‘Old wine in new bottles’: the concept and practice of law reform, c. 1780–1830

Abstract

In 1652, after a decade which had seen widespread calls for law reform, a commission under Sir Matthew Hale was appointed to consider the problem of delay and costs in the courts, and to investigate ‘the speediest way to reform’ general inconveniences in the law. Its proposals were far-reaching. The commission recommended rationalizing the superior courts by simplifying pleadings, abolishing the sale of offices, and regulating fees. It proposed the transfer of marriage and probate jurisdiction from the civilian courts to the common law, and recommended the creation of small-claims courts, county courts, and registries of deeds. It favoured ending imprisonment for debt and making freehold land chargeable for debts. However, neither the proposals of the Hale Commission, nor the ambitious projects of William Sheppard, ‘Cromwell's law reformer’, resulted in legislation, and it was only in the Victorian period that the reforms set out by Hale's commission began to be implemented. In this sphere, the ‘age of reform’ provided an impetus to implement ideas that had been in circulation for much longer. Law reform was not entirely dormant in the interim. Firstly, the eighteenth century saw continuing ‘internal’ development of the substantive law. Two notable King's Bench judges, Sir John Holt (chief justice between 1689 and 1710) and Lord Mansfield (chief justice between 1756 and 1788), developed a body of commercial law without resort to legislation. At the same time, equity jurisprudence was developed, notably by Lord Hardwicke, lord chancellor between 1737 and 1756.