Creditors and the Feme Covert

As is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of judicial turnover, the turnabout in Marshall might not have been effected. The Marshall case was argued twice before eleven of the twelve common law judges, first on May 9, 1798 (absent Baron Perryn), and again on May 10, 1780 (absent Justice Buller). The printed report of the case (8 Term Reports 545) is relatively brief, containing only Chief Justice Kenyon’s judgment. The Paper Book belonging to junior King’s Bench justice Soulden Lawrence, however, survives at Lincoln’s Inn Library, and it contains extensive notes by Lawrence of the two arguments before all the judges. The notes reveal that by the time of the second argument, a sea change in judicial attitudes had occurred. When the case was first argued in 1798, two of the justices who had voted with Lord Mansfield in earlier cases were still serving–Justice Ashhurst on King’s Bench, and Justice Buller, formerly Mansfield’s protégé on King’s Bench, who had transferred to Common Pleas in 1794. By the time the second argument arrived in 1800, Justice Ashhurst had resigned and Justice Buller was in failing health (he died a month after the second argument, which he did not attend). Also, Chief Justice Eyre of the Court of Common Pleas, who attended the first argument, died in July 1799 and was replaced by former Attorney General Sir John Scott, newly-created Lord Eldon. Further, plaintiff’s counsel at the second argument was Edward Law (who in 1802 became Lord Ellenborough and succeeded Kenyon as Chief Justice of King’s Bench), and it is clear from colloquies between Law and the judges that Law did not have his heart in the case. The fact that newly appointed judges find ways to effect change while pretending to honor stare decisis is hardly surprising. It is nonetheless important where possible to make the historical record transparent. Justice Lawrence’s manuscripts allow us to see behind the curtain in the influential case of Marshall v. Rutton. Further, it is interesting in light of Chief Justice Kenyon’s views as expressed in Marshall to consider who was held liable for the wife’s “necessaries” in cases decided in the years that followed, especially when the husband’s behavior toward the wife was violent, brutish, or shockingly dismissive

A Profusion of Chancery Reform

The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was subversive of first principles. He claimed, That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied, adding for good measure: It is a proposition as self-evident as that black is not red, or white black. Almost two centuries later, in a provocative 1974 essay called The Death of Contract, Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like matter and anti-matter, and The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up. Gilmore and Powell notwithstanding, law and equity have been able to live together successfully, if occasionally uneasily, for well over a century. In England the crucial procedural event, marking the end of a bumpy journey of at least four decades of fits and starts, was the Judicature Act 1873. The fact that fusion was finally achieved in 1873 is well-known. Not well-known, however, has been the story of exactly how this happened. Michael Lobban tells that story in meticulous detail with commendable clarity, starting with the early 1800s and the quarter-century when Chancery was in the hands of John Scott, Lord Chancellor Eldon

On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury

In the discussion to follow, I expand my inquiry into what happened in the English courts of the late 18th and early 19th centuries in civil cases when special expertise on the part of the decision-makers was needed. A major source that contributes to this study is the law reporting that appeared in The Times, founded in 1785. I explore three questions: (1) What types of cases in late 18th-century England were considered to be inappropriate for juries? (2) What recourses were available to the late 18th or early 19th-century English judge when the issue in a case was outside his own expertise or beyond his individual capability? (3) What exactly was the role of merchant jurors in putting their mercantile expertise to work in a given case

The Historically Shifting Sands of Reasons to Arbitrate Symposium

It is well established that for many centuries, arbitration has been a regular, even frequent, method of dispute settlement in the Western World. Derek Roebuck has done path breaking research demonstrating this in his recent book covering the middle ages (1154-1558)1 and in his contribution to this symposium, “The English Experience: What the First American Colonists Knew of Mediation and Arbitration.”2 My own work, with the excellent help of co-authors Henry Horwitz and Su Jin Kim, has explored English patterns from the late 17th century into the 1800s, also tracing the English approach into the American colonies and the early Republic. Recourse to arbitration has not always been satisfying, yet for the most part it has attracted participants because of four recognized attributes: speed, economy, informality, and finality

From Blackstone to Bentham: Common Law Versus Legislation in Eighteenth-Century Britain

A Review of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain by David Lieberma

Informal Law-Making in England by the Twelve Judges in the Late 18th and Early 19th Centuries

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.” The Court for Crown Cases Reserved formalized an off-the-record procedure that had been followed for centuries. When a question of law or procedure arose during the conduct of a jury trial, the question could be reserved for collective deliberation by the twelve common law judges. As will be explained, the reasons for reserving a question were varied; the deliberations by the judges were both informal and private, although at times, arguments of counsel were permitted or invited; and until the late 18th century, the results of the deliberations were not regularly made public