How Did the Common Law Develop During the 19th Century?



Posted: Thursday, December 09, 2010

by David Coleman
Lawyer

It is one of the truisms of legal history that social change begets law reform. Just as turmoil accompanied the Reformation in Europe and begat an explosion of statute law, and as the upheaval of the 17th century begat new constitutional structures, so did the social dislocation which accompanied the industrial revolution by leading to agitation for change in the legal system. In the years since its birth, the common law had steadily continued to grow. The growth was gradual and evolutionary. It took centuries for the modern system of property, contract and tort to evolve out of what was the old system of writs.

As the common law slowly became more sophisticated in its substance, it unfortunately became ever less responsive to the needs of ordinary litigants. The legal process became costly and slow, due to the rigidities of the writ system, full of procedural pitfalls. Moreover, procedures differed in each of the common law courts. And even within each court, procedure often resembled a byzantine maze, in which the smallest error could result in an otherwise worthy plaintiff having a case struck out. Equity was no better. What had begun as an attempt to mitigate the rigidity of the common law had come instead to imitate it. Furthermore, in the cumbersome nature of its workings, the Court of Chancery if anything surpassed the common law courts.

In an attempt to simplify the system and make it more efficient, the parliament in Britain enacted new legislation which made the procedure of the common law courts uniform across the country. Legislation was also passed to make procedure in equity uniform and eventually to fuse the common law and equity together in one harmonious legal system. This union of the common law and equity was mirrored around the world in Australia, Canada and the United States and is recognised as being one of the most important reforms of the 19th Century in relation to law.

David Coleman is a lawyer in Sydney Australia with over 10 years experience in the legal industry. If you need legal advice or a access to a legal document click on the links contained here.
This Article has been viewed 331 times. (Not updated in real-time.)
No comments yet.
We want your comments! If you can read this, you don't have javascript enabled, so you can't use this comment system. Please enable javascript.