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Armed with Sword & Scales Law,
Culture, and Local Courtrooms in London, 1860-1913
Sascha
Auerbach
Studies in
Legal History Series Cambridge:
University Press, 2021 Hardcover.
xxii+403p. ISBN 978-1108491556. £75
Reviewed by David
Renton Garden Court Chambers, London
The subject of this book are the magistrates’
courts of nineteenth-century London. For centuries beforehand, it had been the
tradition that when a person was accused of a crime they were bought before a
Justice of the Peace (JP), who would examine them informally, perhaps in the
chambers of the JP’s home. If it was found that there was enough evidence to
take the case further, and the case was sufficiently serious, the accused would
be sent to the country gaol for trial at the next assize or quarter session.
Where the charge was a minor one, for example drunkenness, cursing or vagrancy,
the Justice of the Peace had the power to order punishment, typically a fine,
or whipping, or commitment to a house of correction. This system was changed by
two main reforms, the Middlesex Justices Act 1792 which introduced in London
salaried Justices, sitting in Magistrates’ offices. These offices became
Magistrates’ Courts, with their own buildings. A further reform, the Larceny
Act 1827 enabled magistrates to hear charges of theft. Many defendants
preferred to have their cases heard at this lower level where punishments were
less severe. What they lost in electing summary trial was the chance to have
their case heard by a jury, with a better chance of acquittal. The system of
trying lesser criminal offences summarily in Magistrates’ Courts remained in
place throughout the period described by Auerbach and is still the main form of
criminal trial in Britain today. Auerbach’s account
begins in the middle years of the eighteenth century with the service as a
Justice between 1748 and 1754 of the barrister and novelist, Henry Fielding, the
author of Tom Jones. Fielding is a complex character. His novel deals
with themes including prostitution and sexual promiscuity, and was published
while he served on the bench. He also used his authority to publish tracts
demanding the increase of the powers of the Justices of the Peace, warning that
if that increase was not granted, there would inevitably be, a “Mob of Servants
... too big for the Civil Authority to Supress ... [a] general Riot of the
People”. Fielding was supported in his role as a magistrate by a generous £200
salary, granted from the secret service fund. On his death, his role was passed
on to his younger half-brother John. One legacy of Henry
Fielding’s service, Auerbach suggests, was a particularly close relationship
between the magistrates’ court and the local press. From the middle years of
the eighteenth century onwards, journalists were trained to attend summary
courts, look for the cases with the most blood-thirsty details, and report
them. “Police Intelligence” sections were the largest news spaces in the
best-read of Victorian newspapers. This public interest was, Auerbach argues, often
in the interests of the magistrates. But it was also, on occasion, a means by
which their bullying of defendants became public knowledge. The behaviour of one
magistrate, Allan S. Laing, was discussed in Parliament and satirised in Oliver
Twist (where Laing appears as “Mr Fang”). Eventually, the Home Secretary
dismissed him. Today, a summary
prosecution begins almost always with a police investigation, followed by a
decision of the Crown Prosecution Service to prosecute. In the middle years of
the nineteenth century, a greater role was played by complainants themselves.
In 1837, one magistrate estimated that across London as a whole around
12-15,000 complaints each year were brought concerning matters over which the
magistrates had no jurisdiction: complaints by tenants against landlords, or
servants against their masters, and so on. In his lively
account, Auerbach pays attention to the role of women in the courts, remarking
that even at times when the lawyers and magistrates and police were all men,
women were often a majority of complainants. Between 1880 and 1900, there was a
sharp increase in the number of women bringing assault charges against their
husbands. Divorce was too costly for most couples. After the Matrimonial Causes
Act 1878, a magistrate could make a finding of non-cohabitation following an
aggravated assault, but only if the wife remained in peril of further violence. The
story Auerbach tells is of working-class people coming to the law, and seeking
to use it to their own ends – while also having to confront the competing
interest of a system which did not want to make divorce too freely available.
Separations were often refused. Women started bringing children as witnesses.
Slowly, the law opened up, allowing a wider range of divorces, to cover
eventually drunkenness as well as violence. Was the working class
incorporated into the law in the latter years of the early nineteenth century?
Probably not, Auerbach argues, and he is surely correct to so conclude. For
this was also a period in which, for example, trade unions were boycotting the seemingly
generous opportunities the law allowed them to seek conciliation of industrial
disputes without needing to take strike action. It is also the period of the
decision in Taff Vale, and the formation of the Labour Party as a tactic
for dealing with the manifest hostility of the courts. Then, as now, people
were capable of coming to the law and using it instrumentally without ever
falling for the homilies the Justices liked to tell about the law and its
majestic equality.
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