An inconvenient forum: Power, politics and the English common law courts in the age of Mansfield

Michael Conforti, Fordham University

Abstract

In the early 1760s, John Wilkes and a small group of like-minded politicians, political commentators, printers, publishers and lawyers banded together to involve the common law courts in their efforts to challenge the perceived tendency of George III's government to act arbitrarily in derogation of England's 'ancient constitution'. Through an unprecedented series of retaliatory civil actions brought against government officials, this group used the central crown courts as a forum for the public expression of their dissatisfaction with the political and constitutional status quo. Each lawsuit brought by the Wilkites identified flaws in existing legal practice or in the substantive law which sacrificed the rights of the individual to the interests of the state. In addition, the Wilkites aimed to transform the courts from functionally specialized, largely autonomous agents for the resolution of legal disputes into equal partners with the king-in-parliament within the existing political-legal structure of English government. Their efforts highlighted a fundamental paradox. Notwithstanding the important role of England's common law in English society, England's unwritten constitution had developed so as to deny the central crown courts an important role in England's constitutional structure. The Wilkite opposition tried to change that, and was thwarted by the very institution it sought to elevate to constitutional equality with the other departments of government. ^ If the Wilkites showed England that a determined group of individuals acting in concert could use the crown courts as a venue for political ends, then Granville Sharp showed the English-speaking world that the courts could be used in an attempt to eradicate the practice of chattel slavery from English soil and to obliterate the stain of chattel slavery from the English soul. Applying the same methodology as the Wilkite opposition, Sharp redefined the meaning of 'English liberty' which paved the way for the abolition of slavery in the British Empire.^

Subject Area

History, European|Law

Recommended Citation

Michael Conforti, "An inconvenient forum: Power, politics and the English common law courts in the age of Mansfield" (January 1, 2012). ETD Collection for Fordham University. Paper AAI3495884.
http://fordham.bepress.com/dissertations/AAI3495884

Share

COinS