Review of James Oldham, 'English Common Law in The Age of Mansfield' (Chapel Hill: The University of North Carolina Press, 2004) Pages I-IXVII, 1-426. ISBN 0 8078 5532 4

Abstract

In early 1788, as the First Fleet sailed on its mission to colonise New South Wales, it carried with it an invisible cargo: the laws of England. A large part of that cargo comprised the common law, the 'unwritten law' derived by judges from English custom and tradition. As Arthur Phillip ordered the Union flag to be hoisted on a makeshift pole planted beside Sydney Cove on 26 January, back in London one of the greatest common law judges contemplated retirement. Lord Mansfield, Chief Justice of the Court of King's Bench since 1756, would eventually retire from office on 4 June 1788. The author of this book, James Oldham, makes two central claims. The author of this book, James Oldham, makes two central claims. First: "Were it possible to revisit England in the year 1750, it probably would not be evident that the common law courts over the next half-century would lay many of the foundation stones that would support the Anglo-American law of the twenty-first century. Yet this proved true, both in commercial areas (such as contracts, insurance, negotiable instruments, intellectual property and international trade) and in protecting the rights of individuals (as in the law of negligence, nuisance, religious freedom, and slavery)". Secondly, Oldham claims that, "[t]hough assisted by the work of able contemporary and predecessor judges, Lord Mansfield was the dominant judicial force behind these developments". Both claims are thoroughly supported by the material contained in this book.