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CHAPTER VII
THE LAW AND LAWYERS IN ENGLAND IN THE
EIGHTEENTH CENTURY
The Eighteenth Century in England was a period in which
the law itself was being rapidly made, and great judges were making it.
In 1689, Sir John Holt was appointed Chief Justice of the
Court of King's Bench; and in 1704 (a year before the birth of Lord Mansfield),
he gave forth his epochal decision in Coggs v. Barnard (: Lord Raym. 909). This
was fight years before the first legally trained American lawyer took his place
on the Massachusetts Bench, three years after the first lawyer sat on the Pennsylvania
Bench, and five years before the first lawyers were formally licensed in New
York.
In 1756, Sir William Murray, Lord Mansfield, became
Lord Chief Justice of England. This was the year when John Adams began to study
law, four years before Patrick Henry was admitted to the Bar, and while
John Rutledge was studying in the Temple.
The Leading Cases (so called by the text-book writers of the
Nineteenth Century) were, between 1700 and 1785, coming fresh from the printing
press each year. Cases, now familiar to lawyers and law students as historical
landmarks, were then of vivid interest to the practising lawyers of the American
Colonies.
Thus in 1711 came the famous case on restraint of trade, Mitchell
v. Reynolds (I P. Wins. 181); this was at the time when the whole Bar of
Pennsylvania consisted of four lawyers. In 1719 came the case of Cumber v.
Wane (I Strange, 426), involving the doctrine of consideration. In 1722
came Armory v. Delamire (I Strange, 504), the chimney sweep and the jewellet
case; this was a year before the birth of William Livingston in New York, three
years before the birth of George Wythe in Virginia and five years after the
birth of the first great Pennsylvania lawyer, Benjamin Chew. In 1750 came Penn.
v. Lord Baltimore (I Ves. 444); this was two years after the foundation
of the first Bar Association in New York. In 1773 came Scott v. Shepard
(2 W. B1. 892), the Squib case, as to actions of trespass; in 1789, Pasley
v. Freeman (3 T. R. 51), establishing the law of deceit.
In these years, also, occurred the great State trials, like
those of the Jacobites, Lord Kilmarnock, Lord Balmerino and Lord Lovat, for
treason, before Lord Hardwicke in the House of Lords in 1746; the trial of John
Wilkes for seditious libel, before Lord Camden in the Court of Common Pleas,
in I763; Rex v. Woodfall, in I770, as to the publication of the Junius
letters, the trial of Lord George Gordon in 1781; the famous legal battle on
the law of libel, in the trial of the Dean of St. Asaphs, in 1783; the beginning
of the impeachment trial of Warren Hastings, in 1787.
The status of Common Law in England, as it was when Lord
Mansfield came on the bench, is thus described by Lord Campbell:
"This system was not at all badly adapted to the condition
of England in the Norman and early Plantagenet reigns, when it sprang up,- land
being then the only property worth considering, and the wants of society only
requiring rules to be laid down by public authority for ascertaining the different
rights and interests arising out of land, and determining how they should be
enjoyed, alienated, and transmitted from one generation to another. In the reign
of George II, England had grown into the greatest manufacturing and commercial
country in the world, while her jurisprudence had by no means been expanded
or developed in the same proportion. The legislature had literally done nothing
to supply the insufficiency of feudal law to regulate the concerns of a trading
population; and the Common Law judges had, generally speaking, been too unenlightened
and too timorous to be of much service in improving our code by judicial decisions.
Hence, when questions necessarily arose respecting the buying and selling of
goods,- respecting the affreightment of ships, respecting marine insurances,
-- and respecting bills of exchange and promissory notes, no one knew how they
were to be determined. Not a treatise had been published upon any of these subjects,
and no cases respecting them were to be found in our books of reports, -- which
swarmed with decisions about lords and villeins,- about marshaling the champions
upon the trial of a writ of right by battle,- and about the customs of manors,
whereby an unchaste widow might save the forfeiture of her dower by riding on
a black ram and in plain language confessing her offense. Lord Hardwicke had
done much to improve and systematize Equity... but proceedings were still carried
on in the courts of Common Law much in the same style as in the days of Sir
Robert Tresilian and Sir William Gascoigne. Mercantile questions were so ignorantly
treated when they came into Westminster Hall, that they were usually settled
by private arbitration among the merchants themselves. If an action turning
upon a mercantile question was brought in a court of law, the judge submitted
it to the jury, who determined it according to their own notions of what was
fair, and no general rule was laid down which could afterwards be referred to
for the purpose of settling similar disputes." (1)
With the latter half of the Century, however, began the
modern Common Law of business and personal relations, as distinguished from
the old feudal Common Law, con-
(1) Campbell's Lives of the Chief Justices, Vol. III, p. 299.
Bfined as it was to questions of
realty and pleading. The wide range of contract law began to be opened out.
The doctrines of the laws of bills and notes, insurance and maritime commerce
became fixed. The law of evidence, none of the present rules of which, except
that excluding hearsay, were well established prior to 1688, was becoming well
developed. On the other hand, the law of torts was hardly in existence before
1800; there were no negligence cases; the great contests of Erskine and Fox
on the law of libel had not begun. The law of business corporations did not
exist.
It was not until 1733, that Sir Peter King, Lord Chancellor,
finally prevailed upon Parliament to provide that the English language should
thenceforth be used in all law proceedings, although Lord Chief Justice Raymond
and all other judges had opposed the change.
MY COMMENTBChapter
VIII will not be reproduced because it deals in mundane things like, A Colonial
Lawyers Education which is dry reading.
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