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Law, Politics and the Church of England: The Career of Stephen Lushington 1782-1873 (Cambridge Studies in English Legal History)

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Lawyers, law students, and many well-informed laypersons are aware England is the home of the "common law," that system of judge-made law (as opposed to law made by Parliament, Congress, or other legislative bodies) forming the basis of American law and the law in most Anglophone countries. (Three good introductions to the historical and philosophical underpinnings of the common law are The spirit of the common law by Roscoe Pound, Dean of the Harvard Law School; Origins of the Common Law by Arthur R. Hogue; and Theodore F.T. Plucknett's war horse, A Concise History of the Common Law.) Less well known is the fact that for nearly 700 years, a parallel legal system not only existed cheek by jowl with the common law system, but also thrived and for a time threatened the existence of the common law as the law of England. This parallel system was based in part on Roman law; in part on the canon law of the Roman Catholic Church; and in part on the ius commune--European law that developed in the 12th century from a fusion on Roman, canon, and feudal law. (A fine introduction to the "ius commune" is Manlio Bellomo's magisterial study, The Common Legal Past of Europe: 1000-1800 (Studies in Medieval and Early Modern Canon Law)).
The English civil lawyers existed in a conclave known as Doctors' Commons; they received their legal training, not at the Inns of Court as did the English common lawyers, but at England's ancient universities, Oxford and Cambridge. Because the civil lawyers graduated with doctorates from their respective universities, they were traditionally referred to by the honorific "Doctor," much as in many civil law countries today.
These "doctors of the law" were busy men, handling not only disputes involving the Church's canon law, but also matrimonial cases--divorces, annulments, adoptions and the like; cases involving defamation of character--libel and slander; involving military law and the law of chivalry; involving the law merchant; and in admiralty--that is, the law of the sea, prize, and anything else having to do with disputes arising on the high seas. (A good historical summary of the civilian practice in England is Doctors' Commons and the Old Court of Admiralty: A Short History of the Civilians in England [1922 ]. "Doctors' Commons: A History of the College of Advocates and Doctors of Law," by G.D. Squibb, is more comprehensive, but regrettably is out of print and almost impossible to locate; even Amazon didn't have a copy available for sale when I wrote this review in December 2011.)
The author of this book, Stephen Waddams, is Professor of Law at the University of Toronto. Although the author has an academic and legal background, and although Cambridge University Press published this book as part of its series "Studies in English Legal History," the book is pleasant and enjoyable reading, largely devoid of academic jargon and "legalese." I was able to finish it in two evenings, and found it interesting and informative.
The main title of this book is somewhat misleading; rather than discussing in general "law, politics and the Church of England," the book focuses on the career of Stephen Lushington, a prominent civil lawyer during the 19th century. Lushington's primary claims to fame involve two cases: He represented Lady Byron in her separation proceedings against the famous English poet Lord Byron; and later represented Queen Caroline in her trial for adultery, proceedings instituted by King George IV, who had long since become estranged from his wife and wished to rid himself of her by any possible means. Waddams shows that Dr. Lushington played a much larger role in the Queen's defense than has been recognized historically. Although Henry Peter Brougham, who was Attorney-General and later became Lord Chancellor, was the Queen's lead counsel, Waddams shows that she confided primarily in Dr. Lushington and valued his advice above all others as her trial progressed.
The English civilian bar was always much smaller than the bar of common lawyers and judges. Lushington, an acknowledged leader among the civilians, knew the days of the English civilians were numbered; in fact, he supported legislation--which ultimately was successfully passed and implemented--transferring jurisdiction in matters civilian to the common lawyers. The end was not long in coming. T.H. Tristram was the last doctor of law admitted to Doctors' Commons--this occurred in 1855. When Dr. Tristram died in 1912, this chapter of English legal history was forever closed.