Catharine MacMillan: Observations on James Oldham on Judges and Law Reporting

Catharine MacMillan

Catharine MacMillan is Professor of Private Law at the Dickson Poon School of Law, King’s College London.

I agree entirely with the wonderful and lucid introduction to this subject given by Christian Burset.  What I propose to do now is to make some brief observations which build upon the nature of Jim’s scholarship and to then highlight two aspects: (1)  on the importance of judicial biography; and (2) law reporting.

1.  A labour of love.  The title for this symposium is the Love and the Labour of Archival Research.  I want to suggest that Jim’s research, most notably his work on The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century,[1] was a labour of love.  It is important to acknowledge matters we are assuming today without enumeration or examination.  Jim dealt with manuscripts sources – trial notebooks – which were difficult to read and full of abbreviations requiring deciphering and decoding.  They were written to be read by their author and to decipher the vast multitude of these notes demands a painstaking labour of great patience.  There then follows the challenge of selecting relevant cases to present and somehow systematising these records and making sense of them – of creating an order even their author would not have seen.  Some of these processes occur within the archives but a great deal occurs outside the archive. 

The last important process occurs entirely outside the archive, in the writing up of these archival materials, suitably organised.  This is another process in which Jim excels: the presentation of the archival sources.  Jim writes with great clarity and with a clear sense of direction.  He writes up, as Christian has alluded to, what he has found in the archive and from these findings constructs his theories.  In following this process, he writes for the ages and not for our age alone.  More importantly, Jim writes for a wide audience.  His publications are rightly viewed as magnificent works of legal history but they are also works which are of benefit to lawyers seeking to understand the law of our own age and to historians seeking to understand the law of the eighteenth and early nineteenth century as it relates to and shapes economic, social and political history.  Few legal historians, particularly those who work on doctrinal legal history, attain such reach with their publications. Jim not only does this but also – like the great master of any endeavour – makes it look easy.

One last point about the readership of Jim’s publications.  His writing is simple and uncomplicated, although never simplistic.  The result is that he reaches a wide audience of readers with greatly differential levels of knowledge and understanding.  At one level, he addresses the interests and debates of professors of legal history but also, at another level, the concerns of undergraduate law students.  I have found it interesting and rewarding to see how my undergraduates studying legal history have so benefitted from Jim’s writing on Lord Mansfield and Somerset’s case when we consider the laws which created African enslavement.

In reviewing The Mansfield Manuscripts in 1994, one reviewer wrote simply ‘One is overwhelmed with admiration for Oldham’s scholarship’.[2]  Nearly three decades on this admiration has grown rather than diminished as the importance of Jim’s work is recognised and later scholars have used his scholarship as a foundation for their own.

2.  The importance of judicial biography.  Philip Girard has observed that while ‘judicial biography is not an easy undertaking. Yet the role of judges in the common law world is too important to be ignored.’[3]  Jim’s research into the lives of Lord Mansfield, Lord Kenyon and to a lesser extent, Lord Eldon, demonstrates how judicial biography is important to legal history, that in a rather fundamental way, legal history can be dependent upon legal biography.  This work – born of diligent and scrupulous archival research – demonstrates a model by which we can advance our understanding of the law and of the environment around the law.  

The Mansfield Manuscripts begins with a description of Mansfield’s life, what motivated him and what took him forward in life.  Who can forget the image of a determined, self-confident fourteen-year-old, a fourth son in a family with Jacobite tendencies, travelling by horseback from Scotland to London to seek his future?  Or the judge in Somerset’s case inviting his mixed race niece to a dinner gathering? Jim’s detailed study of Mansfield’s notebooks transforms our understanding of the cases he decided – they explain the how and the why of these cases and the legal developments they caused in English law – and across the entire range of the subjects of before King’s Bench.  Nowhere is this more important than that elusive yet important area – the interaction between judge and jury. 

The study of these bench books is supplemented with other manuscript sources and with newspaper and law reports to form a complete view of Mansfield’s jurisprudence within the context of his era.  Almost every one of the introductory essays which accompanies the different subjects within The Mansfield Manuscripts is capable of publication in its own right.  Taken together this collection, published as a collection in English Common Law in the Age of Mansfield,[4] forms the foundation of our understanding of eighteenth-century common law. 

Two final points.  The first is that a further strength of this archive-based scholarship seeks to understand the world in which the judge lived and the constraints – and freedoms – which attended his life.  Second, and of particular importance is that Jim’s account of Mansfield – an individual who greatly divided his contemporaries – is a balanced one.  One may disagree with what Mansfield did in many instances but, having read Jim’s work, the modern reader cannot help but admire what Jim has identified as central to Mansfield’s conception of his role – the desire for individual justice.  This identification goes someway to answering Junius’s criticism of Mansfield as a chancellor in King’s Bench clothing.  Understanding the individual, and in the context of their time, goes a long way to comprehending their actions and from these their impact upon the common law.  

This is important not only for legal historians but also for students.  Each year my undergraduate students (a law degree is a first degree in England) tell me how much they enjoy reading Jim’s work on Somerset’s case[5] and how their understanding is informed and enhanced by his biography of Lord Mansfield.  Again, from an English perspective, Lord Mansfield is still important in the development of modern contract law: Lord Bingham, in The Director General of Fair Trading v First National Bank Plc,[6] invoked Lord Mansfield in a demonstration of how the requirement to contract in good faith (introduced in the particular case by a European Union directive) was not ‘a concept wholly unfamiliar to British lawyers’.[7]

3.  Law Reports.  A critical element of Jim’s scholarship on judicial biography is his research and publications on law reporting. He has had a continuing curiosity in what law reporters reported and what they did not report.  His scholarship here both provides fruitful methodological approaches to understanding legal change and also transforms our understanding of the underlying bases for why certain cases were decided as they were and why the law developed as it did.  

In an era of extempore judgments, law reports and manuscript notes of cases are critical.  As Jim has demonstrated, they can work to illuminate otherwise dark areas of legal practice, such as nisi prius practice in the early nineteenth century.[8]  In addition, the use of law reports and accounts of cases in newspapers – from 1785 The Times did this reliably – helps to identify the origins of different types of action before the significance of these developments were more broadly apparent to contemporaries and to later historians.  Negligence cases, he observes, arose far more frequently in the late eighteenth and early nineteenth century than a reading of traditional law reports or treatises would indicate.[9]  They are also an important set of materials to compare against both unpublished manuscript accounts of a case[10] and also to compare with each other.  Looking at matters the other way around, Jim has examined how manuscripts of judges’ notes serve important functions in relation to printed reports which include those – of correction; of corroboration, of clarification and the revelation of those matters never reported which have a bearing on the case or its post-judgment developments.[11]  There is, in addition, exploration of the importance to eighteenth-century barristers of manuscript reports of cases and how study of this practice, and the use of these manuscript materials, can transform our understanding of judges, courts and legal developments.  To paraphrase Jim, these notes can illuminate dark periods of legal activity.[12]  This illumination is obviously important to historians and legal historians: it can also be important to modern lawyers.  Again, drawing upon modern English contract law, in the late twentieth-century the Court of Appeal waived the necessity for fresh consideration in the case of a re-negotiated agreement, in a small part on the basis that Isaac Espinasse was a better court reporter than he had previously been credited.[13]

Jim has also touched upon the significance of that which was not published – why certain cases disappeared, either by accident or design.  Jim’s recollection of Campbell’s statement that he left unpublished a drawer of Ellenborough’s bad law is both amusing and provocative.  And like all good scholarship, it leaves open an entire field for later development: how did omissions in law reporting shape our law?

In short, Jim’s work and methods provide models for future development and in illuminating the dark places of legal history, he has lit a path for future scholars.

[1] (University of North Carolina Press 1992).

[2] John W Cairns, review ‘James Oldham. The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century’ (1994) 38 Am J Legal Hist 102.

[3] Philip Girard, “Judging Lives: Judicial Biography from Hale to Holmes,” Australian Journal of Legal History 7 (2003): 87, 106.

[4] (University of North Carolina Press, 2004).

[5] Somerset v Stewart (1772) 98 ER 499.

[6] [2001] UKHL 52.

[7] Ibid., para [17].

[8] James Oldham, “Law-Making at Nisi Prius in the Early 1800s,” Journal of Legal History 25 (2004): 221-247.

[9] James Oldham, “The Law of Negligence as Reported in The Times, 1785–1820,” Law and History Review

36 (2018): 383-419.

[10] James Oldham, “Detecting Non-Fiction: Sleuthing Among Manuscript Case Reports for What Was Really Said,” in Law Reporting in Britain, ed. Chantal Stebbings (Hambledon Press, 1995), 133-155.

[11] James Oldham, “Eighteenth-Century Judges’ Notes: How They Explain, Correct and Enhance the Reports.” American Journal of Legal History 31 (1987): 9-42.

[12] James Oldham, “Underreported and Underrated: The Court of Common Pleas in the Eighteenth Century,” in Law as Culture & Culture As Law: Essays in Honor of John Philip Reid, ed. John Philip Reid, Hendrik Hartog, William E Nelson & Barbara Wilcie Kern (Madison House, 2000), 119-146.

[13] Williams v Roffey Brothers & Nicholls (Contractors) Ltd [1991] 1 QB 1; [1990] 2 WLR 1153.