As the nineteenth century progressed, and despite the proliferation of legislation as the source of law, leading cases and precedent had not disappeared from the legal scene. When important legal issues arose, the judges did not have to wait on parliament to act or ask a question: they could establish or develop the law themselves. They rather enjoyed it.

Before 1848 the procedure had been an informal one. Criminal cases in which a legal difficulty arose were ‘reserved’ for consideration by the judiciary in London. The question of law was ‘argued before the judges by counsel, not in a court of justice but at Serjeants’ Inn of which all the judges were members’. They could recommend a free pardon if they thought the prisoner wrongly convicted in law. If not, the sentence was executed or judgment was passed. Reasons for their decision were not given. In 1848 a statutory body replaced this informal tribunal. It was called the Court for Crown Cases Reserved, a quorum of which consisted of five judges. The Lord Chief Justice had to be one, and the others were usually the most senior judges of the Queen's Bench available. Should one of these judges insist, the case would be referred to the whole body of fifteen.