Introduction

Any legal history worth salting must deal not only with what the law was but how and why it became so: the pressures that led to shifts in the law itself and the rationalizations offered for them. So far as evidence can be winkled out, it should also look at outcomes, for most legal change produces unintended effects. There may be large consequences from supposedly minor adjustments; there may be rejections of new law through non-activation or reversal. Between these poles any number of variants arise, which have to do with those who sought to rely on their rights and those who were obliged to meet their responsibilities, those who used the channels marked out by law to achieve their ends, and all those who were affected at some remove by the rights and duties of others. This is territory where legal history merges into the social, economic, political, and administrative.

Volumes XI–XIII, which end this Oxford History of the Laws of England in a period of unprecedented economic and social change, are much concerned with new legal developments. The present Chapter and those which follow in this Part aim to set the general scene for subjects that will be described later in more detail. The remainder of Volume XI concentrates on the structure of the English legal system, including the constitutional framework within which government operated and the intellectual stimuli to its functioning. Volume XII deals with the major elements of its inherited Private Law and the manner in which they were re-fitted for a more complex age, giving larger understandings of property, contract, commercial law, and tort. Volume XIII takes up five subject areas—some primarily public in orientation, some private, some increasingly mixed—where, between 1820 and 1914, any original clay was substantially remoulded. The volume covers the criminal law and its techniques of detection, prosecution, and punishment; provisions for social aid in accordance with the earnest moral endeavour of Victorian thought and action; family law as it came to apply both to the interests of the propertied classes and the great body of people supported by manual labour; labour law as it faced class conflict through the demands and actions of employers and trade unions; and the development of conceptions that would (p.4) protect individuals against external intrusions upon their personal lives and allow them exclusive control over the results of their intellectual endeavours.

The first task of this initial Part is to outline the nineteenth-century frame of government and law. At the very heart of the common law system lay a triangle of continuity.¹ Along one side, a set of courts had built up which, despite some considerable re-shaping, would keep to certain basic divisions—between superior and inferior courts, between civil and criminal process. Along a second side, there was an ever-clearer division of professional lawyers into barristers, with their rights of audience in the superior courts, and attorneys-cum-solicitors, with their own monopolies in such matters as conveyancing. Along the third side, as for centuries before, was the convention that the superior judges were drawn from the practising bar. Here was the institutional foundation of the common law system bred in England, a base-plate which shaped so much of the relations between legal institutions and the other branches of government.² Filling the space thus enclosed were the established procedures of these superior courts and the substantive legal rules generated in large measure from their decisions—a definitive process for so much of this Oxford History. On the stamping ground thus measured out, there were arenas flagged as ‘common law’ in the strict sense: the law of the three royal courts of common law; then there was equity, being the law mainly applied in the courts of Chancery; and thirdly, civilian law