ENGLISH LAW IN THE ENLIGHTENMENT

Lord Mansfield and William Blackstone

69 On the European continent the legal world was face to face with a series of upheavals, or at least a wide-ranging movement of new ideas and reform.

3’ Joseph IΓs reforming zeal can be observed, among other things, in nearly a thousand ordinances which he promulgated in the Austrian Netherlands in the course of his ten-year reign. See R. Warlomont, â€?Les idees modernes de Joseph ∏ sur Forganisationjudiciaire dans les Pays-Bas autrichiens^,, Remu d’histoire du droit 27 (1959), 269-89; P. van Hille, De gerechtelijke hervorming van Keizer Jozef II (Tielt, 1972). Joseph II also upset Belgian legal circles by abolishing torture: E. Hubert, La torture aux Pays-Bas autrichiens pendant Ie XVIII' slide (Brussels, 1896).

English law. Equity, the case law of the Court of Chancery, was more restrictive than ever and had degenerated into a mass of rules of positive law which bore no relation to the natural equity from which, some centuries earlier, it had arisen. The powerful â€?Preroga­tive Courts’⁴⁰ had collapsed in the course of the Puritan revolution, and the courts which applied Roman or canon law were only marginal. So the Common Law remained what it had always been: a body of unwritten rules, thought to be based on ancient customary law, whose definition and interpretation was in the hands of the judges, in particular the twelve judges who sat in Westminster Hall.

Judges were not just the (conservative) guarantors of the law in force.⁴³ They could also contribute actively, by means of construc­tive precedents, to the development of English law. William Murray, Earl of Mansfield (d. 1793) was notable in this respect. Lord Mansfield was of Scottish descent (hence his familiarity with conti­nental and Roman law), and after a political career in the House of Commons, from 1756 to 1784 he occupied the position of Lord Chief Justice in King’s Bench, one of the Common Law courts at West­minster. At the same time he still sat in the House of Lords and took part in political affairs. His fundamental lasting contribution was to integrate English commercial law firmly into the system of Common Law. The antecedents of commercial law were in continental, especially Mediterranean, practice. In constructive, sometimes bold

v These were courts based on the royal prerogative, and of an absolutist character; the most important was the Star Chamber.

«' In Bonham’s Case in 1610 it was maintained by Coke (rf. 1634) that old law b∞ks showed that â€?in many cases the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act OfParliament is against common right and reason or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void’.

Only in 1871 did the Bench expressly reject this notion and declare that the judges as �servants of the Queen and the legislature’ had to accept the authority of Parliament, for �the proceedings here are judicial, not autocratic, which they would be if we could make the laws instead of administering them’, Lee v.

« At the beginning of the nineteenth century, two judges in particular were notoriously conservative, Lord Ellenborough in the King’s Bench (1802-18) and Lord Eldon in Chancery (1801-6, 1807-27). judicial opinions, Lord Mansfield developed this commercial law into an instrument suited to modern commercial and financial demands (credit, bills of exchange, insurance, banking), and is therefore regarded as the founding father of English commercial law. The development of the law was accomplished in collaboration with London merchants: they sat in the civil juries, and were asked detailed questions about the scope and meaning of their professional practices.

The role of legislation was merely ancillary. According to Black­stone (see below), lex non scripta (the uncodified Common Law) had to be distinguished from lex scripta (Acts of Parliament or - strictly speaking-of the Crown and the Houses of Lords and Commons). Statutes were merely complementary to the Common Law. They were declaratory, since they made explicit a particular point of Common Law, and they were remedial, since they were intended to correct deficiencies in the Common Law. Furthermore, there was a presumption that the intention of the legislator was never to modify or abrogate a rule of the Common Law, unless this intention was expressly declared. According to Blackstone, where there was no statute the task of the judges, who were regarded as living oracles and repositories of the laws, was to resolve all doubtful cases, and thus the Common Law was and remained a creation of case law.

Scholarship played an even more modest part than legislation. Law faculties and the teaching of law in general had lost all importance. The Inns of Court completely abandoned teaching and became purely social clubs for lawyers. At Oxford the creation of the Vinerian Chair of English Law was the first tentative step in university teaching of law. Blackstone was the first to occupy it, from 1758, and he did so with distinction.

Such inertia seems surprising against the background of the continental Enlightenment, whose inspiration - paradoxically - was largely British. It is even more surprising in the perspective of the Industrial Revolution, which reached its high point at precisely the time when the English legal world was at its most lethargic. It is a paradox of English legal history that this social and economic upheaval could take place under a legal system which came straight

H. G. Hanbury, The Vinerian Chair and legal education (Oxford, 1958). from the Middle Ages, as if the nation’s entire energy had been mobilized for the economic miracle, and the institutional framework had been totally ignored.

The age of reason, however, was not wholly without influence on English law, or at least English legal thought (which was in any event far removed from practice). Two eminent but very different jurists stand out at this time: one as the last great author of the classical Common Law, the other the critic of that same Common Law and the initiator of the reforms of the nineteenth century. Sir William Blackstone (d. 1780) was the author of the Commentaries on the laws of England (1765-8; several editions and adaptations), a compre­hensive account and analysis of English law. Although he has his critical observations to make, his general appraisal of English law is positive. His aim was to consolidate the English legal system and, in the spirit of the Enlightenment, to demonstrate its rational character and reveal its fundamental principles. The elegant language and style of the author favourably surprised his public, since most authors wrote in unintelligible and rebarbative jargon. Proper English replaced Law French and Latin only from 1731.

Jeremy Bentham

70 Jeremy Bentham {d. 1832) was quite a different matter. He confronted the status quo directly, and throughout his lifetime was a vigorous and eloquent apologist for the principle of codification.

« �Continental’ in the sense that it was there that natural law had particular success and a marked influence on legal practice. This does not mean that English thought made no contribution to natural law; think of Hobbes. must aim at the �greatest happiness for the greatest number’ (the slogan was J. Priestley’s, d. 1804).

Among Bentham’s works are A Fragment on government (1776), which attacked Blackstone’s Commentaries', Principles of morals and legislation (printed in 1780, published in 1789), which was a plea for radical legislation as the source of modern law, and Codification proposals (1823). He also wrote a Theory of legislation (which appeared only in 1931).⁴⁶ Bentham’s time was dominated by conservative ideas; any call for change at that time summoned up the spectre of the French Revolution and the Terror. As a result Bentham’s work, which advocated fundamental reform of the existing system, did not meet with success. After his death, however, Parliament, which had been substantially modernized by the Reform Act of 1832, did begin to carry out his programme, owing largely to the efforts of Lord Brougham, a fervent reformer and, as a politician, more adept than Bentham.⁴?

It is a paradox that the greatest European theoretician and exponent of codification - who actually coined the expression �codifi­cation’ - came from England.

There are several reasons for these divergent developments in England and continental Europe, and for the astonishing sterility of English law during this period. On the continent, the great codes were the work of enlightened despots or generals who had dictatorial powers. But England experienced neither of these regimes. The continental codes aimed particularly to reinforce the unity of the nation state, but there was no such need in England, where local legal peculiarities were unknown and the Common Law was the

'^,' Many of Bentham’s works were translated into French by his pupil E. Dumont, and read assiduously on the continent.

« The signal for fundamental reform was given in 1828, when Brougham made a six-hour speech in the House of Commons on the Common Law, and two Royal Commissions were appointed. As Lord Chancellor from 1830 to 1834 Brougham was in a position to urge reform. He was one of the founders of the Law Amendment Society in 1844.

marriage and divorce were intro­duced, and religious discrimination, especially against �dissident’ Christian sects and Jews, was abolished. At one time a distinction had been made between the civitas Dei and the civitas terrena, the superior divine order and the temporal order subject to it. Now the temporal order was emancipated. It could set its own goals, and means to achieve them.

In several respects, however, the ambitions of the law of reason were frustrated. Natural law itself, although it was greatly in vogue in the Enlightenment, had only a short life ahead of it. By the beginning of the nineteenth century, it had lost all real importance as a guiding principle and source of inspiration for the law. It had completed its task of mounting a challenge to the ancient order and inspiring the codes. It could disappear, like the revolutionary masses, with which nineteenth-century generals and citizens had nothing to do. Once the revolutionary codes were promulgated and the civil order of the nineteenth century was established, natural law amounted to no more than a suspect source of criticism and opposition. In the Constitution of the Year VIII, the consuls, the senior of whom was Bonaparte, had proclaimed that the Revolution had ended. Natural law as a discipline in the syllabuses of the law faculties crumbled away without any proper scholarly discussion. It was not conquered or exiled, but merely faded away. Although the term �natural law’ was retained in several syllabuses, the material taught covered everything but natural law (legal theory, sociology of law, legal statistics, philosophy and so on). In the middle of the nineteenth century, Windscheid observed �Der Traum des Natur- rechts ist ausgetraumt’ (�The dream of natural law is at an end’). Natural law was now no more than a purely academic subject without practical significance. For an advocate to resort to natural law, his case must already be desperate.

5» Imprisonment for debt was abolished by a decree of 12 March 1793 which stated that �it is not even permitted to contract for it’. None the less it reappeared in the Code civil; it had already been revived by a law of 14 March 1797 on the basis that the purpose of its abolition had been merely �an attack on property’. Only in 1867 in France, and in 1871 in Belgium, was it abolished (in 1980 in criminal cases).

THE LAW OF REASON AND THE HISTORICAL SCHOOL

72 The two great schools of thought which took over from natural law at the beginning of the nineteenth century were the ExegeticaI School and the Historical School. Members of the Exegetical School believed that law was identical with the codes and that, since statute was now the sole source of law, scholarship had to confine itself to the exact interpretation (or â€?exegesis’, the term used for interpretation of biblical texts by theologians) of statutes in general, and above all the codes. Such an approach inevitably excluded any philosophical system such as natural law.⁵¹ The Historical School was launched by the work of its founder, F. C. von Savigny (d. 1861), Vom Beruf unsrer Z«it fur Gesetzgebung und Rechtswissenschaft (1814), and had its own periodical, the Z^e^tschrift fur geschichtliche Rechtswissenschaft founded in 1815. The name (â€?Journal for HistoricalJurisprudence⁵) proclaimed the programme: jurisprudence should be historical, and the histori­cal experience of a people ought to be the true source of inspiration for its legal practice.⁵² This school believed that law was a natural, organic expression of the life of a people. It could not be codified at a given stage of development, any more than a language could.⁵³

At first sight the complete failure of natural law is surprising. Yet it is connected with the great political and social changes of the time (which will be examined at length), and also with its intrinsic impotence as a school of thought. Its claim was to establish objective and universal certainties, which were valid for humanity at large. But these ambitions were not realized. What seemed just in all the circumstances to one scholar, people, age or civilization djd not seem so to others. The axioms of natural law were in fact subjective, and so they had no value as the basis of a universal human system. The few general principles on which unanimity could be achieved (such as the duty to be honest and sincere, to keep promises and respect agreements) were so vague that they could scarcely solve the real problems of daily life. Natural law was too often inadequate

s' The Exegetical School (see also the following chapter) in fact dealt with the Code civil as the glossators had in their day dealt with the Corpus iuris.

” Savigny^,s Vom Beruf was a polemical work aimed at A. F. Thibaut (of legal systems which was characteristic of nine­teenth-century legal development. The law of reason and the cosmopolitan Roman law had to give way to different national legal orders based on national codes and national administration of justice. The development went along with that of sovereign states in the same period, as well as with various intellectual currents. In France, Montesquieu had already emphasized the necessity of adapting the law to the â€?spirit’ of peoples, and numerous German jurists of the late eighteenth and nineteenth centuries were con­vinced that each people must live by its own laws, adapted to its particular needs. So the School of Germanists (which opposed that of Romanists) looked in ancient law for elements which could shape a Germanic law adapted to the needs of the German people.⁵⁷ It was not a question of raising legal barriers between peoples, but at least legal unity had been achieved within states. The geographical frontiers of customary regions had disappeared, or would do in the course of the nineteenth century, and many old Corporatist and social barriers (such as the â€?Estates’) had been suppressed.