James Oldham

Truth-Telling in the Eighteenth-Century English Courtroom

Mirjan Damaska, in his 1973 comparative study of criminal procedure in the Anglo-American and continental traditions, asserts that “the continental non-adversary system of procedure is more committed to the search for truth than is the Anglo-American adversary system.” He reasons that the stronger procedural obstacles to truth-finding in the adversary system derive from a collective horror of convicting innocent people.

Insurance Litigation Involving the Zong and Other British Slave Ships, 1780–1807

The infamous Zong case played an instrumental part in the abolition movement of the late eighteenth and early nineteenth centuries, and it is well known to historians of the slave trade. Not so well known, however, are the characteristics and practices of insuring slave cargo. Also the full story of the Zong incident and the subsequent litigation in the court of Kings Bench has never been told. This article first explains the manner in which the standard Lloyds marine insurance policy was understood by ship owners and merchants. Special adaptations for slave cargo are then examined, such as the circumstances in which the loss of slave cargo would not be covered because not due to ‘perils of the sea’, and exclusions for slave insurrections. Finally, the Zong case itself is explored, as enlarged by scarce and newly-discovered documentary sources. Two surprises emerge: that the words used in the printed Lloyds marine insurance policy did not necessarily mean what they said; and that the legal strategy employed in the court of Kings Bench on behalf of the owners was seriously flawed.

John Locke, Lord Mansfield, and Arbitration During the Eighteenth Century

An exploration of the origins of the Arbitration Act of 1698 and an analysis of court-related arbitration during the next century. Principal conclusions: (1) that the act originated at the board of trade, with John Locke drafting and drawing upon judicial practice of the later 1600s; (2) that use of the acts provisions was limited before the 1770s even though extra-judicial arbitration was proliferating; (3) that thereafter, with the Court of Kings Bench under Lord Mansfield taking the lead, rules of court under the act multiplied; and (4) that arbitration under the act was increasingly ‘legalized’ in procedure and in the qualifications of the arbitrators.

Arbitration in America: The Early History

On June 29, 1789, Zephaniah Turner of Charles County, Maryland, wrote to President George Washington and observed: Our Laws are too Numerous. Is it not possible that an alteration might take place for the benefit of the public?…Could it not be possible to curtail the Number of Lawyers in the different States? Suppose each State was to have but Two Lawyers to be paid liberally…[and] where a real dispute subsisted between Plaintiff and Defendant a reference [to arbitration] should be proposed, and arbitrators [be] indifferently chosen by both parties…whose determination shall be final.

Law-making at nisi prius in the early 1800s

. nisi prius proceedings were fact-centred disputes with few occasions to declare or establish principles of law, and those occasions that did arise would typically be saved and put to the full court by a ‘case stated’; . questions of evidence or concerning requisites of proof did arise at nisi prius and precipitated judicial rulings, but the process by which a ‘law of evidence’ was generated by such rulings was slow and fitful; and . jury verdicts were largely inscrutable.

Carlen v Drury (1812): The Origins of the Internal Management Debate in Corporate Law

ABSTRACT The origins of the internal management debate and business judgment rule in Anglo-American corporate law can be traced to the landmark case of Carlen v Drury (1812). Through the use of new manuscript sources and archival material, this article offers a deeper analysis of the case than has previously been available. It reveals a number of allegations omitted by the printed reports. By placing the case within its wider historical context, the article attributes Lord Chancellor Eldon’s decision to dismiss the case to external circumstances rather than the particular merits of the shareholders’ complaints. It shows that, although Eldon did not intervene in this instance, he was, in fact, willing to interfere in disputes which related to corporate governance issues. We argue that this case should be used with caution as early courts were not as hostile to the thought of exercising judicial power as the outcome in Carlen v Drury may suggest.

The Rise and Fall of Freedom of Contract

The impact of freedom of contract in the 19th century extended far beyond the legal arena as an economic slogan and an ethical attitude. Atiyah traces the development and subsequent decline of the freedom of contract, depicting its effects on the laws development and the foundation of contractual obligations, as well as its broader implications for 19th century English life.