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Common Law and Enlightenment in England, 1689-1750

Common Law and Enlightenment in England, 1689-1750

Julia Rudolph
Volume: 15
Copyright Date: 2013
Published by: Boydell and Brewer,
Pages: 344
https://www.jstor.org/stable/10.7722/j.ctt2jbkw0
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  • Book Info
    Common Law and Enlightenment in England, 1689-1750
    Book Description:

    This book explores how English legal culture, deeply imbued with the ideas and practices of common law, engaged with the new intellectual, institutional and cultural changes of the Enlightenment. It argues that common law survived as an important part of English legal culture because it was able to meet the various challenges posed by Enlightenment rationalism and civic and commercial discourse. Drawing on works of jurisprudence, legal histories, manuals of law and notebooks of legal practice, and looking in detail at four pivotal, widely-discussed cases, the book illuminates the ways in which common law custom and tradition continued to be valued foundations for the authority of law, even during a period of political change, commercial growth and philosophical rationalism. Exploring the challenges to and adaptations within common law thinking in England in the late seventeenth and early eighteenth centuries, the book reveals that the common law played a much wider role beyond the legal world in shaping Enlightenment concepts. JULIA RUDOLPH is Associate Professor of History at North Carolina State University. She is the author of 'Revolution by Degrees: James Tyrrell and Whig Political Thought in the Late Seventeenth Century' (Palgrave Macmillan, 2002), and of various articles on gender, crime, and the history of the book in early modern England. She has also edited a collection of theoretical and interdisciplinary essays entitled 'History and Nation' (Bucknell University Press, 2006).

    eISBN: 978-1-78204-122-1
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgements
    (pp. ix-x)
  4. Abbreviations
    (pp. xi-xii)
  5. 1 Against Decline
    (pp. 1-29)

    The history of eighteenth-century English common law jurisprudence – and common law culture more generally – has often been narrated as a story of decline and fall. The first half of the century, a period delineated between the Bill of Rights of 1689 and the labours of Blackstone in the 1760s, has particularly been characterised as a time when the common law stood apart from the progressive and enlightened impulses of the era; a time when common law struggled, and largely failed, to maintain its former intellectual and cultural significance. Since this is a narrative that adheres to the pattern...

  6. 2 Law Books, Legal Knowledge and Enlightened Encyclopedism
    (pp. 30-82)

    Giles Jacob’s joking aside to his reader is rich with double meanings. His humorous, because absurd, denial that he is equating large notebooks or large body parts with legal prowess is a rhetorical flourish, a characteristic eighteenth-century satirical jibe. It is also, possibly, a ribald pun (and this from the purported author of the obscene Tractatus de hermaphroditis) on the manly anatomy of the ‘greatest Lawyer’, and a winking reference to the so-called temptations for the law student among the prostitutes, the ‘pleasure grounds and fleshpots’, which were in close proximity to the early modern Inns of Court.² Jacob’s imagery...

  7. 3 Expertise and Evidentiary Practices in Science and Law
    (pp. 83-129)

    Scientific and medical books, like law books, proliferated in the early eighteenth century. This ‘ocean of books’ had also begun to swell in the late sixteenth and seventeenth centuries, with the advent of printing and the establishment of the Royal Society, but took on certain characteristic forms in the eighteenth century. For example periodicals, like the Royal Society’s Philosophical Transactions, became a favoured and flourishing medium for circulating new research and information. In addition large, expensive, multivolume reference works were produced, again with the approval or even encouragement of an authoritative body like the Royal Society whose printer in the...

  8. 4 Common Law, Credit, and the Growth of Commerce
    (pp. 130-163)

    English common law jurisprudence developed in the context of changes in eighteenth-century evidentiary practices and the growth of the adversary criminal trial. As the trial of Spencer Cowper, and appeal by Mary Stout, demonstrated, there were important connections made between contemporary ideas about objectivity, truth and fact, and contemporary conceptions of authority and justice. The judges’ ruling on the matter of Stout’s appeal also points to a second important arena for the development of common law jurisprudence in the eighteenth century: jurisdictional controversy between common law and equity. One indication of this controversy is given in the heated exchange between...

  9. 5 Common Law Jurisprudence and the Philosophy of Natural Law
    (pp. 164-200)

    In eighteenth-century England ideas about natural law also developed within the context of controversy over the jurisdiction of common law and equity. In the course of these controversies natural law jurisprudence and common law jurisprudence evolved in conjunction with other philosophical trends. English legal theorists drew upon a variety of philosophical positions – ‘religious’ as well as ‘secular’, ‘social’ as well as ‘individualist’ – providing further evidence for Frederick Beiser’s claim that ‘the natural law theory of the Enlightenment’ encompassed ‘different, even competing traditions’.¹ Moreover, the evidence derived from these debates about the jurisdiction of common law and equity demonstrates...

  10. 6 Common Law and the Morality of Markets
    (pp. 201-230)

    Among the numerous volumes on law in the Macclesfield library at Shirburn Castle – a library that, by 1750, housed tens of thousands of books and manuscripts, in multiple languages, on topics such as economics, science, mathematics, theology, music and architecture as well as law – there was a bound collection of three texts on Chancery and equity.¹ Robert Atkyns’ Enquiry into the Jurisdiction of Chancery in Causes of Equity … and The Case of the said Sir Robert Atkyns upon his Appeal, Richard Francis’ Maxims of Equity, and Henry Ballow’s A Treatise of Equity were gathered together in a...

  11. 7 Legal Histories and Enlightened Historiography
    (pp. 231-266)

    The crisis in Chancery, and impeachment of Lord Chancellor Macclesfield in 1725, was a broadly significant moment in enlightened debate about the effects of economic change. Its significance is underscored by the fact that the contemporary response to revelations of corruption in law and government was not only moral-philosophical, concerned with sociability, civility or utility. The response was also historical, and was concerned with erudite evidence underpinning socio-economic explanation. In the aftermath of the impeachment histories of the Chancery were written by Samuel Burroughs and Philip Yorke as part of a continuing discussion about the justice of equity and the...

  12. Conclusion
    (pp. 267-270)

    The new history of English common law jurisprudence and culture introduced here emphasises development, relevance and vitality. Common law was fully engaged with multiple contemporary trends, and played a key role in the emergence of an enlightened society in eighteenth-century England. This is a fundamental revision of the long-held view that common law remained a bastion of tradition and technicality, its insularity and irrationality clearly antithetical to eighteenth-century enlightened culture and philosophy. This new history of common law also provides an important corrective to the old narrative of decline and fall, which posited that common law lost its intellectual and...

  13. Bibliography
    (pp. 271-312)
  14. Index
    (pp. 313-324)
  15. Back Matter
    (pp. 325-327)