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THE JUDICIARY OP TAP Oupcrior COURTS 1820 to 1968 : A

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THE JUDICIARY OP TAP Oupcrior COURTS 1820 to 1968 : A THE JUDICIARY OP TAP oUPCRIOR COURTS 1820 to 1968 : A SOCIOLOGICAL STUDY A tiiesis presented for the lAPhilo degree University of London. JENNIFER MORGAl^o BEDFORD COLLEGE, 1974. ProQuest Number: 10097327 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest. ProQuest 10097327 Published by ProQuest LLC(2016). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. Microform Edition © ProQuest LLC. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Aijstract This study is an attempt to construct o social profile of the Juoiciary of the superior courts uurin^ the period 1 8 20-1 9 6 8. The analyses cover a vio: raepe of characteristics iacluuiap parental occupation, schooling, class op degree, ape of call to toæ luu' ^aa ape at appolnt^/^ent to tue -each. These indices are used to deter..line how far opportunities for recruitment to the dench lave seen circumscribed by social origin, to assess the importance of academic pualificaticns and vocational skills in the achievement of professional success and to describe the pattern of the typical judicial career. The division of the total population of judges into four cohorts, based on the date of their initial appointment to the superior courts, allows throughout for historical comparison, demonstrating the major ^oints of change and alsu underlining the continuities in tne composition of the Bench during the period studied. The relationship between the law and politics provides a central point of discussion, focusing on an examination of the changing influence of political considerations in judicial appointments and a review of the main supports for judicial independence in contemporary England. This is set against a comparative survey of methods of judicial selection, drawing particularly on American and French experience. A separate chapter is devoted to an examination of the Lord Chancellorship, of the changing nature anu duties of that office anu of the social origins of its occupants. The study includes a description of the changing power and prestige of the Bench and the varied reactions that the judges have historically aroused in the performance of their functions. It ends with an attempt to show how the accumulated experiences of the judiciary, especially within the legal profession operate to set them apart from the society they judge. CONTENTS Introduction 4 Part lo The Social and Educational Backgrounds of tne Judiciary. 2$ Chapter 1, The Social Origins of the Judiciary. 2b Chapter 2. The Judiciary and the Public Schools. 95 Chapter p. Higher and Professional Education. 74 Part II. The Judicial Career Pattern. 103 Chapter 4. The Bar. 1C4 Chapter 3» Judicial Office. 123 Chapter 6. Judicial Remuneration. 141 Part III. Politics and the Judiciary. 149 Chapter 7. Judicial Independence. 150 Chapter 6. The Lord Chancellor. 1B4 Chapter 9. The Method of Judicial Selection - A Comparative Survey. 207 Part IV. The Judicial Character. 225 Chapter 10, Judicial Status and Public Opinions. 227 Chapter 11. Class Justice and Judicial Isolation. 240 Appendices. A. - Sources of Biographical Data. 257 B. - Analysis of the Class Composition of the Judiciary. 25 C. - The Demography of the Judiciary. 265 D. - Correspondence between Lord Birkenhead and Lloyd George on the appointment of the Lord Chief Justice in 1921. 286 E. - Judges of the Superior Courts, 1820-1968. 294 Bibliography. 316 A list of the tables included in this thesis is given on pp. 320 - 32 2. Introduction The medieval clothes, dog latin and monastic ritual of the Inns hear witness to the ancient origins of the Bar; but if today too much of the past seems to cling to the profession, the explanation lies less in this uncritical adherence to historic trappings than in a failure to escape from the fetters of nineteenth century professionalisation. The formulation in the last quarter of the century of a detailed professional code with rules of entry and conduct, while it provided a guarantee for client and public, at the same time successfully promoted the self interest of the Bar. At the centre of this development was the Bar Council, organised in the first place in reaction to proposals of the Judges’ Rules Committee which threatened the financial interests of the junior Bar; by the 1920’s it had consolidated the major restrictive practices of the profession and set itself up as guardian of its members morals and purses. The development of a cohesive and rigid professional organisation was accompanied by the crystallisation of its ideology. Professionalisation, wrote Morris Finer " took place in the matrix of an individualistic society in which the lawyer’s client were the landowners, the farmer, the trustee of the marriage settlement, the employer and the company promoter. It was a society in which two categories of right - property and freedom of contract - were paramount. The lawyer served to protect these rights, and his profession took its tone and outlook from the wealthy and middle classes who were principally concerned with them.”(2) (1). Now Mr. Justice Finer. (2 ). Morris Finer, Q.C., ’’The legal profession”, in M. Zander ed; What’s Wrong with the Law? Published by the BBG(1970) p.44. Victorian middle-ciass ideas of social justice were absorbed by the profession and carried forward into the twentieth century, together with a judicial system which, after some six hundred years of haphazard growth, had been completely recast by the reformist zeal of the nineteenth century. Almost another century passed before the essentially Victorian foundations of the court structure were again subjected to , rational analysis and reform. It is surprising therefore that of all periods in legal history the nineteenth and early twentieth centuries have been the most inadequately chronicled; that an era when considerable headway was being made in civil law reform and the expansion of special legislation and in which the form and content of the contemporary legal system was fundamentally cast should have aroused so little interest. In Alan Harding’s Social History of ( 1 ) English Law' ^ a work of well over 400 pages, only 17 are devoted to the structure of the legal profession and the courts in the nineteenth and twentieth centuries. In 1967 Brian Abel-Smith and Robert Stevens prefaced their own attempt to correct the deficiency with these words: "While many legal historians had written about the history of courts, lawyers and the law up to the end of the eighteenth century, surprisingly little, we found, had been written about the histories of the nineteenth and twentieth centuries. Moreover the interest of many legal historians did not extend beyond the development of substantive law; tnat is the doctrines of the law rather than the social and political background of the legal system In turn the social and political historians who had written about the previous two hundred years had not found the legal profession or legal administration worthy of serious study.(2 ) The developing social sciences had so far failed to take an interest in matters legal; while all too often works on the legal system seemed to jump from the Middle Ages to the 1960's with only a casual (1 ). Penguin, (1966) (2 ), This contrasts with the general historians of the medieval period who have usually given legal institutions a central position in their commentaries. 6 glance at the legislation of the 1870's. While there were studies of solicitors and official histories of the Inns of Courts, surprisingly little had been written about barristers, judges, legal education, legal aid or the evolutun and work of the courts during the last two centuries."(l) Up to the 1 9 60's only two pieces of empirical evidence on the social origins of the legal profession had emerged; and in both cases these data were largely incidental to the author's main purpose. Sir Francis Galton, in his Hereditary Genius published in the latter part of the nineteenth century, was concerned with the eminent antecedents of the superior judiciary only in so far as they substantiated his thesis of inherited ability.(2 ) Similarly, Morris Ginsberg's analysis of admissions to Lincolns Inn, contained in Studies in Sociology, formed just a part of the material used by him to study variations in social ( s) m o b i l i t y . Harold Laski, inspired by the American legal realists, made frequent critical observations on the judges' handling of cases involving class issues: "....the fact that the lawyer is usually a member of the property-owning class," he commented, "tends to make him .... sympathetic towards the general outlook of that c l a s s . But, because he was writing at a time when many lawyer-politicians were attaining an infamous prominence, Laski's attention was focused principally on the direct relationship between the Bench and politics, producing a detailed analysis of the political antecedents of the Bench, and evaluations of the judicial appointments system and the office of Lord Chancellor. (1). B.Abel-Smith and H. Stevens, Lawyers and the Courts, Heinemann (1967)pp v-vi. 2 ). Watts, 2nd ed. (I8 9 2). ,3 ). Methuen, (1932). ,4). H.J. Laski, -^he ‘^tate in Theory and Practice. ^hwin ----------------------- — ------- (1935) p.17 9. (5). H.J. Laski, A Grammar of Politics.Allen& Unwin,bthed.(196 7) " " 9 Reflections on the Constitution.Manchester University Press, (1951). ' 9 Studies in Law and Politics.
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