 3 Cultural and Social History 381. KDM Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales (Cambridge University Press, 2006). G Porter and J Tuisanen, ‘Performing Resistance to the New Rural Order: An Unpublished Ballad Opera and the Green Song’ (2006) 47 Eighteenth Century 203. S Wilson, ‘Law, Morality and Regulation: Victorian Experiences of Financial Crime’ (2006) 46 British Journal of Criminology 1073. L Farmer, ‘“With All the Impressiveness and Substantial Value of Truth”: Notable Trials and Criminal Justice, 1750–1930’ (2007) 1 Law & Humanities 57. D Gray, ‘Settling Their Differences: The Nature of Assault and Its Prosecution in the City of London in the Late Eighteenth and Early Nineteenth Centuries’ in KD Watkins (ed), Assaulting the Past: Violence and Civilisation in Historical Context (Cambridge Scholars, 2007). P King, ‘Newspaper Reporting and Attitudes to Crime and Justice in Late-eighteenth- and Early-nineteenth-century London’ (2007) 22 C&C 73.

694 Bibliography and Suggestions for Further Reading T Seddon, ‘The Regulation of Heroin: Drug Policy and Social Change in Early Twentieth-century Britain’ (2007) 35 International Journal of the Sociology of Law 143. C Emsley, ‘Violent Crime in England in 1919: Post-war Anxieties and Press Narratives’ (2008) 23 C&C 173. S Banks, A Polite Exchange of Bullets: The Duel and the English Gentleman, 1750–1850 (Boydell and Brewer, 2010). C Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–1865 (Ashgate, 2010). D Nash and A Kilday, Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900 (Palgrave Macmillan, 2010). B Bushaway, By Rite: Custom, Ceremony and Community in England 1700–1800 (Breviary Stuff, 2011). WM Meier, Property Crime in London, 1850-Present (Palgrave Macmillan, 2011). C Steedman, ‘At Every Bloody Level: A Magistrate, a Framework-Knitter, and the Law’ (2012) 30 L&HR 387. M Thomson, ‘Abortion Law and Professional Boundaries’ (2013) 22 Social & Legal Studies 191. S Naidu and N Yuchtman, ‘Coercive Contract Enforcement: Law and the Labour Market in Nineteenth Century Industrial Britain’ (2013) 103 American Economic Review 107. J Taylor, Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-century Britain (Oxford University Press, 2013). S Banks, Informal Justice in England and Wales: The Courts of Popular Opinion (Boydell and Brewer, 2014). LS Bibbings, Binding Men: Stories About Violence and Law in Late Victorian England (Routledge, 2014). M Koyama, ‘The Law and Economics of Private Prosecutions in Industrial Revolution England’ (2014) 159 Public Choice 277. S Pickard, Anti-Social Behaviour in Britain: Victorian and Contemporary Perspectives (Palgrave Macmillan, 2014). DJ Cox et al, Public Indecency in England 1857–1960: ‘A Serious and Growing Evil’ (Routledge, 2015). H Johnston, Crime in England 1815–1880: Experiencing the Criminal Justice System (Routledge, 2015). P Adey, DJ Cox and B Godfrey, Crime, Regulation and Control During the Blitz: Protecting the Population of Bombed Cities (Bloomsbury Academic, 2016). D Churchill, ‘Security and Visions of the Criminal: Technology, Professional Criminality and Social Change in Victorian and Edwardian Britain’ (2016) 56 British Journal of Criminology 857. J Sharpe, A Fiery & Furious People: A History of Violence in England (Random House, 2016). K Stevenson, ‘“These Are Cases Which It Is Inadvisable to Drag into the Light of Day”: Disinterring the Crime of Incest in Early Twentieth-Century England’ (2016) 20 Crime, History & Societies 31. CC Griffiths, ‘Prosecuting Fraud in the Metropolis, 1760–1820’ (PhD thesis, University of Liverpool, 2017); online at https://livrepository.liverpool.ac.uk/3012313/. D Nash and A Kilday (eds), Law, Crime and Deviance Since 1700: Micro-Studies in the History of Crime (Bloomsbury Academic, 2017). K Navickas, Protest and the Politics of Space and Place, 1789–1848 (Manchester University Press, 2017). DY Rabin, Britain and Its Internal Others, 1750–1800: Under Rule of Law (Manchester University Press, 2017). K Stevenson, ‘“Not Just the Ideas of a Few Enthusiasts”: Early Twentieth Century Legal Activism and Reformation of the Age of Sexual Consent’ (2017) 14 Cultural and Social History 219. J Turner et al (eds), A Companion to the History of Crime and Criminal Justice (Policy Press, 2017). D Nash and A Kilday (eds), Murder and Mayhem: Crime in 20th Century Britain (Palgrave, 2018).

Women and Crime See also the works on violence within marriage listed under the relevant heading for Chapter 5. JM Beattie, ‘The Criminality of Women in Eighteenth Century England’ in DK Weisberg (ed), Women and the Law: A Social History Perspective (Schenkman Publishing, 1982). A Clark, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770–1845 (Pandora, 1987). B Brookes, Abortion in England, 1900–1967 (Croom Helm, 1988). A Higginbotham, ‘“Sin of The Age”: Infanticide and Illegitimacy in Victorian London’ (1989) 32 VS 319. SAM Gavigan, ‘Petit Treason in Eighteenth Century England: Women’s Inequality Before the Law’ (1990) 3 Canadian Journal of Women and the Law 335. M Feeley and D Little, ‘The Vanishing Female: The Decline of Women in the Criminal Process, 1687–1912’ (1991) 25 Law and Society Review 719. L Zedner, Women, Crime, and Custody in Victorian England (Clarendon Press, 1991).

Bibliography and Suggestions for Further Reading 695 M Thomson, ‘Woman, Medicine and Abortion in the Nineteenth Century’ (1995) 3 Feminist Legal Studies 159. M Jackson, New‐Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth Century England (Manchester University Press, 1996). P King, ‘Female Offenders, Work and Life-Cycle Change in Late-Eighteenth-Century London’ (1996) 11 C&C 61. S D’Cruze, Crimes of Outrage: Sex, Violence and Victorian Working Women (UCL Press, 1998). T Henderson, Disorderly Women in Eighteenth-century London: Prostitution and Control in the Metropolis, 1730–1830 (Longman, 1999). L McKay, ‘Why They Stole: Women in the Old Bailey, 1779–1789’ (1999) 32 JSH 623. S D’Cruze (ed), Everyday Violence in Britain, 1850–1950: Gender & Class (Longman, 2000). P Bartley, Prostitution: Prevention and Reform in England, 1860–1914 (Routledge, 2000). J McDonagh, Child Murder and British Culture, 1720–1900 (Cambridge University Press, 2003). RA Peterson, Writing British Infanticide: Child-murder, Gender, and Print, 1722–1859 (University of Delaware Press, 2003). TC Whitlock, Crime, Gender and Consumer Culture in Nineteenth-Century England (Ashgate, 2005). G Robb, ‘Women and White-Collar Crime: Debates on Gender, Fraud and the Corporate Economy in England and America, 1850–1930’ (2006) 46 British Journal of Criminology 1058. D Palk, Gender, Crime and Judicial Discretion 1780–1830 (Royal Historical Society/Boydell Press, 2006). G Durston, Victims and Viragos: Metropolitan Women, Crime and the Eighteenth-century Justice System (Arima, 2007). N Lacey, Women, Crime, and Character: From Moll Flanders to Tess of the D’Urbervilles (Oxford University Press, 2008). S D’Cruze and LA Jackson, Women, Crime and Justice in England Since 1660 (Palgrave Macmillan, 2009). K Callahan, ‘On the Receiving End: Women and Stolen Goods in London 1783–1815’ (2012) 37 London Journal 106. A Loughnan, ‘The “Strange” Case of the Infanticide Doctrine’ (2012) 32 OJLS 685. A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (Oxford University Press, 2012) ch 2. L Bland, Modern Women on Trial: Sexual Transgression in the Age of the Flapper (Oxford University Press, 2013). B Godfrey ‘A Historical Perspective on Criminal Justice Responses to Female and Male Offending’ in W McCarthy and R Gartner (eds), The Oxford Handbook of Gender, Sex, and Crime (Oxford University Press, 2013). N Goc, Women, Infanticide and the Press, 1822–1922. News Narratives in England and Australia (Ashgate, 2013). G Rubin, ‘Pre-Dating Vicky Pryce: The Peel Case (1922) and the Origins of the Marital Coercion Statutory Defence’ (2013) 34 LS 631. KD Watson, ‘Women, Violent Crime and Criminal Justice in Georgian Wales’ (2013) 28 C&C 245. GJ Durston, Wicked Ladies: Provincial Women, Crime and the Eighteenth-Century English Justice System (Cambridge Scholars, 2014). I Ward, Sex, Crime and Literature in Victorian England (Hart, 2014). A Cossins, Female Criminality: Infanticide, Moral Panics and the Female Body (Palgrave Macmillan, 2015). S Tickell, Shoplifting in Eighteenth Century England (Boydell and Brewer, 2018). E Ireland, ‘Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth- and Nineteenth-Century England’ (2019) 40 JLH 21. K Crosby, ‘Abolishing Juries of Matrons’ (2019) 39 OJLS 259.

Youth and Crime J Carlebach, Caring for Children in Trouble (Routledge and Kegan Paul, 1970). S Magarey, ‘The Invention of Juvenile Delinquency in Early Nineteenth-Century England’ (1978) 34 Labour History 11. S Humphries, Hooligans or Rebels? An Oral History of Working-Class Childhood and Youth 1889–1939 (Blackwell, 1981). V Bailey, Delinquency and Citizenship: Reclaiming the Young Offender, 1914–1948 (Clarendon Press, 1987). JA Stack, ‘Children, Urbanization and the Chances of Imprisonment in Mid-Victorian England’ (1992) 13 Criminal Justice History 113. P King and J Noel, ‘The Origins of “The Problem of Juvenile Delinquency”: The Growth of Juvenile Prosecutions in London in the Late Eighteenth and Early Nineteenth Centuries’ (1993) 14 Criminal Justice History 17.

696 Bibliography and Suggestions for Further Reading B Weinberger, ‘Policing Juveniles: Delinquency in Late Nineteenth and Early Twentieth Century Manchester’ (1993) 14 Criminal Justice History 43. JA Stack, ‘Reformatory and Industrial Schools and the Decline of Child Imprisonment in Mid‐Victorian England and Wales’ (1994) 23 History of Education 59. S Humphries, Hooligans or Rebels? An Oral History of Working-Class Childhood and Youth 1889–1939 (Blackwell, 1995) chs 6–8. A Davies, ‘Youth Gangs, Masculinity, and Violence in Late Victorian Manchester and Salford’ (1998) 32 JSH 349. P King, ‘The Rise of Juvenile Delinquency in England 1780–1840: Changing Patterns of Perception and Prosecution’ (1998) 160 P&P 116. H Shore, ‘Cross Coves, Buzzers and General Sorts of Prigs: Juvenile Crime and the Criminal “Underworld” in the Early Nineteenth Century’ (1999) 39 British Journal of Criminology 10. A Davies, ‘“These Viragoes Are No Less Cruel than the Lads”: Young Women, Gangs and Violence in Late Victorian Manchester and Salford’ (1999) 39 British Journal of Criminology 72. J Duckworth, Fagin’s Children: Criminal Children in Victorian England (Bloomsbury, 2002). S Magarey, ‘The Invention of Juvenile Delinquency in Early Nineteenth Century England’, M May, ‘Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid Nineteenth Century’, and H Shore, ‘Reforming the Juvenile: Gender, Justice and the Child Criminal in Nineteenth-Century England’, all in J Muncie, G Hughes and E McLaughlin (eds), Youth Justice: Critical Readings (Sage, 2002). H Shore, Artful Dodgers: Youth and Crime in Early Nineteenth-century London (Boydell Press, 2002). P Cox, Gender, Justice and Welfare: Bad Girls in Britain, 1900–1950 (Palgrave Macmillan, 2003). P Cox, ‘Girls in Trouble: Defining Female Delinquency, Britain, 1900–1950’ in M Maynes, B Soland and C Benninghaus (eds), Secret Gardens, Satanic Mills: Placing Girls in European History, 1750–1960 (Indiana University Press, 2005). A Logan, ‘“A Suitable Person for Suitable Cases”: The Gendering of Juvenile Courts in England c 1910–39’ (2005) 16 TCBH 129. K Bradley, ‘Juvenile Delinquency, the Juvenile Courts and the Settlement Movement 1908–50: Basil Henriques and Toynbee Hall’ (2008) 19 TCBH 133. H Shore, ‘Punishment, Reformation or Welfare: Responses to “The Problem” of Juvenile Crime in Victorian and Edwardian Britain’ in H Johnston (ed), Punishment and Control in Historical Perspective (Palgrave Macmillan, 2008). K Bradley, A Logan and S Shaw (eds), Centennial Reflections on the Children’s Act, 1908 (2009) 3(2) Crimes and Misdemeanours (special edition). K Bradley, ‘Juvenile Delinquency and the Public Sphere: Exploring Local and National Discourses in England, c 1940–1969’ (2012) 37 SH 19. N Sheldon, ‘“Something in the Place of Home”: Children in Institutional Care, 1850–1918’ in N Goose and K Honeyman (eds), Childhood and Child Labour in Industrial England: Diversity and Agency, 1750–1914 (Ashgate, 2013). B Godfrey et al, Young Criminal Lives: Life Courses and Life Chances from 1850 (Oxford University Press, 2017).

Criminal Law JF Stephen, History of the Criminal Law 3 vols (Routledge/Thoemmes, 1883). GW Keeton and DR Marshall, ‘Bentham’s Influence on the Law of Evidence’ in GW Keeton and G Schwarzenberger (eds), Jeremy Bentham and the Law (Stevens & Sons, 1948). L Radzinowicz, History of English Criminal Law and its Administration from 1750: vol 1. The Movement for Reform (Stevens & Sons 1948); vol 2. The Enforcement of the Law (Stevens & Sons 1956); vol 3. The Reform of the Police (Stevens and Sons, 1956); vol 4. Grappling for Control (Stevens & Sons 1968); vol 5. The Emergence of Penal Policy (Steven & Sons, 1986) (with R Hood). P Kurland and D Waters, ‘Public Prosecutions in England, 1854–1879’ (1959) 9 Duke Law Journal 493. JL Edwards, The Law Officers of the Crown (Sweet & Maxwell, 1964). EW Stieb, Drug Adulteration: Detection and Control in Nineteenth Century Britain (University of Wisconsin Press, 1966). P Medd, Romilly: A Life of Sir Samuel Romilly, Lawyer and Reformer (Collins, 1968). N Walker, Crime and Insanity in England (Edinburgh University Press, 1968).

Bibliography and Suggestions for Further Reading 697 AH Manchester, ‘Simplifying the Sources of the Law: An Essay in Law Reform’ (1973) 2 Anglo-American Law Review 395. JH Langbein, ‘The Criminal Trial Before the Lawyers’ (1975) 45 University of Chicago Law Review 263. G Fletcher, ‘The Metamorphosis of Larceny’ (1976) 89 Harvard Law Review 469. JNJ Palmer, ‘Evils Merely Prohibited’ (1976) 3 British Journal of Law & Society 1. PR Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (Stevens & Sons, 1978). V Bailey and S Blackburn, ‘The Punishment of Incest Act 1908: A Case Study in Law Creation’ [1979] Crim LR 708. L Weinrebt ‘Manifest Criminality, Criminal Intent and the “Metamorphosis of Larceny”’ (1980) 90 Yale Law Journal 294. LA Knafla, Crime and Criminal Justice in England and Canada (Calgary Institute, 1981). JR Rule (ed), Outside the Law: Studies in Crime and Order, 1650–1850 (University of Exeter, 1982). J Styles, ‘The Eighteenth-Century Magistrate as Detective: Samuel Lister of Little Horton’ (1982) 47 Bradford Antiquary 98. C Townshend, ‘Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940’ (1982) 25 HJ 167. JH Langbein, ‘Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources’ (1983) 50 University of Chicago Law Review 1. JH Langbein, ‘Albion’s Fatal Flaws’ (1983) 98 P&P 96. CB Little and CP Sheffield, ‘Frontiers and Criminal Justice: English Private Prosecution Societies and American Vigilantism in the Eighteenth and Nineteenth Centuries’ (1983) 48 American Sociological Review 796. DR Ernst, ‘The Moribund Appeal of Death: Compensating Survivors and Controlling Jurors in Early Modern England’ (1984) 28 AJLH 164. P King, ‘Decision-makers and Decision-making in the English Criminal Law 1750–1800’ (1984) 27 HJ 25. AWB Simpson, Cannibalism and the Common Law (Chicago University Press, 1984). WL Twining, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicolson, 1985). JM Beattie, Crime and the Courts in England, 1660–1800 (Clarendon Press, 1986). S Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’ (1990) 75 Cornell Law Review 497. R Bartlett ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 L&HR 221. A Stein, ‘From Blackstone to Woolmington: On the Development of a Legal Doctrine’ (1993) 14 JLH 14. DH Brown, ‘Abortive Attempts to Codify English Criminal Law’ (1992) 11 Parl Hist 1. N Rogers, ‘Policing the Poor in Eighteenth-Century London: The Vagrancy Laws and Their Administration’ (1991) 47 SH 127. J Horder, ‘The Duel and the English Law of Homicide’ (1992) 12 OJLS 419. JP Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (Yale University Press, 1995). P King ‘Punishing Assault: The Transformation of Attitudes in the English Courts’ (1996) 27 JIH 43. R Pattenden, English Criminal Appeals, 1844–1944: Appeals Against Conviction and Sentence in England and Wales (Clarendon Press, 1996). J Horder, ‘Two Histories and Four Hidden Principles of Mens Rea’ (1997) 113 LQR 95. D Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Clarendon Press, 1998). KJM Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957 (Oxford University Press, 1998). L Charlesworth, ‘Why Is It a Crime to be Poor?’ (1999) 21 Liverpool Law Review 149. R Pattenden, ‘The Exclusion of the Clergy from Criminal Trial Juries: An Historical Perspective’ (1999) 5 Ecclesiastical Law Journal 151. T Ward, ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860–1938’ (1999) 8 Social & Legal Studies 163. N Landau, ‘Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions’ (2000) 17 L&HR 507. L Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commission’ (2000) 18 L&HR 397. R Follet, Evangelicalism, Penal Theory and the Politics of Criminal Law Reform in England, 1808–1830 (Macmillan, 2001). B Godfrey and J Locker, ‘The Nineteenth Century Decline of Custom and its Impact upon Theories of “Workplace Theft” and “White Collar” Crime’ (2001) 38 Northern History 26.

698 Bibliography and Suggestions for Further Reading R Shoemaker, ‘Male Honour and the Decline of Public Violence in Eighteenth Century London’ (2001) 26 SH 190. T Ward, ‘Legislating for Human Nature: Legal Responses to Infanticide, 1860–1938’ in M Jackson (ed), Historical Perspectives on Child Murder and Concealment, 1550–2000 (Ashgate, 2002). JP Eigen, Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (John Hopkins University Press, 2003). P King, ‘Summary Justice and Social Relations in Eighteenth-Century England’ (2004) 183 P&P 125. R Shoemaker, ‘Streets of Shame? The Crowd and Public Punishments in London, 1700–1820’ in S Devereaux and P Griffiths (eds), Penal Practice and Culture, 1500–1900 (Macmillan, 2004). BP Smith, ‘The Presumption of Guilt and the English Law of Theft, 1750–1850’ (2005) 23 L&HR 133. P King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge University Press, 2006). KD Watson, ‘Medical and Chemical Expertise in English Trials for Criminal Poisoning, 1750–1914’ (2006) 50 Medical History 373. DD Gray, ‘The Regulation of Violence in the Metropolis: The Prosecution of Assault in the Summary Courts, c 1780–1820’ (2007) 32 London Journal 75. P Handler, ‘The Law of Felonious Assault in England, 1803–1861’ (2007) 28 JLH 183. B Godfrey, ‘Changing Prosecution Practices and Their Impact on Crime Figures, 1857–1940’ (2008) 48 British Journal of Criminology 171. S Banks, ‘Very Little Law in the Case: Contest of Honour and the Subversion of the English Criminal Courts, 1785–1845’ (2008) 19 King’s Law Journal 575. B Wright, ‘Criminal Law Codification and Imperial Projects: The Self-Governing Jurisdiction Codes of the 1890s’ (2008) 12 Legal History 19. K Whiteway, ‘The Origins of the English Court of Criminal Appeal’ (2008) 33 Canadian Law Library Review 309. WE Vaughan, Murder Trials in Ireland, 1836–1914 (Four Courts Press, 2009). KD Watson, ‘Is a Burn a Wound? Vitriol-throwing in Medico-legal Context, 1800–1900 in I Goold and C Kelly (eds), Lawyers’ Medicine: The Legislature, the Courts and Medical Practice, 1760–2000 (Hart, 2009). K Smith, ‘Criminal Law’ in W Cornish et al, The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development (Oxford University Press, 2010). P Handler, ‘Judges and the Criminal Law in England 1808–61’, in P Brand and J Getzler (eds), Judges and Judging in The History of the Common Law and Civil Law: From Antiquity to Modern Times (Cambridge University Press, 2012). P Handler, ‘Intoxication and Criminal Responsibility in England, 1819–1920’ (2013) 33 OJLS 243. CC Griffiths, ‘The Prisoners’ Counsels Act 1836: Doctrine, Advocacy and the Criminal Trial’ (2014) 2 Law, Crime and History 28. WE Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (Yale University Press, 2015). P Handler, ‘James Mackintosh and Early Nineteenth-Century Criminal Law’ (2015) 58 HJ 757. JP Eigen, Mad-Doctors in the Dock: Defending the Diagnosis, 1760–1913 (John Hopkins University Press, 2016). L Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford University Press, 2016). P Lawrence, ‘The Vagrancy Act (1824) and the Persistence of Pre-emptive Policing in England Since 1750’ (2017) 57 British Journal of Criminology 513. A Loughnan, ‘M’Naghten’s Case (1843)’ and P Handler, ‘DPP v Beard (1920)’ both in P Handler, H Mares and I Williams (eds), Landmark Cases in Criminal Law (Hart, 2017).

Policing C Reith, British Police and the Democratic Ideal (Oxford University Press, 1943). JM Hart, The British Police (Allen & Unwin, 1951). C Reith, A New Study of Police History (Oliver, 1956). H Parris, ‘The Home Office and Provincial Police in England and Wales, 1856–1870’ [1961] PL 230. TA Critchley, A History of Police in England and Wales, 900–1966 (Constable, 1967). G Thurston, The Clerkenwell Riot: The Killing of Constable Culley (Allen & Unwin, 1967). DGT Williams, Keeping the Peace: The Police and Public Order (Hutchinson, 1967). GW Rowlands and A Judge, The Night the Police Went on Strike (Weidenfeld and Nicolson, 1968). TA Critchley, The Conquest of Violence: Order and Liberty in Britain (Constable, 1970).

Bibliography and Suggestions for Further Reading 699 D Rumbelow, I Spy Blue (Macmillan, 1971). DF Smith, Sir George Grey at the Mid-Victorian Home Office (University of Toronto Press, 1972). WR Miller, Cops and Bobbies (Chicago University Press, 1973). PH Bayley, Police and Society (Sage, 1977). D Philips, Crime and Authority in Victorian England (Croom Helm, 1977). C Emsley, Policing and its Context, 1750–1870 (Macmillan, 1983). D Jones, Crime, Protest, Community and Police in Nineteenth Century Britain (Routledge, 1983). WW Pue, ‘The Criminal Twilight Zone’ (1983) 21 Alberta Law Review 335. J Davis, ‘A Poor Man’s System of Justice: The London Police Courts in the Second Half of the Nineteenth Century’ (1984) 27 HJ 309. C Steedman, Policing the Victorian Community: The Formation of English Provincial Police Forces, 1856–80 (Routledge, 1984). R Geary, Policing Industrial Disputes: 1893 to 1985 (Cambridge University Press, 1985). PT Smith, Policing Victorian London: Political Policing, Public Order and the London Metropolitan Police (Greenwood Press, 1985). B Porter, The Origins of the Vigilant State: The London Metropolitan Police Special Branch Before the First World War (Boydell, 1987). J Davis, ‘From “Rookeries” to “Communities”: Race, Poverty and Policing in London, 1850–1985’ (1989) 27 HWJ 66. D Hay and F Snyder (eds), Prosecution and Police in Britain (Oxford University Press, 1989). R Paley, ‘An Imperfect, Inadequate and Wretched System? Policing London Before Peel’ (1989) 10 Criminal Justice History 95. H Shpayer-Makov, ‘The Making of a Police Labour Force’ (1990) 24 JSH 109. C Emsley, Crime and Society in England, 1750–1900 (Longman, 1991) ch 9. CA Conley, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford University Press, 1991). D Taylor, ‘The Standard of Living of Career Policemen in Victorian England: The Evidence of a Provincial Borough Force’ (1991) 12 Criminal Justice History 108. RD Ingleton, The Gentlemen at War: Policing Britain 1939–1945 (Cranborne, 1994). P Levine, ‘Walking the Streets in a Way No Decent Woman Should: Women Police in World War I’ (1994) 66 JMH 34. G Budworth, The River Beat: The Story of London’s River Police Since 1798 (Historical Publications, 1997). D Taylor, The New Police in Nineteenth Century England: Crime, Conflict and Control (Manchester University Press, 1997). EA Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Stanford University Press, 1998). A Babington, A House in Bow Street: Crime and the Magistracy, London 1740–1881 (Barry Rose, 1999). RM Douglas, Feminist Freikorps: The British Voluntary Women Police, 1914–1940 (Praeger, 1999). D Philips and RD Storch, Policing Provincial England, 1829–1856: The Politics of Reform (Leicester University Press, 1999). H Taylor, ‘Forging the Job: A Crisis of “Modernization” or Redundancy for the Police in England and Wales, 1900–1939’ (1999) 39 British Journal of Criminology 113. CA Williams, ‘Counting Crimes or Counting People: Some Implications of Mid-Nineteenth Century British Police Returns’ (2000) 4 Crime, History and Societies 77. JM Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford University Press, 2001). M Clapson and C Emsley, ‘Street, Beat and Respectability: The Culture and Self-Image of the Late Victorian and Edwardian Urban Policeman’ (2002) 16 Criminal Justice History 107. D Taylor, Policing the Victorian Town: The Development of the Police in Middlesborough c 1840–1914 (Macmillan, 2002). AT Harris, Policing the City, Crime and Legal Authority in London, 1780–1840 (Oxford University Press, 2004). G Mason, The Official History of the Metropolitan Police (Carlton, 2004). BP Smith, ‘The Emergence of Public Prosecution in London, 1790–1850’ (2006) 18 Yale Journal of Law & the Humanities 29. D Taylor, ‘Melbourne, Middlesborough and Morality: Policing Victorian “New Towns” in the Old World and the New’ (2006) 31 SH 15. L Zedner, ‘Policing Before and After the Police: The Historical Antecedents of Contemporary Crime Control’ (2006) 46 British Journal of Criminology 78.

700 Bibliography and Suggestions for Further Reading J Beattie, ‘Garrow and the Detective: Lawyers and Policemen at the Old Bailey in the Late Eighteenth Century’ (2007) 11 Crime, History & Societies 5. C Emsley, Crime, Police and Penal Policy: European Experiences, 1750–1940 (Oxford University Press, 2007). BP Smith, ‘Criminal Justice Administration, 1650–1850: A Historiographic Essay’ (2007) 25 Law and History Review 593. FM Dodsworth, ‘The Idea of Police in Eighteenth-Century England: Discipline, Reformation, Superintendence, c 1780–1800’ (2008) 69 Journal of the History of Ideas 583. B Godfrey, ‘Changing Prosecution Practices and Their Impact on Crime Figures, 1857–1940’ (2008) 48 British Journal of Criminology 171. C Emsley, Crime and Society in Twentieth Century England (Longman, 2011). GR Rubin, ‘Calling in the Met: Serious Crime Investigation Involving Scotland Yard and Provincial Police Forces in England and Wales, 1906–1939’ (2011) 31 LS 411. H Shpayer-Makov, The Ascent of the Detective: Police Sleuths in Victorian and Edwardian England (Oxford University Press, 2011). CA Williams, ‘Rotten Boroughs: The Crisis of Urban Policing and the Decline of Municipal Independence 1914–64’ in CA Williams (ed), Police and Policing in the Twentieth Century (Ashgate, 2011). JM Beattie, The First English Detectives, The Bow Street Runners and the Policing of London, 1750–1840 (Oxford University Press, 2012). M Koyama, ‘Prosecution Associations in Industrial Revolution England: Private Providers of Public Goods’ (2012) 41 Journal of Legal Studies 95. S Shute, ‘Serving Their Political Masters: The Development of Criminal Justice Inspection in England and Wales: Prisons and Police’ (2013) 11 Crim LR 889. DC Churchill, ‘Rethinking the State Monopolisation Thesis: The Historiography of Policing and Criminal Justice in Nineteenth-Century England’ (2014) Crime, History and Societies 131. M Koyama, ‘The Law and Economics of Private Prosecutions in Industrial Revolution England’ (2014) 159 Public Choice 277. P Lawrence (gen ed), The Making of the Modern Police, 1780–1914, vols 1–6 (Pickering & Chatto, 2014). DL Smith, ‘Securing the Englishman’s Castle: Situational Crime Prevention in the Nineteenth Century’ (2014) 40 Victorian Literature and Culture 263. SJ Brown, ‘An “Insult to Soldier’s Wives and Mothers”: The Woman’s Dreadnought’s Campaign against Surveillance on the Home Front, 1914–1915 (2016) 7 Journal of Modern Periodical Studies 121. DG Barrie, ‘Policing Before the Police in the Eighteenth Century: British Perspectives in a European Context’ and C Emsley, ‘Crime and Policing in Wartime’, both in P Knepper and A Johansen (eds), The Oxford Handbook of the History of Crime and Criminal Justice (Oxford University Press, 2016). D Churchill, Crime Control and Everyday Life in the Victorian City: The Police and the Public (Oxford University Press, 2017). K Stevenson, DJ Cox and I Channing (eds), Leading the Police: A History of Chief Constables 1835–2017 (Routledge, 2018). M Fraser, Policing the Home Front 1914–1918: The Control of the British Population at War (Routledge, 2019).

Military Law PH Winfield, ‘Courts-martial from the Lawyer’s Point of View’ (1918) 34 LQR 143. JR Western, The English Militia in the Eighteenth Century, 1660–1802 (Routledge, 1965). AN Gilbert, ‘Law and Honour Among Eighteenth-century British Army Officers’ (1976) 19 HJ 75. AN Gilbert, ‘Military and Civilian Justice in Eighteenth-Century England: An Assessment’ (1978) 17 JBS 41. AN Gilbert, ‘British Military Justice During the American Revolution’ (1979) 20 Eighteenth Century 24. SR Frey, ‘Courts and Cats: British Military Justice in the Eighteenth Century’ (1979) 43 Military Affairs 5. JR Dinwiddy, ‘The Early Nineteenth-Century Campaign Against Flogging in the Army’ (1982) 97 EHR 308. EE Steiner, ‘Separating the Soldier from the Citizen: Ideology and Criticism of Corporal Punishment in the British Armies, 1790–1815’ (1983) 8 SH 19. P Burroughs, ‘Crime and Punishment in the British Army, 1815–1870’ (1985) 100 EHR 545. GA Steppler, ‘British Military Law, Discipline, and the Conduct of Regimental Courts Martial in the Later Eighteenth Century’ (1987) 102 EHR 859.

Bibliography and Suggestions for Further Reading 701 GR Rubin, ‘The Legal Education of British Army Officers, 1860–1923’ (1994) 15 JLH 223. GR Rubin, ‘Parliament, Prerogative and Military Law’ (1997) 18 JLH 45. GR Rubin, ‘Military Law in World War One’ (1998) 143 Royal United Services Institute Journal 58. J McHugh, ‘The Labour Party and the Parliamentary Campaign to Abolish the Military Death Penalty, 1919–1930’ (1999) 42 HJ 233. GD Sheffield, Leadership in the Trenches: Officer-Man Relations, Morale and Discipline in the British Army in the Era of the First World War (Macmillan, 2000). GR Rubin, ‘Court-martial Jurisdiction and Ex-service Personnel: The “Boydell Gap” (1948) Revisited’ (2000) 21 JLH 67. G Oram, ‘“The Administration of Discipline by the English Is Very Rigid”: British Military Law and the Death Penalty’ (2002) 5 Crime, History and Societies 93. G Oram, ‘“The Greatest Efficiency”: British and American Military Law, 1866–1918’ in BS Godfrey et al (eds), Comparative Histories of Crime (Willan Publishing, 2003). G Oram, Military Executions During World War I (Palgrave Macmillan, 2003). G Daly, ‘Napoleon’s Lost Legions: French Prisoners of War in Britain, 1803–1814’ (2004) 89 History 361. GR Rubin, Murder, Mutiny and the Military: British Court Martial Cases, 1940–1966 (Francis Boutle, 2005). P Chamberlain, Hell Upon Water, Prisoners of War in Britain 1793–1815 (History Press, 2008). K Costello, ‘Habeas Corpus and Military and Naval Impressment, 1756–1816’ (2008) 29 JLH 215. JS Anderson, ‘The Army’ in W Cornish et al, The Oxford History of the Laws of England: Volume XI: 1820–1914 English Legal System (OUP, 2010). SM Miller, ‘Duty or Crime? Defining Acceptable Behaviour in the British Army in South Africa, 1899–1902’ (2010) 49 JBS 311. J McDermott, British Military Service Tribunals, 1916–18: ‘A Very Much Abused Body of Men’ (Manchester University Press, 2011). C Emsley, Soldier, Sailor, Beggarman, Thief: Crime and the British Armed Services Since 1914 (Oxford University Press, 2013). WP Tatum III, ‘“The Soldiers Murmured Much on Account of this Usage”: Military Justice and Negotiated Authority in the Eighteenth-Century British Army’ in K Linch and M McCormack (eds), Britain’s Soldiers: Rethinking War and Society, 1715–1815 (Liverpool University Press, 2014). M McCormack, Embodying the Militia in Georgian England (Oxford University Press, 2015) ch 2. K Linch, ‘Desertion from the British Army During the Napoleonic Wars’ (2016) 49 JSH 808. C Emsley, Exporting British Policing During the Second World War: Policing Soldiers and Civilians (Bloomsbury Academic, 2017).

702

INDEX NB–locators in bold refer to information in tables accidents: accident insurance, 484–86 breach of statutory duties, 489–91 compensation, see compensation factories, 457, 459–60 mining, 459 negligence, see negligence personal injuries, 457–60 safety legislation, 487–91 transport injuries, 458–59 volenti non fit injuria, 491 see also liability accidents at work: duty of care, 462 employers’ liability, 480–81, 491–98 insurance, 498 accountability, 15 executive accountability, 24, 30 government agencies, 26–27 legal profession, 104 nationalised industries, 264 agencies, see government agencies agriculture: agrarian revolution, 117–18 agricultural leases, 135–37 agricultural relief, 83–84 see also taxation see also enclosure; tithes altruism, 65 anti-competitive practices: Board of Trade, 262 cartels, 77, 185, 257 Germany, 257 government controls, 262–63 interwar years, 262–63 markets sharing, 259 monopolies, 258–60 profiteering, 261–62 protectionism, 257 restraints of trade, 258 trade union agreement, 259–60 unfair competition, 260–61 United States, 257–58

apprenticeships, 277, 290 compulsory apprenticeships, 281 education of apprentices, 413 guilds, 282–83 labour disputes, 284 new model unions, 300 pupil-teacher apprenticeships, 414, 450 settlement rules, 395 arbitration, 32, 33, 91–92 commercial disputes, 9, 51–52, 220 compulsory arbitration, 310–11, 315–16, 331–32 wage arbitration, 324 employment, 310–11, 315–16, 331–32, 324 industrial accidents, 504–5 referral by the courts, 51 role, 50 WWII, 337–38 Asquith, H.H. (Prime Minister: 1908–16), 96, 322 Chancellor, as: income tax, 84 non-contributory pension scheme, 428 Home Secretary, as: civil unrest, 575 common employment, 498 contracting out, 498 wage strikes, 325 Attlee, Clement (Prime Minister: 1945–51), 113, 193 Local Education Authorities, 455 voluntary organisations and charities, 446 attorneys, 62–63 barristers, relationship with, 105–6 legal training, 102–3 bailments, 231 Baldwin, Stanley (Prime Minister: 1923–24; 1924–29; 1935–37): employment, 335, 337 Balfour, Arthur James (Prime Minister: 1902–05): Royal Commission on the Poor Law, 425 Bank of England, 8 hire purchase, 237 prohibition of banking partnerships, 245 public accounts, 30

704 Index bankruptcy: administration of, 9 bills of sale, 234–35 contract law, 219 national financial impact, 230 origins, 225–26 reform, 227–28 Erskine Commission, 229 failure, 229–30 Insolvent Debtors Court, 229 Official Receivers, 230 process of absolution, 228 seizure of assets, 226–27 small businesses, 226 banks, 251 banking partnerships, 245 capital investment, 255 hire purchase, 237 joint stock banks, 245–46, 249 barristers, 59–62 attorneys, relationship with, 105–6 county courts, 52 court administration, 98, 99 legal services for the poor, 101 legal training, 103–4 solicitors, relationship with, 105–7 Beccaria, Cesare (Italian criminologist): criminal justice, 545–46 Bentham, Jeremy (Philosopher): criminal reform, 546, 557, 559, 579–80, 588, 600–1 individualism, 107 interest rates, 221–22 sinister interest, 66 utilitarianism, 67–70, 168–69 marriage and divorce, 362, 364 bills of sale, 231, 234–36 hire purchase compared, 236 Bevan, Aneurin (Secretary of State for Health), 444 Beveridge, William (Economist): Beveridge Report, 439–41, 500 charities, role of, 445–47 industrial injuries, 505–7 labour exchanges, 425 national health service, 443–44 social security, 113, 441–43 national insurance, 338 pensions, 428–29 unemployment relief, 426–27, 434, 438 Blackstone, William (Jurist): bankruptcy, 226 Commentaries on the Laws of England (1765–69), 10–11, 13, 195, 343–44 contract law, 195 master and servant relationship, 281 father’s duties to the family, 351

individual liberty, 11, 35, 67 master and servant relationship, 281 nuisance, 158 vicarious liability, 463 Bloody Code, 579 criminal courts, 48–49 criminal offences, 510–13 property offences, 534–35 repeal, 546 Board of Trade, 24, 70, 89 accident insurance, 485 arbitration, 331, 431 bankruptcy, 230 benefit disputes, 431 company law reform, 246–47, 249 contracting out, 498 external inspections, 487 monopolies, 262 pay and working conditions, 316 Boer War, 428 health of population, 429 military spending, 22 breach of contract, 205–6 employment, 307–8 Brougham, Henry Peter, Baron Brougham and Vaux (Politician and Lord Chancellor): 53–54, 69–70, 153–54, 168–69, 175, 228, 270, 357, 363, 377, 400–1, 413, 463–64, 579–80 Bubble Act (1720), 243 repeal, 244–45 building leases, 147–48 building standards, 148–49 obligations, 149 default rules, 149 contractual provisions, 149 freehold, 148 ground rent, 148 remedies: distress, 149–50 ejectment, 149–50 suing for rent, 149 settlement system, 171 building societies, 62, 111, 151–52, 380 Burke, Edmund (Philosopher), 10–11, 13, 67 Burlamaqui, Jean-Jacques (Political theorist), 10–11 business and commercial practice, 216 adaption of contract law, 217 establishment of ‘commercial law, 218–19 impact of contract law, 219–20 marine insurance, 217–18 bye-laws, 14 communal decision-making, 138 public health, 166–67 trade regulation, 277

Index 705 Campbell-Bannerman, Henry (Prime Minister: 1905–08), 322–23 canal building: compulsory purchase, 155–56 corporations, 241, 246 nationalisation, 264 capital punishment: abolition: calls for, 552–53 public executions, 556–57 decline, 535, 544, 551 deterrent effect, 551 exemplary executions, 551–52 Howard League, 612–13 public executions, 534, 555–56 reform, 553 property crimes, 553–54 caveat emptor, 200 caveat venditor, 200 central government, 20–21 civil servants, 89 departments, creation of, 88–89 expansion, 88–90 local government, relationship with, 29–31 reform, 88–90 certiorari, 14, 46–48, 50 Chadwick, Edwin (Social reformer and Administrator), 19, 68, 70 Chadwick Report, 161–63 child labour, 292 criticisms of the Poor Law, 403 outdoor relief, 405 Factory Act, 71, 293 National Society for the Promotion of Social Sciences, 181 pecuniary responsibility, 487, 494 police reforms, 571, 572 social reform, 71–72, 161 General Board of Health, 163–64 railways, 476 working hours, 292 Chadwick Report, 162–63 origins, 161–62 Chamberlain, Joseph (Politician), 77, 90, 171, 182, 424, 428, 495 Chamberlain, Neville (Prime Minister: 1937–40): administration of poor relief, 438–39 market protectionism, 76–77 Minister for Health rent control, 186–87 pensions reform, 434 Workmen’s Compensation Act, 500, 502–3

charities and charitable giving: charitable aims, 392–93 cy près doctrine, 398–99 exploitation, 399 charitable trusts, 398–99 ecclesiastical giving, 389 endowed charities: endowment law, 389–93 land, inheritance and heirs, 391–92 perpetuity, 391 industrial revolution, 397–99 new Poor Law, 401–11 Poor Law, 393–97 Reformation, 389 Victorian benevolence, 393, 399–401 welfare state, relationship with, 445–46 see also Poor Laws Charity Commissioners: cy près schemes, 398, 409 Charity Commission, 400–1, 445–47 Disraeli, 419 Chartist movement, 17–18, 73–74 civil unrest, 573 increased activity, 571 opposition to workhouses, 405 worker collectivism, 299–300 Chartist Land Company, 73–74, 170 child labour, 273 agriculture, 290 Chadwick Report, 292–93 coal mines, 290 safety provisions, 488–89 Health and Morals of Apprentices Act, 290–91, 413 other trades, 295 textiles, 290–91 safety provisions, 488–89 working hours, 291–95, 488–89 child welfare: adoption, 385–87 reforms, 384–85 state control, 385 voluntary organisations, 384–85 children: adoption, 385–87 child labour, see child labour custody of children, 352 Custody of Children Act (1891), 385 equity, 352–53 illegitimate children, 353–54 judicial divorce, 367, 368–69 welfare of the child, 381–82 deprived children: education, 382 farmed children, 383 institutionalisation, 382

706 Index fathers’ obligations to, 351–52 illegitimate children, 351 custody rules, 353–54 legitimation, 386 National Society for the Prevention of Cruelty to Children, 384 schooling, see education Children Act (1908), 383, 385 Church of England, 2, 71 divorce, 361, 364–65 government expenditure on education, 414 judiciary, 38 marriage, 345 annulment, 356 Church’s declining role, 361, 364–65 marriage breakdown, 355–56 poverty relief, 389 property and land, 115, 391 tithes, 144–47 schools and education, 416, 419, 454–55 separation from the state, 363 Churchill, Winston (Chancellor of the Exchequer: 1924–29), 86–87 Churchill, Winston (Prime Minister: 1940–45; 1951–55) nationalisation policies, 425 post-war strategy, 440 welfare strategy, 427, 440 civil courts: chancery: equity, 43–44 procedure, 43–44 court system, 32 Court of Admiralty, 45 courts of common law, 40–41 complexity of litigation, 42 judges, 42 jury trials, 41 representation, 42 courts of request/conscience, 46–47 courts of the county palatinates, 45 ecclesiastical courts, 44–45 jury trials, 41, 93 manor courts, 45–46 procedures, development of, 47–48 regional courts, 45 civil unrest, 15–16 Chartist movement, 573 Corn Laws, 169, 299, 573 Luddites, 283 policing, 530–32 advantages of processional police force, 573–75 class structure of society, 2–3, 75–76 emergence of middle class, 4–5, 17 inequality in criminal law, 512–13

imprisonment for debt: impact on poor, 224–25 petitions for bankruptcy, 224–25 see also middle classes coal industry, see mining collective action: collective bargaining, 112, 283–84, 311, 316, 329, 340 early trade unions, 284 industrial revolution, 283 regulation, 283–84 Trade Boards, 324–25 see also strikes; trade unions collectivism, 64–65, 107, 309–10 bankruptcy processes, 231 see also collective action colonies: transportation to, 6, 48 Americas, to, 535–37 American Revolutionary War, impact of, 536–37 Australia, 6, 537–38, 548–51 decline of capital punishment, impact of, 535, 551 reform, 548–51 resistance, 549 commerce, see business and commercial practice; company law; contract law; equity; insolvency; patent system commercial disputes: arbitration, 9, 51–52, 220 common employment doctrine, 506 abolition, 491, 496, 498, 509 accidents, 469–72 accident insurance, 486 breach of statutory duty, 391 death, 476 duty of care, 480–81 employers’ liability, 482, 491–94 identification, 474 limitation of liability, 486 occupiers’ liability, 478–79 vicarious liability, 206, 481 common rights: enclosure, 137–38 company law, 9 large businesses: increasing number, 255 shareholders, 256–67 stock exchange, 255–56 law of incorporation, 77 limited liability companies, see limited liability companies private and public companies distinguished, 254–55

Index 707 reform: law of partnership, 246 limited liability, 246 registration of joint stock companies, 247–48 small businesses: bankruptcy, 226 increasing number, 252–53 one-man companies, 253–54 compensation, 209 accidents: common employment, 469–72 contributory negligence, 468–69, 473–74 death, 473–77 duty of care, 477–81 master and servant, 469–72 measure of damages, 466–67 negligence, 460–62 vicarious liability, 463–66 voluntary assumption of risk, 472–73 see also contributory negligence; liability; measure of damages competition, see anti-competitive practices; unfair competition compulsory purchase, 155–56 canals, 156 railways, 156–57 slum clearance, 157, 181 Conservative Party, 80–81 consideration doctrine, 195, 198, 201–2, 204 benefit/detriment consideration, 201 enforceable promises, 201 liability, 201–2 misrepresentation, 200, 203 privity of contract, 202–3 contingent fees, 100–1 contract law, 10, 194–95 breach of contract, 205–6 business and commercial practice, 216 adaption of contract law, 217 establishment of ‘commercial law, 218–19 impact of contract law, 219–20 marine insurance, 217–18 common law pre-1876, 207 breach of contract, 205–6 consideration doctrine, 201–4 damages, 306 duress, 203–4 frustration, 204–5, 214 improper pressure, 203–4 misrepresentation, 200, 203, 209 mistake, 203–4 non-enforcement of contracts, 203–4 obligations, 195 offer and acceptance, 198–99

performance, 204–5, 215–16 promise, 198, 201–3 small print, 199–200 warranties, 200 consideration doctrine, 195, 198, 201–4 equity law pre-1876: compensation, 209 execution of contract, 209 jurisdiction, 209–10 mistakes, 211 non-enforcement of contracts, 209–10 obligations, 208–9 origins, 207–8 promises, 208 unconscionable bargains, 210–11 undue influence, 210 post-1876, 211–12 execution of contract, 214–16 liability, 213–14 misstatement, 212 mistake, 214 negligent misrepresentation, 212 part performance, 212–13 third party rights, 213 mortgages, 215 origins, 194–97 privity of contract, 195, 202–3 contracting out, 337, 494, 496–98, 499 contributory negligence: accidents, 468–69 compensation, 473–74 duty of care, 480 identification, 473–44 liability, 508–9 proportionate damages, 482 reform, 482 voluntary assumption of risk, 472–73 conveyancing reform 173–75 inheritance of property, 175, 179 Real Property Commission, 175 Real Property Limitations Act, 175 register of deeds and titles, 175–76 Settled Land Act, 171–72, 177–79 copyhold, 118, 133 copyhold of inheritance, 134 decline, 135 duration, 134 fixed rents, 134 leasehold compared, 133–34 rights of copyholders, 134 Corn Laws, 5 civil unrest, 169, 299, 573 laissez-faire, 68, 70 repeal, 8, 17, 88, 116

708 Index corporal punishment: vagrants, 397, 533 young offenders, 563, 565, 611–12 corruption of local government, 18–19, 21 county courts, 33 contract claims, 214 employment contracts, 309 creation, 52–53 debt enforcement actions, 223–24 hire purchase, 238 Divisional Court, 56 divorce, 372, 374 employment claims: contract disputes, 309 relief claims, 95 workmen’s compensation claims, 91, 298, 432, 501–5 health insurance, 431 judges, 39, 46 legal aid, 102 reform, 55 rent control, 91, 185 monetary limits on claims, 92, 105 County Assizes, 19, 31 Court of Admiralty, 32, 33, 45 reform, 56 Court of Chancery, 31–32 charity administration, 400 divorce, 350, 358–59, 363–64 equity, 43–44 trustees, 122–23 married women’s property, 350, 358–59 parens patriae jurisdiction, 352–53, 381–82 procedure, 43–44 reforms, 55–56 strict settlements, 122–23 Court of Common Pleas, 15, 166, 464 Court of Criminal Appeal, 92, 601–2 insanity plea, 604–5 judges, 602 law of evidence, 602–3 murder cases, 604–5 presumption of innocence, 605 prior conduct, 603–4 substantive law, 602–4 court system: civil courts, see civil courts court administration, 98–99 criminal courts, see criminal courts inter-war years, 95–96 jurisdictions, 31–35 civil disputes, 32 criminal disputes, 33, 34 legal aid, 100–2 Poor Persons Procedure, 100–2

post-Judicature Acts, 91–96 reform, 52–54 superior courts, 54–57 see also arbitration; individual courts courts of common law, 14, 40–41, 56 complexity of litigation, 42 debt enforcement, 222 judges, 42 jurisdiction, 14 jury trials, 41 representation, 42, 58 courts of request/conscience, 32, 46–48 debt enforcement, 223–24 replacement by country courts, 52–54 courts of the county palatinates, 32, 45 crime and its causes: innate character, 590–91 moral problem, crime as a, 589–90 poverty, 589–90 criminal courts: Bloody Code, 48–49 Court of Criminal Appeal, 92 court system, 33, 34 criminal procedure, 49–50 ecclesiastical courts, 48 juries, 36, 541 trial process, 538–42 see also individual courts criminal justice: Beccaria, Cesare, 545–46 capital punishment, 534–35 consistency, need for, 545–46 debtors, 222–25, 537 hard labour, 606 public punishments, 533 decline, 533–34 punishment: consistency and proportionality, 545–46 gendered punishments, 532–33 punitive prison, 547–48 torturous nature, 532 sentencing, 541–42 systems of correction, development of, 533–34 transportation, 535–36 reform, 548–51 criminal law: codification, 579–81 Criminal Law Commissioners, 579–80 Europe, 579 homicide, 581–83 irrelevance of mens rea, 585–87 negations of mens rea, 583–85 due process, 588–59

Index 709 homicide offences: constructive malice, 582–83 malice and intent, 582 manslaughter, 581–82 murder distinguished, 582 proportionality principle, 582–83 mens rea defence: compulsion, 583 insanity, 583–84 irresistible impulse, 584–85 self-defence, 583 prosecution societies, 515–16 state’s domain, 513–14 strict liability, 585–86 substantive law: homicide, 581–83 irrelevance of mens rea, 585–87 negations of mens rea, 583–85 strict liability, 585–86 vicarious criminal liability, 585–86 summary hearings, 515 trial by ordeal, 513–14 trial process, 538–42 vicarious criminal liability, 585–86 criminal offences: agricultural decline, impact of, 521–22 Game Laws, 522 poaching, 522–23 common law offences, 516 labour relations, 306–7, 520–21 property offences, 516, 542–43 quantifying crime, 518 offences against the person, 518–19 offences against property, 519–20 smuggling, 523–24 treason, 516 Crown: declining authority, 16–17 Privy Council, 13 royal absolutism, 10 royal authority, 10–12 cy près schemes, 390, 392–93, 398–99, 409, 418–19 damages: accidents: measure of damages, 466–68 see also compensation death: negligence: compensation, 474–75 deodands, 475–77 death duties, 82, 132, 173 see also taxation

death penalty, see capital punishment debt and debtors, 220–21 imprisonment for debt: abolition, 224 arrest on final process, 222 arrest on mesne process, 222–23 enforcement rules, 223–24 impact on poor, 224–25 petitions for bankruptcy, 224–25 interest rates, 221–22 usury laws, 221 see also bankruptcy; insolvency; secured credit deceit, 202, 212, 507 deed of settlement companies, 243–44 Dicey, A. V. (Jurist and Constitutional Theorist), 61 collectivism, 107, 111, 309–10 laissez-faire age, 67–68 rule of law, 94 Disraeli, Benjamin (Prime Minister: 1868; 1874–80) charity regulation, 419 rate relief, 83–84 social reforms, 308–9 divorce: divorce by private act, 356–57, 362–63 divorce for adultery alone, 374–75 growing criticism of, 375 grounds for divorce: adultery, 374–75 cruelty, 375 desertion, 375 incurable insanity, 375 judicial divorce, 362–64 absolute bars to decrees, 366–67 alimony, 367, 368 collusion, 367 condonation, 367 connivance, 366–67 cost of divorce, 365–66 criminal sanctions, 364 custody/access rights, 367, 368–69 decree absolute decree nisi Divorce Court, 364–65 increase in divorce rates, 365 right to remarry, 364 scandalous nature of divorce, 365 legal aid schemes, 375–76 maintenance, 358 opposition to divorce, 373–74 when marriages could be ended, 372–73 wives petitioning for, 357–58 Doctors’ Commons, 44 domestic violence, 369 husbands’ right to confine spouse, 370–71 lower classes, 370

710 Index ‘respectable classes’, 370 wife-battering, 370 duress: contract law, 204 duty of care, 477–78 employers’ liability, 480–81, 491–98 occupiers’ liability, 478–79 products liability, 479–80 ecclesiastical courts: charities, 390 civil law, 44–45 criminal law, 48 decline, 518 jurisdiction, 44, 55 criminal jurisdiction, 517–18 marriage breakdown, 355–56 marriage breakdown, 347, 355–56, 357, 358–60, 362–65 economic growth, 6–7 bankruptcy, 9 company law, 9 intellectual property law, 9, 268–69 law, impact of, 7–8 national decline, 76–79 patent system, impact of, 268–69 education, 273, 388 apprentices, 413 central and local government control, 411–12 charitable status of schools, 411, 412 Church of England, 412–13 non-denominational schools, 412–13 religious rivalry, 413 voluntary day schools, 412 compulsory education, 421–22, 455 local government responsibility, 422–23 resistance by parents, 423 deprived children, 382, 412 elementary teaching, 412–15 funding: grants for equipment, 414 school-building programmes, 414 grammar schools, 415–19 see also grammar schools modern system, development of: Bryce Commission, 448 Education Act, 447–52 Local Education Authorities, 449–50 non-conformist criticisms, 451 technical education, 447 Newcastle Commission, see Newcastle Commission on popular education parochial schools, 413 religious education, 414–15 dissenting parents, 417–18

Education Act (1902), 447–52 Education Act (1944), 454–56 egoism, 65 employers’ liability, 480–81 criticisms, 491–92 common employment, 492, 493–94 abolition, 496 volenti non fit injuria, 492 Europe, 494–95 Workman’s Compensation Act, 495 employment: agriculture and farm workers, 274–75 apprenticeships, 282–83 breach of contract, 307–8 casual labouring, 276–77 child labour, 273 collective action, see collective action common employment, 469–72, 492, 493–94 abolition, 496 combinations against employers, 284–86 Combination Act, 286–88 conspiracy offences, 307–8 Conspiracy and Protection of Property Act, 309 end of, 309 contracting out, 497–98 criminal provisions in labour laws, 306–7 friendly societies, 284–85 interwar years, 332–37 master servant relationship, 275–76, 280–81 regulation, 273 factory regulation, see factory regulation guilds, 282–83 journeyman wages, 280 pre-industrialisation, 278–80 sanctions for employees, 281–82 Statute of Artificers, 278–79, 282 trades, 277 tramping system, 285 WWI, 330–32 WWII, 337–40 see also employment contracts; labour relations; self-employment; trade unions enclosure: common rights, 137–38 enclosure commissioners, 141–42 harassment by landowners, 138–39 impact: poverty and destitution, 142–43, 393–94, 397–98 productivity, 143–44 village communities, on, 142–43 injunctions, 139 non-parliamentary enclosure, 138–39 parliamentary enclosure, 139–41

Index 711 equity: contract law: compensation, 209 execution of contract, 209 jurisdiction, 209–10 mistakes, 211 non-enforcement of contracts, 209–10 obligations, 208–9 origins, 207–8 promises, 208 unconscionable bargains, 210–11 undue influence, 210 Court of Chancery, 43–44 strict settlements, 122–23 ethical theories: altruism, 65 collectivism, 64–65 egoism, 65 eugenics, 108 idealism, 65–67 individualism, 64–65 modified liberalism, 107–8, 110 positivism, 108–9 socialism, 72–74, 109–10 utilitarianism, 67–70 eugenics, 108 criminals, 592 evidence, law of, 602–3 executive government: 18th century, 18–21 19th century central and local government relations, 29–31 central government, 88–90 local government, 28–29, 90–91 national agencies, 21–27 expropriation of land, see compulsory purchase Factory Act (1833), 293–94 Factory Act (1844), 488–90 factory regulation: children: Chadwick Report, 292 child labour, 290–91 Factory Act (1833), 293–94 Health and Morals of Apprentices Act, 290–91, 413 see also child labour compensation for accidents, 489–90 Factory Act (1833), 293–94 Factory Act (1844), 488–90 safety inspections, 487–91 family structure, 1–2, 74–75, 341–44 see also children; divorce; marriage; women

farming, see agriculture fault liability, 484–85, 495, 507–9 feudalism, 115–18 First World War: anti-competitive practices, 257, 263 conscription, 338 government reform, 89 jury trials, 92–93 labour, 330–31 compulsory arbitration, 331–32 essential work, 338 labour shortages, 597 munitions workers, 331–32, 608 trade union membership, 331 land holding, 75, 172–73 military spending, 86 rent control, 184–85 service, decline of, 275 food prices: charitable giving, impact on, 393 civil unrest, 530 Corn Laws, 8, 17 enclosure, impact of, 138 population growth, 274 tithes, 145–46 wage demands, 289 war, impact of, 258 fraud: contracts law, 212–13, 217 conveyance to defraud creditors, 201–2, 226, 228 debt, 223–24, 235 defrauding women, 92, 602 jurisdiction, 210, 213–14, 220 Statute of Frauds, 132, 174, 198, 209, 212 unincorporated joint stock companies, 244–45, 246, 247 freehold, 4, 115, 119, 148–49, 153, 168, 169–70 conveyancing, 174–75 fee simple freeholds, 179 franchise, 12, 16 married women’s property, 348, 350–51 mortgages, 129 strict settlement, 120–22 trusts for sale, 150–51 friendly societies: anti-competitive practices, 304, 306 box clubs, 284 building societies, 152 employment disputes, 284–85, 287 see also trade unions health insurance, 430, 441 membership, 285 pensions, 428 frustration of contract, 204–5, 214–15

712 Index General Board of Health, 163–64 General Strike (1926), 78–79, 335–37, 340, 437–38, 596, 598 Gladstone, Herbert (Politician): prison reform, 606, 607, 609, 613–14 Gladstone, William Ewart (Prime Minister: 1868–74; 1880–85; 1886; 1892–94) householdership, 79–80 land, 172 President of the Board of Trade, as, 247 taxation, 81–84, 86, 446 trade unions, 306–8 government agencies, 21–23 accountability, 26–27 bureaucracy, 27 legal framework, 27–28 legal status, 24 powers, 25–26 government legal services, 97, 100–2 government spending, 22–23 central government, 81–82 local government, 82–83 war: Boer War, 22 WWI, 86 grammar schools, 415–19 Great Sessions of Wales, 45 Grey, Charles, 2nd Earl Grey (Prime Minister: 1830–34), 403 Grotius, Hugo (Dutch jurist), 10–11 habeas corpus, 14–15, 35, 49, 352, 385 hard labour, 537, 562, 606 breach of contract, 561 employment contract, 281–82, 289 master and servant relationship, 301, 307 Health and Morals of Apprentices Act (1802), 290–91, 413 health and safety in the workplace, see accidents; employers’ liability; employment; Workman’s Compensation Act hire purchase, 236 bills of sale compared, 236 consumer protection, 238–39 deposits and repayments, 239 motor cars, 237 pawnbrokers, 237–38 repossession, 237–38 threats to, 236–37 Hobbes, Thomas (Philosopher), 65, 194–95 homicide offences: constructive malice, 582 proportionality principle, 582–83

malice and intent, 582 manslaughter, 581–82 murder distinguished, 582 homosexuality, 601, 603 House of Commons, 80–81, 119–20 House of Lords, 12, 14, 32, 33 householdership, 79–80 housing: building subsidies, 187–89 Chadwick Report, 162–63 Cross Act, 181–82 developers, 147–50 housing quality, 162–63 insanitary conditions, 180 over-crowding, 180 slums clearance, 157, 181–82, 190 social reform, 179–81 interwar years: housing shortage, 182–84 provision of working-class housing, 157, 188–89 rent control, 185–87, 189 rent strikes, 184–85 Torrens Act, 181–82 see also planning Hume, David (Philosopher), 10–11, 67 idealism, 65–67 ideologies, see ethical theories illegitimate children, 351 custody rules, 353–54 settlement, 395 stigma of, 385–86 improper pressure: contract law, 204 income tax, 81–84, 86–88, 446 see also taxation Incorporated Law Society, 63, 175–76 Independent Labour Party, 80, 107 individualism, 64–65 indoor relief, 404–5, 408, 437 industrial action, see strikes industrial diseases, 505–6 industrial injury: state benefits, 500, 505–6 industrial revolution, see industrialisation industrialisation, 6–7 court system, see court system economic growth, see economic growth ethical ideologies, see ethical theories factory regulation, see factory regulation government, changing nature, 18–31 legal profession, see attorneys; barristers mechanisation, impact of, 277–78 politics, changing nature, 10–18

Index 713 society, evolution of, 1–6 technological innovation, 265 patent system, 266–69 injunctions, 43, 56, 139, 158–59 contract law, 198 breach of employment contract, 339 suits against trade unions, 80, 317–19, 321, 327, 330, 336 Inns of Court, 59–61, 103, 105–6 insanity: criminal law, 583–84, 604–5 divorce, 373, 375 insolvency: origins, 225–26 reform, 227–28 Erskine Commission, 229 failure, 229–30 Insolvent Debtors Court, 229 Official Receivers, 230 process of absolution, 228 see also bankruptcy inspections, see safety inspections insurance: accident insurance, 484–86 health insurance, 429–31 interwar years, 433 limited liability insurance companies, 249 marine insurance, 217–18 intellectual property law, see patent system interest rates, 221–22 mortgages, 130–31 pawnbrokers, 233–34 interwar years: labour: labour relations, 332 General Strike, 78–79, 335–37, 340, 437–38, 596, 598 joint industrial councils, 332–3 social stability, 333 perceived Bolshevik threat, 333 nationalisation of key industries, 333–34 government regulation of economy, 332 land, 183–84, 189–90 building subsidies, 187–89 planning, 192 rent control, 184–87 Irish Home Rule, 111, 171, 495 joint and several liability: partnerships, 241–42 unincorporated joint stock companies, 244 joint stock banks, 245–46 limited liability, 249

joint stock companies: incorporation, 156 registration, 247–48 unincorporated joint stock companies, 242–44, 251 law reform, 246, 252 judges, 38 appointment, 38–39 judicial law-making, 39–40 powers, 94–95 Judicature Acts (1873–1875), 43, 52, 55–57 reform of court system, 91–92, 197, 207 Supreme Court of Judicature, 1, 33, 56–57 judicial law-making: customary law, 39–40 dispute resolution, 39–40 precedent, 39 jurisdiction: arbitration, 50–52 common law v equity, 55–56, 209–11 county courts, 52–53, 92–93, 105, 224 divorce, 372, 374 Court of Chancery: parens patriae jurisdiction, 352–53, 381–82 civil courts, 32, 33 Admiralty courts, 45 courts of common law, 40–43 ecclesiastical courts, 44, 55 special courts, 45 criminal courts, 34, 48–50 ecclesiastical courts, 44, 55 criminal jurisdiction, 517–18 marriage breakdown, 355–56 employment contracts, 309 equity, 43–44, 213 family law, 344 marriage breakdown, 344 ecclesiastical courts, 355–56 judicial divorce, 362–65, 376 Supreme Court of Judicature, 56–57 jury trials, 35–36, 41, 93, 286, 467, 539–41, 600 justices of the peace, 14, 19, 25–26, 36–37 diminishing role, 28, 37 policing role, 233, 524–25 regulatory role, 280, 394, 517 juvenile courts, 93, 385, 610–11 juveniles, see young offenders King’s/Queen’s Bench, 31, 32, 34, 40–41 Commercial Court, 91–92 jury trials, 35 Labour Party, 112–13 labour relations, see employment; trade unions laissez-faire, 67–72

714 Index land, rights in, 115 compulsory purchase, 155–56 inheritance, 115–16 trusts, 116 types of land-holding, 115 see also land ownership Land Campaign: Chamberlain, 86 Lloyd George, 84–85 land nationalisation, 73–74, 84, 152, 170, 193 land ownership, 116–17 agricultural land, 117–18 agricultural leases, 135–37 exploitation by landowners, 136–37 compulsory purchase, 155–57 conveyancing, see conveyancing familial connection, 119–20 mortgages, see mortgages strict settlements, see strict settlements land tax, 81–82, 85, 115–16, 175, 193 see also taxation land use: developers, 147–50 statutory controls: bye-laws, 166–67 Chadwick Report, 162–63 General Board of Health, 163–64 inspectorates, 166–67 judicial control, 165–66 Nuisance Removal Acts, 161–62 public health legislation, 164–65 see also agriculture landed estates: mortgages, see mortgages ownership: familial connection, 119–20 strict settlements, see strict settlements large companies: increasing number, 255 shareholders, 256–67 stock exchange, 255–56 Law Society, 63, 98, 105–6 land registration, 176–78 legal services for the poor, 101–2, 374–76 public accountability of the legal profession, 104 qualifying examinations, 103 teaching of law, 103 leases: rural leases: agricultural leases, 135–37 copyhold, 118, 133–34 leasehold, 118, 133–34 urban leases, 147–50 leasehold, 118, 133 copyhold compared, 133–34

duration, 133–34 property brought to marriage by wife: widowers, 351 rent, 133–34 trusts for sale, 150–51 legal aid, 100–2 criminal defendants, 102 divorce, 375–76 Law Society: legal services for the poor, 101–2, 374–76 legal profession, 58–59 accountability, 104 attorneys, 62–63 barristers, relationship with, 105–6 barristers, 59–62 attorneys, relationship with, 105–6 professional bodies, 62–63 professionalisation legal training, 102–4 women, 107 liability: contract law, 201–2 fault liability, 484–85, 495, 507–9 joint and several liability, 241–42, 244 limitation of liability, 483, 484–86 strict liability, see strict liability third-party liability, 508 vicarious liability, see vicarious liability libel, see sedition Liberal Party, 80–81 liens, 231–32 limitation of liability, 483, 484–86 limited liability companies, 239, 250–51 law reform: law of partnership, 246 limited liability, 246, 248–50 registration of joint stock companies, 247–48 origins: chartered corporations, 240–41 Crown charters, 240 law of corporations, 241 partnerships, 241–42 statutory corporations, 240–41 unincorporated joint stock companies, 242–44 Lloyd George, David (Prime Minister: 1916–22), 333 conveyancing reform, 178–79 People’s Budget, 81, 84–85, 172 taxation, 84–86 welfare reform, 427–30 Local Education Authorities (LEAs), 449–52 interwar years, 452–54 post-WWII, 454–56 local government: central government, relationship with, 29–31

Index 715 corruption, 18–19 district councils, 90 elected councils, 90 justices of the peace, diminished role, 28 landed elites’ control of, 20 Local Government Board, 30–31 parish councils, 90 professionalisation, 91 Local Government Board, 30–31, 89, 165, 408 dispute settlement, 431, 448 Locke, John (Philosopher), 10–11, 67, 194–95 Lord Chancellor, role of, 14 Court of Chancery, 31, 32, 43–44 Lord Lieutenant, role of, 14 Macdonald, Ramsay (Prime Minister: 1924; 1929–35), 112–13 labour reforms, 324, 337, 436, 492 magistrates, see justices of the peace Malthus, Thomas (Political economist), 70–71, 108, 116, 402 mandamus, 14, 27, 166 manor courts, 45–46 manslaughter, 581–82 murder distinguished, 582 marine insurance, 217–18 marriage: aristocracy, 341, 345–46 bigamy, 345–46, 360, 363–64, 372, 586–87 changing trends, 341–42 Church of England, 344–45 civil marriages, 345–46 Clandestine Marriages Act, 346–47 constraints on who could marry, 371–72 Dower Act, 350–51 Fleet marriages, 346 lower classes, 341–42 marriage breakdown: annulment, 356 Church of England, 355–56 separation agreements, 358–60 wife-selling, 360–61 see also divorce married women’s property, see married women’s property minimum age, 372 non-Anglican marriages, 346–47 property: brought to marriage by wife, 348 distribution upon death, 350–51 landownership, 348 rights and duties for households, 349 spousal interdependence, 347–48 wives retaining separate property, 349–50 see also married women’s property

registration of marriages, 347 women, 274 see also divorce married women’s property: applications in Divorce Court, 377–78 calls for reform, 376–77 contract law, 379 landownership, 348 Married Women’s Property Act, 29, 225, 378–79 power to acquire and dispose of property, 379 property brought to marriage by women, 348 separate property in equity, 349–50, 378 spousal interdependence, 347–48 tort law, 379 unity doctrine, 376–77 wives retaining separate property, 349–50 working class deprivation, 378 Married Women’s Property Act (1882), 29, 225, 378–79 Marx, Karl (Philosopher), 74, 109–10 master servant relationship, 275–76, 280–81 accidents: master liability, 469–72 Maynard Keynes, John (Economist), 113 measure of damages: accidents, 462, 466–67 middle classes: adoption, 386 building societies, 151–52 debt, 224–25 divorce, 75–76, 365–66 emergence, 2, 4–5, 17 judiciary, 38 land reform, 147, 150, 169, 170, 189–90 legal profession, 58, 96 representation in Parliament, 17–18 strict settlements, 147, 150, 169 taxation, 86 technical education, 447 trusts for sale, 150 urbanisation, 147, 150, 191 military: conscription, 338 military spending, 22–23, 86 policing of civil unrest, 530–31, 573–74 Peterloo Massacre, 15–16, 531, 573 Mill, John Stuart (Philosopher), 18, 68, 70, 108, 378, 416 Millar, John (Philosopher), 10, 67 mining: child labour, 290, 488–89 hire purchase (rolling stock), 236 industrial injuries, 459 insurance schemes, 494–95, 502 mining leases, 134, 171

716 Index safety legislation, 488–89 stannary courts, 45 strikes, 333–34, 425 trade unions, 333–34, 424–25 unincorporated joint stock companies, 242–43 ministerial authority, 13–14, 17–18 minority shareholders, 256–57 misdemeanours, 34, 35, 48–49, 514–15, 516, 542–43 misrepresentation, 200, 203, 209–10, 212 misstatement, 202–3, 212, 483 mistake, 203–4, 211–12, 214 monarchy, see Crown monopolies, 258–60 chartered corporations, 240 conveyances, 173–74 legal profession, 58, 104 attorneys, 62–63 public corporations, 264 state monopolies, 264 trade guilds, 14, 58 trade monopolies, 259–60 patent system, 269–72 Statute of Monopolies, 266 see also anti-competitive practices; unfair competition mortgages, 128–29 common law mortgages, 129–30 deposit of title deeds, 132 mortgage with power of sale, 132 pre-WWI mortgage market, 130–32 redemption, 129–30 Municipal Corporations Act (1835), 28–29, 570, 575–76 murder, see homicide offences National Health Service, 113, 433, 439–41, 442, 443–45 nationalisation: interwar years policy, 333 land nationalisation, 73–74, 84, 152, 170, 193 national health service, 444 post-WWII, 89–90, 113, 264, 338 prisons, 560 natural law, 10–11, 12, 65 negligence, 460–62 contributory negligence, see contributory negligence death, 474–77 duties of care, 477–78 employers’ liability, 480–81 occupiers’ liability, 478–79 products liability, 479–80 master and servant relationship, 469–72 origins, 460–62

transport accidents: compensation, 460–61 new towns, 191–93 Newcastle Commission on popular education, 419–21 nuisance: Nuisance Removal Acts, 161–62 public health and amenity, 157–61 restrictive covenants, 152–53 obligations, law of, 195, 208–9 occupiers’ liability, 478–79 offer and acceptance, 198–200 outdoor relief, 397, 401, 404–9, 429 abolition, 410 Owen, Robert (Social activist), 73, 291–92, 298 Paine, Thomas (Political theorist), 10 Rights of Man, 72 Palmerston, Viscount (Prime Minister: 1855–58; 1859–65), 18 divorce, 363–64 factory regulation, 489 land reform, 170 policing, 572 parliamentary democracy, 79–81 parliamentary sovereignty, 12, 18, 39, 95, 403–4 part performance, 212–13 partnerships, 241–42 patent system, 266–67 abolition attempts, 271 enforcement, 272 enrolling patented inventions, 267 impact on industrial growth, 268–69 novel processes of production, 267–68 protection from foreign powers, 271–72 reform attempts, 269–71 pawnbroking, 232–33 hire purchase, 237–38 interest rates, 233–34 payment in kind, 296–97 regulation, 297 prosecutions, 297–98 Peel, Robert (the elder) (Factory owner and Politician): education of apprentices, 413 Health and Morals of Apprentices Act, 290–91, 413 Peel, Robert (the younger) (Prime Minister: 1834–35; 1841–46) criminal justice reforms, 553–54 free trade, 266 income tax, 81–82 parliamentary reform, 16–18 reform London police force, 6, 553–54, 568–70

Index 717 penal incarceration, see prisons pensions: non-contributory pensions, 428 state pension scheme, 428–29 “perfectability of man”, 66 performance: contract law, 204–5, 215–16 Peterloo Massacre, 15–16, 531, 573 Pitt, William (the Younger) (Prime Minister: 1783–1801; 1804–06): contracts and combinations, 286 conveyancing monopolies, 58, 62–63 income tax, 81, 446 policing, 531–32 transportation, 537 planning, 190–93 poaching, 515, 522–23 police and policing: Bow Street Runners, 527 informers, 528–29 London Metropolis, 531–32, 565–66 abuse of power allegations, 569 professionalisation of the force, 566–70 resistance to professionalisation, 567 Pitt (the younger), 531–32 police reform, analysis of, 575–78 policing in the counties, 570–71 professionalisation of the force, 571–72 resistance to professionalisation, 571–72 professionalisation, 48–49, 526–27 London Metropolis, 566–70 other areas, 570–73 prosecutorial role, 599–600 public support, 578, 594–95 Royal Irish Constabulary, 532 20th century policing: abuse of powers, 599 investigation v security, 598–99 social background of officers, 594–99 structure of police force, 593–94 women, 597–98 use of the military, 530–31 witness testimony, 600 women, 597–98 political parties: Conservative Party, 80–81 Independent Labour Party, 80, 107 Labour Party, 112–13 Liberal Party, 80–81 Torys, 15–16, 81 Whigs, 16, 81 Poor Law Amendment Act (1834), 21, 28, 30, 354, 384, 403 Poor Law Commission, 21, 24, 28, 30, 146, 403–4, 408

Poor Laws: cost of system, 401–2 Elizabethan Poor Law: laws of settlement, 396–97, 403 origins, 393–94 outdoor relief, 397 parochialism, 394–95 poorhouses, 397 vagrancy, 395 new Poor Law, 403–4 indoor relief, 404–5 outdoor relief, 405 resistance, 405–6 workhouses, 404, 406–8 Poor Law Board, 408–11 Poor Law Commission, 21, 24, 28, 30, 146, 403–4, 408 poorhouses, 389, 397 population growth, 1–2, 19, 74–75, 274, 526 poverty and destitution: enclosure, impact of, 142–43, 393–94, 397–98 see also charities and charitable giving prerogative: prerogative of mercy, 552 prerogative writs, 14–15, 47, 56–57, 94 Royal prerogative, 10–13 presumption of innocence, 605 prisons: conditions, 537 Debtors Prison, 222–25 deterrent effect, 561–63 new prisons, 557–58 prison inspectors, 559 prison reform, 548, 605–7 alternatives to prison, 607–8 young offenders, 609, 610–11 punitive prison, 547–48 separatist model, 559–60 standards, 558 private and public companies distinguished, 254–55 privity of contract, 195, 202–3, 262, 480 Privy Council, 13, 32, 57, 164, 261, 404 education system, 414, 418–19 patent system, 267, 270 products liability, 479–80 prohibition, 14–15 promises: contract law, 198, 201–3 enforceable promises, 201 equity, 208 property offences, 516, 519–20, 535, 542–43, 544, 589 capital punishment, 553 property rights, 4 distribution of property upon death, 350–51

718 Index Dower Act, 350–51 marriage: brought to marriage by wife, 348 landownership, 348 rights and duties for households, 349 spousal interdependence, 347–48 wives retaining separate property, 349–50 prosecution societies, 515–16 Public Accounts Commission, 30 public disorder, see civil unrest public executions, 6, 48, 534, 555–57 public health: bye-laws, 166–67 Chadwick Report, 162–63 General Board of Health, 163–64 housing quality, 162–63 see also housing inspectorates, 166–67 legislation: Local Government Act, 164–65 Metropolitan Poor Act, 165 Public Health Act, 164–65 Sanitary Act, 165 Sewage Utilisation Act, 164 nuisance: Nuisance Removal Acts, 161–62 pollution and polluters, 157–61 vaccination programmes: smallpox, 410–11 Pufendorf, Samuel von (Jurist), 10–11

Reform Act 1884 (Third Reform Act), 88 franchise, 498 reformatory schools, 354, 546, 564, 607, 610 regulatory offences, 517–18 religious education, 414–15 dissenting parents, 417–18 elementary schools, 420 rescission, 43, 198, 203, 209–11, 212, 214 restraints of trade, 258–60 arbitration 260 collective agreements, 311 guild rules, 282 restrictive covenants, 260–61 trade unions, 289, 304–5, 306, 325–26 see also anti-competitive practices; restrictive covenants; trade unions; unfair competition restrictive covenants, 152, 260–61 nuisance, 152–53 rights of way, 153 rights to bring water, 153 successors in title, 153–54 royal authority, 10–13 Royal Irish Constabulary, 532 rule of law, 12, 27, 49, 75–76, 94–96, 523 establishment of, 10, 14–15 rural nature of society, 1–2 Russell, John, Lord Russell (Prime Minister: 1846–52; 1865–66), 16, 70, 294, 378, 414 policing reforms, 551, 554, 570, 572, 573

Quarter Sessions, 19, 21, 28, 32, 33, 37 criminal cases, 34, 48–50 Queen’s Bench, see King’s/Queen’s Bench

safety inspections, 487 factories, 487–91 Second World War: labour: ban on strikes, 337–39 collective agreements, 339–40 compulsory arbitration, 337–38 compulsory labour, 338 conscription, 338 National Arbitration Tribunal, 337–38 secured credit: agency law, 232 bailment, 231 bills of sale, 234–36 common law, 231 hire purchase, 236–39 lien, 231–32 ownership, 231 pawnbroking, 232–33 interest rates, 233–34 sedition, 15, 73, 336, 516, 533, 574, 585 self-defence, 583, 605 separation of Church and state, 363

railway industry: accidents, 458–60, 494 compensation, 467 compulsory purchase of land, 155–57 insurance schemes, 429, 485–86 nationalisation, 74, 264, 338 nuisance, 160–61 safety legislation, 487 strikes, 319–21, 333–34 Taff Vale dispute, 319–21 response to, 322–23, 327 union action, 78 wages disputes, 319–21 working conditions, 476–77 rectification, 43, 196, 198, 203 Reform Act 1832 (First Reform Act), 15, 16–17, 28, 67–68, 73 Reform Act 1867 (Second Reform Act), 18, 170–71 education, 421–22

Index 719 separation of powers, 10–11, 14, 294 indeterminate sentencing, 613–14 Settled Land Act (1882), 171–72, 177–79 sexual offences, 533, 600–1 shareholders: large businesses, 256–57 small businesses, 252–53 Simon, John (Politician and Lord Chancellor): income tax, 86 workers’ rights, 335–36 Simon, John (Public Health Administrator): public health, 164–65, 410 workers’ rights, 335–36 small businesses: bankruptcy, 226 increasing number, 252–53 one-man companies, 253–54 Small Debts Court Act (1846), 52 Smith, Adam (Economist), 10, 66, 70 anti-competitive practices, 259 collective action, 283 interest rates, 221 land, 168–69 natural justice, 67 smuggling, 523–24 social contract, 4, 65–66, 67, 194–95 social mobility, 3, 75, 456 socialism, 64–65, 109–13 land nationalisation, 73–74, 84, 152, 170, 193 municipal socialism, 107, 183, 264, 495–96 Royal Commission on Labour, 315–16 trade unions, 314 utilitarian origins, 72 see also collectivism; nationalisation specific performance, 43, 56, 139, 198, 207–11, 215–16, 359–60 stamp duty, 15, 84–85, 132 see also taxation stannary courts, 45 state monopolies, 264 see also nationalisation state-subsidised legal services, see legal aid Statute of Artificers (1563), 278–79, 282 stock exchange, 246, 255–56 strict liability, 507 accidents, 292, 486–87 carriers of goods, 199, 463 criminal offences, 585–87 employers, 292 workers’ safety, 486–87 strict settlements, 119–20 common law: estate for life, 120 estate in fee simple, 120, 121 estate in fee tail, 120, 121–22

common law interests, 124 contribution to rise of great estates, 126–28 Court of Chancery, role, 122–23 decline, 168, 172–73 abolition of primogeniture (attempted), 169 attacks on system, 168–70 conveyancing reform, 172 criticisms of, 168–69 post-Reform Act, 170–71 equitable interests, 124 male primogeniture, 121 purpose: avoiding land forfeiture, 124 determining debt, 125–26 disinheriting women, 124–25 serving interests of conveyancers, 126 Settled Land Act, 171–72, 177–79 trustees, 122–23 trusts for sale, 150–51 strikes, 289 conspiracy at common law, 302 conspiracy to offend, 302 Emergency Powers Act, 334 General Strike, 78–79, 335–37, 340, 437–38, 596, 598 Industrial Unrest Committee, 334 Sankey Commission, 334 see also trade unions succession: distribution of property upon death, 350–51 property: widowers, 350–51 widows, 350 right of women to challenge husband’s will, 380 successors in title, 149, 153–54 suffragettes, 79, 599, 606–7 see also women Supreme Court of Judicature, 1, 33, 56–57 sweated labour, 312, 324–25, 332, 334 taxation, 81–82 agricultural relief, 83–84 death duties, 82, 132, 173 income tax, 81–84, 86–88, 446 inter-war years, 88 land tax, 81–82, 85, 115–16, 175, 193 stamp duty, 15, 84–85, 132 tax evasion, 87 wealthy, burden on the, 87 Temple, Henry John (1855–58; 1859–65), see Palmerston, Viscount textile industry: accidents, 488 child labour, 273, 295–96, 488–89 economic importance, 265

720 Index factory regulation, 290, 292–93, 295 outworkers, 277–78 safety legislation, 488–89 working hours, 295–96, 299 third-party liability, 508 tithes: Church of England, 146–47 commutation, 146–47 exploitation, 145–46 origins, 144–45 tort law: liability in fault, see fault liability negligence, see contributory negligence; negligence nuisance, see nuisance ‘Torys’, 15–16, 81 Trade Boards, 324–25 Cave Committee, 334 Trade Disputes and Trade Unions Act (1927), 336–37 Trade Union Act (1871): consequences, 325–30 court fines, 325 members’ benefits, 325–26 mutual restrictive agreements, 325 purchasing outside cooperation, 325 union dues and fines, 325 Trades Union Commission (1867): establishment, 305 minority report, 306 Conservative’s response, 308–11 Liberals’ response, 306–8 monopolising nature of trade unions, 305–6 origins, 303–5 trade unions, 77–78 anti-competitive practices, 259–60, 305–6 collective bargaining, 112, 283–84, 311, 316, 329, 340 conciliation, 311 cooperative movement, 298–99 General Strike, 78–79, 335–37, 340, 437–38, 596, 598 judicial hostility, 301–3 legality of unions, 325–30 negotiation/bargaining, 310–11 new model trade unions, 300 judicial activism, 317–23 labour conditions, 312–15 Royal Commission on Labour, 315–16 regulation, 289–90 Trade Union Act, see Trade Union Act (1871) Trades Union Commission, see Trades Union Commission (1867) traditional “craft clubs”, 299–300 tramping system, 285 transportation, 6, 48 American Revolutionary War, impact of, 536–37 Americas, to, 535–37

Australia, 548–51 decline of capital punishment, impact of, 535, 551 reform, 548–51 resistance, 549 treason, 15, 73, 336, 516, 555, 612 trial by ordeal, 513–14 truck, see payment in kind trustees: strict settlements, 122–23 trusts for sale, 150–51 Tudor era, 13–14 administration of equity, 43 assumpsit, 197 bankruptcy, 225 pawnbrokers, 233 enclosure, 138–39 leases, 133 master-servant regulation, 279–83 population growth, 19 Statute of Artificers, 278 usury laws, 221 unconscionable bargains, 210–11, 215 undue influence, 210, 213, 501 unemployment relief, 424–26 Beveridge, 426–27, 434, 438 interwar years, 434–37 unfair competition, 260–61 see also anti-competitive practices unincorporated joint stock companies: Bubble Act, 243 deed of settlement companies, 243–44 law reform, 246, 251–52 origins, 242 “South Sea Bubble”, 242–43 urban nature of society, 1–2 urbanisation, 4–6, 116–17 employment, 277–78 policing, 525–26 usury laws, 221 utilitarianism, 65–67 vaccination programmes: smallpox, 410–11 vicarious liability: accidents, 206, 463–66, 470, 507 common employment, relationship with, 493 origins, 463 vicarious criminal liability, 585–86 voluntary assumption of risk, 472–73 wages: arbitration, 324 employment disputes, 284 Statute of Artificers, 282

Index 721 truck, see payment in kind wage demands, 289 wages regulation, 287–88 wage strikes, 289, 325 war: Boer War, 428 health of population, 429 military spending, 22 impact of, 15–16 criminal activity, 520 food prices, 258 military spending, 22–23, 86 see also First World War; Second World War warranties: contract law, 200, 205 small print, 199–200 products liability, 479 welfare: dispute mechanisms, 431–32 health insurance, 429–31 interwar years, 433 interwar years, 432–34 pensions, 428–29 interwar years, 433–34 Poor Laws, see Poor Laws unemployment, 424–26 Beveridge, 426–27, 434, 438 interwar years, 434–37 see also child welfare; poverty and destitution welfare state, 437–39 Beveridge Report, 439–41 contributory schemes, 441–42 National Health Service, 443–45 non-contributory benefits: means-testing, 442–43 Whigs, 16, 81 widows: benefits, 330, 430, 484 challenging husband’s will, 380 children of, 382, 384 compensation, 469, 475–76 copyhold, 134 inheritance from husbands, 351 mortgages, 131 pensions, 434 property, 350–51 strict settlement: jointure, 123–24, 124, 351 widowers: married women’s property, 350–51

property, 350–51 remarriage, 371 wills: distribution of property upon death, 350–51 right of women to challenge husband’s will, 380 see also succession women: contract law, individuality in, 379 legal profession, 107 marriage: wives’ property, 348–50 wives retaining separate property, 349–50 see also married women’s property petitioning for divorce, 357–58 police force, 597–98 property rights: property brought to marriage by wife, 348 wives retaining separate property, 349–50 see also married women’s property right to challenge husband’s will, 380 separate property in equity, 378 suffragettes, 79, 599, 606–7 tort law, individuality in, 379 unity doctrine, 376–77 women’s suffrage, 18, 189 working class deprivation, 378 working hours, 273 children, 291–96, 488–89 employment disputes, 284 Ten Hours Movement, 17–18, 292–96, 488–89 Workman’s Compensation Act (1897), 495 criticisms, 500–501 insurance company practices, 501–2 interpretation of the Act, 502–3 judicial divergence, 503–4 medical issues, 504–5 employee contributions, 499 general principles, 498–99 negligence claims, 499 World War One, see First World War World War Two, see Second World War young offenders, 563 corporal punishment, 565 gangs, 563–64 juvenile courts, 610–11 prison, 565 reformatory schools, 564 sentencing, 564

722