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CHAPTER 7: THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW - 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 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
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).