- The Oxford History of the Laws of England 1820-1914: Vol. XI, English Legal System; Vol. XII, Private Law; Vol. XIII, Fields of Development edited by William Cornish et al
Oxford, 3571 pp, £495.00, February 2010, ISBN 978 0 19 925883 3
Defying the advice of the King of Hearts to the White Rabbit, the Oxford History of the Laws of England began in the middle, with the publication in 2003 of its magisterial sixth volume, written by the general editor, John Baker, and covering the years 1483-1558. It then went back to the beginning, with R.H. Helmholz’s opening volume on early canon law. The rest was silence, until in 2010 the series sailed suddenly and magnificently into port without any of the remaining eight early volumes in tow.
The grandeur of the culminating section, a survey of the near-century from 1820 to 1914, is such that it has needed three stout volumes to contain it. But why bring such a comprehensive history to a close in 1914? The answer, I suppose, is that all history has to end somewhere, and the closer you come to the present the more room there is for idiosyncrasy and the less for perspective. Moreover, it’s not that difficult, at least in the law, to bridge those last hundred-odd years. The senior clerk in the chambers where I was a pupil in the 1960s had started work towards 1890 as a boy in the Temple, where he had been trained to write copperplate with the steel-nibbed pen that he would still use to copy out pleadings and opinions for signature when the typist was away. My head of chambers could recall Lord Darling, memorably insulted by the Birmingham Daily Argus in 1900, when he lectured the local press on how to report his decisions, as an impudent little man in horsehair who might have made a successful bus conductor, sitting in the 1930s on the judicial committee of the Privy Council and waiting, to the unconcealed annoyance of his colleagues, for an opportunity to make a smart remark.
And here Darling is, now a part of history, contrived wisecracks and all; though the long-held view that Halsbury, the Conservative lord chancellor who put him on the bench, made his choices entirely on the basis of party affiliation has shifted. The Oxford History’s judgment is that, despite the expressed belief of the prime minister, Lord Salisbury, that appointment to the bench should be a reward for party loyalty, ‘the worst choices’ – Darling among them – ‘seem to have been Halsbury’s own.’
Even Holdsworth’s massive 16-volume opus was introduced by the indefinite article – A History of English Law. Although the present enterprise boasts the definite article, the epithet ‘Oxford’ no doubt acknowledges that others might have done it differently. So they might; but if the rest of the series matches this final trilogy in breadth, depth, readability and learning, it is unlikely that anyone could have done it much better. Whatever the Oxford brand signifies, it is neither academic nor geographical. The chairs occupied by the authors of the final phase are situated in Cambridge, Otago, Keele, London, Middlesex and Cardiff. The doyen of them, William Cornish, has a distinguished record both as a legal historian – his and Geoffrey Clark’s Law and Society in England 1750-1950 remains an important work – and as an authority on intellectual property, on which he contributes an excellent section linking controversy and change in the law to economic interest and scientific progress.
The ‘Manifest’ with which the trilogy is introduced (though, despite the spry nautical metaphor, it opens with an unsettling solecism: ‘Any legal history worth salting’ – surely not) renounces all ambition to write a social history of the law rather than a history of the law itself. But the siren song that there is no legal history, just law, is faint. The work is rich in social, philosophical, political and economic context; even the structural categories of the enterprise – institutions, public law and private law – ineluctably leach into one another.
The precision with which, at least in this phase, a history of the laws of England is able to skirt the laws and legal systems of Scotland and Ireland, which throughout its period were constitutionally united with England, is both striking and revealing. Wales had been formally annexed in 1535, and the Oxford History records such systemic differences as still existed between the two countries by the 19th century. But although Scotland since 1707 and Ireland since 1801 had also formed part of a single political union, their legal systems and to a considerable extent their laws (Ireland’s, however, less than Scotland’s) remained their own.
Scotland’s principal intrusion into the present trilogy comes in the dismal history of final appeals, which could be brought more or less at will from north of the border, as often in order to delay enforcement as to obtain justice, exacerbating a logjam of English and Irish appeals which was not broken until the jurisdiction of the House of Lords was dismantled and recast in the 1870s. The story of how that happened is well told in Patrick Polden’s section on the law courts. Although it was the supreme appellate forum in civil matters (there was no real criminal appeal system), the House of Lords had a chaotic procedure in which the quorum of three could be made up of any peers, legally qualified or not, who happened to be around (Blackstone had thought this quite acceptable in view of the ‘delicacy of sentiment so peculiar to noble birth’). Attempts were made in the first part of the century to shift to a voluntary system in which a sitting or former lord chancellor would always preside. But Eldon had held the Great Seal for so much of the period between 1801 and 1827 that ex-lord chancellors were hard to find; and even chief justices were not routinely ennobled, thanks to concerns that they and their male progeny might not be able to live up to the obligations of nobility.
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