The reputation of Sir George Lee in the history of ecclesiastical law stems from an achievement over which he had little control. He is recognized today principally as the earliest English civilian whose reports of decided cases appeared in print.Footnote 1 That publication did not, of course, take place until long after the common lawyers had paved the way in reporting cases from their own courts, and in a sense Lee's own achievement seems almost accidental. When he died in 1758, his collection of cases and notes was still in manuscript,Footnote 2 and they remained in that state for almost three-quarters of a century longer. Only in 1853 did Joseph Phillimore, then Regius Professor of Civil Law at Oxford, decide to publish two volumes from Lee's collection of cases.Footnote 3
Lee was also not the earliest ecclesiastical lawyer to have made such a collection. What should count as a ‘report’ of ecclesiastical causes is a matter of opinion – some manuscript notebooks from the Middle Ages contained notations of actual causes, together with miscellaneous notes from practice and summaries of the canon and civil laws. It is certain, however, that the collection of causes heard in the diocesan and provincial courts (and their later circulation in manuscript among English civilians) dates back at least to the reign of Elizabeth I.Footnote 4 The appearance in print of Lee's reports nonetheless marks a moment in the history of the ecclesiastical law worthy of remembrance, as it sought to put ecclesiastical causes on a level with cases from the royal courts.
LEE'S LIFE AND CAREERFootnote 5
The fifth son of Sir Thomas Lee, Baronet, of Hartwell, Buckinghamshire, Lee entered Clare College, Cambridge, in 1716, but later moved to Oxford, where he matriculated at Christ Church. There he took degrees in law: the BCL in 1724 and the DCL five years later. He was admitted as an advocate at Doctors' Commons in London in 1729, quickly establishing a reputation for legal ability. He later served as president of the Society of Doctors' Commons and obtained the offices of Dean of Arches and Judge of the Prerogative Court of Canterbury in 1752. Beginning in 1742, he also served from time to time as one of the lords of the Admiralty. An intermittent member of Parliament from 1733 until his death in 1758, he was knighted in 1752. Lee died unexpectedly in London and was buried in the family vault in Hartwell church alongside his wife, Judith, who had died before him in 1743.
Although Lee never abandoned (or slighted) his professional work as a civilian, he also took an active part in political life – so much so that almost the whole of his entry in the new Oxford Dictionary of National Biography deals with this aspect of his life. Apart from being an MP, Lee served as a trusted advisor to Frederick, Prince of Wales, whose conflicts with his father, George II, came to an end only with the former's death in 1751.Footnote 6 It was said that Lee would have been named Chancellor of the Exchequer had Frederick acceded to the throne, but the truth of the prediction has been disputed. What has not been disputed is his high reputation as a civilian.Footnote 7
LEE'S REPORTS
For his volume of cases, Phillimore selected a sizable sample of the material in Lee's notebooks, but only a sample. Many other cases are to be found among those of Lee's manuscript notebooks that have survived. However, the selection that Phillimore did make provides a good indication of Lee's approach to law reporting. Almost all his cases came from the principal London tribunals: the Prerogative Court of Canterbury, the Court of Arches and the Court of Delegates. In them, his accounts followed a regular pattern:Footnote 8 each entry began with a simple and brief statement of the nature of the case and the facts behind it, followed by a summary of the opening statements made by the advocate for each party. The proof offered in each came next, normally consisting of the testimony of each of the witnesses produced by the parties, but sometimes also including documents. Quite naturally, Lee paid much more attention to the evidentiary aspect of litigation than is found in most common law reports. In most circumstances, it was upon the probative force of the testimony of witnesses that judges were required to base their sentences, and the civil law of proof was not the free evaluation of evidence with which we are familiar today. Lee was careful to describe both the qualifications and legal standing of witnesses and also the specific facts to which they had testified. To have done so fully in all of the cases would have been tedious in the extreme, however; thus, where many witnesses were produced, he sometimes recorded simply (after giving a fuller summary of a prior witness's testimony): ‘12. Thomas Chambers. – The same. 13. Ann Parks. – The same.’Footnote 9 After this record of the depositions, the next regular part of the entries in Lee's reports was the arguments of counsel – sometimes only one for each side, sometimes more than one. Normally Lee's own brief judgment brought the entry to a close, although he occasionally also noted the case's outcome where it had been appealed to the Delegates.
The range of contentious matters being dealt with by eighteenth-century ecclesiastical courts shown in these reports remained wide, though not quite as wide as it had been 150 years before. Lord Hardwicke's Marriage Act 1753 (26 Geo II, c 33) ended the specific enforcement of private marriage contracts, but it did not end dissention about them in collateral litigation – chiefly in disputes about qualifications to administer estates,Footnote 10 and in suits brought for jactitation of marriage.Footnote 11 Tithe causes still appeared before the spiritual courts, although in much smaller numbers than had been true before 1640. This was probably the result of the growth of a parallel jurisdiction in the temporal courts and the (by then) admitted principle that submitted questions regarding the proof and legality of tithing customs to the courts of the common law.Footnote 12 Disputes over pews or church seats and burial monuments, now fixed under the heading of faculty jurisdiction, are also to be found aplenty in Lee's reports.Footnote 13 So (in lesser numbers) are defamation cases.Footnote 14 More than anything else, however, the reports were dominated by testamentary causes. The Statute of Frauds 1677 (29 Car II, c 3) had not banished disputes about testamentary succession from the courtsFootnote 15 and the number of wills proved in the Prerogative Court had also risen from an average of 1,517 a year in the 1620s to more than double that by Lee's time.Footnote 16 Litigation ensued. In all, the evidence from Lee's reports vindicates the conclusion reached by the late Brian Outhwaite. He stressed the comparative and lasting imprint of the Church's instance jurisdiction on English law and life. Nowhere did this make more of a difference than in the Church's jurisdiction over last wills and testaments. He thought the common epithet ‘bawdy courts' was a quite misleading way of describing the Church's tribunals and his conclusion is confirmed by Lee's reports.
THE HISTORICAL SIGNIFICANCE OF LEE'S REPORTS AND NOTEBOOKS
For legal historians, as for modern ecclesiastical lawyers, probably the most instructive lesson to be drawn from examination of Lee's reports, and also from the contents of his manuscript notebooks which the author of this note was able to examine, comes down to a simple matter. They show that, by the first half of the eighteenth century, the shape of ecclesiastical jurisprudence in England had been integrated within the main stream of English common law. Many historians have quickly (and perhaps logically) assumed that this change must have taken place at the time of the Reformation. The evidence, however, shows that it did not. The post-Reformation English civilians kept to their old ways.Footnote 17 Their methods and their sources of authority remained those of the European ius commune. By Lee's time, however, the balance had shifted towards what might be called the habits of mind characteristic of the common law. Not that the shift amounted to identity: the spiritual courts did not adopt the common law's trial by jury, and they retained a hold on most of the areas of subject matter jurisdiction that had long been theirs. The Doctors' Commons Library remained full with works on Roman and canon law, and there is evidence to show that they were consulted.Footnote 18 However, the century after the reconstitution of the courts in the 1660s had brought substantial changes in attitude and method to the English civilians. Lee's reports make this change evident in two particular ways.
The first lay in the acceptance of the authority of the common law courts in settling disputed matters of law. In the Middle Ages and the years before the Interregnum, the English civilians obeyed specific royal writs of prohibition when they received one, but they regarded many of these prohibitions as mere acts of power. Unlike the statutes enacted in Convocation and Parliament, prohibitions did not have the legitimate force of law. The civilians believed that long-established custom and specific statutes should determine the jurisdictional boundaries in England, and these sources of law were more favourable to ecclesiastical jurisdiction than some of the aggressive uses of prohibitions in the hands of the common lawyers. Many of them amounted to unlawful innovation. Their use should therefore be curbed and things set right.Footnote 19 Perhaps the civilians were naïve in this assumption; certainly they were overly optimistic compared to what happened. But that is what they thought.
By Lee's time, however, this attitude had changed. So, for example, on the question of whether an ecclesiastical judge could require the giving of security for proper performance of an executor's duties, Lee cited only a case from Salkeld's Reports.Footnote 20 He did not turn to the abundant treatises on testamentary law from within the storehouses of the ius commune for support. Similarly, he accepted that when a question of interpreting the terms of a testamentary trust arose, it could only be done by the Court of Chancery. Lee noted that in the relevant cause brought before him ‘probably a prohibition would have been granted’.Footnote 21 In the same way, in his commonplace book his entry on the administration of estates stated that the correct interpretation of the Statute of Distributions 1670 (22 & 23 Car II, c 10) should be determined by the temporal courts.Footnote 22 He also accepted in principle the common law's decisions that the 1603/1604 canons did not bind the laity.Footnote 23 His authority for this? The King's Bench had so held.Footnote 24
The second change visible in Lee's reports and notebooks is a similar reliance on case law, both spiritual and temporal, for authority. In past times, English civilians had turned first to the texts of the Roman and canon laws. They took them as they had been interpreted by the great jurists of the ius commune; Bartolus, Panormitanus and their successors were their habitual guides. Lee and the advocates who appeared in his reports still cited these treatises occasionally, but more often they argued on the basis of decided ecclesiastical causes. In a 1756 dispute over the scope of the appellate jurisdiction of the Court of Arches, for example, Lee based his decision on six prior cases decided in the Delegates and the Arches.Footnote 25 In a case from the next year, one that involved the use of affidavits in criminal cases, Lee looked for authority in five common law cases and one from the Prerogative Court.Footnote 26 This reliance on cases was not Lee's alone; it was shared by the advocates who appeared before him. Many cases were argued and their outcome determined ‘according to the constant determination of the Courts'.Footnote 27
It would be a mistake to characterize this development as a full turn towards a regime of ‘binding precedent’ based on past cases. That regime is not evident in either Lee's reports or in his other manuscript notes. It was a shift in emphasis, not a sea change. Besides decided English cases, he also sometimes cited civil law texts and learned commentaries upon them, as in a defamation case involving a minor from 1740, where he made reference only to a text from the Codex and a seventeenth-century treatise on it.Footnote 28 He also referred to the commentaries by earlier English civilians – William Lyndwood's Provinciale, Henry Swinburne's treatise on wills and Francis Clerke's Praxis in curiis ecclesiasticis, for example.Footnote 29 Moreover, as can be said of many common law reports, often no citations of any kind appeared in Lee's account of a case.
That fact is a reminder that these reports were not written for publication. If they were meant for anything beyond Lee's personal use, it was for circulation within a small community of professional lawyers. One sees this clearly enough in a suit for nullity of marriage from 1753, in which Lee concluded that, ‘as there was no precedent, I must determine [the sentence] upon the general principles of law and reason’.Footnote 30 Here, he found, even Tómas Sanchez failed him. The important point, however, is that he had come within the common law world so convincingly described by Sir John Baker in The Law's Two Bodies.Footnote 31 Certainty about applicable principles of authority – even about the law itself – seems often to have eluded contemporaries, just as it does us.
CONCLUSION
Does George Lee deserve a special place among notable English civilians? If he does, it is not the place of a pioneer. He would not have claimed that for himself. He did only what others had done before him and he was then lucky enough to have one of his successors put his efforts into print. But it is (or was) an odd sort of lawyer who would stake his reputation on powers of invention. Particularly for a reporter of cases, accuracy in reporting, clarity in expression and usefulness to his readers were what counted in those days. Even today, these straightforward virtues stand out in Lee's reports that Dr Phillimore chose to put into print. They deserve our recognition.
