History of the American BAR

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.


fined 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.

Informer's Comment:
Chapter VIII will not be reproduced because it deals in mundane things like, A Colonial Lawyers Education which is dry reading.