This chapter analyzes the development of the mortgage among the new market practices, and new financial instruments, that were critical to the growth of the “empire of credit” stretching across the eighteenth-century Atlantic. The mortgage was an especially important part of this new credit economy because it lay at the nexus between landed and commercial wealth, and played a generative role in financing improvement and diversification. It is not surprising, then, that mortgage law, as a critical component of finance and credit relations, saw real development in this same period. This essay compares and connects the work of brokers, lawyers, and judges who constructed and evaluated mortgage deals, and examines the transmission and testing of the doctrine of the equity of redemption. Particular attention is paid to challenges to the operation of mortgage doctrine in Ireland, and other parts of the British empire, and what these signify for the broader history of legal and economic development in the eighteenth century.

In eighteenth-century England ideas about natural law also developed within the context of controversy over the jurisdiction of common law and equity. In the course of these controversies natural law jurisprudence and common law jurisprudence evolved in conjunction with other philosophical trends. English legal theorists drew upon a variety of philosophical positions – ‘religious’ as well as ‘secular’, ‘social’ as well as ‘individualist’ – providing further evidence for Frederick Beiser's claim that ‘the natural law theory of the Enlightenment’ encompassed ‘different, even competing traditions’. Moreover, the evidence derived from these debates about the jurisdiction of common law and equity demonstrates that arguments from natural law did not simply supplant or supersede common law arguments for the authority of prescription and precedent. If the previous chapters primarily argued against the image of common law jurisprudence as static in the eighteenth century, this chapter further challenges perceptions of the irrelevance of common law jurisprudence within this period of Enlightenment ‘natural law fervour’.

Natural law jurisprudence was not the only jurisprudence. Nor was natural law simply a veneer, superimposed upon but not integrated with common law doctrines and ideas. Indeed David Ibbetson has shown that the attraction to natural law actually affected the formulation of substantive common law doctrines; he demonstrates the significant influence of natural law on the development of trusts, contracts, unjust enrichment and torts. These four areas of English law are also, unsurprisingly, all areas of jurisdictional dispute between common law and equity in this period.

Among the numerous volumes on law in the Macclesfield library at Shirburn Castle – a library that, by 1750, housed tens of thousands of books and manuscripts, in multiple languages, on topics such as economics, science, mathematics, theology, music and architecture as well as law – there was a bound collection of three texts on Chancery and equity. Robert Atkyns' Enquiry into the Jurisdiction of Chancery in Causes of Equity … and The Case of the said Sir Robert Atkyns upon his Appeal, Richard Francis' Maxims of Equity, and Henry Ballow's A Treatise of Equity were gathered together in a folio volume encased in a handsome nineteenth-century binding. This was likely a rebinding of tracts originally collected by the first Earl of Macclesfield, Thomas Parker, chief justice of the Kings Bench (1710–1718) and lord chancellor (1718–1725), and his son george Parker, second Earl of Macclesfield, noted politician and astronomer. As we have seen, these tracts differed in terms of genre and style, and they presented varied perspectives on the jurisdiction of equity, and the nature of law in general. Not only do they provide further evidence of continued debate over common law and equity, and of the conjoined development of common law and natural law theory in the eighteenth century, but their juxtaposition in Macclesfield's library may also be said to indicate the vitality of jurisprudential reflection on law and morality.

Giles Jacob's joking aside to his reader is rich with double meanings. His humorous, because absurd, denial that he is equating large notebooks or large body parts with legal prowess is a rhetorical flourish, a characteristic eighteenth-century satirical jibe. It is also, possibly, a ribald pun (and this from the purported author of the obscene Tractatus de hermaphroditis) on the manly anatomy of the ‘greatest Lawyer’, and a winking reference to the so-called temptations for the law student among the prostitutes, the ‘pleasure grounds and fleshpots’, which were in close proximity to the early modern Inns of Court. Jacob's imagery may also have traded upon familiarity with the language of body politic, of head and members in proportion and not subject to the outsized, absolutist pretensions of an overweening head. Most clearly, however, Jacob is punning on the identity between the lawyer's, or law student's, head and the commonplace heading – the alphabetical heads or titles that provide the structure for the student's notebook and for Jacob's ensuing text.

Scientific and medical books, like law books, proliferated in the early eighteenth century. This ‘ocean of books’ had also begun to swell in the late sixteenth and seventeenth centuries, with the advent of printing and the establishment of the Royal Society, but took on certain characteristic forms in the eighteenth century. For example periodicals, like the Royal Society's Philosophical Transactions, became a favoured and flourishing medium for circulating new research and information. In addition large, expensive, multivolume reference works were produced, again with the approval or even encouragement of an authoritative body like the Royal Society whose printer in the 1690s, Samuel Smith, pioneered methods that made publication and distribution of such volumes affordable and even profitable. Both law books and science books and journals benefited from such kinds of official support even though Britain's was an unregulated printing regime after 1695. Beyond such official or corporate control, more modest vernacular medical books formed a third, and very popular, mode of publication of natural knowledge in this period. These medical books became an important means by which a wide range of practitioners established a reputation by offering their own techniques and remedies in print. Such popular texts were consulted by other practitioners, including members of the College of Physicians and of the Royal Society, as well as by ordinary readers who sought advice on self-diagnosis and recipes for useful cures.

English common law jurisprudence developed in the context of changes in eighteenth-century evidentiary practices and the growth of the adversary criminal trial. As the trial of Spencer Cowper, and appeal by Mary Stout, demonstrated, there were important connections made between contemporary ideas about objectivity, truth and fact, and contemporary conceptions of authority and justice. The judges' ruling on the matter of Stout's appeal also points to a second important arena for the development of common law jurisprudence in the eighteenth century: jurisdictional controversy between common law and equity. One indication of this controversy is given in the heated exchange between Justices Treby and Holt – and especially in Justice Holt's insistence that the lord keeper's, or lord chancellor's, discretion in granting a new writ of appeal must be informed by a deference to common law remedies, and by an appreciation for stability in common law judgments.

This kind of claim about the benefits of adherence to common law emphasised the justice of procedure and precedent but, as we know, Holt and others also recognised that injustice could sometimes result from too rigid an application of formal rules. In order to address such instances of potential injustice the king's chancellor had begun to exercise a judicial authority in his court of Chancery as early as the fourteenth century. Chancellors were meant to look to conscience, to principles of natural law and universal justice in order to fulfill the spirit of the law, and to rule on what was ‘right’.

The history of eighteenth-century English common law jurisprudence – and common law culture more generally – has often been narrated as a story of decline and fall. The first half of the century, a period delineated between the Bill of Rights of 1689 and the labours of Blackstone in the 1760s, has particularly been characterised as a time when the common law stood apart from the progressive and enlightened impulses of the era; a time when common law struggled, and largely failed, to maintain its former intellectual and cultural significance. Since this is a narrative that adheres to the pattern of Polybius' cycles – wherein decay invariably succeeds a period of strength and perfection – it relies on the convention of a reversal of fortune, and depicts the century preceding 1689 as a peak in the development of key common law principles. The seventeenth century, an age of Coke, Selden and Hale, is regarded as a triumphal period for the common law, when a language of ancient custom, and a theory of historicised legal authority, flourished and expanded in important ways. By the eighteenth century, however, scholarly convention holds that English common law jurisprudence and common law culture went into a period of defensiveness, irrelevance and ultimate decline. Its practitioners were no longer at the centre of English cultural life; its arguments for custom and precedent were ultimately and fatally outstripped by new discourses and practices of rational contract, legislative change and commercial interest.

The new history of English common law jurisprudence and culture introduced here emphasises development, relevance and vitality. Common law was fully engaged with multiple contemporary trends, and played a key role in the emergence of an enlightened society in eighteenth-century England. This is a fundamental revision of the long-held view that common law remained a bastion of tradition and technicality, its insularity and irrationality clearly antithetical to eighteenth-century enlightened culture and philosophy. This new history of common law also provides an important corrective to the old narrative of decline and fall, which posited that common law lost its intellectual and cultural preeminence in the eighteenth century as the previous period of Coke and Selden, custom and ancient constitution, gave way to a new era of rationalism, positivism and revolution. Once the premise of decline, and of a dichotomy between common law and Enlightenment are jettisoned, it becomes possible to recognise the ways in which common law approaches to evidentiary practices, to education and dissemination of knowledge, to commercial change and historical analysis were, in fact, in line with trends in enlightened science, encyclopedism, philosophy and historiography.

In demonstrating the dynamism of common law ideas and practices, especially in the early part of the eighteenth century, my intention, however, is not simply to replace that old narrative of decline and fall with a new story of rise and progress. Rather it is to recover the complexity of legal, intellectual and cultural change, and to foster an appreciation for the nature of continuity in action, and continuity as an approach.

The crisis in Chancery, and impeachment of Lord Chancellor Macclesfield in 1725, was a broadly significant moment in enlightened debate about the effects of economic change. Its significance is underscored by the fact that the contemporary response to revelations of corruption in law and government was not only moral-philosophical, concerned with sociability, civility or utility. The response was also historical, and was concerned with erudite evidence underpinning socio-economic explanation. In the aftermath of the impeachment histories of the Chancery were written by Samuel Burroughs and Philip Yorke as part of a continuing discussion about the justice of equity and the jurisdiction of that court.

These authors were prompted to write in response to the scandal and associated economic dislocation that fuelled ongoing controversies in the court. Yet their histories were not focused on the same questions about the sale and abuse of office that had animated the impeachment hearings. Indeed just after Macclesfield's conviction the sale of masterships was openly recognised as a traditional perquisite of the chancellor's office. His successor, Lord Chancellor King, was granted a pension increased by L1200 in order to compensate for the money he lost now that the practice was discredited and discontinued. If Burroughs' and Yorke's histories of Chancery did not review this particular issue of the sale of office, however, they did focus on the matter of procedural regularity in the functioning of the court.