Lawyers and Legal Development
The Anglo-American common law tradition has changed tremendously. But it took time, and as S. F. C. Milsom writes, we cannot attribute “any intention beyond getting today’s client out of his difficulty” to the lawyers whose work helped bring about these changes [1]. While law has historically been a conservative profession, slow to make changes, lawyers’ persistence in advocating for their clients can make sweeping changes over time. A significant example is the development of our law of contract, which we will touch very briefly here.
Medieval English case reports may sound like a dry topic, but they can at once be entertaining and also demonstrate how much more reasonable the law has become over time. One case report from England in 1435, for example, begins with a brief explanation that the plaintiff had bought land from the defendant by contract, but the defendant could not obtain a release from others as he had said, so the buyer sued the seller. To us it seems that the seller breached his contract but might himself have a claim against these third parties. But let’s look at the lawyers’ initial arguments [2]:
Ellerker. This action sounds in the nature of covenant, in which case he should have had a writ of covenant and not this action. Judgment of the writ.
Newton. Since the trespass has been confessed by you, and you have not shown any other facts, we demand judgment.
Ellerker, advocating for the defendant, claims that an inappropriate writ has been brought. Covenant (which in our English would be “contract”) was a form of action that could be brought to seek relief for breach of contract. But the burden of proof was high and the remedy not always suitable. This is why Newton brought a newer and more flexible action called trespass on the case, but Ellerker jumps on the chance to quash the writ and have the case dismissed, claiming that the older covenant action was the only one the plaintiff could rightly bring. Newton responds not immediately by explaining why his writ is valid but instead seeking immediate judgment because Ellerker has not contested that his client breached his contractual obligation. As Newton points out, Ellerker at first does nothing to defend his client’s wrong.
This illustrates the organization around the forms of action characteristic of the common law for so long. Now, of course, we think more substantively. Few today would find Ellerker’s response satisfactory. English legal historian John Baker puts it this way: “Although the classification of causes of action and remedies is still valuable for purposes of clarity, it is no good reason to defeat a just claim that a party’s lawyer has selected the wrong form” [3]. But Newton would not have always won, and before 1370, there is no record of this action being brought in a similar plea [4]. The action’s scope would continually be expanded into the sixteenth century [5]. And in these decades, lawyers like Newton had to do their best to convince judges their clients deserved a remedy, even if under the then-current system it was not clear they would obtain one. Though Newton was unconscious of it, his work may have outlived both him and his client and played a small part in developing the law of contract, of which we are beneficiaries.
This is not to say that more immediate and intentional reforms are never helpful or needed. English legal history can attest to that as well. But this story should give us hope that even when the law seems to have inefficiencies, it can be improved gradually by the everyday practice of law and advocating for clients.
Sources:
[1] S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London: Butterworths, 1981), p. 7.
[2] John Baker, Sources of English Legal History: Private Law to 1750, 2nd ed. (Oxford: Oxford UP, 2010), p. 431.
[3] John Baker, An Introduction to English Legal History, 5th ed. (Oxford: Oxford UP, 2019), p. 76.
[4] S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London: Butterworths, 1981), p. 323.
[5] Ibid.