Modem Europe
A. W. BRIAN SIMPSON. Leading Cases in the Common
Law. New York: Clarendon Press of Oxford University
Press. 1995. Pp. xii, 311. $39.95.
This is a jolly book that raises serious questions about
law and legal education. A leading case is a judicial
decision regarded as the chief precedent on a particular point; A. W. Brian Simpson has selected nine of
them for extended historical study. All nine cases are
English, dating from the sixteenth to the nineteenth
centuries, and a few are more familiar to English than
American lawyers. Drawn from various sub-disciplines
of the law, the cases, taken together, provide an
extraordinary panorama of legal doctrines. Simpson's
"case studies," a couple of which began as lectures
(and three of which were previously published), are
written in a lively, irreverent style. "Once you get
lawyers into a family dispute," Simpson wisely concedes in his discussion of lee v. Audley, the case that
established the Fertile Octogenarian Rule, "matters
tend to go from bad to worse" (p. 91).
Convinced of the need "to supplement law reports
with other material" in order to approach "historical
reality" (p. 11), Simpson collects literally everything
connected with his chosen cases. Incidentally illustrating how much information modern society gathers and
retains, he can, for example, establish to the minute
the time of birth of Louisa Elizabeth Carlill, even
though the fact has no possible bearing on her famous
suit against the Carbolic Smoke Ball Company for
breach of contract. Simpson's magpie method supplements the reported cases with a vengeance, but it also
has the cumulative effect of establishing historical
verisimilitude, if not reality. Exemplifying the "contextual study of legal cases," which Simpson at one point
describes as "legal archaeology" (p. 12), his researches
point to previously unsuspected connections. The venerable property case long known simply as Shelley's
Case (1581) may have been influenced by the policy
against recusancy. Priestley v. Fowler (1837), denying
an employer's liability for an employee's injury, is
plausibly related to contemporary debates concerning
the Poor Law. The Case of the Ship Peerless (1864),
concerning cotton shipped from Bombay, is deftly
located in the time of the Cotton Famine caused by the
American Civil War.
Enriching and entertaining as it undoubtedly is,
Simpson's archaeology raises serious questions, historical as well as legal. There is always a risk in assuming
that a given judge knew what "everybody" knew at the
time, although legal historians (myself included) routinely make that assumption. Furthermore, as Simpson
explicitly acknowledges in his discussion of Regina v.
Keyn, a case arising from the collision of the Franconia,
judges are professionally obliged to disregard certain
information, such as which outcome suits the powers
that be. Indeed, the rule of law largely depends on
their willingness and ability to screen out "extrinsic
factors."
In terms of legal analysis, the question is paradoxi-
AMERICAN HISTORICAL REVIEW
811
cally whether it really matters what the judges knew or
even what actually moved them to decide as they did.
With respect to Shelley's Case, for example, Simpson
(in his earlier History of the Land Law [1986]) had
explained it "by a judicial desire to favour freedom of
alienation, and by a Royal desire to prevent the
evasion of feudal obligations"; now, focused on the
case itself, he suggests it may really have been about
"upholding the intention of the patriarch" and
"favouring the politically correct branch of the Shelley
family against a dangerous papist" (p. 40). But this
begs the question of why it became a leading case and
why its rule proved so perdurable a feature of the
common law. As the sages of another casuistic legal
system put it: "He who believes that the ox in the
Talmud is a real ox has not even begun to understand
the halakhah."
JOHN V. ORTH
University of North Carolina
LAWRENCE MANLEY. Literature and Culture in Early
Modem London. New York: Cambridge University
Press. 1995. Pp. xvi, 603. $59.95.
The problem of explaining the English renaissance, the
extraordinary line of literary masterpieces extending
from Thomas More's Utopia (1516) to John Milton's
Paradise Lost (1667-1674) has engaged critics from at
least the eighteenth century. Some have found the
cause in the extraordinary character of Queen Elizabeth, others in the famous English victory over the
Spanish Armada. Still others have looked to the
common culture produced by the English adaptation
of humanism, perhaps in combination with a uniquely
local protestantism, or have looked toward long-term
social and economic changes. More recently, there has
been a move away from grand explanations toward
detailed, local studies linking one or a group of literary
works to particular historical events. By focusing on
the growth of London as the cause or symptom (or
both) of greater historical forces and by exploring the
ways in which literature, seen both in generic terms
and as the work of writers embedded in the historical
process, was linked to the city's rise, Lawrence Manley
has staked out a place alongside the structuralists and
the other grand theorists of human progress. In so
doing, he has rejected the anecdotalism of Stephen
Greenblatt and his new historicist associates as well as
the "local reading" of Leah Marcus and her followers.
Three major intersecting changes in the period ca.
1500--ca. 1670 ground the argument: the move from
feudalism to capitalism; the shift to the absolutist
state, which extended the power of the feudal aristocracy (though only by altering its form) while also
allowing the growth of a bourgeoisie; and the very
rapid rise of urbanization, especially in London. As the
effects of these changes worked their way through
society, observers and critics adapted or invented
literary forms that reflected their understandinghowever unconscious or inadequate-of what was oc-
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1997