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PART 1: THE CROWN AND THE STATE - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE CROWN AND THE STATE
A GENERAL SURVEY OF LEGAL HISTORY
Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. Moreover, the further back we push our investigations, the scantier become our sources, and the more controversial and doubtful their interpretation. The comparatively short period of recorded history based upon documents soon leads us back to the immensely long ages of which we know nothing save through the methods of the archaeologist. Into this enormous field of pre-history we shall not venture, although from time to time it will be necessary to refer to it when the problems of history raise immediate questions of pre-history. Indeed, even the relatively brief span of written history is too complex and too diverse for treatment here. The age which saw the first beginnings of English history, witnessed also the decline of Roman law which had run a course of a thousand years, making priceless contributions to civilisation. But behind the Roman system were others still more ancient—Greek, Semitic, Assyrian, Egyptian—all with long histories of absorbing interest.1 These remoter systems are all being studied with great skill by many modern experts, and the list of them is still growing. Recent researches, for example, have brought to light much material on the law of the Hittites, who were little more than a name to us a generation ago.
THE ROMAN EMPIRE
For the purposes of this concise history we can begin with the advent of Christianity. Itself the culmination of several centuries of religious and ethical thinking in Judaea, it entered a world which was dominated by legal and political ideas which were in turn the result of centuries of political and juristic experience. Rome had reached the peak of its greatness. An Empire which spread over the entire civilised world, and which owed so much to the ideas of law and of government, seemed to be almost a revelation of the divine mission of the State. Government was the sacred destiny of the Roman people. To others might be left the vocations of art, of literature, of science; the Roman’s part was to rule the nations, to impose the Roman peace and respect for law upon the barbarian, sparing the submissive with statesmanlike tolerance, and crushing resistance with ruthless force. This immense Empire had been acquired through the energy of Roman armies, and preserved by the diligence of Roman administrators, but the time came when both services betrayed their master. Generals indulged in the game of making and deposing emperors; provincial governors exploited their subjects, a hierarchy of functionaries grew up such as China possessed, and as part of the system of taxation imposed upon the people, a similar system of caste from which escape was almost impossible. In the meantime, a steady infiltration of barbarian blood changed the character, the culture, and finally the language of the ruling classes.1 By slow and almost imperceptible degrees the ties that bound together the Roman Empire dissolved, and the mysterious and complicated fall of Rome became complete.
“The two greatest problems in history, how to account for the rise of Rome, and how to account for her fall, never have been, perhaps never will be, thoroughly solved.”2
THE RISE OF CHRISTIANITY
While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognise some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution—and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power. It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.
“The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine.”1
Indeed, while the organisation of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life.2 Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the power of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy.
THE ANGLO-SAXON PERIOD: RACES AND RELIGION
THE COMING OF THE ROMANS
While this was happening at the heart of the Empire, many of the outskirts were witnessing a process such as went on in Britain. The conquest of Gaul inevitably drew the attention of Roman generals to Britain, whose population had intimate ties of race, language and sympathy with the Gauls. At times the Britons seem to have sent assistance to their Celtic kinsmen on the continent, and so attracted the wrath of Rome. Finally in ad 43 the systematic conquest of the island was begun by Agricola, and for the next three and a half centuries Britain was under Roman rule. The character of this occupation cannot be better described than in the words of Haverfield, the scholar who has shed most light on this difficult and obscure period:
“From the standpoint alike of the ancient Roman statesman and of the modern Roman historian, the military posts and their garrisons formed the dominant element in Britain. But they have left little permanent mark on the civilisation and character of the island. The ruins of their forts and fortresses are on our hill-sides. But, Roman as they were, their garrisons did little to spread Roman culture here. Outside their walls, each of them had a small or large settlement of womenfolk, traders, perhaps also of time-expired soldiers wishful to end their days where they had served. But hardly any of these settlements grew up into towns. York may form an exception. . . . Nor do the garrisons appear greatly to have affected the racial character of the Romano-British population.”1
Britain was prosperous for a time. Then towards the middle of the fourth century troubles began; invasions from the north by the Picts and along the east coast by the Saxons grew more and more serious, until
“finally, the Great Raid of Barbarians who crossed the Rhine on the winter’s night which divided 406 from 407, and the subsequent barbarian attack on Rome itself, cut Britain off from the Mediterranean. The so-called ‘departure of the Romans’ speedily followed. This departure did not mean any great departure of persons, Roman or other, from the island. It meant that the central government in Italy now ceased to send out the usual governors and other high officials and to organise the supply of troops. No one went: some persons failed to come.”1
It is significant that sites which have been thoroughly explored fail to reveal Roman coins of later date than the opening years of the fifth century.2 Before these invaders, towns were abandoned; Roman speech and boundaries vanished: only the massive foundations of the roads survived. The Britons retired to the hills of Wales and Scotland and there resumed their Celtic culture and speech, and became, in the fulness of time, one of the springs of mediaeval art and learning.
THE ENGLISH CONQUEST
Of the three tribes who constituted the bulk of the invaders, two—the Angles and the Saxons—are hardly distinguishable either in language or customs, both coming, moreover, from the narrow neck of land which now separates Denmark from the mainland. From the end of the third century the Saxons appear in history as raiders and pirates, although the Angles, on the other hand, drop back into obscurity (as far as Roman writers are concerned) ever since Tacitus mentioned them in the beginning of the second century until the sixth century, when we read of them in England. They have left a mass of epic poetry, however, which gives some idea of the life their chieftains led; indeed, the similarities of this literature with that of Norway, Sweden and Germany suggest an international culture covering Northern Europe. The material remains of these tribes while still on the mainland, which have been unearthed, show a high degree of perfection in weaving, and that “the warriors of the period were armed in a manner not substantially improved upon for many centuries afterwards”. Many of their swords bear the marks of Roman manufacturers. They had also a Runic alphabet of their own devising, which long remained in use. Of their religion little is known with certainty; Woden, Thunor and Frig have given us the names of Wednesday, Thursday and Friday, but the surviving legends are too late to tell us much about early English culture and history. As early as the Bronze Age they had been familiar with the plough.3 The invaders must not be regarded as complete savages, therefore. Of the Jutes much less is known. They were the dominant settlers in Kent and it is significant that the early Kentish laws have marked peculiarities of social structure, although the language differs but slightly. It is certainly curious how Kent from the beginning and all through the middle ages preserved peculiar local variants, but it must not be assumed too confidently that all this necessarily relates to an original difference in the Jutish invaders. The geographical position of Kent at the gateway of England has in fact given it an exceptional position in the religious, military and commercial, as well as in the legal, history of the country, but this position was won after, rather than before, the Conquest.1
The invasion and settlement of the country by these tribes occupies about two centuries (roughly from 400 to 600). In the end, a number of different kingdoms were established—at least ten of them are known with certainty to have existed at various dates—and for the next two centuries the main themes are the spread of Christianity and the growth of unity in place of these warring kingdoms. It is true that the later years of the Roman occupation had seen the first introduction of Christianity into the island, and that an important and vigorous church had been organised, but the English invaders crushed the British Christians and maintained their own ancient mythology. England therefore had to be converted anew, and the year 597 was a momentous one, for the arrival of St Augustine established contact between the English tribesmen and the Roman Church which was now (under St Gregory I, “the Great”) definitely entering upon its mediaeval task of establishing one supreme spiritual authority in Europe. Gregory “was a Roman of the Romans, nurtured on traditions of Rome’s imperial greatness, cherishing the memories of pacification and justice, of control and protection”.2
THE ADVENT OF CHRISTIANITY
The results of the re-introduction of Christianity were of the highest importance. The existing tribal organisation must have seemed weak and inefficient to the missionaries coming from such well-organised States as existed on the continent, and very soon we see the results of their teaching in the enhanced value placed upon the monarchy, and in the tendency towards larger national units. After long years of warfare the petty tribal units were replaced by a few large kingdoms ruled and administered by kings who watched European methods. Soon, too, they learned the Roman art of taxation, which consisted in dividing the land into units of equal assessment instead of equal area (calling them in English “hides”).3 Again, the advent of the clergy meant the introduction of a new class into English society, and so a new law of status had to be devised for their protection. Consequently laws were made, and, “in the Roman style”,4 were written down. It is possible that legislation was occasionally effected upon other subjects as well. And finally, the Church brought with it moral ideas which were to revolutionise English law. Christianity had inherited from Judaism an outlook upon moral questions which was strictly individualistic. The salvation of each separate soul was dependent upon the actions of the individual. This contrasted strongly with the custom of the English tribes which looked less to the individual than to the family group of which the individual formed a part. Necessarily such a system had little place for an individualistic sense of morals, for the group, although it was subjected to legal liability, can hardly be credited with moral intention in the sense that an individual can. With the spread of Christianity all this slowly changed. First, responsibility for actions gradually shifted from the whole group to the particular individual who did the act; and then the Church (and later the law) will judge that act, if necessary, from the point of view of the intention of the party who committed it.
ENGLAND AND THE DANES
The Anglo-Saxon period is very long, and a great deal of development took place in it.1 Beginning for practical purposes about 597 (the landing of St Augustine) we have a continuous stream of legal sources which are definitely Anglo-Saxon in character down to the Norman Conquest in 1066 and even later.2 There are treatises dating about the year 1118 which are still typically Anglo-Saxon in content and outlook.3 We may therefore place the limits of this period roughly and in round figures between 600 and 1100, a period of five hundred years. The length of this age can be realised by remembering that five hundred years is the interval between Bracton and Blackstone, between Chaucer and Kipling, and between the battles of Agincourt and the Marne. In so long a period we must omit details. The one fact of capital importance besides the growing unification of England, is the coming of the Norsemen and Danes, for it has left definite traces upon our history. The very word “law” is not English but Norse.
Scandinavia was peopled by tribes who were as astute in trade as they were fierce in war. The discoveries of English coins in the islands of the Baltic, together with Arabian coins from Bagdad and Samarcand (which had reached the Baltic through Russia), are witness to the distant foreign commence of the Norse. During the ninth century, for reasons unknown, the Norse became unusually active on the sea, and a series of maritime raids resulted in the colonisation of Iceland, parts of Ireland and Scotland, the Orkneys, Shetlands, Hebrides, and portions of Northern France (thenceforward to be known as Normandy). A Scandinavian tribe of “Rus” gave its name (although not its language) to Russia, while a few even penetrated to the Mediterranean. In England, after fierce fighting, they succeeded in retaining from King Alfred almost the whole eastern half of the kingdom (879), and more than a century after his death a Danish dynasty united under a single ruler—the great King Cnut (1016-1035)—England, Norway and Denmark. Cnut’s laws were long popular in England, and in after years men looked back with respect to his reign, trying to revive his legislation. The Danes left a permanent mark on that part of the country where they had longest ruled. They independently developed a sort of grand jury, of which we shall speak later; they arrived earlier than the rest of the country at the stage where land could be freely bought and sold; they had a marked tendency to form clubs and guilds; their peasantry were less subject to the lords; borough institutions seem to have flourished peculiarly under their rule.1
The death of Cnut and the division of his Empire brings us to the accession of St Edward the Confessor (1043-1066), who throughout the middle ages was the national hero of the English when they resented Norman influence. (Hence it is that a large body of “Laws of Edward the Confessor” was forged as a patriotic weapon against the Norman dynasty.) In fact, the antithesis was false, and the spread of foreign culture in England increased immensely during his reign, which in some respects seems a sort of peaceful Norman conquest. The disputed succession on his death brought William the Conqueror in 1066 and Norman arms finished what Norman civilisation had already begun.
THE CONQUEST TO HENRY II: THE BEGINNINGS OF ADMINISTRATION
The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England. The Norse invaders who had settled in Normandy had made it in a century and a half (911-1066) the best-ruled state in Europe, and the gifts for strong administration and for orderly accounting and finance which had been displayed in the duchy were to have fuller opportunities in the conquered kingdom. William the Bastard had been Duke of Normandy since 1035, and by 1047 (when he was twenty) the turbulent barons were beginning to feel his strength. Nearly twenty years of hard work in Normandy preceded the expedition to England, and in that interval William had imposed some sort of discipline upon his baronage, and had finally made peace with the Church (after a long quarrel) through the help of Lanfranc, whom he afterwards made Archbishop of Canterbury. Personally a devout Christian, he yet insisted that the Church should keep the place which he assigned to it, and in fact he secured an effective control over its policy, notably in appointments to the higher dignities. Then, too, he had developed a remarkably good financial organisation, the “Chamber” (camera), and although the duchy revenues were not particularly large, yet there was clearly the machinery ready to collect revenue energetically and to control its disposition.
THE CONQUEST AND “DOMESDAY BOOK”
Such was the position of Duke William when he undertook the desperate adventure of invading England by transporting 5,000 men and 2,500 horses across the Channel, an astonishing performance in those days. The Battle of Hastings (1066) and the death of King Harold quickly settled him upon the throne of his new kingdom. Reforms began at once. The casual “treasure” of the Anglo-Saxon kings was reorganised as an Exchequer on business lines, and was used to keep a firm hold upon the sheriffs and local government generally. As for the Church, he continued the Norman attitude of strengthening the Church internally, enriching it and maintaining its discipline (newly reformed by the great Pope Gregory VII), although at the same time restricting its political power. This strongly contrasted with the preconquest state of things when the bishops sat in all the courts and mingled ecclesiastical and secular business. William, by an ordinance,1 insisted that the bishops should not transact ecclesiastical business in the hundred courts, but should hold their own Courts Christian for the purpose; and from that day to this the Church has maintained its separate system of courts administering canon law. Church and State which had been inextricably connected in the Anglo-Saxon age henceforth were strictly separate, a policy which happened to coincide with the Church’s own ambitions as well as with William’s. His last years were absorbed in the great survey of the kingdom which is known as Domesday Book. The original two volumes together with the chest constructed for their preservation are still in the Public Record Office in London, where Domesday Book holds an honoured place as the oldest public record. Indeed, during the middle ages it was so respected that it was called simply “the record”, so great was its authority. The land was described county by county, village by village, the owners and their subtenants were listed and their holdings valued, even the farm stock was recorded, with a view to settling clearly the rights of the Crown and the taxable resources of the country. In several cases a few precious lines will summarise the customs of a county or city, and so give us an insight into the local law in force.2 Most valuable information can be extracted from it as to the state of freedom or serfdom in different parts of the country, and it is possible that the strict insistence of the Exchequer officials upon the letter of Domesday Book, and their refusal to allow it to be questioned, was the beginning of the notion of “record” as a technical thing. From this one book the idea of certain officially compiled documents being beyond question seems to have spread to the rolls of the Exchequer, and thence to the rolls of the courts of law. If this conjecture is true, then “Records” must be regarded as financial in origin, and only later becoming judicial.3
Another effect of Domesday Book was to assert the chain of feudal relationships and to assure the overlordship of the Crown. Thus the title of every piece of land in England could be expressed in the formula that A holds it of his feudal lord B, who holds of C, who holds of —— the King. This insistence of the Norman and succeeding kings that they were the undisputed lords, direct or indirect, of every piece of land in the country is of the gravest importance, for it provided a sure foundation for the growth in later times of the common law. For this and many other reasons too technical to mention here, it has been said that “If English history is to be understood, the law of Domesday Book must be mastered”.1 This opportunity of systematising the land situation enabled the Conqueror to make England the most perfectly organised feudal state in Europe, and in this sense we may say that we are indebted to him for the feudal system. But he refused to allow the great barons whose tenure intervened between him and their sub-tenants to turn their position to political advantage, and one of his last acts was to assemble a great meeting (1086) at Salisbury where came all his counsellors “and all the land-owning men of property that there were all over England, whosesoever men they were, and all bowed down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all men”2 —even against their immediate lords. In this way William tried to prevent the feudal anarchy and private war against which he had struggled for so many years in Normandy.3
His work, then, was pre-eminently that of systematisation. A few great reforms there were, but his greatest contribution was the Norman spirit of clever administration and orderly government, and his own stern enforcement of royal rights. Upon this basis was the common law to be built in later days. In other respects he was content to continue the old English laws and customs, expressing his policy in a brief but stately charter which is still preserved by the City of London:4
“King William greets in friendly wise William the bishop and Gosfrith the portreeve, and all the burgesses in London, both French and English. I let you wit that I will that you two be worthy of all the laws that you were worthy of in King Edward’s day. And I will that every child be his father’s heir after his father’s day,5 and I will not endure that any man offer any wrong to you. God keep you.”
Of William II (Rufus) there is little to say except that he rashly provoked a feud with the Church, in consequence of which Archbishop Anselm suffered years of exile and “by his firmness set up a new standard of independence for the English clergy, and made the opening move in the struggle between Church and State in England”.1 At the same time, the efficient central administration was employed under the direction of the king’s principal minister, Ranulf Flambard, in converting the incidents of feudal tenure into engines of financial oppression.
CHURCH AND STATE
With the reign of Henry I (1100-1135) we come to a more important period of legal history. His first act was very significant. Just as the Conqueror had made the short promise of good government to London which we have just quoted, so his son Henry I issued a formal Charter in 1100 promising to stop the oppressive practices which his brother Rufus had introduced; then he chose as his queen Edith, who was a representative of the old English royal house, and so conciliated the English. His principal trouble (apart from a baronial revolt which was soon quelled) came from the Church which was growing anxious at the rapid rise of powerful monarchies which were apt to use the Church for political ends. Soon the issue became definite and Europe-wide in the form of the “Investiture Contest”. The Conqueror had compelled the cathedrals to elect his nominees as bishops and had himself delivered to them the emblems of spiritual as well as of temporal authority. Gregory VII as early as 1075 prohibited lay investiture, holding that the Church was independent of the State, and that no temporal ruler could confer ecclesiastical authority. A long struggle followed which on the continent took the form of the spectacular struggle between the Empire and the papacy. In England Henry I and Archbishop Anselm were subject to the moderating influence of the great canon lawyer Ivo of Chartres who devised a compromise in 1107; the King resigned his claim to invest bishops with the ring and staff (the emblems of their spiritual authority), while Anselm agreed that cathedral chapters should come to the King’s chapel and elect bishops in his presence—thus leaving room for a reasonable amount of royal influence. This wise settlement was extended to all Europe only after much bitter strife in 1122.
The conflict is one of the central facts in mediaeval history, for it shows a clear-cut issue upon which a saintly man of Anselm’s type would unhesitatingly decide that he had higher duties than those which he owed to the Crown. The Concordat of Worms of 1122 did not permanently end the dispute, which soon revived upon slightly different ground; indeed, in its most general sense the quarrel is likely to last as long as government itself. It has had important results upon the political theory of the State, some of the greatest minds of the middle ages having devoted their powers to the examination of the nature of kingship, the authority of law, and the limits which ought to be put upon the power of temporal rulers. Jurisprudence to-day bears the traces of these great events, in the course of which the State was criticised in terms of the highest ideal of government which then existed, that of the universal Church.1
HENRY I’s REFORMS
The rest of the reign is occupied with the peaceful activities of the Justiciar, Roger, Bishop of Salisbury, a Norman from Caen, who like so many of his race had something of the efficiency expert in his blood. Official tradition long respected him for his organisation of the Exchequer on strict business lines, and to him we owe the series of “Great Rolls of the Pipe”. The earliest in existence is dated 1130 and contains important legal as well as financial information. Some of the earlier rolls must be lost; but with a few gaps there is an almost complete series of Pipe Rolls from 1156 down to 1832—a remarkable sign of the permanence of Roger’s work. In this reign, therefore, we may place the elaboration of an efficient governmental organisation at Westminster. In local government Henry I was equally active; eleven untrustworthy sheriffs were dismissed in 1129; justiciars were sent on circuit to look after the pleas of the Crown (and they soon usurped for their master immense jurisdiction by asserting that any matter which concerned the King’s peace could be treated as a plea of the Crown), while it is clear that the Norman sheriffs were still administering in the county what was essentially Anglo-Saxon law, for we have some curious treatises (written between 1113 and 1118) which are attempts to state that old law in language that the Normans could understand.2 This in fact is the justification for the statement we have already made to the effect that the period of Anglo-Saxon law extended later than the Norman Conquest, and at least as late as the year 1100 or thereabouts. We therefore see that in the reign of Henry I the law was substantially Anglo-Saxon and administered by the sheriffs locally according to ancient custom (which was certainly not the same all over the country). As yet there was very little that could be called “common law”. So far there was only a great administrative machine well on the way towards a complete domination of the realm. From this great machine there will develop the future common law.1 Only in Sicily was such efficient administration to be found, and there too it was the work of Norman invaders.2
Henry’s death was a great loss to the nation:
“then there was tribulation soon in the land, for every man that could forthwith robbed another. . . . A good man he was and there was great awe of him. No man durst misdo against another in his time. He made peace for man and beast. Whoso bare his burden of gold and silver, no man durst say him aught but good.”3
The reign of King Stephen (1135-1154) is frequently called “the Anarchy”, so great were the disorders which filled it attendant upon the disputed title to the Crown. The machine which Henry I had perfected needed a firm hand to run it, and Stephen was content to let things drift. Art and letters, indeed, flourished, and Vacarius came to Oxford to teach Roman law and to write a less expensive text-book for poor English law students,4 but from the point of view of Norman efficiency the reign was disappointing: still,
“to those who do not place order above everything and who realise how oppressive Henry’s government was becoming in spite of its legality, it must always remain a moot question whether Stephen’s reign was such a total set-back as the ecclesiastical writers of the day would have us believe”.5
HENRY II’s EMPIRE
With his successor, Henry II, we come to one of the most critical epochs in the history of the common law. By inheritance or by marriage he had acquired the rulership of England, Normandy, Aquitaine and Anjou, and like many of his barons divided his time between England and the continent. This close connection with France was to have important results for English law as we shall see later. Whatever the lessons of Anglo-Norman public administration, the revival of learning now in progress may have brought broader views and more generous ideals. Stubbs has made the attractive suggestion that perhaps the rapid growth of the universities
“conduced to the maintenance in the educated class of an ideal of free government, drawn from ancient Greek and Roman history, which, although never likely to be realised in detail, tended to make tyranny such as that of William Rufus impossible.”1
It must never be forgotten that the general standard of learning and culture of a nation has a large part in determining its law and polity.
CONSTITUTIONS OF CLARENDON
The reign opens (1154) with the confirmation of Henry I’s Charter of 1100, and with the great conflict between the King and Archbishop Becket. The separation of the ecclesiastical courts by William the Conqueror had had unexpected results, for in the succeeding hundred years the Church had developed a large mass of canon law and claimed wide jurisdiction. This law Becket determined to apply rigorously. Henry was equally determined to impose his own lay law (which also had recently been considerably enlarged in content and strengthened administratively).2 Many people were amenable in criminal matters to both jurisdictions, and Becket proclaimed that such people should not be tried twice—in other words, they should be tried but once, and that in the Church courts. Then certain things also were subject to both jurisdictions—Church lands, and the rights of ecclesiastical patronage (called advowsons). Finally, at a council in 1164 all the magnates of the realm “recognised” (the word is borrowed from the “recognition” or verdict of a jury) a list of customs which they declared were the practice of the reign of Henry I.
This statement, called the Constitutions of Clarendon, Henry II proposed as the basis of a compromise.3 Some of these provisions repeat practices dating from the reign of William I, such as in requiring the King’s permission before a tenant-in-chief can be excommunicated, or an appeal carried from the Church courts in England to Rome (cc. 7, 8, 10). Chapter 13 introduces the striking rule that a lord shall be held responsible by the King if his servants do wrong to a bishop. All litigation concerning advowsons is to be in the King’s court (c. 1), and so also cases involving the Church’s lands unless they be held in free alms (a tenure comporting no earthly services, and peculiar to Church property), but the fact of free alms or lay tenure is to be decided in the King’s court—which had been the rule in Normandy as well (c. 9). Chapter 15 contains the highly important rule that no plea of debt shall be withdrawn from the King’s jurisdiction on the grounds that the debt was accompanied by an oath or pledge of faith—spiritual censures may be imposed for breach of faith, but the civil jurisdiction over debt is not to be thereby ousted. This clause was not an unmixed benefit, for although the State thereby appropriated to itself a large jurisdiction over contract, nevertheless the law of the Church in this field was rapidly becoming more modern, more equitable and less formalistic. She had long punished breach of faith as a crime, and was soon to extend the idea and proclaim in addition the enforceability in law of promises (opinions to this effect appear first in 1212).1
Finally, it was declared by chapter 3 that clerks (that is to say, all who were in major or minor orders) when under accusation of crime should first answer in the King’s court, and then be remitted for trial by the bishop, and if he convicted, then they were to be returned to the lay court for punishment, for Henry insisted that degradation (the severest penalty the Church could inflict) was too mild for felonies. Last of all, Henry objected to laymen being tried in ecclesiastical courts, even for canonical offences, merely upon informations. So he offered the bishops the aid of a sheriff’s jury of presentment if the Church could find no other means of getting a public accuser.2
This compromise on the basis of old customs was effective, except as to the punishment of convicted clerks. On this point Henry had to yield after the murder of Becket in 1170, and thenceforward “benefit of clergy” eventually began to operate as a sort of first offender’s law, for it was the later rule that the culprit escaped punishment for the first offence only on proving his clergy.
After the dramatic murder of Becket the interest turns to the rapid development of the administration under Henry II’s officials. The Treasury was under Nigel, Bishop of Ely (a nephew of Henry I’s Justiciar, Roger, Bishop of Salisbury), who further elaborated its constitution and procedure. Finally, having bought the office of Treasurer he conferred it upon his son, Richard fitz Nigel, Bishop of London, who wrote an extremely detailed account of the working of the Exchequer called the Dialogue of the Exchequer (1177-1179).3
The last ten years of the reign are dominated by Ranulf de Glanvill, the Justiciar. A competent general, diplomatist and judge, although an unscrupulous sheriff (he was twice removed from office), his name was attached to the first treatise upon the common law. The date is soon after 1187 and Glanvill’s nephew, Hubert Walter, has been suggested as possibly its author. It is a short, simple book, for the common law was neither very extensive nor very complicated. But for all that, it set the style of legal literature for many centuries to come, for the author of Glanvill invented the method of writing law in the form of a commentary upon the different writs.1
THE PLACE OF HENRY II
There are many other great events of this reign which we shall describe more fully in later chapters of this book. The extension of the system of itinerant justices; the growing definition of the courts of law; the widespread use of the jury; the establishment of the petty assizes2 as speedy methods of trying cases of recent dispossession of land; the Assize of Clarendon (1166) remodelling criminal procedure and systematising the presenting or grand jury;3 the Assize of Northampton (1176) which strengthened the claims of an heir to land against the feudal lord; the Assize of Arms (1181) which reorganised the local defence and police measures—these are only the greatest of the many reforms of Henry II’s reign. In the words of Bishop Stubbs:
“Henry II was far more than an inventor of legal forms or of the machinery of taxation. He was one of the greatest politicians of his time; a man of such wide influence, great estates, and numerous connections, that the whole of the foreign relations of England during the middle ages may be traced directly and distinctly to the results of his alliances and his enmities. He was regarded by the Emperor Frederick, by the Kings of Spain and Sicily, by the rising republics of Lombardy, by the half-savage dynasts of Norway, and by the fainting realm of Palestine as a friend and patron to be secured at any cost. He refused the crowns of Jerusalem and Sicily; he refused to recognise the anti-pope at a moment when the whole influence of the papacy was being employed to embarrass and distress him. His career is full of romantic episodes, and of really great physical exploits.
“Yet the consent of the historians of the time makes him, first and foremost, a legislator and administrator. Ralph Niger, his enemy, tells how year after year he wore out men’s patience with his annual assizes; how he set up an upstart nobility; how he abolished the ancient laws, set aside charters, overthrew municipalities, thirsted for gold, overwhelmed all society with his scutages, his recognitions, and such like. Ralph de Diceto explains how necessary a constant adaptation and readjustment of means was to secure in any degree the pure administration of justice, and lauds the promptness with which he discarded unsatisfactory measures to make way for new experiments. William of Newburgh and Peter of Blois praise him for the very measures that Ralph Niger condemns; his exactions were far less than those of his successors; he was most careful of the public peace; he bore the sword for the punishment of evil doers, but to the peace of the good; he conserved the rights and liberties of the churches; he never imposed any heavy tax on either England or his continental estates, or grieved the Church with undue exactions; his legal activity was especially meritorious after the storm of anarchy which preceded. In every description of his character the same features recur, whether as matters of laudation or of abuse.”4
THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION
Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that they both survived. Richard was absent from the realm for almost the whole of his ten years’ reign; John was involved in disastrous war abroad, civil war at home, insurrection, invasion and interdict. Henry III was a child of nine at his accession, with only his mother’s bracelet for a crown, and yet a few great-hearted nobles, encouraged by the paternal interest of Pope Honorius III, spared the land most of the troubles which usually attended a minority in those days. And soon, by the middle of Henry’s reign, one of his judges, Henry de Bracton, was already preparing material for an immense and detailed treatise on the common law beside which the little book of Glanvill would seem a mere pamphlet, and he tells us that the best cases are those in the earlier years of the reign—so flourishing was the law even in those troubled times. The secret is surely to be found in the permanence of the administration established by the Norman kings, which withstood all these shocks, grew, prospered, and finally (as every administration must) became the parent of new law, and of new legal machinery.
THE POSITION OF THE CROWN
Then, too, the Crown through all these disasters survived the attempts of certain interests which would have reduced its power to ineffectual limits; on the other hand, the opposite tendency of the Crown to use the powerful machinery of government to institute a tyranny was likewise frustrated. And so, on a broad view, both the oppressions and the rebellions of the period appear as efforts to find and maintain the just mean between private liberty and public order, while through it all, steadily and constantly, proceeds the growth of better and more expert judicial institutions, and the development of more and more rules of law, and their organisation into a coherent legal system which already was beginning to separate from the purely administrative machinery of the realm. By the time we reach the second half of Henry III’s reign the judiciary is already distinct from the administration and can stand aside while the national leaders in arms assert the necessity of imposing restraint upon the speed and the direction of so dangerous an engine; while very soon, Parliament will appear with this as one of its main duties.
THE IDEAS OF HUBERT WALTER
Of all the threads which run through this period, many of them highly important, we shall here follow only one—the struggle for the charters. The absence of Richard I had shown that it was possible for the machinery to work without a king to direct it, provided that there was a trusty minister to take his place. The great Archbishop Hubert Walter took this rôle, and assisted by the great council of magnates ruled well, retaining his power into the next reign. The brilliant outburst of literature, art, law and general culture which marked the close of the twelfth century was accompanied by the development of an idea of government of which Hubert Walter1 was the embodiment.
“King John, in fact, felt with much truth that he was not his own master so long as his great minister was alive. Hubert Walter held the view, natural in an ecclesiastical statesman, that the kingship was an office invested with solemn duties. Royal power must be inseparable from the law. And the Archbishop’s prestige was so great that a word from him on the interpretation of the law could set aside the opinion of the King and his advisers.”2
His successor, Stephen Langton, whom Pope Innocent III forced John to accept, was of the same school, holding that “loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe”.3 Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to “those principles of harmony in life and nature which underlay all the current belief in justice and responsibility”.4 The rapid growth of the central administration and the development of the courts of law (which we shall consider in more detail later5 ) was only equalled by the growth of local government, of boroughs, of trade both internal and foreign, and the close co-operation of central and local authorities. Litigation, negotiations, compromises, definitions of official power, the statement of precise limits to all sorts of jurisdictions public and private, organisation between groups of towns and the elaboration of machinery for holding international representative chapters in certain religious bodies—these are all signs of the spirit of legal order which filled the opening years of the thirteenth century. It is from this standpoint that the events leading to Magna Carta must be considered.
JOHN AND THE POPE
John’s troubles opened with Innocent III’s refusal to permit his candidate to become Archbishop of Canterbury, the Pope substituting his own much better choice, Stephen Langton.1 The Great Interdict followed, to which John replied by confiscating Church property. The political thought on both sides of the struggle is clear. John regarded bishops as higher civil servants, and looked back to the old days when Church and State in England were mingled, the papacy weak, and the Church subservient to the Crown. Hence he was able to strike the attitude of a patriot against foreign meddling. Langton started by assuming the separate sphere of Church and State, attacked the shifty details of John’s recent conduct, and proclaimed that John’s vassals were not bound to him after he himself had broken faith with the King of Kings, arguing “as an exponent of feudal custom in the light of those high principles of law to which all human law should conform”.2 The conflict was thus one of fundamental principle. John poured out money in Europe to buy support, and built up an imposing coalition against the Pope’s ally, King Philip Augustus of France. Then, in his customary sudden manner, he abandoned all his plans, submitted to Rome and did homage to the Pope’s legate. The next year his allies were ruined in one of the most important battles of the middle ages (Bouvines, 1214). It was now time to reckon with the discontent aroused by the reckless oppression to which John had resorted during the Interdict. Archbishop Langton undertook to force the King to make amends, and produced the old Charter of Henry I as the basis of what was normal and just, adding a long list of more recent grievances. London opened its gates to the barons, and soon after the fifteenth day of June, 1215, John had to put his seal to the Great Charter.3
THE GREAT CHARTER
This is a long document of sixty chapters and represents the extreme form of the baronial demands. The next ten years saw the progressive shortening of the Charter by omitting much that was temporary, by putting the important clauses concerning the forests into a separate document (called the Charter of the Forest), and by pruning the excesses of the victorious barons. John obtained a bull from his new over-lord, the Pope, annulling the charter.1 Indeed, some of its provisions were much too extreme, particularly the last, which erected a commission of twenty-five barons with power to enforce the Charter by coercing the King. The Great Charter of 1215 was therefore actually law for only about nine weeks. The King died shortly after (1216).
The council who ruled in the name of the infant Henry III re-issued the charter in 1216 (this time with papal assent) very much modified in favour of the Crown, with a promise to re-open the question when the French invasion, undertaken at the will of the rebel barons, had been defeated. This promise they fulfilled in 1217 on the occasion of the treaty whereby Prince Louis withdrew, and this, the third, Great Charter contains “numerous, important, and minute” changes whose general tendency was again in favour of the Crown. It was felt that the boy King ought not to suffer for his father’s sins, and that the difficult period of a minority was no time to weaken the central government; in any case, it was a committee of nobles who actually ruled in Henry’s name and any limitation on his power would only make their task of governing the harder. Hence the successive compromises of 1216 and 1217. At length, in 1225, Henry III came of age and issued the fourth Great Charter which differed from the third in slight details only. This is the document which is still law (except in so far as it has been repealed) and is cited by the old authors as the charter or statute of the ninth year of Henry III. It was not enrolled until many years later when, in 1297, it was put on the statute roll (word for word, except one slight slip), and so is also sometimes cited as the statute Confirmatio Cartarum of 25 Edward I.2 On numerous later occasions during the middle ages it was solemnly confirmed and from that day to this has been held in the deepest respect both in England and in America. After all these revisions Magna Carta as it now stands on the statute books of common law jurisdictions is a sober, practical, and highly technical document. A complete understanding of all its provisions would require a whole volume upon numerous aspects of mediaeval law and administration; for our present purpose the following summary will suffice.3
“First, we have granted to God, and by this our present charter have confirmed for us and our heirs for ever, that the English Church shall be free and shall have all her rights and liberties, whole and inviolable. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever (Chapter 1; note the formulas of a conveyance of real property which are here used).
“The City of London shall have all her old liberties and customs. And moreover we will and grant that all other cities, boroughs, towns . . . and ports shall have all their liberties and free customs” (Chapter 9).
“No freeman shall be taken or imprisoned, or disseised of his free tenement, liberties or free customs, or outlawed or exiled or in any wise destroyed, nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land. To none will we sell, deny, or delay right or justice” (Chapter 29). These words have provoked centuries of discussion. Originally, it seems, “the law of the land” covered all the usual modes of trial, whether it be by indictment, petty jury, appeal or compurgation. “Trial by peers”, on the other hand, was undoubtedly an importation from continental feudal law, and was the solemn trial of a vassal by his fellow-vassals in the court of their lord.1 It has always been rather rare, and is apt to have a political aspect. King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France. In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights.2 Later still the notion will get abroad that “trial by peers” means trial by jury, which it certainly did not at the time when the charter was first made.
The Regulation of Feudal Incidents.
The numerous feudal incidents of relief, wardship, marriage, and the rights of widows, were regularised to prevent the oppression which had grown up during the reign of King John. These reforms applied also to the relations between the barons and their undertenants, and form the basis of a great deal of feudal law
(Chapters 2-6, 10).
Restraints on the Prerogative.
“The writ called praecipe shall not be used in the future to deprive any lord of his court”3 (Chapter 24). Purveyance and the forfeiture of lands for felony were likewise regulated
(Chapters 19, 21, 22).
The Regulation of the Courts.
“Common pleas shall not follow our court but shall be held in some certain place” (Chapter 11). The taking of the assizes was ordered for regular terms every year and was to be in the proper counties. Sheriffs was forbidden to hold pleas of the Crown. The County Court was also regulated and ordered to be held not more than once a month
(Chapters 11-14, 17, 28, 35).
The Law of Land.
The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment; and finally, collusive gifts to the Church (which were frequently made in order to evade feudal service) were forbidden
(Chapters 7, 32, 36).
Trade and Commerce.
The sureties of the King’s debtors were not to be liable until after the default of the principal debtor, and were to have the lands of the debtor until they were satisfied for what they had paid for him. There was to be one system of weights and measures throughout the land, and foreign merchants were to be allowed free entry except in war-time, their treatment depending upon the treatment of English merchants abroad
(Chapters 8, 25, 30).
From this it will be seen that the provisions of the Great Charter which became permanent were those of a practical nature, while the revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current of English history.
The Great Charter was by no means unique in European history. Many kings and nobles about this time were granting charters to their tenants and subjects, and their general character was not dissimilar even in different countries. It has even been suggested that Spanish influence can be traced in our own Charter.1 In 1222 Hungary obtained a very similar charter.2 The difference between the English Charter and these other documents lies not in its contents but in the use made of it in subsequent history. The Charter gradually grew bigger than the mere feudal details which it contained and came to be a symbol of successful opposition to the Crown which had resulted in a negotiated peace representing a reasonable compromise. As time went on, therefore, the Charter became more and more a myth, but nevertheless a very powerful one, and in the seventeenth century all the forces of liberalism rallied around it. The great commentary upon it by Sir Edward Coke in the beginning of his Second Institute became the classical statement of constitutional principles in the seventeenth century, and was immensely influential in England, America and, later still, in many other countries as well.3 To explode the “myth” of the Greater Charter is indeed to get back to its original historical meaning, but for all that, the myth has been much more important than the reality, and there is still something to be said for the statement that “the whole of English constitutional history is a commentary upon the Great Charter”.4
Its immediate result, apart from the reforms contained in it, was to familiarise people with the idea that by means of a written document it was possible to make notable changes in the law. Within the period of ten years, four successive charters had made numerous changes in law and procedure. Was not this an indication that many other difficult questions might be settled in a similar manner? And as a matter of fact we soon find a stream of legislation beginning to appear, which we shall describe later.
THE BARONS’ WARS
The rest of the reign of Henry III is notable chiefly for the revolt of the barons in 1258, which repeats the main outlines of the revolt against King John. The results also were similar. A revolutionary organisation was set up by the barons with the idea of reducing the Crown to complete powerlessness; and this, like the previous attempt in 1215, had soon to be abandoned. But in this later struggle the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform. Recent work on this period has shown how largely it was concerned with legal problems, and to lawyers there are two especial reasons for studying the baronial revolt with care. First, it was the age of Bracton,1 who ceased to revise his great treatise just as the crisis approached; and secondly, it was the one occasion in English history when the laity carried out vi et armis an important and complicated programme of law reform. Its full significance can hardly yet be appreciated, but recent research has already shown that the development of the forms of action, and especially trespass, during this period is of importance,2 that the working of the law of seisin was also the cause of difficulty,3 and that the abuse of the lord’s right of extra-judicial distress—“the beginning of all wars,” as Simon de Montfort called it4 —was a problem of great urgency. Many of the reforms the victorious barons effected were continued after the fall of Simon de Montfort and became the Statute of Marlborough, 1267. Even before his accession Prince Edward took part in this post-war period of reconstruction, and the Statute of Marlborough is therefore really a part of the great programme of law reform which was carried out in the reign of Edward I.
EDWARD I TO RICHARD II: STATUTES AND SOCIAL REVOLUTION
We now come to a period of steady growth in the common law covering just over a century and a quarter (1272-1399). The reign of Edward I is marked by one of the greatest outbursts of reforming legislation in English history until the nineteenth century.1 The first Statute of Westminster (1275) made numerous changes in procedure, many of them designed to protect the subject against the King’s officers, for the evidence collected by the commission of inquiry set up in the previous year had revealed a good deal of oppression.2 The statute may be regarded in some ways as being a sort of supplement to the Great Charter, which was now fifty years old. The Statute of Gloucester (1278) made important amendments to the law of land, especially on the subjects of waste, curtesy and dower. The next year the great Statute of Mortmain did something to check the feudal losses which resulted when land was given to churches, monasteries and corporate bodies, by completely forbidding all amortisation.3 In 1284 we have a remarkable statute re-stating the fundamentals of the common law for the information of sheriffs who were engaged in applying English law to the newly conquered land of Wales. This statute is so long that it almost amounts to a short treatise on the state of the law in 1284; its practical interest to historians is therefore considerable, for it contains information which is difficult to find elsewhere.
WESTMINSTER THE SECOND
The next year (1285) saw an astonishing series of epoch-making statutes. Of these the first was the second Statute of Westminster, which leaves hardly a single department of the law untouched. Of its fifty chapters, the first is the famous De Donis of which we shall have much to say later on, for it lies at the foundation of the idea of legal estates in land. Among many others are the following important provisions. The common mode of fraudulently conveying land by allowing judgment to go by default in a collusive action brought for the purpose was checked (c. 4).1 The rights of joint-tenants and reversioners were given more prompt protection in such cases, and it was enacted that this device should not bar a widow’s claim to dower. By chapter 11 a very stringent process was created for the action of account. In its origin it dealt with the relationship of the lord of a manor to his bailiff or estate manager, but as history proceeds it becomes a commercial as well as a feudal action, and the regular remedy lying between partners. The statute imposes imprisonment as soon as an accountant is found in default, and this penalty can be inflicted by the lord’s auditors without the intervention of a court. Equally drastic is the penalty upon the sheriff or gaoler if such a prisoner escapes, for in such a case the gaoler shall be liable to the lord in the same sum as the accountant was. This perhaps is a reflection of the insecurity of mediaeval prisons, which were by no means so massive as is sometimes thought. Chapter 18 established the writ of elegit whereby a judgment creditor could, as an alternative to the old fieri facias, elect to take all the debtor’s chattels and to hold half of his lands until the debt be levied out of the chattels and the rent.
THE STATUTE AND SIMILAR CASES
Chapter 24 contains the famous provision that—
“whensoever from henceforth it shall happen in the Chancery that there is to be found a writ in one case, but not in another case although involving the same law and requiring the same remedy, the clerks of the Chancery shall agree in framing a writ, or else they shall adjourn the plaintiffs to the next Parliament, or else they shall write down the points upon which they cannot agree and refer them to the next Parliament, and so a writ shall be framed by the consent of the learned in the law; to the end that the court from henceforth shall no longer fail those who seek justice.”
Here indeed is laid down a regular procedure for the steady expansion of the law by the enlargement of the available writs in certain narrowly defined circumstances. Its primary object was to authorise the extension of remedies which already existed between parties, so that they would become available between the heirs (or successors in office) of those who would primarily have been entitled to use them. It is clear that the Chancery clerks did not regard this statute as giving them wide powers of creating new forms of action, for where we find the chapter invoked at all (and it is not very often) it is used with great caution. The only serious extension of the law as a result of the statute was the creation of the writ of entry in consimili casu.1 In fact, the large part assigned to Parliament in the chapter shows that it was the general feeling that matters of legislative importance ought to be handled there. In the fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments. Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.2
BILLS OF EXCEPTIONS
Chapter 31 relates that it sometimes happens that parties who allege an exception which the court overrules have difficulty when they attempt to test the lawfulness of the decision by a writ of error, because the court may not have enrolled the unsuccessful exception. The higher court is therefore unable to pass upon the matter because it is not on the record before them. To remedy this, the statute allows such exceptions to be written down in a “bill” to which the trial judge must affix his seal. If the exception is not enrolled, then the “bill of exceptions” is to be sufficient record for proceedings in error. The chapter shows that the roll is still under the absolute control of the court, which can include or exclude matters in its discretion; it is not surprising that judges said many hard things against the new “bill of exceptions” and more than once flatly refused to seal them.3
THE NISI PRIUS SYSTEM
Chapter 30 regulated the new system of nisi prius justices, who become more important in practice as a result of many succeeding statutes amending the system in details. In this way it became less necessary for juries from remote parts of the country to undertake the slow and costly journey to Westminster.
In the same year the Statute of Winchester established a system of police by compelling citizens to possess armour according to their means for the defence of the peace. Then the Statute of Merchants (also of 1285) established a system of recording debts and of making land liable to execution, which lasted down to the eighteenth century with some modifications.1 In 1290 we find the great Statute Quia Emptores which has been rightly called one of the pillars of real property law.
The burden of foreign war and the Crown’s growing need for money provoked a good deal of unrest, and finally, as the price of a heavy grant of taxes, the King had to confirm the Charters. It was on this occasion (1297) that the Great Charter was first enrolled among the public archives.
EDWARD I AND FEUDALISM
There is one general aspect of Edward I’s legislation which has especial interest. This is the belief of many historians, expressed in several different forms, that there was something anti-feudal in his policies.2 We have already mentioned the fact that the Statute of Marlborough was passed under his influence and is historically part of the great mass of legislation passed in Edward I’s reign, and so we shall consider it together with the statutes of Westminster the first and second, and especially the statute of Quia Emptores. Of the Statute of Marlborough Maitland wrote that “in many respects it marks the end of feudalism”,3 and of Edward’s legislation as a whole Stubbs wrote that it endeavoured to eliminate the doctrine of tenure from political life.4 These two statements, sometimes repeated in less guarded language by other historians, deserve more minute examination than can be accorded them at the present moment, but a few general observations can be made.
It would indeed be a remarkable tribute to the intellectual powers of Edward I if it could be shown that he set his face against the whole pattern of contemporary society as it existed throughout civilised Europe. The demand for a new social structure is common enough in our own day because we have numerous examples, both contemporary and in the history of the last two generations, of revolutionary attempts to remodel society on the lines of military and economic dictatorships, communes, soviets and the like. But it is hard to imagine a statesman of the year 1300 suggesting an alternative to the social structures over which three such legal-minded monarchs as Edward I, Philip the Fair and Boniface VIII presided.
If Edward’s legislation is examined, it will be seen that its general tendency is not to weaken, but to strengthen, the position of feudal lords. Lords must have been grateful for two statutes which gave them immense power over their bailiffs;1 the feudal rights of wardship and marriage were protected by new civil and criminal procedures;2 the default of tenants in paying services (which at this moment left the lord in a very weak position) was for the future visited with the forfeiture of the tenement;3 and lords were also given extended powers of appropriating commons.4 Most striking of all, Edward I risked a bitter quarrel with the Church over mortmain in order to prevent lords losing their feudal incidents when land passed to ecclesiastical bodies,5 and Quia Emptores itself was designed in order to preserve those same rights of wardship, marriage, relief and escheat.6 Continued sub-infeudation would probably have introduced such chaos into the system of tenures that these incidents would have eventually been evaded almost universally, but Quia Emptores perpetuated them. Edward I certainly did a great deal for the feudal lord. But he was not prepared to tolerate abuses, and he was equally active in assuring to tenants their rights. Many great statutes defined the law of distress and replevin,7 and the action of mesne (which protected a sub-tenant when his lord defaulted in services to the lord above) was made more practicable.8 There seems no escape from the conclusion that this legislation assumed the reasonableness and desirability of the feudal structure, and deliberately strengthened it. The fact that all the incidents of military tenure survived until the sixteenth century, and that the persons interested in them were to enjoy them for an additional century (thanks to the statute of uses), is all testimony to the soundness of the legal structure of feudalism as Edward I left it. His policy in fact was based on that simple and straightforward idea of “justice” which was taken as an axiom in the middle ages—the rendering to every man his own. Edward assured to the tenant the peaceful enjoyment of his lands with the same impartial justice as he confirmed to the lord the fruits of his seignory.
EDWARD II AND THE ORDINANCES
The troubles which began in the reign of Edward I became chronic under his son, Edward II (1307-1327), and once again an attempt was made by a series of “Ordinances” (1311) to put the Crown under the domination of a group of barons.9 For a time they were successful, but in the end a counter-revolution repealed the Ordinances by the famous Statute of York (1322). This Statute contains the important declaration that matters relating to the estate of the King and the country must be agreed upon by the prelates, earls, barons and commons in parliament. It has been very persuasively argued1 that this statute already shows a feeling that matters which would now be called “constitutional” ought to be reserved for very special deliberation in a parliament which contained commons as well as lords. In any case,
“it is not too much to say that one result of the reign of Edward II was the establishment of the practice of regarding only those parliaments as true parliaments which contained representatives of the commons”.2
EDWARD III: THE BLACK DEATH
The tragic ending of the reign and the mysterious death of the unfortunate Edward bring us to the reign of his son, Edward III (1327-1377), and a period of fifty years of uneasy tension. Once again we find the Charters solemnly confirmed in 1352. The middle of his reign was marked by a series of fearful calamities which have left their mark upon society and the law. The nation was already weakened by a succession of famines when the arrival of the Black Death (1348-1349) from the East wrought a revolution in social and economic conditions. The terrible mortality from this plague completely disorganised the manorial system, which had hitherto depended upon a plentiful supply of labour born and bred within the manor. The plague accelerated and intensified forces which were already at work, and the result was a very serious depletion of the labour supply. The population of the manor was no longer sufficient to work the lord’s estates. Consequently lords began to compete among themselves for such free labour as was available. This tempted servile inhabitants of manors to leave their holdings and become hired labourers. So keen was the competition that a series of ordinances and statutes beginning in 1349 regulated for the first time the relationships between master and servant, and provided machinery for the establishment of scales of wages above which any payment would be unlawful.3 This system depended largely for its operation upon the “justices of labourers” (later justices of the peace), and remained in force as late as the eighteenth century.
RICHARD II: THE PEASANTS’ REVOLT
The situation culminated in the next reign in the Revolt of the Peasants of 1381. Into the long controversy over the causes and character of this rising we cannot enter at this moment, but very briefly stated, the history of the revolt may be summarised like this. In the first place, it is clear that the old theory which saw the cause of the revolt in a supposed attempt by landlords to reimpose the conditions of serfdom after having first abandoned them is no longer tenable. It seems rather that in this, as in many other revolts, the motive of the movement was not so much a blank despair as a certain hopefulness. It is not in the depth of the night that social revolutions occur, but with the first gleam of dawn. The economic results of the Black Death had already brought a considerable improvement in the lot of the agricultural labourer, and it was the disappointment that this improvement had not been spread more equally among the masses, or proceeded more rapidly, that provoked the impatient peasants to rebellion. The insurgents were mainly those who had not yet been able to establish their position as free labourers, and their hatred was principally directed against the lawyers and the stewards who kept manorial records. Wherever possible the rebels destroyed the manorial rolls which contained the legal evidence of their servitude. The parochial clergy seem to have viewed the movement with considerable sympathy, although the higher ecclesiastics were markedly indifferent. It is now clear, moreover, that the ideas of the early reformer Wyclif played very little part in the movement, although it is certainly true that there were active agitators who were preaching a somewhat crude form of communism. Several independent risings occurred in different parts of the country, and one body of rebels was welcomed by the mass of the Londoners who were at odds with the mayor. A serious massacre took place in the streets of the city, and the rebels beheaded John Cavendish,1 Chief Justice of the King’s Bench, the Archbishop of Canterbury and the Lord Treasurer.
It is very difficult to find any clear results of the revolt. Indeed, the latest opinion tends to lay stress upon the ineffectiveness of the whole movement. It was one of the very few occasions in English history when a definitely social, as distinct from a political, revolution, was proposed, and its failure was immediate and complete. Fortunately, the natural movement towards the emancipation of villeins, which had long been in progress, continued as before the revolt, and during the following century a great silent revolution slowly took place. The majority of the populace who had been serfs gradually acquired economic independence. Lords of manors who could no longer find servile labour, either leased their lands to free labourers (or to labourers who were soon to become free), or else tacitly conceded to their peasants the benefits of ownership in their holdings. This latter process is truly remarkable, and deserves close attention from students of legal history. Through the machinery of custom, which was always a powerful influence for experiment or change in the middle ages, the rightless villein slowly acquired customary property rights in the land he worked. For a long time the common law refused to recognise this process, and it was to the courts of equity that the customary tenant, or copyholder as he was later called, looked first for protection.1 In the early seventeenth century Sir Edward Coke took up the cause of the copyholders, and finally extended to them the protection of the common law courts. In this way those sweeping and violent social revolutions which occurred in Switzerland and France were avoided in English history through the slow adaptation of the law to new social conditions, no doubt assisted by the lack of a precise definition of property, while the willingness to tolerate for a time a few anomalies helped to accomplish by peaceful means the great task of transforming the ancient serfdom into a class of free workers.
Throughout this period we find the steady growth of the legal profession and the development of a remarkable series of law reports called “Year Books” which we shall describe later. Then, too, Parliament becomes more definite in its composition and gradually takes its place as the ultimate court in the land, as a national legislature, and as a representative body which could give voice to the feelings of the nation when the ministers of the Crown incurred its dissatisfaction.
Richard II (1377-1399) is one of the most picturesque and puzzling figures in English history.2 The troubles in his reign (apart from the Peasants’ Revolt) were ultimately of a dynastic character, turning upon the conflicting claims of the Houses of York and Lancaster to succeed. Richard’s tactless policies gave an opportunity to the House of Lancaster to steal a march upon the Yorkists, and the result was the deposition, and soon the mysterious death, of Richard II in 1399.
THE FIFTEENTH CENTURY: THE PROBLEM OF ENFORCEMENT
Henry IV, who began the line of Lancaster in 1399, together with his descendants, Henry V and Henry VI, were all under the same disability, that is to say, kings by a doubtful title. They were therefore dependent to a large extent upon the series of family alliances and political factions which had placed them upon the throne, and in consequence we have what has been called the “Lancastrian experiment”. The experiment seems to have consisted in associating a fairly large body of nobles with the daily business of government, and so the chief characteristic of the fifteenth century is the important place occupied by the Council.
THE IMPORTANCE OF THE COUNCIL
“Practically the first public utterance of the new dynasty was its founder’s pledge to be governed by the counsel of the ‘Sages and Ancients of the Realm’, and when, three-quarters of a century later, the line had ended in violence and exile, the last echo of its departed polity was heard in Fortescue’s plea for more ‘counsel’. Time after time, Parliament prayed for ‘sufficient counsel’, and as often did Henry IV inform them of the names of his advisers and swear them to be upright and true; later, in the troublous times of his grandson, it is still the Council which was the storm centre, the Council’s dissensions which raged round the child King’s throne, and the Council’s collapse, which eventually wrought his ruin. To appreciate how intimately the fortunes of the Council were bound up with those of the nation itself, it is well to consider how widely its ramifications spread throughout the body-politic; Parliament, Chancery, Exchequer, law courts—all these still remained so closely connected with the parent body, as represented by the group of men nearest the King, that it is difficult to determine at what period, and to what extent, one should regard them as separate institutions. This interpenetration of the various government departments by the Council can be regarded as the administrative aspect of the growing political supremacy of the Crown. For centuries the Crown was steadily gathering strength and building up a political unity out of the discordant elements of feudalism. One King was to be felt at work throughout the realm, and as the task grew heavier, it was one Council which ensured the smooth working of the various organs of the administration. As a result, the fifteenth century possessed as highly centralised a constitution as one could expect to find, considering that communications—the nerves of a bureaucracy—were still so tardy; such machinery as did exist, however, was to a striking degree amenable to Council influences, and at times subject to Council control.”1
For a time the system worked; while the novelty of it lasted, the barons appeared fairly regularly at the Council table and busied themselves with the daily work of government. But it could not last very long. To lords who were used to power and longed for more, the tiresome routine of a government office was irksome, and as the fifteenth century proceeds we note the increasing difficulty of assembling any number of lords. With their defection the machinery of government was bound either to collapse completely or else to fall into the hands of a group of minor officials. Finally a way was found whereby the regular business of administration was left to professional clerks and household officials, while the lords trusted to their influence in Parliament and the Great Council to be able to supervise the general progress of events. But even this proved too much for the barons. Sooner or later it was unavoidable that they should be divided into the two camps of Lancaster and York, and the Wars of the Roses were an inevitable result; and so the mediaeval baronage finally destroyed itself.
THE LANCASTRIAN CONSTITUTION
To the historians and political antiquaries of the seventeenth century the records of the Lancastrian period were a rich mine of precedents for parliamentary procedure, and their interpretation of the history of the fifteenth century was decisive during the period of the Great Rebellion. To the leaders of the opposition to Charles I, the Parliaments of Henry IV and his successors seemed just the same in composition, in powers and in constitutional spirit as the Parliaments of their own day. Just as the “myth” of the Great Charter is more significant than the Charter itself, so the seventeenth-century interpretation of Lancastrian history has had more practical effect than the actual events would warrant.2 But to an historian who would examine the constitution under the Lancastrian kings and free his mind from the theories which were current in the reigns of James I and Charles I the picture seems rather different. The institutions were there and we can read about them in language which looks strangely modern, but, nevertheless, the spirit within them is still feudal. It was characteristic of the middle ages that the law of land and the property ideas connected with it should take the place and serve the purpose of what is now called constitutional or public law. It is perfectly clear that this was still the case under the Lancastrians.
PROPERTY AND PUBLIC LAW
When great public questions arose, as happened more than once, they were discussed in terms of feudal property. Indeed, since this paragraph was first written, a distinguished mediaevalist has expressed this attitude in words which deserve careful thought:
“If I were asked which of the famous maxims into which the political thought of the world has at times been compressed is the one which on the whole best comprises the living political conceptions of the later middle ages, my choice, I imagine, would be rather unexpected, and not in all cases accepted, but it is one which my study of this period makes me willing to defend. It is the aphorism from Seneca’s De Beneficiis, ‘Ad reges enim potestas omnium pertinet: ad singulos, proprietas’—to kings belongs authority over all: to private persons property.”1
Nor were the middle ages alone in looking to the idea of property for their principal protection, for it lies at the root of much American constitutional law: the peculiarity lay rather in the fact that the elaborate doctrines of property law were themselves used as a sort of constitutional law. It was not until we reach the reign of Edward IV that we find the first examples of reasoning which are truly and essentially modern upon such questions.2
THE ENFORCEMENT PROBLEM
The same thing is true of local conditions. The barons who hoped to establish their domination over the Crown were carrying out the same policy in the sphere of local politics. Large masses of evidence3 bear witness to the extent to which local government was demoralised through the influence of the great landowners. Trial by jury collapsed utterly;4 parliamentary elections either represented the will of the local magnate or took the form of small battles; the administration of law both at Westminster and in the country was seriously hampered by the breakdown of local machinery and widespread corruption. The lawyers did all they could under the circumstances. They elaborated the law patiently and skilfully. A succession of judges of marked ability were making decisions of great importance, but it was on the administrative and political side that the common law became ineffectual.
By the time the Wars of the Roses were over the baronial ranks on both sides had been seriously depleted. In fact the baronage, as a political class, had destroyed itself and there remained only the Crown, weakened indeed, but still ready at a suitable moment to resume the great tradition of re-establishing orderly government. With the exile of Henry VI (1461) and the accession of the Yorkist, Edward IV, the work of reconstruction begins. New instruments and new methods begin to appear. The Court of Chancery becomes much more prominent and fills gaps where the common law had been too timid or too weak to attempt reform. The Court of Star Chamber was at this time nothing more nor less than the Council, and it struggled manfully to enforce order in cases where the normal criminal law was hopelessly inadequate. In all this the mainspring was necessarily the Crown, and so we find that the nation turned to the monarchy with a sigh of relief after sixty years of baronial anarchy. This brings us to what has been called the “new monarchy”, which will eventually culminate in the popular nationalist dictatorship of the great Tudor monarchs, especially Henry VIII and Elizabeth.
THE TUDORS: RENAISSANCE, REFORMATION AND RECEPTION
The house of Tudor came to the throne with the accession of Henry VII after the battle of Bosworth in 1485, and ruled England during one of its most brilliant periods, the sixteenth century, until the death of Queen Elizabeth in 1603. It was the golden age of literature, beginning with Sir Thomas More and ending with Bacon and Shakespeare; an age, too, of heroic adventure when the seamen ranged the ocean in search of new continents, and planted distant colonies whose future they could never have guessed. But besides the remote new worlds which adventurers had discovered, there was something like a new world in old Europe too. A wave of new ideas was remaking the intellectual life of Italy and France, Germany and England, and these ideas are usually grouped together by historians under the three headings of the Renaissance, the Reformation and the Reception. The movement begins with the revival of classical studies, and especially of Greek. Sometimes this resulted in a sort of new paganism; instead of the frigid logic of Aristotle which had dominated the middle ages, attention turned to the genial romance of Plato, and to the poets. More occasionally the movement took a distinctly religious form, and the tragic lives of Pico, Politian and Savonarola illustrate the beauty of Christianity lived in the light of classical humanism. In England the movement is represented best by Sir Thomas More, Chancellor, historian and romantic philosopher, who combined a platonic fancy for Utopias with a steadfast devotion to traditional Catholicism which cost him his life in 1534. Erasmus also was influential in England, where he lived for some time as Professor of Greek at Cambridge. As with every great intellectual movement, the Renaissance had profound effects upon the conception of law.
THE MEDIAEVAL ACHIEVEMENT
The mediaeval man has never succeeded in ridding himself of his reputation for lawless behaviour. It is possible, no doubt, to overestimate the amount of disorder that existed, but nevertheless the fact remains that violence is a conspicuous element in almost any mediaeval chronicle. Born amid the ruins of the Roman peace, the early days of the middle ages witnessed the successive failures of several attempts to restore some semblance of authority; and this confusion was further confounded by persistent invasions. Feudalism was the compromise finally reached, and although it made wide concessions to the military idea, nevertheless in the end it accomplished the difficult task of subjecting armed force to the rule of law. Naturally progress was quicker in some places than in others, but everywhere at least a lip service was paid to the idea of law, and as the middle ages proceed it becomes more and more evident that law was winning. Religion had an important rôle in this development and contributed the valuable conception of Jehovah as a law-giver and law-enforcer—a conception derived from Judaism. Out of all the confusion and disaster of the middle ages there arose the unanimous cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. Of the many intellectual systems devised in the middle ages, there was one which proved to be a practical as well as an intellectual answer to some of the most urgent of life’s problems, and that was law, law which was directly based upon the divine attribute of justice.
It might have been that the idea of law was no more than a despairing refuge in an impossible Utopia, devised by minds frightened by the evils around them. But Utopias belong to modern history; the mediaeval man was above all a man of action, and out of the night of the dark ages he began to build the fabric of law. To him the rule of law was not only a worthy achievement of the spirit, but also a great active crusade, and the greatest of all the crusades, because it alone survived its defeats.
THE RENAISSANCE AND THE STATE
Such is the subject matter of legal history in the middle ages where we can follow the rise and progress of law and the rule of law. When we come to Machiavelli we reach the spirit of the Renaissance, and begin to find law itself questioned, for his distinction between public and private morality is essentially the same heresy as to divide the substance of the Godhead; a double standard introduces a sort of polytheism utterly repugnant to mediaeval thought. And true enough, there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State. It was mediaevalists in England, armed with Bracton and the Year Books, who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke upon Littleton before their eyes. Could anything be more mediaeval than the idea of due process, or the insertion in an instrument of government of a contract clause? Pacta sunt servanda,1 it seems to say, with the real mediaeval accent. It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it.2 Instead of the mediaeval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. And so, where many a mediaeval thinker would ultimately identify law with the will of God, in modern times it will be regarded as the will of the State.
The second aspect of this intellectual revival is the Reformation. The study of Greek led scholars to examine the New Testament in the original tongue, and soon they began to interpret it in the light of private judgment instead of following traditional custom. This abandonment of custom is highly significant of the change from mediaeval to modern times. The attempt to reconstruct Christianity from the New Testament and the earliest fathers meant a denial of over a thousand years’ growth and development in Christianity, based upon custom. This denial of the validity of theological development operating through custom and slowly shifting tradition had its parallel in legal history. Custom tends to be depreciated more and more by the State, until finally the legal restrictions within which it is confined eliminate it as one of the major sources of law. In other words, the State and the central organs of government, the courts and the legislature, are becoming the sole source of law.
The quarrel of Henry VIII with the papacy was for a time purely mediaeval in its character. Many a king and noble had been involved in similar matrimonial tangles and had incurred the displeasure of the Holy See. There was even mediaeval precedent for the confiscation of monastic property and the limitation of appeals to the papal court, but the modern spirit appears when the quarrel is carried a step further, and the doctrinal basis of Catholicism is questioned. With the reign of Edward VI the Reformation is definitely accepted as a political weapon against Rome, and (after a short reaction under Mary) the early years of Elizabeth made it the permanent basis of English political and religious life.
THE REFORMATION AND THE LAW
This attack upon the foundation of the Church was bound to undermine the mediaeval State as well. Church and State had frequently quarrelled during the middle ages, but it was the very intimacy which existed between them that provoked dissension. They were not two different powers, but merely two aspects of the one divine mission of ruling the souls and bodies of men by law. Law in the theological sense, and law as the lawyer knew it, were both based upon the same foundation—the will of God as expressed through authority (whether ecclesiastical or royal), tradition and custom. To attack the authority of the Church was therefore to attack the whole mediaeval system of law. Just as the Reformers went behind traditional Christianity to the historical sources, so there was a movement to go behind traditional law and seek for its origins. A striking example of this is the growth of two schools of Roman law, the first of which was content with Roman law as it was modified by mediaeval custom, while the second insisted upon a return to the strict letter of the classical texts.
The attack upon the traditional basis of mediaeval Christianity had its counterpart in political theory. It soon became evident that as a result of the Reformation, religion was no longer to be universally admitted as the basis of civil government. The foundations of religion had been shaken, and were differently interpreted in different countries and by different thinkers. As substitutes, various theories were proposed. In a number of them “the people” were brought into the reckoning, and attempts were made to base the theory of government upon the idea that kings existed for the convenience of their subjects, instead of (as in the middle ages) both king and people working together for the glory of God. An early form of this idea is to be found in the controversies during the sixteenth century upon the question (at that time very topical) whether a bad king could be properly assassinated by his outraged subjects. Later still it was proposed that kings, that is to say, the State, and all the forces of government, including law, are based upon a contractual relationship between ruler and subject. Some were prepared to assert this as an historical fact; to others the contract was merely to be presumed from existing circumstances.
THE REFORMATION AND THE CONSTITUTION
This secularisation of law had its effects upon the constitution. In England, as in several other States, government fell into the hands of the professional administrator, and “reasons of State” placed in his hands an extremely wide, over-riding discretion. In England this took the form of the dominance of the Council under all the Tudor sovereigns, and in the rise to importance of the office of Secretary of State. As long as Queen Elizabeth lived she was generally able to maintain this novel supremacy of the administration above the old feudal legalism, which was timidly asserted from time to time by the common lawyers. Only in her very last years did she suffer an occasional reverse. In general terms the conflict between the Council and the courts, between administration and law, is the theme of sixteenth- and also of seventeenth-century history, and its origins are clearly to be traced back to the Reformation and the resulting disorganisation of mediaeval political thought. During all this period the typical common lawyer was generally on the conservative side. He still pored over mediaeval books, he practised in mediaeval courts, and was often suspected of being secretly an adherent of the old religion. There was, therefore, a tendency to look outside of the legal profession for men to fill administrative posts, and it was to the civilians that Henry VIII turned when he was founding or reorganising such administrative courts as the Privy Council, the Star Chamber, the Court of Requests, the Court of High Commission, the Council of the North, the Council of Wales, and the rest.
Attendant upon the Reformation came the Church settlement. It is a striking feature of Henry VIII’s reign that he was able to use Parliament itself as a convenient machinery for effecting the complicated settlement. The results were momentous. Parliament thereby acquired the experience of carrying out measures which were in fact revolutionary. In one statute it declared that the supreme head of the Church was not the Pope, but Henry; in another it confiscated enormous quantities of property which had been held by the Church for centuries undisputed; in another even so sacred a thing as Christian doctrine was restated by Parliament in the Statute of Six Articles; soon it was to establish a prayer-book to replace the age-old formularies hitherto in use. When in later years the powers of the modern State came to be analysed, Parliament held a very large place in the scheme of things. Those who maintained the omnipotence of Parliament found their most striking illustrations in the acts which carried out the Reformation in England. Henry VIII has been well described as the “great architect of Parliament”.1
And, finally, we come to the movement known as the Reception.2 This was a widespread tendency in various countries of Europe to receive the classical Roman law in place of the mediaeval customary law which had only been partially Romanised, if at all. The legal scholars of the day had taken anew to the study of the books of Justinian, ignoring the thousand years of history which had introduced serious modifications in adapting Roman law to current conditions. The same problem arose in England. Traditional Christianity as represented by the mediaeval Catholic Church was replaced by a system which to its adherents seemed simpler, more reasonable and more in accord with ancient history. Ought not a similar reform to be carried out in the sphere of law? Ought not the mediaeval common law which was inexpressible in any decent language, French, Latin or English, to be replaced by the pure and ancient doctrine of the Digest? This question was seriously considered. Reginald Pole, cardinal and last of the Yorkist line, who stood equally good chances of becoming King of England or Pope, had committed himself to the idea. Henry VIII was well aware of the merits of the civilians, and founded the still existing Regius Professorships at Oxford and Cambridge for the propagation of their learning. As administrators and as judges in the prerogative courts their influence was paramount. They also maintained an ancient feud with the canonists and the papacy. But against the courts of common law they stood little chance of success. The close organisation of the profession and the numerous vested interests which it contained, the strong tradition of its educational system centring in the Inns of Court, and the practical impossibility of superseding the courts by a newer system, had the result of entrenching the common lawyers within the tangles of their feudal learning, which, moreover, had become the basis of every family fortune in the land. We venture to suggest that once again the common law stood impregnable upon the foundations laid by Henry II. It was he who gave the common law its firm grip upon the land, and for the future the more elaborate the land law became and the more subtly it contrived to entangle both present and future generations in the maze of real-property law, the more impossible it became for the landed classes to contemplate any interference with the system which assured to them and their children the complicated benefits of inheritance. In Germany, France and Scotland the Reception was accomplished with varying degrees of thoroughness; but not in England. Nevertheless the common law for a time had to maintain a stubborn defence, and for the first time in its history it made a definite alliance with the members of the House of Commons, who were equally willing to accept the aid of the lawyers. In this way were laid the foundations of the coalition between the House of Commons and the common law which was to dominate English history during the seventeenth century.
The Tudor period had its own social problem. The transition from serfdom to copyhold was nearly complete, but nevertheless there was considerable economic distress, and from the later years of Queen Elizabeth proceeds a stream of legislation dealing with unemployment and the relief of paupers, while the mediaeval machinery for the fixing of wages was kept in steady operation and even enlarged. Then, too, we find English writers for the first time taking an interest in such topics as international law and in the international aspects of commercial and maritime law, of which we shall speak later.
Finally some words must be said on the extremely important legislation of the Tudor sovereigns. The reign of Henry VIII saw an outburst of legislation which is almost comparable to that of Edward I. The great statutes which carried out the Reformation have already been mentioned, and their importance exceeds even their position as the foundation of the Church of England, for they were astonishing examples of the almost limitless powers assumed by Parliament. Besides this, a good deal of legislation was concerned with treason, illustrating the growth of the idea of the State and the inadequacy of merely mediaeval law for its protection against the new dangers which its own activities had aroused.1 Of the rest of Henry VIII’s legislation we must mention the Statute of Proclamations (1539). Although soon repealed it is nevertheless highly significant. The old view that this statute constituted a sort of Lex Regia conferring upon the Crown the power of wide legislation without the concurrence of Parliament has been abandoned.2 The growing complication of government had brought the proclamation into prominence for the first time as a useful means of supplementing statute law on points of detail, and of carrying out those processes which to-day are effected by administrative bodies with powers delegated from the legislature. The latest and best opinion is that
“the existing law was obscure and the inconvenience of this obscurity was not likely to be overlooked by a King who was remarkable for his political prescience. Henry VIII’s Statute of Proclamations was an extremely able attempt by King and Parliament to deal finally with the problem in a manner which should commend itself to the public opinion of the day.”3
The statute provided that in cases of emergency the King and Council may issue proclamations which shall have the force of an act of Parliament. They were to be published in a manner prescribed by the act, and offenders against them were to be tried by a board of councillors named in the act, constituting, as it seems, a special tribunal for the enforcement of proclamations.4 This device is certainly in accord with Henry VIII’s general policy of erecting special courts for special business, instead of enlarging the jurisdiction of the old common law courts. The second section of the statute contains carefully drawn safeguards to prevent proclamations being used in an oppressive manner; the principles of the common law, existing acts of Parliament, and property rights were put beyond the reach of proclamations. Moreover, it is equally clear that the use made of these powers by Henry VIII and his Council was moderate and reasonable; there is no evidence that the King hoped by means of proclamations to establish an absolutism or to supersede the legitimate activities of Parliament. The immediate occasion for the act was the refusal of the judges to give effect to certain proclamations by which, as an emergency measure, the government had attempted to control dealings in corn at a moment of scarcity.1 There is nothing in the numerous proclamations which have come down to us which would suggest that the act was accompanied by any serious change in their contents or their numbers, nor did the repeal of the act in 1547 prevent the constant use of proclamations by Queen Elizabeth. There is much to be said for the view put forward by Sir Cecil Carr, who suggests that its principal effect was of a more subtle order. It is one of those acts which, by conferring on the Crown powers which it already possessed, made it seem that those powers were really the gift of Parliament. Under the guise of strengthening the prerogative, it therefore really weakened it when, in after years, the implications of the act were judged from a different standpoint.2 If this is so, then an interesting parallel is to be found in the unexpected results drawn from the famous Star Chamber Act of 1487.
The two other great statutes of this reign, the Statute of Uses and the Statute of Wills, must be considered more at length in discussing the history of real property.3 Here it will be sufficient to mention them and to premise that their policy was dictated by deep political causes and required a good deal of bargaining between the Crown and different classes of society. At the basis of them lies the grave movement of agrarian unrest which was to produce several insurrections under Henry VIII and Edward VI.
THE CLOSE OF THE TUDOR AGE
With the reign of Queen Elizabeth (1558-1603), and especially the second half of it, we come to a sort of uneasy peace. The Reformation is an accomplished fact; the various attacks upon the position of the Crown, whether from domestic pretenders or from foreign foes, had definitely failed; the deposition of Queen Elizabeth by papal bull and the attempt to execute it by foreign invasion had likewise failed; the defeat of the Spanish Armada (1588) had given to England security upon the sea, and henceforward there was to be no serious question of foreign interference with her domestic politics—at least openly. In the sphere of law there is a similar feeling of problems having been settled or at least shelved; the common law courts begin to revive; the momentous legislation of Henry VIII is being absorbed; a new generation of lawyers brings fresh life to the old system, and a sincere attempt is made to stretch the common law to the measure of the growing needs of the nation. Parliament, although less frequently summoned, was settling its sphere of activity within the enlarged boundaries which Henry VIII’s reign had assigned to it. The House of Commons was growing steadily more important; it attracted men of great ability and was establishing close contact with the administrative side of the government. It is during this period that officials, secretaries of state, and members of the Privy Council begin to appear explaining and defending their policy before the Commons and acting as a liaison between the government and the governed. Although the Tudor age at first sight seems to end upon a quiet note, nevertheless there are indications that a loyal and devoted respect for the great Queen had a great deal to do in preventing the Commons from insisting too pointedly upon matters where they differed from the Crown. The extraordinary knowledge of human nature which Queen Elizabeth possessed, together with her admitted ability and prestige, had enabled her to prevent the raising of difficult questions; upon the first signs of trouble a motherly scolding was usually effective in reducing the House of Commons to respectful silence and even apologies. In the meantime the House developed a considerable degree of control over its own procedure, and discipline over its members. The constant enlargement of “parliamentary privilege” helped a great deal in establishing a spirit of united self-consciousness in the House, and the precedents themselves stood in good stead in the succeeding troubles with the Stuarts. In short, the quiet closing days of Queen Elizabeth’s reign were in fact a period of armed peace, interrupted, it is true, by a few significant incidents, during which both Crown and Parliament were quietly strengthening themselves for a conflict which both of them seemed to apprehend. It must never be forgotten that the Tudor monarchs were wise enough and strong enough to use Parliament as an implement of their policy, but that the success of this method depended upon the monarch commanding the personal devotion of the Commons, both by reason of a policy which was at least to some degree popular, and of the certainty that the Crown really did stand for the good of the realm. When the Commons begin to doubt whether the King is more concerned for his own or the nation’s interest, then this working alliance between Crown and Parliament will cease. There is no longer any question of a feudal nobility stepping into the breach; if the Crown cannot govern to the satisfaction of the nation, then the House of Commons will be compelled to undertake the government itself. This brings us to the Stuart age.
THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW
Much new light has been thrown upon the history of the seventeenth century, and large masses of new documents have become available since Hallam wrote his classical Constitutional History over a century ago.1
The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications to an already baffling situation. Elizabeth held the reins of Church and State, but the Church itself had been based upon a denial of tradition and authority; the Church consequently had no answer to fresh denials, save to shelter behind the throne. To an extraordinary extent public thought was turning to various forms of sectarianism, and speculation very frequently took the form of theological controversy. The theory of the State was less developed. The age of the Tudors and of the Reformation had for the moment carried practice far ahead of political theory, and the pressing business of administration had overshadowed the more sober business of law. The great names in the age of Elizabeth are not those of lawyers or of judges, but of councillors and secretaries. Against the administrative State there was bound to be a reaction, especially when the nation began to doubt the wisdom of the policies pursued. The spirit of theological questioning was to be extended to the State, and so the uncertainty of the foundations of religion, and the breakdown of the old theories of ecclesiastical authority in the established church, resulted inevitably in the bewilderment of those who sought for the foundations of the State as well. In the end, attempts were made to use the few remnants of mediaeval thinking. The Crown naturally turned to the doctrine of the divine right of Kings, but interpreted it in a narrow sense which a mediaeval philosopher would hardly have recognised. In this way the old doctrine of the divine origin of civil government became restricted to a particular form of government, that is to say, a monarchy, and to a particular section of that form, the King himself. In opposition to all this, the revival of the common law brought back a view which more nearly represented the mediaeval attitude. This view was drawn to a large extent from the pages of our greatest mediaeval lawyer, Bracton, whose celebrated work on the laws of England was first printed in 1569 and again in 1640. In this book Sir Edward Coke and other common lawyers found the simple mediaeval doctrine of the supremacy of law. In an alleged altercation between James I and the great Chief Justice the issue was clearly expressed: James, by his prerogative, claimed to be above the law by divine right, and to this Coke replied by quoting the memorable words of Bracton: “The King is subject not to men, but to God and the law.”1 In other words, Coke was prepared to revive the age-old dogma that law, divine in its origin and sanction, is the basis upon which civil society is built, and that this law is supreme above King and people equally. The theory of the divine right of Kings, on the other hand, ascribed this religious character to one branch only of the machinery of government, the King. Soon it became evident that there was danger of the latter doctrine combining with the newer notions of the State (resembling somewhat the theories of irresponsibility which a later age was to produce), to create thereby a sort of “Leviathan”—to use the later term of Hobbes. Regarded in this light, the conflict of theory between Crown and Parliament is one between the mediaeval view of a paramount divine law, supreme over every aspect of government, and an attempt to transfer this divine sanction to a monarch who is also to embody the State in the more modern aspect of the word. From this point of view, Parliament represents the conservative side and the Crown the side of innovation. From another angle, however, the positions might appear to be reversed. When it came to the details of the actual powers which the Crown had exercised in the past independently of parliamentary control, it was a plausible argument for the Crown to insist that it was, in fact, basing its position upon mediaeval precedent. This was particularly true on various matters of indirect taxation which the middle ages had left in great obscurity. In asserting control over these matters, the House of Commons laid itself open to historical arguments of considerable force, which would have been stronger still if the Crown had been able to secure the services of antiquaries as learned and zealous as those of the parliamentary party. Even so, when it came to the judicial interpretation of mediaeval precedents, the courts more than once had to find for the Crown—and we are at perfect liberty to assert that the judges who made these decisions reached them honestly and properly upon the historical evidence available to them, although they often spoilt the effect by gratuitously introducing a good deal of dogma on divine right. The historians of a later age, imbued with partisan spirit, have certainly exaggerated their wholesale accusations of subserviency against the Stuart judges. From this point of view, therefore, it is the Crown which seems conservative and Parliament the innovator. However, the Commons were fortunate in possessing several antiquaries of truly prodigious learning; William Prynne, for example, had read enormous quantities of mediaeval rolls. Sources which are voluminous even in modern reprints and abstracts, Prynne could quote at great length from the original manuscripts, which he had studied by candlelight in the dank vaults of the Tower. Only those who have had to spend many hours with mediaeval records can appreciate the immensity of his labours. As we have already mentioned, the ambiguous rolls of the fifteenth-century Parliaments were a particularly rich mine for the opposition, being easily susceptible of interpretations in their favour.
THE SUPREMACY OF THE COMMON LAW
From what has just been said it will be clear that the frank acceptance of the principle that current problems were to be settled upon the basis of antiquarian research might work both ways, and in fact the very honesty with which it was followed has had the effect of making some judges give inconsistent decisions. At times, Sir Edward Coke seems to be a champion of prerogative, although at other times he is one of the most intrepid of parliamentarians. He must not be blamed too much for these inconsistencies1 which were really implicit in the whole of the parliamentarian argument. He himself seems aware of this weakness, and to remedy it he fell back with great ingenuity upon a position which he skilfully developed, and which has had immense influence, especially in America:
“Urged by a presentiment of the coming conflict of Crown and Parliament, he felt the necessity of curbing the rising arrogance of both, and looked back upon his country’s legal history to find the means. This instinctive appeal to history for guidance was characteristic, and the choice of a legal rather than any other solution was amply justified by the remarkable continuity and stability of English law during the vicissitudes of the seventeenth century. His attitude is aptly expressed in one of his own picturesque phrases. ‘Let us now peruse our ancient authors,’ he wrote, ‘for out of the old fields must come the new corne.’ So it was in this spirit that he laboured at the ancient patrimony of his profession, those short, thick folios of black-letter Year Books, and from their forbidding mass of obsolescent technicalities raised a harvest of political theory which was destined to be the food of far-distant states to which he had never given a thought.
“The solution which Coke found was in the idea of a fundamental law which limited Crown and Parliament indifferently. What that law was, its nature and its contents, were questions as difficult as they were insistent—and, as subsequent events showed, capable of surprising solutions. The nearest we find to an explicit definition of this fundamental law is the assertion of the paramount law of ‘reason’. For the rest, the common lawyer’s ‘reason’ is left in as much uncertainty as he himself ascribed to the Chancellor’s equity. Moreover, Coke was prepared to advance mediaeval precedent for his theory, and in so doing has drawn upon his head the criticisms of later investigators. Just as these criticisms are, from the point of view of modern scholarship, it is only fair to the Chief Justice to insist that his view of history was not ours, and that it is only by the standard of his own day that a true evaluation of his learning and intellectual honesty can be formed. Although it must be confessed that even then he cannot be found altogether faultless, yet it is believed that a sufficient explanation will be found to establish his bona fides. His doctrine is certainly based largely upon mediaeval precedents and the extent to which they justify it is an interesting subject for investigation. But if we reach a different estimate from his of the Year Book authority for his dogma, this must not be taken as necessarily involving a severe censure of Coke. He himself has told us that though the fields are old, the corn is new.”2
This doctrine was first proclaimed by Sir Edward Coke in his judgment in Dr. Bonham’s Case (1610),3 and for nearly a century afterwards the idea that the common law could be regarded as a fundamental law seemed attractive to certain minds. The Crown viewed the new theory with alarm, and Coke was ordered by the government to explain his doctrine and to “correct” his reports.
THE GROWTH OF THE CONFLICT
A solution so simple as this frank return to the mediaeval idea of law could hardly have a chance amid the riot of party passion which was soon aroused. In this place we shall be content with only a very brief summary of the stirring events which occupy the reigns of James I and Charles I.1 To begin with, we have a long series of precedents on the subject of parliamentary privilege such as Shirley’s Case (1604),2 and Darnel’s or the Five Knights’ Case (1627).3 The powers of Parliament were further asserted in impeaching unpopular ministers. Worse still, the procedure by bill of attainder was revived. Then again a long constitutional conflict arose over matters of taxation. The obscurities of this subject during the middle ages had never been thoroughly cleared up, and there was a good deal of justifiable doubt as to the powers of the Crown in this respect. Bate’s Case or the Case of Impositions (1606)4 decided that the Crown without the concurrence of Parliament could increase the rate of customs duties. A variety of other expedients were devised for raising money, such as the revival of the forest dues and the demand for ship-money. This latter was contested in Hampden’s Case (1637),5 which also was decided in favour of the Crown. It is noteworthy that previous to the trial the King called upon the judges to give him an extrajudicial opinion upon the questions at issue. Their answers were in favour of the Crown and were ordered to be read publicly in the Star Chamber and enrolled in all the courts of Westminster. In the midst of this conflict Sir Edward Coke was compelled to take a side, and finally became one of the leaders of the parliamentary party. The crisis came in 1616 when the Case of Commendams6 raised some technical points of ecclesiastical law and the validity of a royal grant in commendam. Coke’s dissenting opinion in this case immediately brought about his dismissal from office. Events steadily moved to a climax. The House of Commons defended its privileges fiercely and claimed complete freedom from royal interference for its debates and its members. At the same time the House was assuming control over every source of revenue and was deliberately using the power of the purse in an attempt to compel the Crown to dismiss ministers, and to pursue policies at the dictates of the Commons. It is this claim which makes the history of the seventeenth century so totally different from that of preceding ages, save, perhaps, the superficial resemblances in some respects which are to be found in the fifteenth century, while the Lancastrian monarchy was extraordinarily weak. Finally, the Commons embodied their demands in the Petition of Right1 (1628) which contained a long list of grievances. Rehearsing a number of statutes and several provisions of the Great Charter, the Commons declared that arbitrary imprisonment is unlawful and that a Privy Council warrant setting forth the King’s special command shall be no sufficient return to a writ of habeas corpus. The unreasonable billeting of soldiers and the trial of civilians by martial law were likewise denounced.
THE CHURCH IN POLITICS
From 1629 to 1640, Charles I contrived to rule without calling a Parliament. Grievances were steadily accumulating. The Church of England (unwisely led by Archbishop Laud) was suffering more and more from the spread of dissent, and it was inevitable that the Church and the Crown should make common cause against those who combined a dislike for the establishment with anti-royalist principles. The laws already existing against nonconformists were enforced with great harshness by those courts which were most amenable to royal influence—the Star Chamber and the Court of High Commission. Consequently, the conflict was still more embittered by the introduction of a religious feud. Finally the Church question was to be the ruin of Charles. He rashly undertook to impose Anglicanism in Scotland upon a people whose religious fanaticism even exceeded his own. A war was the immediate result and then came inevitably the summoning first of the short Parliament (1640), and then of the long Parliament (1640-1660). By this time, Parliament was master of the situation. The Earl of Strafford and Archbishop Laud were attained and put to death. Ship-money was abolished; so also were the Courts of Star Chamber and High Commission, and a statute was passed to prevent a dissolution without Parliament’s own consent. The Church and the universities were both attacked, and Charles replied by impeaching before the House of Lords five members of the Commons, a proceeding which the Commons claimed was their sole privilege. The House vigorously defended its members, and when the King in person came to order their arrest, the word “privilege” was uttered loud enough for him to hear. From this date (1642) the Civil War became inevitable. All sense of moderation was lost and in 1649 a revolutionary tribunal condemned and executed the King. From 1649 to 1660 various forms of government were devised which are of great interest as early examples of the erection of readymade constitutions. Most important of all was the Instrument of Government, a document which purported to be a fundamental constitution which was to be unchangeable save by particularly complicated machinery. This document, therefore, may be properly regarded as a prototype of the written fundamental constitution, as it is known to American public law.1
THE COURTS DURING THE INTERREGNUM
Although Sir Edward Coke had found it impossible to avoid taking a vigorous part in national politics, his successor, Chief Justice Hobart, succeeded in winning the confidence both of the royalists and the parliamentarians. In fact, the courts were well served during the period of the Commonwealth; Henry Rolle became Chief Justice of the “Upper Bench”, while Sir Matthew Hale sat in the Court of Common Pleas during the Commonwealth and won royal favour after the Restoration. It is interesting to note that a good many anticipations of modern legal reforms were proposed during this period although it is hardly necessary to say that most of these premature advances ceased at the Restoration. Among them we may mention the settlement of the jurisdiction of the various courts in order to prevent the scandalous competition between them. Chancery, which had been bitterly attacked by Sir Edward Coke, undertook to reform itself; ecclesiastical jurisdiction had already been abolished. The growth of overseas commerce provoked the reorganisation of the admiralty courts, while district courts for small claims were proposed. Legal education was revived in the Inns of Court and legal records were for a time in English. A good deal of thought was given to a projected codification of the law, and a system of registering titles to land was likewise proposed. As early as 1648 an essayist suggested that there should be only two legal estates, fee simple and for life, abolishing the entail entirely. Rather less creditable was the proposal to restrict the equity of redemption to very narrow limits;2 it is difficult to resist the conclusion that this project emanated from the military and financial interests who were deeply engaged in speculative, and sometimes corrupt, operations in land.3 The eleven short years of Republican rule were too much filled with war and high politics and religious dissension for these proposals to reach any very practical result, and the restoration of Charles II, in 1660, automatically restored the state of affairs as it existed at the eve of the civil war.1
REFORMS AT THE RESTORATION
The movement had its results, however, for Charles II’s reign was in fact a period of legal reform. At the very commencement tenure in chivalry was abolished. This abolition of a great deal of mediaeval law relating to such subjects as wardship, marriage and military tenure was counterbalanced, however, by an increase in complexity in other departments of the law of real property. There may be a certain amount of truth in the suggestion that has several times been made, that periods of civil disturbance have been frequently accompanied by the development of new devices by the conveyancers with a view to tying up property in land so as to put it, as far as possible, beyond the reach of such political accidents as forfeiture and improvident management. Thus the fifteenth-century landowners seem to have resorted to the use as a protection—which the legislature soon defeated, however—against the frequent forfeitures of legal estates attendant upon the Wars of the Roses. So in the seventeenth century the widespread confiscations of royalists’ properties2 during the period of the Commonwealth was accompanied by numerous developments in the art of conveyancing which from this date onward reached an astonishing degree of technicality.
THE STATUTE OF FRAUDS
The reign of Charles II saw the enactment of the Statute of Frauds (1677). This statute has been so constantly before the courts from that day to this, and has been adopted in so many jurisdictions, that a few words must be said as to its origin and policy. There exist a number of drafts and projects of legislation which illustrate quite clearly the problem involved.3 A detailed examination of these drafts confirms the claim of Lord Nottingham to the principal share in its authorship, although a number of additions and improvements came from other hands. Like every piece of legislation it must be judged from the standpoint of the place it held in the legal system as it then existed. If, in the course of the centuries, conditions have so changed that a piece of old legislation no longer conduces to justice, then the blame for the situation must obviously lie not upon the original authors of the statute but upon the legislatures of to-day. The lawyers of the seventeenth century had the courage to meet a serious situation by deliberate legislation, and we can do no less. If the statute has proved in some respects unsatisfactory under modern conditions, then the remedy lies in our own hands. We shall therefore examine for a moment the position which the statute occupied in the environment wherein its makers placed it.
To begin with, it must be remembered that jury trial in 1677 was still essentially mediaeval.1 The modern device of ordering a new trial when the verdict is clearly against the weight of the evidence was in its infancy. Again, at this date the law had barely begun to acquire experience in the handling of parole evidence; such rules as did exist were ancient and obstructive, for parties to the action, their husbands, and wives, and all other persons interested in the outcome of the litigation were incompetent as witnesses. It is obvious, therefore, that the law was faced with two alternatives in 1677: either the whole law of evidence as it then existed would have to be scrapped and replaced by a hastily improvised system upon modern lines, or else parties who desired legal protection for their transactions must be compelled to take the precaution of embodying them in documents whose contents and authenticity were easily ascertainable. The first alternative in point of fact hardly existed; it has taken two centuries of hard experience to develop the law of evidence thus far, and a great deal still remains to be done. It was only reasonable, therefore, that the profession, guided by Lord Nottingham,2 should have adopted the second policy; and from what has just been said it will surely be clear that under the circumstances they followed the only practicable path.
As far as these provisions refer to transactions concerning land there has been less serious cause for complaint. It is in matters of trade and commerce where business habits have always been to a large extent informal, that the principal difficulties have arisen. But there is surely some force in the argument that there should be, in common prudence, some impersonal evidence available when serious matters are at stake. “To be fair to its framers, we should, I think, remember three things”, writes Sir William Holdsworth. “Firstly, the law of contract was as yet young; it had been developed wholly by decided cases; and it had very few rules as to the characteristics and incidents of particular contracts. It follows that the framers of the statute were legislating on a branch of the law which was not fully developed, and on a topic which had not before been a subject of legislation.”
If a legal system is to depend upon legislation to any extent at all for its readjustment to newer needs, then the principle of legislation must be frankly admitted in its entirety, and the profession must be prepared to undertake a constant and sustained task of securing legislation again and again in order to enable the law to keep pace with the march of events. It is clearly illogical to impose legislation at long intervals, restricting the courts to the comparatively humble work of interpreting the letter, and then, when confusion results, to blame the legislature of two hundred years ago.1
THE HABEAS CORPUS ACT
The period from 1660 to the Revolution of 1689 is, however, more remarkable for its contributions to public than to private law. The one other great legal reform of the reign of Charles II was the passing of the Habeas Corpus Act2 in 1679. The writ of habeas corpus has played such a large part in the struggle for liberty that a short history of it must be given here.3 Like a good many other common law writs, its history can be traced back to the early age when legal procedure and administrative methods were still not distinguished, and, together with the other prerogative writs of mandamus, certiorari and the rest,4 its ultimate origin is in a simple command from the Crown to one of its officials. In the reign of Edward I there were several varieties of habeas corpus serving different purposes, such as to secure the appearance of a defendant or of jurymen. Gradually the courts acquired the habit of issuing the writ in order to bring before them persons who had been committed by inferior jurisdictions—particularly the courts of cities and local franchises. The motive of this policy seems to have been to enlarge the powers of the Courts of Westminster at the expense of local tribunals, and the result was not infrequently confusion and injustice. Parties were even allowed to use this process when they had been committed by judgment of local courts for debt so as to obtain their release and to defraud their creditors. It is not surprising, therefore, to find a steady stream of legislation restricting the scope of habeas corpus.
At the end of the fifteenth century the common law courts had nothing more to fear from local jurisdictions. A new antagonist appeared in the form of Chancery, followed soon after by the Courts of Requests and Star Chamber. The writ of habeas corpus was now turned against this larger game. The common law courts were indignant when Chancery committed parties for suing at common law after they had been enjoined, and Chief Justice Huse proposed to release such prisoners by means of habeas corpus (1482).5 The Courts of Admiralty and High Commission were similarly attacked, but it was in the seventeenth century that habeas corpus fought its greatest battle. The Crown had established the right of imprisoning without trial upon a warrant signed by the Secretary of State and a few Privy Councillors, alleging “her Majesty’s special commandment”.6 Against so serious a claim of State absolutism habeas corpus became in the words of Selden “the highest remedy in law for any man that is imprisoned”.
Throughout the Stuart period habeas corpus was steadily used and improved by the courts of common law. But procedural difficulties stood in the way. Darnel’s Case1 had shown doubts; the special command of the King was nevertheless there held to be a sufficient return, and this rule was only abolished by the Petition of Right.2 There were also doubts as to which courts were competent to issue it. Many of these defects were remedied in the Habeas Corpus Act3 of 1679, which after much discussion finally passed the House of Lords—and then only owing to a mistake in the counting of the votes, so the story goes. By this act any judge during term or vacation must issue the writ unless the prisoner is obviously committed by lawful means. Prisoners are not to be imprisoned beyond the realm, and the writ is to run in all privileged places. Later legislation at various dates introduced still further improvements. Some striking examples of its use in more modern times are Sommersett’s Case,4 where a writ of habeas corpus released a negro slave from confinement in a ship on the Thames, on the ground that an allegation of slavery was not a sufficient return. In 1798 the writ was used to ensure a trial at common law of a prisoner, Wolfe Tone, who had been condemned by a court-martial.5
THE STOP OF THE EXCHEQUER
There is one other incident in the reign of Charles II which must be mentioned, for it introduces us to a more modern element in law and society. Merchants and tradesmen who had the means frequently made loans as a subsidiary to their normal business. The scriveners (professional writers of “court-hand” who engrossed legal documents) were particularly associated with this business in the reign of Elizabeth, but after the Civil War and under the Restoration it was the goldsmiths who became most prominent. Moreover, these goldsmiths invented a few variations which really turned the old casual money-lending into professional banking. They accepted deposits from customers, at first merely for storage in their vaults, but soon in the more modern sense of deposits against which they issued notes.6 Already in Charles II’s reign, such deposits could be drawn upon by the customer’s cheque. The goldsmiths became financiers, discounted bills, and also purchased tallies (receipts for money lent to the Exchequer). These tallies were sometimes sold direct to the goldsmiths by the Exchequer,1 thus serving as the machinery whereby the government raised short-term loans, and in 1672 the Government found itself unable to meet them when they became due. This crisis was called the “Stop of the Exchequer” and had serious results for the goldsmiths and their depositors. Recent research suggests that the King’s motives may have been less fraudulent than the Whig historians asserted, and that the resulting ruin has been grossly exaggerated.2 Here we are concerned only with the more general significance of the rise of banking and public finance with the need for new legal principles to govern them, and with the great Bankers’ Case3 growing out the stop of the exchequer which settled the constitutional question of the right to bring a petition of right.
RESTORATION OF CHURCH AND PREROGATIVE
The reign of Charles II saw the re-establishment in a harsher form of the Church of England, and the short reign of James II witnessed a rapid crisis. The determination of that monarch to pursue a religious policy which was contrary to that solemnly laid down by Parliament in a long series of statutes was the immediate cause of his fall. It may have been that his project of complete toleration for Roman Catholics as well as Dissenters was intrinsically an advance upon the partisanship of the Church as represented in Parliament. But it is impossible to discuss the merits of the policy when the methods of its promotion were so drastic and so completely contrary to the spirit of contemporary institutions. James II claimed that by his prerogative he could dispense individual cases from the operation of a statute; more than that, he even endeavoured to suspend entirely the operation of certain of the religious laws. Upon this clear issue the conflict was fought out. After an ineffective show of military force James II retired to France, William III of Holland was invited by Parliament to become joint ruler with his wife, Mary II, James’s daughter, and so “the great and glorious revolution” was accomplished. The terms of the settlement were embodied in the last great constitutional documents in English history, the Bill of Rights (1689) and the Act of Settlement (1701).
THE BILL OF RIGHTS
The principal portions of the Bill of Rights4 are as follows:
“That the pretended power of suspending of laws, or the execution of laws, by regall authority, without consent of Parlyament is illegall.
“That the pretended power of dispensing with laws, or the execution of laws, by regall authoritie, as it hath beene assumed and exercised of late, is illegall.
“That the commission for erecting the late Court of Commissioners for Ecclesiasticall Causes, and all other commissions and courts of like nature, are illegall and pernicious.
“That levying money for or to the use of the Crowne by pretence of prerogative, without grant of Parlyament for longer time or in other manner than the same is or shall be granted, is illegall.
“That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegall.
“That the raising or keeping a standing army within the kingdome in time of peace, unless it be with consent of Parlyament, is against law.
“That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.
“That elections of members of Parlyament ought to be free.
“That the freedome of speech, and debates or proceedings in Parlyament, ought not to be impeached or questioned in any court or place out of Parlyament.
“That excessive baile ought not to be required nor excessive fines imposed; nor cruell and unusuall punishment inflicted.
“That jurors ought to be duely impannelled and returned, and jurors which passe upon men in trialls for high treason ought to be freeholders.
“That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.
“And that for redresse of all grievances, and for the amending, strengthening, and preserveing of the lawes, Parlyament ought to be held frequently.
“And they doe claime, demand, and insist upon all and singular the premisses, as their undoubted rights and liberties; and that noe declarations, judgments, doeings or proceedings, to the prejudice of the people in any of the said premisses, ought in anywise to be drawne hereafter into consequence or example.”
THE ACT OF SETTLEMENT
After the death of Queen Mary (1694), William III ruled alone, until he in turn was succeeded by her sister, Anne (1702-1714), who was therefore the last of the reigning Stuarts; in order to secure the succession, the Act of Settlement was passed in 1701 which not only limited the descent of the Crown (in accordance with which the present royal family reigns) but also added a few constitutional provisions supplementary to those of the Bill of Rights. It required the monarch to be in communion with the Church of England, and not to leave the country without parliamentary consent—an irksome provision which was soon repealed. Membership of the Privy Council and of Parliament was limited to British subjects of British parentage. It was likewise provided “that no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons”. This attempt to limit the Crown’s influence in Parliament was subsequently amended1 in order to permit ministers of the Crown to sit in the House of Commons by allowing them to seek re-election after their appointment to a salaried office. Such was the practice until 1926, when the need for re-election was abolished. Another chapter provided that judges should hold office during good behaviour at fixed salaries, and that they should only be removable by His Majesty upon an address of both Houses of Parliament; the complete independence of the bench was therefore permanently established.
REVOLUTIONS AND POLITICAL THEORY
The changes and chances of seventeenth-century politics had produced a great number of varying theories concerning the State and the nature of government. In the beginning of the century divine right was ranged against a parliamentarianism which looked to the middle ages for its justification. The period of the Commonwealth accustomed people to see a succession of different forms of government set up and then deliberately pulled down. The lesson was clear: the people had in their hands the power and the right to set up forms of government according to their fancy. A large number of political thinkers of different schools took up this idea, and were prepared to treat existing governments as if they had been the deliberate product of popular action. It merely remained to ascertain exactly what policy the people had proposed to pursue when they did this. We consequently find many different suggestions as to the form which this original contract, as they regarded it, received. The seventeenth century and much of the eighteenth were occupied in searching for forms of contract which should afford a reasonable justification for political society, either as it existed, or as the philosopher thought it ought to exist.
Out of this welter of speculation only a few names can be mentioned here. Undoubtedly the most remarkable of them was Thomas Hobbes, whose greatest work, The Leviathan,1 appeared in 1651. Unlike almost all of his contemporaries, he entirely rejected the study of history as having any bearing on political science; instead, he pinned his faith to “geometry, which is the only science that it hath hitherto pleased God to bestow on mankind”—words which have a strangely familiar sound in these latter days. His outlook was entirely materialistic. All knowledge is derived through the senses; every idea is the result of an effect produced upon an organ of sense by the motion of an external object; felicity means success in getting what one wants. Were it not for civil government, life would consist of the ruthless competition of unmoral men for desirable things, and would be “solitary, poor, nasty, brutish and short”. It is only the tremendous power of the State which protects the natural man against himself and his fellows, and from this power are derived the ideas of justice and property—for in the pre-civil State “that only is a man’s that he can get, and for so long as he can keep it”. Where other thinkers had conceived of society as involving a contract between ruler and subject, Hobbes devised a completely different scheme. According to his view, helpless and miserable mankind made a contract, every man with another, to submit to a ruler whom they all clothed with authority to govern them. This ruler was no party to the contract and is therefore bound by no limitations. Consequently it is impossible to talk about a sovereign having broken his contract with the nation (which was a common argument in the seventeenth century), for no such contract existed. Nor is there any justification for resistance to the sovereign. We seem to see in these theories a deep impatience with the turmoils of the Stuart period. Neither the antiquarianism of Parliament nor the mysticism of divine right had any meaning to the dry, penetrating, but narrow mind of Hobbes. The troubles of the Commonwealth, deeply involved as they were with religion, are reflected in his treatment of the Church. His own position seems to be that of a deist. He recommends that there be but one Church in a State, and that under the absolute control of the sovereign leviathan; he even asserts that the sovereign necessarily has full authority to preach, baptise and administer the sacraments, and that the clergy only perform these functions by delegation from the State, whose will is the source of both temporal and spiritual law. It is only natural that a century which was so animated by sincere religious dissension should either neglect or revile a thinker at once so original and so cynical.1
JOHN LOCKE AND THE REVOLUTION
If Hobbes represents the desperate longing for an omnipotent peaceful State which was natural in the midst of the darkest hours of the seventeenth century, it is in John Locke (1632-1704) that we find, after the storm had passed, a quiet summary of achievement full of the spirit of compromise. In the nineteenth century when it seemed that the leviathan had indeed come to life, Hobbes was to receive due recognition, but in the eighteenth century it was rather John Locke’s influence which was paramount, for it was he who discovered a reasonable philosophical basis for the whole of seventeenth-century history, and more particularly for the Revolution of 1689. John Locke learned from history something that Hobbes refused to consider. He made a great plea for religious toleration and embodied it in the “Fundamental Constitution” of Carolina, which he drafted in 1669 on the invitation of the proprietors of the province, and his example was to be improved by William Penn in his form of government for Pennsylvania. It is to John Locke that we owe a reasonable theory of limited monarchy which was to become the creed of the Whig party. Locke’s view of the contract was much less extreme than that of Hobbes. In his thought every individual conveys to society as a whole his right of executing the law of nature; all other natural rights he retains. Locke, therefore, brings us back to the old idea that the powers of the State are limited to certain purposes. It is his discussion of the mode in which those powers are exercised which has the greatest interest at the present day. His theory of reserved natural rights leaves a large place for religious toleration, while the limitations he places upon the State are more in accordance with history than is the absolute leviathan which Hobbes conceived. Where Hobbes had considered law to be the command of the State, Locke returned to the notion of natural law—a conception which was easily reconciled with the mediaeval view of law as the will of God. Where Hobbes had made law the tool of the State, Locke regarded it as the guardian of liberty.
Locke declared that the legislature is the supreme power in the State, and from this he deduced certain maxims of constitutional practice which, in fact, were the historical settlement reached at the end of the seventeenth century. And so beginning from general philosophical and theoretical considerations, Locke proceeds to give a philosophical defence of such very practical measures as the Bill of Rights, the Act of Settlement, parliamentary control over taxation, and the whole machinery of limited monarchy.
It seems that Locke was the first modern theorist to propound a doctrine of the separation of powers. He observed that legislation is (or in his day was) an intermittent function, while the executive, on the other hand, must never cease its activity. Consequently, the two are better assigned to different bodies, which, he observes, is almost universally the practice—and here we seem to see an example of that comparative study of institutions which had been prominent in England ever since the days of Fortescue, Sir Thomas Smith and others. In his discussion of the relations between the legislature and the executive, Locke very clearly is thinking of current politics although his treatment is confined to scrupulously general terms. How close this theory was to current practical politics can be seen where he urges the separation of legislature from executive; this object would have been achieved through the passage we have just quoted from the Act of Settlement excluding ministers from the House of Commons, which was passed only four years before the death of Locke.1 Locke’s suggestions on the separation of powers were obviously derived from his observation of contemporary English practice; indeed, the easy way in which he seems to take the situation for granted is an indication that he felt it too obvious to need very detailed theoretical treatment. It is only a century later that his work will be used as a basis for a rediscovery by the great philosopher Montesquieu of a general theoretical doctrine of the separation of powers such as Aristotle and Marsiglio had suggested in ancient and mediaeval times.
John Locke, therefore, may be regarded as expressing to a peculiar degree the compromise and settlement which the nation had reached when the expulsion of the Stuarts and the accession of William III had enabled political passions to die down. His summary of the results of the great conflict remained for many years the justification on philosophical grounds of the compromise which practical politics had reached, and with his work the tumultuous drama of the seventeenth century fittingly ends on a quiet and hopeful note.1
THE EIGHTEENTH CENTURY: INDUSTRIAL REVOLUTION
The eighteenth century is the great dividing line in English economic development between mediaeval and modern times. The central point in its history is usually referred to as the industrial revolution, which was rather, in point of fact, a long and slow process which began to accelerate towards the middle of the century. Its results were to change the face of England completely; its mode of life, its source of wealth, even its colonial possessions were all radically changed as an outcome of this movement. So far the structure of the nation had been essentially mediaeval; so, too, had been its law. If we are to seek the fundamental notes of this mediaeval policy we shall find that they were based upon the fact that the normal occupation of the bulk of the inhabitants was agriculture. The great source of wealth was the land, and such capitalism as existed looked mainly to the land for its profits. The social structure of society was built upon this idea. The legal aspect of all this is clearly visible. Land was the principal form of wealth, and therefore the principal source of power, and the law had to take account of this situation. First of all the King’s Court assumed complete control over the land—and thereby over the landowners. The law of land was rapidly developed to an astonishing degree, and every means was adopted of protecting landed property to the fullest extent. It was only natural that the land should therefore be the symbol of economic and social permanence, and that efforts should be made to perpetuate the social system founded upon it.
Even in the middle ages, however, there were the beginnings of other forms of wealth, and as time proceeds commerce takes an increasing place in national life. Nevertheless for a long time it was the policy of the law to separate the two; it is curious to observe that merchants very nearly became an estate of the realm and occasionally we find what looks like a parliament of merchants;1 there was a chance that in England as in some other countries there might have grown up a House of Merchants in Parliament. The separation of commerce from the normal occupation of the nation was further emphasised by the fact that the merchants had their own organisation and their own law.2 It is only as a result of many centuries of history culminating in the industrial revolution that these barriers were broken down; it is familiar knowledge that such bodies of mercantile law as those relating to bankruptcy and negotiable instruments for a long time pertained exclusively to merchants; indeed, a separate organisation was set up to supervise the affairs of insolvent debtors who were not merchants and therefore outside of the law of bankruptcy. It was only as late as 1690 that the law considered the possibility of a non-merchant being a party to a bill of exchange.3
MERCHANTS AND FINANCE
Although the middle ages were so predominantly agricultural, it is still possible and indeed very necessary to trace in them the beginnings of commerce. In English history two commodities are of particular significance, wool and wine. Wool-growing was the great source of England’s position in international politics during the middle ages. The wool which was grown in England was exported to Flanders, and there in the great Flemish fairs it was distributed throughout Europe. England’s monopoly of wool was so effective that the Crown could afford to leavy heavy taxes upon its export, and upon occasion could bring powerful pressure to bear on foreign nations by diverting the wool trade from one port to another, or even by suspending it altogether. Financially, the wool trade was conducted on a capitalistic basis. In its early days, the leaders of the industry were the Cistercian monks whose mode of life was to build their abbeys in remote places among the hills and occupy themselves with sheep farming. As for the smaller growers of wool, it seems that arrangements were made to buy up their crops in advance, the sale being effected through the assistance of foreign capital. It is significant that credit took the form principally of advanced payments to the growers for future delivery.4 Middlemen were a prominent feature of the trade and behind them stood great foreign capitalists. The same was true of the important import trade in wine. It is obvious that we have here complicated relationships involving very important interests, and we may be certain that the result must have been the development of a good deal of commercial law. It is typical of the middle ages, however, that this law should be not the law of the land but the law of a particular class of people, developed through their custom and enforced through their own organisation. As for the capitalists whom we have mentioned, their place becomes increasingly important through the middle ages. In England a large part was played by the Jews until they were expelled by Edward I. Their place was then taken by various groups of bankers from the cities of northern Italy—the financial centre of London is still called Lombard Street. A considerable place too was occupied by certain religious orders whose international organisation was a convenient machinery ready-made for large-scale banking.1 Their considerable wealth also enabled them at one time to undertake capitalistic operations (although by the close of the middle ages many monasteries were in financial difficulties as a result of heavy royal and papal taxation). Indeed, this tendency of large religious organisations being deeply involved in finance persisted into modern times; in more than one country the principal cause for the expulsion of the Jesuits in the eighteenth and nineteenth centuries was a fear of their financial activities.
As for manufacturers, development was at first most rapid in Flanders where English wool was made up on a large scale. It was to Edward III that credit is largely due for the establishment of the textile industry in England. His Queen was Flemish, and it may be her connection with Flanders which led him to invite some Flemish weavers to settle in England.2 Nevertheless, the English textile industry was still purely domestic, that is to say, carried on in the home of the worker, and not in a factory.
THE INDUSTRIAL REVOLUTION
The transition from this state of things to conditions which are familiar to-day was effected principally in the eighteenth century. Wool-growing had increased enormously and was conducted on a very large scale. This became possible through the great enclosure movements of the sixteenth and eighteenth centuries whereby a great deal of common land, together with land which once had been arable, was turned over to sheep farming. Besides this great change from crop-raising to sheep-rearing (which was the cause incidentally of a great deal of unemployment and agrarian unrest), the textile industry also underwent a great change. The already existing tendency for a number of textile workers to become dependent upon one employer was immensely increased by the introduction of machinery, and here we reach the greatest single cause of the industrial revolution. By means of machinery more work could be done at less expense and with less labour. Soon it became clear that the price also was reduced, and the great movement began whereby trade gathered an ever-increasing momentum. The more there was produced the more the demand increased, and in the end the manufacturers were able to some extent to set the pace of industrial development. The introduction of water power, and very soon afterwards of steam power, gave England a tremendous advantage, for ample supplies of coal were easily accessible. Consequently the industrial revolution pursued a much more rapid course in England than in the rest of Europe.
The task which faced the law was to meet these new requirements. Land was no longer to be its principal concern; other forms of wealth were demanding protection. As the growth of machinery proceeded, the cost of equipping a factory became considerable and usually exceeded the resources of a single manufacturer. Various forms of co-operative effort had been inherited from the middle ages which had long been familiar, at least on the continent, where there was a developed law of partnership in several varieties. Such forms of joint enterprise in seventeenth-century England were usually employed in colonial expansion or distant foreign trade. The law had now to consider some means of placing these advantages within the reach of smaller men who did not require the elaborate organisation of such bodies as the East India Company, or the Bank of England. It was also a growing necessity that banking should be developed, and out of the practice of the London goldsmiths who would receive deposits and issue against them interest-bearing notes,1 there arose, first of all, the Bank of England (1691), and soon a large number of private banks in different parts of the country. The law had, therefore, to consider all the complicated relationships which were being created through the machinery of credit and joint enterprise. It is to the eighteenth century, therefore, that we must look for the rise of most of the law which is of a distinctly modern character, that is to say, of personal property in general (and especially of stock, shares and the like), of companies and their stock, partnerships, of negotiable instruments, contract, bankruptcy, and master and servant. In effecting these developments the eighteenth century achieved the transition from mediaeval to modern times.
Politics had its part in the history of this development. The fall of James II had been due, in some measure at least, to the fact that the City of London and the financial interests thoroughly distrusted his policy. Although his opponents were, of course, drawn largely from the nobility, nevertheless City interests played a considerable part. One of the most significant results of the Revolution of 1689 was the foundation of the Bank of England, which was designed primarily to finance the French War, the founders lending a considerable sum of money to the government and using this government debt as part of their capital. In consequence the bank was closely connected with the Revolution settlement; it was generally felt through the country that any restoration of the Stuarts would imperil the bank, and as the bank’s activities grew wider the country was less and less inclined to take this risk. The Whig party had, therefore, a marked commercial character, while the Tories were still apt to be representative of the landed interest.
The legal consequences of the industrial revolution were effected, partly through legislation, but more largely through the development of case law, and a little group of judges who were far-sighted enough to divine the direction in which events were moving were able quietly and without commotion to perform the great work of taking over the existing mercantile law and custom, and incorporating it into the law of the land. Of this we shall speak more in treating of the history of the law merchant.
One other great result of the industrial revolution has been to produce a new internationalism. Internal commerce in many different nations was to develop along parallel lines, and the basis of the new commercial law was in every case to be the old custom of merchants, and one of the features of this custom had been its growing international character. There was, therefore, a tendency for commercial law in different countries to proceed broadly upon parallel lines. Local diversities there were inevitably; they had been even more serious in the middle ages. But in spite of this some general features remained constant. At the same time international trade was taking a much greater place. More and more commodities passed from country to country and an increasing number of merchants were engaged in foreign business. This also emphasised the tendency for commercial problems to be considered from an international standpoint. The movement is one of the most striking features of our own day; international trade and finance are having their effect upon commercial law, and the time seems not far distant when commercial law will regain its mediaeval aspect of internationalism. This progressive feature of our eighteenth-century law is admirably shown in the life of Lord Mansfield,1 who tried to treat some of the ancient portions of the common law in the same liberal spirit as the newer commercial law which he was so instrumental in developing.
His contemporary, Sir William Blackstone,2 although an admirer of Mansfield, and at times a critic of the law as it then existed, was not a reformer by temperament, and his Commentaries (1776) then, as now, leave the impression of almost indiscriminate praise for the great bulk of the old law which the courts had been accustomed to administer. The law of real property, notably, was undergoing immense elaboration with results which were by no means satisfactory. If the landed interests were to retain their dominant place in national affairs, then agriculture would have to compete with the newer forms of commercialism. Great improvements were made during the eighteenth century in scientific farming, and agriculture made rapid strides as a source of wealth. The effective output, both in crops and herds, was increased and improved enormously, until it became clear that agriculture afforded opportunities for commercial enterprise. This development, however, could only be achieved by considerable capital outlay upon improvement, and was seriously hampered by the law of real property. Land could not take its place in a commercial scheme of things as long as it was so difficult to deal with it. The seventeenth- and eighteenth-century lawyers had developed elaborate methods of placing land beyond the control of the tenant in possession, and when they tried to retrace their steps in an endeavour to give the great landlord powers to charge and to sell, their remedies were equally cumbersome, uncertain and expensive. It is not until the close of the eighteenth century that any substantial progress was made towards providing a simpler law of land, and to this day the process is still going on.
At the same time there was a movement, not fully effective until the early years of the nineteenth century, for radically reforming the whole of the procedural side of law.
The most tremendous event in the eighteenth century was the French Revolution with which it closed, and a few words must be said here of its implications in legal and political science. These can best be illustrated by considering two great thinkers, Montesquieu who just preceded it, and Burke who was contemporary with it. In 1748 Montesquieu published his Esprit des Lois, which, like his earlier essays, was an attempt to give a political interpretation to history. The sources he used were Roman and more particularly English history. He classified the different forms of government and assigned to each its characteristic principle: thus despotism depends upon fear, monarchy upon honour, aristocracy upon moderation, and democracy upon virtue (in the Roman sense of the word). The corruption and fall of a government whereby it changes into another form he attributes to the corruption of its fundamental principle; but as long as the principle remains fairly pure he sees little to choose between the different possible forms. The really vicious situation is when institutions which are fitted for one principle of government are still forced to work although that principle has been replaced by another. Montesquieu tells us little about sovereignty, although he has a good deal to say about liberty. He regards liberty as best assured by the supremacy of law rather than of men, and to achieve this the best way, in his opinion, was the separation of powers. This part of his work is greatly indebted to John Locke. The aspect which he develops at most length is not the mere administrative convenience of specialising the functions of government, but rather the constitutional safeguards which result when each power operates as a check upon the others. It is this system of “checks and balances” which Montesquieu regards as particularly important, and as the secret of constitutional monarchy in England. It was he who had the romantic notion that English constitutionalism was directly derived from the ancient Germans of Tacitus.1 “Ce beau système a été trouvé dans les bois.” He even went so far as to develop a theory of the influence of geography upon politics. He is essentially modern in the emphasis which he places upon legislation, but it is his theory of the separation of powers and his insistence upon its value as affording constitutional safeguards which are most important for our purposes, for he was read by influential men in America and has had a marked influence upon constitutional development in that country.
Into the causes and character of the French Revolution we cannot enter; but some of its results upon English political thought may well be mentioned. The greatest political thinker at this time in England was Edmund Burke, and anyone who wishes to have a summary of English political wisdom by an experienced statesman who could adopt a philosophical attitude without losing touch with practical events must read the writings and speeches of Burke. They are likely to remain for a long time an authoritative statement of the results which had been achieved by parliamentary government in the seventeenth and eighteenth centuries. At the present day his words are constantly upon the lips of the best English statesmen. His thought is characterised by its intimate contact with practical politics; rarely does he allow a theory to divert his attention from the practical problems of everyday government. A noteworthy portion of his work is in answer to Rousseau and to the theories of the rights of man. With a natural tendency to admire aristocracy, he felt that an extreme democracy as suggested by some theorists contained great dangers, and insisted that it was hazardous to abandon those sentiments for aristocracy which in his day seemed natural to mankind. He observes that a democracy is not affected by the fear which besets a monarch; when shameless acts are done the moral responsibility vanishes when spread among numerous persons, while the alleged liberty of a democracy is more often a delusion. The horrors with which the Revolution began made an increasing impression upon Burke as upon his countrymen, and had the practical effect of delaying reform for over a generation. Typical measures of this period were the Treasonable Practices Act1 and the Seditious Meetings Act2 of 1795, the suspension of the Habeas Corpus Act on several occasions, and the imposition of heavy stamp duties with the object of checking the circulation of cheap newspapers. Numerous State trials took place.3 Even purely private law fell under the influence of the extreme conservative reaction of which Lord Ellenborough was the personification in the King’s Bench (1802-1818) and Lord Eldon in Chancery (1801-1806, 1807-1827). To this result Burke largely contributed, nor must he be blamed overmuch for his caution at a moment when the wildest theories were being proclaimed in all seriousness. His speeches on America4 are the best expression of his philosophy, for they were made before the French Revolution came to strike terror throughout the rest of Europe. There in particular the political realism of Burke is apparent; he almost alone of British statesmen at the moment was prepared to face the facts, and having done so, to advocate a frank acknowledgment of the situation as it actually existed. He poured ridicule upon the government for their weak attempts to compel recognition of a principle which had no relation to the existing state of affairs; he was the embodiment of the spirit of compromise, and appreciated fully the fact that situations slowly change, and that the change must be recognised frankly. He was prepared to state that the American colonies had entered upon the stage of adult political life, and to counsel the government to treat them accordingly. Perhaps the most interesting passages in his speeches on America are those where he shows that the demands of the colonists were the very same which Englishmen at home had made in a more heroic age, and where he stresses the deep respect for legality which characterised English political development, urging that this very spirit lay at the root of the American case.
THE NINETEENTH CENTURY: LIBERALISM AND REFORM
At length, the end of the Napoleonic war brought some relief from the political tension, and a wave of constitutional and legal reform swept away many ancient institutions which had long survived their usefulness.
THE NEED FOR REFORM
The state of the law at the beginning of the nineteenth century has been thus described by an eminent legal historian:
“Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, uncertain, and remote. To the rich it was a costly lottery: to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers themselves. A suitor might be reduced to beggary or madness, but his advisers revelled in the chicane and artifice of a lifelong suit and grew rich. Out of a multiplicity of forms and processes arose numberless fees and well-paid offices. Many subordinate functionaries, holding sinecure or superfluous appointments, enjoyed greater emoluments than the judges of the court; and upon the luckless suitors, again, fell the charge of these egregious establishments. If complaints were made, they were repelled as the promptings of ignorance: if amendments of the law were proposed, they were resisted as innovations. To question the perfection of English jurisprudence was to doubt the wisdom of our ancestors . . . a political heresy which could expect no toleration.”1
The romantic fancy which led Blackstone to tolerate such a system, comparing it to a picturesque old Gothic castle,2 could hardly survive the shocks of war, and a very different point of view ushered in the great reform movement.
The prophet of the new era was Jeremy Bentham3 (1748-1832). At Oxford, Bentham had heard Blackstone lecture, and deemed his matter unsound: as a young law student he had listened with admiration to the judgments of Lord Mansfield. The publication of Blackstone’s Commentaries (1776) stirred him to fierce criticism expressed in his Fragment on Government (1776), and he abandoned the professional study of law in order to devote himself to the basic principles upon which law rests. The Principles of Morals and Legislation (1789) proclaimed that there should be constant, radical legislation as the mainspring of law, and it should be directed to the end of securing the greatest happiness of the greatest number. His faith in acts of Parliament was perhaps a little overstated: the century since his death has revealed some of the limitations in written constitutions and legislative enactments, but nevertheless, the main position still stands—rules and institutions must henceforth submit to the test of utility and be judged by their fruits, and where reform is necessary, it must be effected in most instances by deliberate, planned legislation. Besides providing a theoretical basis for criticising the law and the constitution, he also entered into detailed and vigorous discussion of practical details, as in The Rationale of Judicial Evidence. He was a firm believer in codes and ever ready to offer advice. In 1811 he offered to codify the law of the United States. The offer was not accepted, and even Pennsylvania, which for a moment seemed tempted by it, finally yielded to the professional interests of the lawyers. Nevertheless Bentham’s influence has been enormous, and has become much more diffused than his writings. Many people act on his principles who have never read a word that he wrote—and a great deal of what he wrote is barely readable, so tortuous did his style become. It has well been said that
“his doctrines have become so far part of the common thought of the time that there is hardly an educated man who does not accept as too clear for argument truths which were invisible till Bentham pointed them out.”1
Even some of the strange new words he invented have become familiar, e.g. “international”, “utilitarian” and “codification”.
From Bentham’s day to our own a long line of measures has approached nearer and nearer to his idea of “utility”, reducing law from the position of semi-religious mysticism to that of a practical branch of the business of government with expediency as its guiding principle. At the head of this movement comes the great Reform Act of 1832, which brought Parliament into direct contact with public opinion—and thereby subjected law, too, to the pressure of the same force. Three years later the Municipal Corporations Act, 1835, abolished those curious and venerable monuments of the middle ages and substituted a uniform pattern of town government. It would be hard to imagine a more spectacular break with the past than these two statutes. They were accompanied by scores of others which abolished the accumulated survivals of centuries. On the procedural side came the Uniformity of Process Act, 1832, and the Civil Procedure Act of 1833 which buried a great deal of subtle learning and abolished some hoary antiquities, such as wager of law. A group of statutes from 1827 to 1837 made numerous changes in the criminal law and greatly reduced the number of capital offences. This in fact was the one subject on which the eighteenth century had legislated incessantly and vigorously. Statutory interference with the penal law was therefore no novelty; the real change was in the spirit. Sir Rober Peel and Lord Brougham were the promoters of these reforms for which Sir Samuel Romilly and Sir James Mackintosh had long struggled in the face of bitter opposition, and Peel in particular made the capital contribution of setting up a professional police force,1 thus rendering the criminal law less savage but more certain in its operation. In the law of property no less far-reaching reforms were made; one single year (1833) saw the Fines and Recoveries Act, the Administration of Estates Act and the Inheritance Act.2
The end of this chapter therefore brings us from the old world to the new, from the ruins of the Roman Empire to a crisis in another empire thirteen centuries later. We have seen the gradual formation of the English State under the Anglo-Saxon kings, which later was transformed by the Norman genius and furnished with the first necessity of government—a financial administration. Developing within that administration we have seen the germs in the reign of Henry II of the common law, while under his sons we begin to find the claim that law and administration had now come to the parting of the ways, and the text of the Great Charter lays down the principle of the supremacy of law. Besides this internal limitation upon a powerful monarchy, we also see the Church using considerable influence in politics, and its rôle expressed in the terms of a general formula that although the State, like the Church, may enjoy divine sanction (or at least divine tolerance), nevertheless religion is superior to politics. It is clearly asserted that there are things which kings cannot do, and in the middle ages there was a papacy powerful enough in many cases to punish monarchs who transgressed. We have seen, too, the growing weakness of law in the fifteenth century and the rise in the sixteenth of administrative bodies using semi-legal forms, which alone were adequate to meet the crisis under the Yorkists and early Tudors. When this movement had gone too far, the Stuart dynasty was to suffer for its failure to adapt itself to new conditions—although it is typical of English development that the really innovating party found its main support in history, and even in antiquarianism. With the Commonwealth there came a period unique in English history and its failure was as conspicuous. The Revolution completed the work of the Rebellion and expressed its results in a form more nearly legitimate. The strange, but fascinating, theories of Hobbes gave way to the reasonableness of Locke, and when a century later the French Revolution issued a challenge to all established governments, it was Burke who found an answer which served England and America equally well. That answer was an appeal to history, to experience, and to the traditional English habit of compromise and cautious reform—to what Montesquieu might have called the spirit of the common law.
The French Revolution, the long and weary war, and the fearful distress that followed the peace, came near to bringing disaster. Contemporaries felt themselves on the brink of revolution and civil war, and if this last catastrophe was averted it may perhaps have been because the party of privilege and conservatism was so clearly founded on sentiment rather than on political theory. There was no clash of philosophies as there had been in the seventeenth century. Even Benthamism, in spite of the formidable array of logic, ethics and jurisprudence which decorated it, was at bottom as sound common sense as it was dubious philosophy. Benthamism triumphed in spite of its technical apparatus and became merged in the practical good sense of the commercial middle class, avoiding the mysticism of the State as well as the mysticism of the rights of man, just as at the present moment it seems that the political thought which is derived from the common law will again stand aside from the corresponding mysticisms of our own day.
See the remarkable Panorama of the World’s Legal Systems, by Dean Wigmore, where brief descriptions of most of them are given.
For an admirable short account, see Sir Paul Vinogradoff in chapter xix of the Cambridge Mediaeval History, vol. i.
J. S. Reid in Cambridge Mediaeval History, i. 24 ff., 54.
C. H. Turner in Cambridge Mediaeval History, i. 179.
Pollock and Maitland, History of English Law, i. 4.
F. J. Haverfield in Cambridge Mediaeval History, i. 370. See especially R. G. Collingwood and J. N. L. Myres, Roman Britain (the Oxford History of England).
F. J. Haverfield, op. cit. 379.
Ibid., 381. (The latest date seems to be about 420.)
F. M. G. Beck in Cambridge Mediaeval History, i. 384-386.
See the very interesting suggestions in Pollock and Maitland, i. 186; and the monograph of J. E. A. Jolliffe, Pre-Feudal England and the Jutes (1933).
W. H. Hutton in Cambridge Mediaeval History, ii. 251.
The word “hide” was already used to denote the normal holding necessary for the maintenance of a family. See especially, F. M. Stenton, Anglo-Saxon England, 276, 638.
Bede, Historia Ecclesiastica, ii. 5.
For a short but authoritative account of Anglo-Saxon life and institutions, see D. Whitelock, The Beginnings of English Society (Penguin Books, 1952). She has also collected and translated the most important of the sources in English Historical Documents (ed. D. C. Douglas, 1955), vol. i.
The Anglo-Saxon laws have been edited on a monumental scale by Felix Liebermann, Die Gesetze der Angelsachsen (1903-1916). A very serviceable text with English translations and notes is given by F. L. Attenborough, Laws of the Earliest English Kings (Cambridge, 1922), and A. J. Robertson, Laws of the Kings of England from Edmund to Henry I (Cambridge, 1925). There are extracts in W. Stubbs, Select Charters of English Constitutional History (9th edn., Oxford, 1913).
See below, pp. 15, 255-256.
Vinogradoff, English Society in the Eleventh Century, 4-11; Corbett in Cambridge Mediaeval History, iii. 401; J. E. G. de Montmorency, Danish Influence on English Law and Character, Law Quarterly Review, xl. 324-343; F. M. Stenton, The Danes in England, History, v. 173-177; R. H. C. Davis, East Anglia and the Danelaw, Transactions of the Royal Historical Society (1955), 23.
The ordinance expressly refers only to the hundred, and it would seem from Leges Henrici Primi, vii. 3 (reprinted in Stubbs, Select Charters), that the bishops continued to administer canon law in the county court as late as the reign of Henry I. This seems to be the last we hear of such a practice, however. (But see Stenton, English Feudalism, 108.)
Some of them are reprinted in Stubbs’ Charters. For brief general accounts, see D. C. Douglas, The Domesday Survey, History (1936), xxi. 249 and V. H. Galbraith, Studies in the Public Records, 89-121.
For an extreme development of this theory see the introduction by H. G. Richardson to the Memoranda Roll of 1 John (Pipe Roll Society, 1943). On the origin of the idea of “record”, see S. E. Thorne, Notes on courts of record in England, West Virginia Law Quarterly, xl. 347 ff., and Courts of record and Sir Edward Coke, University of Toronto Law Journal, ii. 24; Esmein, La Chose jugée, Revue historique de Droit français et étranger (1887), 545; Juliu, Goebel, introduction to John Henry Smith, Appeals to the Privy Council, xxvi ff.
Maitland, Domesday Book and Beyond, 3.
Anglo-Saxon Chronicle, cited in Stubbs, Select Charters.
The attempt by G. B. Adams, Origin of the English Constitution, 186-187, to minimise the importance of the oath is not convincing; William’s motive in summoning so extraordinary an assembly seems undeniable. Cf. F. M. Stenton, First Century of English Feudalism (Oxford, 1932), 111-113, 137; D. C. Douglas, Feudal Documents from the Abbey of Bury St. Edmunds (Oxford, 1932), xcix-c, c, n. 1; H. A. Cronne, in History, xix. 248. In 1136 King Stephen spared certain rebels as they had not sworn fealty to him, but were the men of Baldwin of Redvers, Pollock and Maitland, i. 505 n. 5.
Stubbs, Select Charters. The Conqueror’s work is well summarised by Corbett in Cambridge Mediaeval History, v. 496, 505-520.
A. Ballard, British Borough Charters, 74, suggests that this is a promise to abandon the claim to a forfeiture upon intestacy (as to which, see below, p. 726).
Corbett in Cambridge Mediaeval History, v. 526.
For the political history of the investiture contest see Brooke in Cambridge Mediaeval History, v. 51-111; for the theory see a brief account in Dunning, History of Political Theories, Ancient and Mediaeval, 161-188, Sabine, History of Political Theory, 224 ff, McIlwain, Growth of Political Thought in the West, 203-318 (whose treatment will be of special interest from the legal point of view), and more fully, Carlyle, Mediaeval Political Theory, iv. 49-164. The Church’s view is expounded in detail in Walter Ullmann, Medieval Papalism (1949) and The Growth of Papal Government in the Middle Ages (1955). See also the brilliant lectures of A. L. Smith, Church and State in the Middle Ages. An important contribution to the study of early canon law in England has been made by Z. N. Brooke, The English Church and the Papacy from the Conquest to the reign of John (Cambridge, 1931).
See below, p. 256.
For Henry I, see in general Corbett in Cambridge Mediaeval History, v. 527-541, and A. L. Pooke, Domesday Book to Magna Carta.
For Sicily, see Chalandon, ibid., 203-206.
Anglo-Saxon Chronicle, in Stubbs, Select Charters. The same principle of the king’s peace dying with him haunted the books long after: Y.BB. Edward II (Selden Society), xx. 159 no. 71 (no date).
This book, the Liber Pauperum, has been edited for the Selden Society (vol. xliv) by Professor de Zulueta, who has re-examined the evidence and reached the conclusion that “to doubt whether Vacarius ever taught at Oxford is to doubt against the evidence”.
Corbett in Cambridge Mediaeval History, v. 552.
Stubbs, Select Charters (Sketch of the Reign of Henry II).
See The English Church and the Papacy, by Z. N. Brooke (Cambridge, 1931); R. Foreville, L’Église et la royauté sous Henri II (Paris, 1943); and for a different view, A. L. Poole, Domesday Book to Magna Carta, 197 ff.
The text is in Stubbs, Charters.
Spies, L’Observation des simples conventions en droit canonique (1928), 40 ff.
See Maitland, History of English Law, i. 151-152, Haskins, Norman Institutions, 219, 329 ff., and Plucknett, The Medieval Bailiff (1954), 11-13.
Text in the first eight editions of Stubbs, Charters, and in a critical edition by Hughes, Crump and Johnson (Oxford, 1902; revised, with translation by Charles Johnson, Edinburgh, 1950). Poole, Exchequer in the Twelfth Century (Oxford, 1912), is a full commentary. A manuscript was known to Coke, who cites it (Co. Lit. 58, 68 b) as “Ockam”. Cf. W. O. Hassall, Catalogue of the Library of Sir Edward Coke, no. 308.
Glanvill has been edited with a wealth of valuable notes by Professor G. E. Woodbine (Yale University Press, 1932). See further, p. 256 below.
For the different meanings of the word assize, see below, p. 112.
For a translation and comments, see below, pp. 112-113.
Stubbs, Constitutional History, § 147. Many of the original sources are collected and translated in English Historical Documents, ed. D. C. Douglas, vol. ii. (1954).
Remember that it may be his hand which is concealed beneath the name of Glanvill in the first book of the common law. Above, p. 18.
Powicke in Cambridge Mediaeval History, vi. 218.
Ibid., 219. There is an admirable discussion of the mediaeval view of law by C. H. McIlwain, The Growth of Political Thought in the West (New York, 1932).
Ibid., 220; this chapter is full of insight into the mediaeval conception of law.
Below, pp. 139 et seq.
There is now available an excellent biography of this great statesman: F. M. Powicke, Stephen Langton (Oxford, 1928).
Powicke in Cambridge Mediaeval History, vi. 234.
See A. J. Collins, The Documents of the Great Charter of 1215, Proceedings of the British Academy, xxxiv. 233 ff. for a minute and illuminating discussion. The texts of the charters of 1215, 1216, 1217 and 1225 are all printed in Stubbs, Select Charters.
The legal aspect of Innocent III’s action is discussed by G. B. Adams in Magna Carta Commemoration Essays, 26-45 (reprinted in his Council and Courts in Anglo-Norman England, 353-372).
On the absence of early enrolments of the Great Charter see V. H. Galbraith, Studies in the Public Records, 139 ff.
The traditional views are expressed in Coke’s commentary in the Second Institute; the modern learning is in McKechnie, Magna Carta (2nd edn.).
Powicke in Magna Carta Commemoration Essays, 96-121.
Y.B. 30 & 31 Edward I (Rolls Series), 531.
As to this, see below, p. 357.
Altamira in Magna Carta Commemoration Essays, 227-243.
It is translated in Sayous, Histoire générale des Hongrois (1900), 116-121.
See Hazeltine, The Influence of Magna Carta on American Constitutional Development (Magna Carta Commemoration Essays), 180-226; also in Columbia Law Review, xvii. (1917).
For the “myth” and the historical interpretations, see A. L. Cross, An Unpopular Seventeenth-century View of Magna Carta, in American Historical Review, xxix. 74 (1923), and E. Jenks, The Myth of Magna Carta, in Independent Review, vi. 260 (1904). The posthumous history of the charter has been traced in two works by Faith Thompson, The First Century of Magna Carta (1925), and Magna Carta, its role in the making of the English Constitution, 1300-1629 (1948).
Of Bracton we shall speak later, pp. 258 ff.
This suggestion was made by E. F. Jacob, Studies in the Period of Baronial Reform (1925), xii, 108 ff., 115.
Plucknett, Statutes and their Interpretation (1922), 100. The whole period is admirably discussed in R. F. Treharne, The Baronial Plan of Reform (1932), and Sir Maurice Powicke, Henry III and the Lord Edward (1947).
C. Bémont, Simon de Montfort (ed. E. F. Jacob), 77.
See generally, Plucknett, Legislation of Edward I (1949).
H. M. Cam, Studies in the Hundred Rolls, 36.
By a “secret of law” (Co. Lit. 99) the crown dispensed with the statute; see Wood-Legh, Church Life under Edward III, 60 ff.
This device was invented in order to convey the property of a married woman against her will, and to enable life tenants to defeat reversions, etc.
Below, p. 362.
For the modern theory that the action of case is based upon this statute, see below, pp. 372-373, and compare pp. 163-164.
Plucknett, Statutes and their Interpretation (1922), 67; Bridgman v. Holt (1693) Shower, P.C. 111 is a late example of this attitude.
The earlier Statute of Acton Burnell (1283) was much less stringent; for details, see Plucknett, Legislation of Edward I, 140-148.
For what follows, see Plucknett, Legislation of Edward I (1949), 21-23, 157.
Maitland, Equity and Forms of Action, 336. Cf. Pollock and Maitland, i. 209, on Bracton’s attitude towards the Church and baronage.
Stubbs, Constitutional History, § 179.
Marlborough, c. 23; Westminster II, c. 11; above, p. 28.
Marlborough, c. 7; Westminster II, cc. 16, 35.
Gloucester, c. 4; Westminster II, cc. 21, 41.
Westminster II, c. 46.
De Religiosis, 7 Edw. I.
18 Edw. I; see below, p. 541.
Marlborough, cc. 1, 2, 4, 9, 15; Westminster I, cc. 16, 35; Westminster II, c. 2.
Westminster II, c. 9.
The Ordinances are printed in Rot. Parl., i. 281.
By G. T. Lapsley in English Historical Review, xxviii. 118-124, and in his Crown, Community and Parliament, 253 ff.; cf. C. H. McIlwain, Political Thought in the West, 377-378; G. L. Haskins, The Statute of York (1935).
T. F. Tout, Place of Edward II (Manchester, 1914), 151.
B. H. Putnam, The Statute of Laborers (1908).
Cavendish was in fact entitled to the gratitude rather than the enmity of the peasants, for tradition ascribes to him an important decision in their favour; Y.B. 13 Richard II (Ames Foundation, ed. Plucknett), 123-124.
For a summary of the legal problem see Y.B. 13 Richard II (Ames Foundation), xxxii-xliii.
Professor Tout has given a noteworthy history of the reign from a novel standpoint in his Chapters in Administrative History, vols. iv. and v. A later survey is by A. Steel, Richard II (1941).
Plucknett, The Place of the Council in the Fifteenth Century (Transactions of the Royal Historical Society, 1918), 163.
See, for example, J. E. Neale, Free Speech in Parliament (Tudor Studies presented to A. F. Pollard), 257-286.
McIlwain, Political Thought in the West (1932), 394.
The cases upon which these conclusions are based will be found discussed in Plucknett, The Lancastrian Constitution (Tudor Studies presented to A. F. Pollard), 161-181. For much additional material, see S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century (1936).
Much will be found in the introductions to Fortescue, Governance of England (ed. Plummer) and to The Paston Letters (ed. Gairdner).
The Abbot of Battle in 1475 secured a special procedure for selecting a jury in a case he had brought against the Archbishop of Canterbury, since the sheriff of Kent was the primate’s steward, and the four coroners were either his tenants and “within his distress”, or else “had robes of him” (i.e. wore his livery).—Y.B. 15 Edw. IV, Pasch. no. 4 (f. 24). A less powerful litigant at this date would be unlikely to obtain such a concession. The extensive liberties of the Archbishop had made it difficult to get juries for some centuries: cf. a case of 1277 printed in Casus Placitorum, &c. (Selden Society, vol. 69), 92-96.
“Pacts should be kept” (motto of Edward I).
For the history of the word, see Dowdall, The Word “State”, Law Quarterly Review, xxxix. 98, and Plucknett, Words, Cornell Law Quarterly, xiv. 263-273.
Pollard, Evolution of Parliament (2nd edn.), 126.
As to this see Maitland’s famous lecture English Law and the Renaissance (reprinted in Select Essays in Anglo-American Legal History, i. 168-208), and the remarks below, p. 299.
See the admirable study by Andrew Amos, The Statutes of the Reformation Parliament (1859).
See Tanner, Tudor Constitutional Documents, 530, and more at large, E. R. Adair, The Statute of Proclamations, English Historical Review, xxxii. 34-46, whose extreme scepticism is rather difficult to justify.
Holdsworth, History of English Law, iv. 102.
See below, pp. 182-183. They were to sit in the Star Chamber.
See the very able discussion of this and other matters of law and politics under Henry VIII in Letters of Stephen Gardiner (ed. Muller), 391.
C. T. Carr, Delegated Legislation, 52.
Below, pp. 585 ff.
See the references below, p. 52 n. 1. The 4th, 5th and 6th volumes of Holdsworth’s History supersede previous histories of the Tudor and Stuart periods on the legal aspects of the struggle. More general studies are by K. Pickthorn, Tudor Government (2 vols., 1934); J. E. Neale, Elizabeth (1934), The Elizabethan House of Commons (1949), and Elizabeth I and her Parliaments (1953); G. R. Elton, Tudor Revolution in Government (1953).
Coke’s version of the incident in Prohibitions del Roy, 12 Rep. 63 (and in Tanner, Constitutional Documents of James I, 186-187) has been examined by R. G. Usher in English Historical Review, xviii. 664-675, who suggests 1608 as the date, and shows that a violent scene did occur during which Coke expressed some such doctrine as that in the text above, “after which, his Majestic . . . looking and speaking fiercely with bended fist offering to strike him, which the lord Coke perceiving, fell flatt on all fower”. It is not so certain that Coke actually quoted Bracton (though he may have done). All the evidence indicates that Coke argued long and sufficiently effectively to put James into a frenzy in consequence of which the King lost his dignity and Coke his nerve.
For further remarks on this topic, see below, pp. 242-245.
Plucknett, Bonham’s Case and Judicial Review, Harvard Law Review, xl. 30; cf. Mackay, Parliamentary Sovereignty or the Supremacy of the Law, Michigan Law Review, xxii. 215-247. L. B. Boudin, Lord Coke and the American doctrine of judicial power, New York University Law Review, vi. 233-246, suggests that Coke later dropped the idea, and S. E. Thome, Dr. Bonham’s Case, Law Quarterly Review, liv. 543 that he had never held it. The latest survey is J. W. Gough, Fundamental Law in English Constitutional History (1955).
8 Rep. 114.
Further details are to be found in the classical work of Hallam, Constitutional History of England (1827), of which there are many editions, including one in the handy “Everyman’s Library”; the standard work is S. R. Gardiner, History of England (10 vols., 1883) covering the years 1603-1642. A very careful discussion of the legal aspects of the period will be found in Holdsworth, vi. 1-302. Valuable and easily accessible collections of documents are Prothero, Select Statutes and other Constitutional Documents, 1558-1625 (4th edn., Oxford, 1913); Gardiner, Constitutional Documents of the Puritan Revolution, 1625-1660 (3rd edn., Oxford, 1906); and Tanner, Constitutional Documents of the Reign of James I (Cambridge, 1930).
Fully discussed by Prothero in English Historical Review, viii. 735; documents in Tanner, 302-317, and Prothero, 320-325; Commons’ Journals, i. 149.
3 S.T. 1; extracts in Gardiner, 57.
2 S.T. 371; extracts in Tanner, 337-345, and Prothero, 340-355; commentary by Derek Hall in Law Quarterly Review, lxix. 200.
3 S.T. 825; extracts and other documents in Gardiner, 105-124.
Reported as Colt and Glover v. Bishop of Coventry, Hobart, 140. A commendam is a papal (later, royal) permission allowing a bishop to hold a benefice at the same time as his bishopric; see Gibson, Codex Juris Ecclesiastici (1761), 912, 1528.
Text in Stubbs, Charters, Appendix, and in Gardiner, Constitutional Documents.
See E. Jenks, Constitutional Experiments of the Commonwealth (1890); text in Gardiner, Constitutional Documents. Cf. similar instruments of even earlier date in the New World, e.g. Fundamental Orders of Connecticut (1639), New Haven (1639), and the earliest, the Mayflower compact (1620), brief extracts of which are in MacDonald, Documentary Source Book of American History.
R. W. Turner, Equity of Redemption, 30.
H. E. Chesney, The Transference of Lands in England, 1640-1660 (Transactions of the Royal Historical Society, 1932), 181-210.
See Robinson, Anticipations under the Commonwealth of Changes in the Law (Select Essays in Anglo-American Legal History, i. 467-491). For the Commonwealth practice of giving new trials when verdicts were unsatisfactory (an innovation at that date) see below, p. 135.
And, also, the improvidence of many royalists in selling or mortgaging their lands to finance the civil war, and to pay fines.
They are fully discussed in Holdsworth, vi. 379-397.
This can be seen from Bushel’s Case (1670) below, p. 134.
At this moment he was Lord Finch.
Section 4 of the Statute of Frauds was repealed by 2 & 3 Eliz. II, c. 34 (1954).
Text in Stubbs, Select Charters, Appendix, and C. Grant Robertson, Select Statutes.
For details see Holdsworth, ix. 108-125, x. 658-672.
See generally, E. Jenks, The Prerogative Writs in English Law, Yale Law Journal, xxxii. 523, and S. A. de Smith, The Prerogative Writs, Cambridge Law Journal, xi. 40.
Y.B. 22 Edw. IV, Michs. 21.
So it seemed from the “Rules in Anderson”: Holdsworth, v. 495, x. 661, Taswell-Langmead, Constitutional History of England (10th edn.), 347.
3 S.T. 1 (1627).
3 Charles I, c. 1, s. 5 (1628).
31 Charles II, c. 2. See David Ogg, England in the Reign of Charles II, ii. 510-512.
20 S.T. 1; E. Fiddes, Lord Mansfield and the Sommersett Case, Law Quarterly Review, l. 499.
27 S.T. 614.
See Professor Tawney’s long and illuminating introduction to his edition of Sir Thomas Wilson’s Discourse upon Usury, and R. D. Richards, Early History of Banking in England, 37 ff. (1929); below, p. 68.
Tallies, being in wood, were often accompanied by written “orders for repayment” whose importance is described by R. D. Richards, op. cit. 58 ff.
R. D. Richards, The Stop of the Exchequer, in Economic History (supplement to the Economic Journal), ii. 45-62.
14 S.T. 1 (1690-1700); the case is fully discussed in Holdsworth, ix. 32-39.
1 William & Mary, sess. 2, c. 2 (1689).
By a long line of statutes too numerous to detail here.
The Leviathan has been edited with an illuminating introduction by Michael Oakeshott (Oxford: Blackwell).
It is worth noting that Sir Frederick Pollock writes: “I have learned much from Hobbes, and hold acquaintance with his work at first hand indispensable for all English-speaking men who give any serious consideration to the theoretical part of either politics or law” (First Book of Jurisprudence, vii).
Above, p. 60.
Locke’s theories have been aptly summarised in the following words: “It was a theory of a state of nature that was not altogether bad, and its transformation into a civil state that was not altogether good, by a contract that was not very precise in its terms or very clear in its sanction. It embodied, moreover, a conception of sovereignty of the people without too much of either sovereignty or people; of the law of nature that involved no clear definition of either law or nature; of natural rights, but not too many of them; and of a separation of powers that was not too much of a separation. It concluded, finally, with a doctrine as to the right of revolution that left no guaranty whatever for the permanence of the rather loose-jointed structure which the rest of the theory had built up. Yet this illogical, incoherent system of political philosophy was excellently adapted to the constitutional system which England needed at that time and which the Whigs actually put and kept in operation. It was a good, respectable, common-sense view of the features of political life that impressed a philosophical observer; it was strong in the individual parts, if not in their correlation, and it was far better adapted to make an impression on thinking Englishmen than were the more logical systems of Hobbes and Spinoza” (Dunning, History of Political Theories: Luther to Montesquieu, 367-368).
For a list of these “Assemblies of Merchants”, see Interim Report of the Committee on House of Commons Personnel and Politics (1932, Cmd. 4130), 109. More than a score of such assemblies were summoned in the forty years between 1316 and 1356.
It had long been recognised, however, that a merchant was not excluded from using common law remedies when they were available: Y.B. 21 & 22 Edward I (Rolls Series), 456-458 (1294).
Witherley v. Sarsfield (1690), Show. 125.
M. Postan, Credit in Mediaeval Trade, Economic History Review, i. 234-261 (with which compare Bulletin of the Institute of Historical Research, v. 176-178). For an interesting indenture date 12 Sept. 1478, for the sale of wool to be delivered by 2 Feb. 1479, the purchaser paying £81: 17s. down, and a further £58: 3s. on delivery, see Supplementary Stoner Letters (ed. Kingsford), 12 (in Camden Miscellany, xiii).
R. Génestal, Le Rôle des monastères comme établissements de crédit.
For earlier efforts in the same direction, see Cunningham, Growth of English Industry and Commerce, i. 648.
See Richards, Early English Banking Schemes, Journal of Economic and Business History (1928), i. 36-76. See p. 58 above.
For Mansfield, see below, p. 248.
For Blackstone, see below, p. 285.
These famous chapters from the Germania of Tacitus will be found in Stubbs, Charters.p.c.l.—4
36 Geo. III, c. 7.
36 Geo. III, c. 8.
Many details will be found in T. Erskine May, Constitutional History of England (ed. Francis Holland, 1912), chapters ix-xiv.
There are numerous cheap editions of Burke’s principal speeches and books.
Sir Thomas Erskine May, Constitutional History, ii. 384.
3 Comm. 268; cf. 4 Comm. 442 (both passages in Pound and Plucknett, Readings, 235-237).
For a very full discussion of Bentham, see Holdsworth, xiii. 41-133.
T. E. Holland in the Encyclopaedia Britannica (11th edn.), s.v. “Bentham”.
Of the earlier pioneers in criminal reform, one of the most interesting is the great novelist Henry Fielding, the first stipendiary magistrate to sit at Bow Street. See B. M. Jones, Henry Fielding, Novelist and Magistrate (London, 1933). Abundant material is collected in L. Radzinowicz, History of English Criminal Law, vol. i (1948).
For the period of reform, see A. V. Dicey, Law and Public Opinion in England (1905); Sir Arthur Underhill, Changes in the English Law of Real Property (Select Essays in Anglo-American Legal History, iii. 673). The novels of Charles Dickens are a fair picture of the unreformed state of the law; see the entertaining lectures of Sir William Holdsworth, Dickens as a Legal Historian (Yale University Press, 1928).