Front Page Titles (by Subject) CHAPTER 9: THE NINETEENTH CENTURY: LIBERALISM AND REFORM - A Concise History of the Common Law
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CHAPTER 9: THE NINETEENTH CENTURY: LIBERALISM AND REFORM - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE NINETEENTH CENTURY: LIBERALISM AND REFORM
At length, the end of the Napoleonic war brought some relief from the political tension, and a wave of constitutional and legal reform swept away many ancient institutions which had long survived their usefulness.
THE NEED FOR REFORM
The state of the law at the beginning of the nineteenth century has been thus described by an eminent legal historian:
“Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, uncertain, and remote. To the rich it was a costly lottery: to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers themselves. A suitor might be reduced to beggary or madness, but his advisers revelled in the chicane and artifice of a lifelong suit and grew rich. Out of a multiplicity of forms and processes arose numberless fees and well-paid offices. Many subordinate functionaries, holding sinecure or superfluous appointments, enjoyed greater emoluments than the judges of the court; and upon the luckless suitors, again, fell the charge of these egregious establishments. If complaints were made, they were repelled as the promptings of ignorance: if amendments of the law were proposed, they were resisted as innovations. To question the perfection of English jurisprudence was to doubt the wisdom of our ancestors . . . a political heresy which could expect no toleration.”1
The romantic fancy which led Blackstone to tolerate such a system, comparing it to a picturesque old Gothic castle,2 could hardly survive the shocks of war, and a very different point of view ushered in the great reform movement.
The prophet of the new era was Jeremy Bentham3 (1748-1832). At Oxford, Bentham had heard Blackstone lecture, and deemed his matter unsound: as a young law student he had listened with admiration to the judgments of Lord Mansfield. The publication of Blackstone’s Commentaries (1776) stirred him to fierce criticism expressed in his Fragment on Government (1776), and he abandoned the professional study of law in order to devote himself to the basic principles upon which law rests. The Principles of Morals and Legislation (1789) proclaimed that there should be constant, radical legislation as the mainspring of law, and it should be directed to the end of securing the greatest happiness of the greatest number. His faith in acts of Parliament was perhaps a little overstated: the century since his death has revealed some of the limitations in written constitutions and legislative enactments, but nevertheless, the main position still stands—rules and institutions must henceforth submit to the test of utility and be judged by their fruits, and where reform is necessary, it must be effected in most instances by deliberate, planned legislation. Besides providing a theoretical basis for criticising the law and the constitution, he also entered into detailed and vigorous discussion of practical details, as in The Rationale of Judicial Evidence. He was a firm believer in codes and ever ready to offer advice. In 1811 he offered to codify the law of the United States. The offer was not accepted, and even Pennsylvania, which for a moment seemed tempted by it, finally yielded to the professional interests of the lawyers. Nevertheless Bentham’s influence has been enormous, and has become much more diffused than his writings. Many people act on his principles who have never read a word that he wrote—and a great deal of what he wrote is barely readable, so tortuous did his style become. It has well been said that
“his doctrines have become so far part of the common thought of the time that there is hardly an educated man who does not accept as too clear for argument truths which were invisible till Bentham pointed them out.”1
Even some of the strange new words he invented have become familiar, e.g. “international”, “utilitarian” and “codification”.
From Bentham’s day to our own a long line of measures has approached nearer and nearer to his idea of “utility”, reducing law from the position of semi-religious mysticism to that of a practical branch of the business of government with expediency as its guiding principle. At the head of this movement comes the great Reform Act of 1832, which brought Parliament into direct contact with public opinion—and thereby subjected law, too, to the pressure of the same force. Three years later the Municipal Corporations Act, 1835, abolished those curious and venerable monuments of the middle ages and substituted a uniform pattern of town government. It would be hard to imagine a more spectacular break with the past than these two statutes. They were accompanied by scores of others which abolished the accumulated survivals of centuries. On the procedural side came the Uniformity of Process Act, 1832, and the Civil Procedure Act of 1833 which buried a great deal of subtle learning and abolished some hoary antiquities, such as wager of law. A group of statutes from 1827 to 1837 made numerous changes in the criminal law and greatly reduced the number of capital offences. This in fact was the one subject on which the eighteenth century had legislated incessantly and vigorously. Statutory interference with the penal law was therefore no novelty; the real change was in the spirit. Sir Rober Peel and Lord Brougham were the promoters of these reforms for which Sir Samuel Romilly and Sir James Mackintosh had long struggled in the face of bitter opposition, and Peel in particular made the capital contribution of setting up a professional police force,1 thus rendering the criminal law less savage but more certain in its operation. In the law of property no less far-reaching reforms were made; one single year (1833) saw the Fines and Recoveries Act, the Administration of Estates Act and the Inheritance Act.2
The end of this chapter therefore brings us from the old world to the new, from the ruins of the Roman Empire to a crisis in another empire thirteen centuries later. We have seen the gradual formation of the English State under the Anglo-Saxon kings, which later was transformed by the Norman genius and furnished with the first necessity of government—a financial administration. Developing within that administration we have seen the germs in the reign of Henry II of the common law, while under his sons we begin to find the claim that law and administration had now come to the parting of the ways, and the text of the Great Charter lays down the principle of the supremacy of law. Besides this internal limitation upon a powerful monarchy, we also see the Church using considerable influence in politics, and its rôle expressed in the terms of a general formula that although the State, like the Church, may enjoy divine sanction (or at least divine tolerance), nevertheless religion is superior to politics. It is clearly asserted that there are things which kings cannot do, and in the middle ages there was a papacy powerful enough in many cases to punish monarchs who transgressed. We have seen, too, the growing weakness of law in the fifteenth century and the rise in the sixteenth of administrative bodies using semi-legal forms, which alone were adequate to meet the crisis under the Yorkists and early Tudors. When this movement had gone too far, the Stuart dynasty was to suffer for its failure to adapt itself to new conditions—although it is typical of English development that the really innovating party found its main support in history, and even in antiquarianism. With the Commonwealth there came a period unique in English history and its failure was as conspicuous. The Revolution completed the work of the Rebellion and expressed its results in a form more nearly legitimate. The strange, but fascinating, theories of Hobbes gave way to the reasonableness of Locke, and when a century later the French Revolution issued a challenge to all established governments, it was Burke who found an answer which served England and America equally well. That answer was an appeal to history, to experience, and to the traditional English habit of compromise and cautious reform—to what Montesquieu might have called the spirit of the common law.
The French Revolution, the long and weary war, and the fearful distress that followed the peace, came near to bringing disaster. Contemporaries felt themselves on the brink of revolution and civil war, and if this last catastrophe was averted it may perhaps have been because the party of privilege and conservatism was so clearly founded on sentiment rather than on political theory. There was no clash of philosophies as there had been in the seventeenth century. Even Benthamism, in spite of the formidable array of logic, ethics and jurisprudence which decorated it, was at bottom as sound common sense as it was dubious philosophy. Benthamism triumphed in spite of its technical apparatus and became merged in the practical good sense of the commercial middle class, avoiding the mysticism of the State as well as the mysticism of the rights of man, just as at the present moment it seems that the political thought which is derived from the common law will again stand aside from the corresponding mysticisms of our own day.
THE COURTS AND THE PROFESSION
Sir Thomas Erskine May, Constitutional History, ii. 384.
3 Comm. 268; cf. 4 Comm. 442 (both passages in Pound and Plucknett, Readings, 235-237).
For a very full discussion of Bentham, see Holdsworth, xiii. 41-133.
T. E. Holland in the Encyclopaedia Britannica (11th edn.), s.v. “Bentham”.
Of the earlier pioneers in criminal reform, one of the most interesting is the great novelist Henry Fielding, the first stipendiary magistrate to sit at Bow Street. See B. M. Jones, Henry Fielding, Novelist and Magistrate (London, 1933). Abundant material is collected in L. Radzinowicz, History of English Criminal Law, vol. i (1948).
For the period of reform, see A. V. Dicey, Law and Public Opinion in England (1905); Sir Arthur Underhill, Changes in the English Law of Real Property (Select Essays in Anglo-American Legal History, iii. 673). The novels of Charles Dickens are a fair picture of the unreformed state of the law; see the entertaining lectures of Sir William Holdsworth, Dickens as a Legal Historian (Yale University Press, 1928).