The Rule of Laws, page 32
In practice, the ability of the monarchs’ ministers to regulate people’s lives was limited, and the central courts could not adjudicate all their disputes. The church courts, albeit now subject to royal authority, issued marriage licenses, granted probate, heard matrimonial disputes, adjudicated on tithes, and considered allegations of sexual misconduct. The manorial courts continued to hear local cases, record land transactions, and recognize local customs and institutions, although these were gradually overshadowed by the borough courts, established in the towns, to which people took most debt claims. In these urban courts, justices of the peace also considered allegations of petty crime, while a range of other local tribunals considered disputes that arose in the markets, fairs, and forests.
Both lawyers and judges nevertheless talked about ‘the law and custom of the realm’ when they presented and argued their cases and negotiated their way through the technical details of writs and pleadings. If pushed, most judges would probably have agreed that the ‘common law’ was found in the learning of the legal professionals and the reasoning they used in the higher courts.9 In the fifteenth century, Sir Thomas Littleton, a judge of the Common Pleas, had produced his Treatise on Tenures, in which he tried to make sense of the complicated system of landholdings and tenancies.10 He wrote of ‘the common learning of the lawyers’ and their ‘understanding of the law’. Also in the fifteenth century, Sir John Fortescue, chief justice of the King’s Bench, wrote a eulogy on the English law, in fact a polemic against the introduction of new courts. In it, he praised the qualities of English legal reasoning, emphasizing the fundamental principles that judges expressed as legal maxims.11 The legal scholar Christopher St. German crafted another polemical tract in 1523, this time against Henry VIII’s adviser Thomas Wolsey. St. German linked the common law with God’s will and his eternal laws. Unsystematic though it may have been, both scholars and judges were keen to emphasize the qualities, and also the ancient origins, of the English common law.
Even the magistrates in the lower courts talked frequently of the ‘excellence’ of the English law and the ‘liberties’ of the people that it upheld.12 To a large extent they were thinking of the safeguards of the courts’ procedures, above all jury trial. In the early seventeenth century, the lawyer and politician Francis Ashley declared that the phrase nullus liber homo (no free man) came to the mind of every Englishman who felt threatened or oppressed. Clause 29 of Magna Carta, with its declaration that ‘no free man’ should be imprisoned or condemned in court, save by the judgement of his peers or the law of the land, still stood as a fundamental declaration of the liberties of the English.13
By the end of Elizabeth’s reign in the early seventeenth century, local magistrates could consult cheaply produced treatises on law and its history and on equity and jurisprudence along with practical manuals and extracts from statutes.14 These works provided guidance about procedures, which was what the magistrates most needed to know, along with some discussion on the substance of the law. And people flocked to the courts, initiating more cases per capita than during any other period in their history.15 But even the ‘common law’, applied by the higher courts, hardly formed a systematic body of rules and principles. There were no textbooks which even tried to be comprehensive, and success in court depended on using the right writ. Procedure was everything. During their training at the Inns of Court, law students listened to ‘readings’ (lectures) on statutes, discussed hypothetical cases, and noted down legal arguments in their ‘Year Books’ and collections of pleadings, while judges felt that they ought to follow the reasoning and judgements of their predecessors. But case reports were sketchy, and the system of precedent, which renders an earlier decision binding on a later judge, was far from firmly established.16
ALTHOUGH ENGLISH LAW was an imperfect system, there was a sense that law was important, something with its own authority. This led to political tensions between the monarch and the judiciary in the early seventeenth century. Both Henry VIII and his daughter, Elizabeth, had tried to strengthen the ‘royal prerogative’, which allowed them to bypass Parliament by using their Council to issue charters and proclamations. Elizabeth used it to grant patents to merchants, which gave them monopolies over certain types of international trade. Citing the threat of foreign invasion, along with local conspiracies, she also expanded the work of her court, the Star Chamber, which provided a summary form of justice, and boldly claimed that ‘exhorbitante offenses were not subjecte to an ordinayre course of law’.17 But she did not entirely turn her back on common law institutions. And even a staunch supporter of her royal supremacy, the cleric Richard Hooker, argued that the law should guide the queen (or king), not the other way around. The commonwealth, the English state, would then, he claimed, be like ‘a harp or melodious instrument, the strings whereof are tuned and handled all by one’.18 This left the door open for others to use the law to challenge unpopular royal initiatives.
In the early seventeenth century, James I, less politically astute than his predecessor, claimed that the king was the source of all law, that he owned it, and that he had the right to define, regulate, and administer it. Neither Parliament nor the king’s judges could accept these claims, and even James’s chancellors, Lord Ellesmere and Sir Francis Bacon, argued that the king’s legal powers ultimately derived from the common law. Sir John Davies, the attorney general in Ireland, made extravagant statements about the law being the ‘common custome of the realme’, ancient and immemorial. Following his lead, the parliamentarian Thomas Hedley argued, in 1610, that the common law was the product of reason and immemorial custom which had evolved in response to the particular experiences of England and its people. It was the common law, he maintained, that had established the authority of Parliament to make statutes.19
In the same year, Sir Edward Coke, chief justice of the Common Pleas, considered a dispute about the jurisdiction of the London College of Physicians, Dr Bonham’s Case.20 In his judgement, Coke famously declared that the courts would not enforce any parliamentary statute that was ‘against common right and reason, or repugnant, or impossible to be performed’. The common law, he said, would ‘control it’ and ‘adjudge it to be void’. Coke had already had an argument with James about legal jurisdiction, in which he declared that the king had to obey the law because ‘the law protected the king’. This was to put the authority of the highest judges above that of the king, and it provoked James to ‘high indignation’. Coke had to apologise to James, falling ‘flat on the floor’ to seek his pardon, as a contemporary report puts it.21 But the standoff between the two men continued. It came to a head in 1616, during a tussle over the jurisdictions of the King’s Bench and Chancery. In The Case of Commendams, Coke persuaded the other judges to declare that the king’s attempt to prevent them from reaching a decision was invalid. Furious, James summoned the judges, ripped up their judgement, and declared that he knew the common law to be ‘the most favourable to kings’. The other judges bowed to the pressure, begging the king’s forgiveness, but Coke defended his duty to do what he considered to be right and was dismissed as chief justice. Later writers may have exaggerated Coke’s determination to confront the monarch and resist royal absolutism, but there is no doubt that the judge was convinced of the superiority of the common law. The idea that the law imposed limits on the authority of the king, the ‘rule of law’, continued to resonate in legal and political circles over the decades. Coke’s arguments would also be taken up, to dramatic effect, on the other side of the Atlantic.
Amidst all these debates and arguments, some expressed concern that, over the centuries, the common law had become a tangle and needed to be synthesized. But, resisting calls for codification, Sir Edward Coke insisted that its flexibility and refinement made the common law superior to the civil law.22 And, following his dismissal as a judge, he set out to describe the ‘frame of the ancient common laws of this realm’ in his Institutes of the Laws of England, a title that deliberately invoked Justinian.23 Coke’s first volume, published in 1628, concerned property and inheritance and was largely based on Littleton’s Tenures. The second set out the statutes that were ‘declaratory of the principal grounds of the fundamental laws of England’. The third discussed the criminal law, and the fourth presented a ‘map’ of ‘all the high, honourable, venerable, and necessary tribunals, and courts of justice within his majesties realms and dominions’. Coke recognized the canon law and civil law along with forest law, law of marque, and law merchant; the laws and customs of Jersey, Guernsey, and Man; the laws of the stannaries; and the laws of the East, West, and Middle Marches, as well as the authority of custom.24
While Coke’s work went some way towards finding system and order in this tangle of English laws, other writers felt that an alphabetical list was the way forward. Yet others tried to synthesize legal procedures, concerned about notorious delays in court proceedings.25 Calls for codification continued, but scholars who tried to produce general accounts later in the century gave up in despair.26 One judge, Sir Matthew Hale, argued that, in the fourteenth century, Edward III had extracted ‘one law, to be observed throughout the kingdom’, from diverse customary and provincial laws, and that it had become ‘the complexion and constitution of the English commonwealth’.27 But, as he lamented, ‘the particulars thereof are so many, and the connexions of things so various therein, that as I shall beforehand confess that I cannot reduce it to an exact logical method, declare that I do despair at the first, yea, the second or third essay’. It was over a century before Sir William Blackstone compiled a work that would supplant Coke’s volumes.
MOST EUROPEAN STATES had adopted some aspects of the civil law by the seventeenth century, particularly in terms of procedure. But when James I, as king of both England and Scotland, attempted to unify their divergent legal traditions on the basis of Roman law, judges objected strenuously on both sides of the border.28 England had its own ‘common law’, ‘the common custom of the realm’, which protected the liberties of all Englishmen. It was the birthright of the English and could not be extended to the Scots. Earlier, as he had consolidated his power over Wales, Henry VIII had passed the Laws in Wales Acts, which declared that ‘the laws, ordinances and statutes of this realm of England’ were to replace the ‘divers and discrepant’ laws and customs of Wales. But the judges took a different view with regards to Scotland. In 1608, they decided that a Scotsman could bring a case in an English court to claim land in England, but that the English courts could not exercise jurisdiction over land in Scotland.29 This posed a considerable dilemma when the English monarchs sent settlers across the Atlantic. What was to happen to the laws and customs of the colonized lands? Could their new inhabitants continue to enjoy the protection of the English law?
Following the pioneering activities of Spanish and Dutch explorers, English adventurers began to organize expeditions to North America in the late sixteenth century. Elizabeth I issued charters allowing them to establish settlements, and James I followed suit. In 1606, he granted a charter to the London Company authorizing it to establish a permanent settlement in Virginia. The company was to ‘make, ordain, and establish all manner of orders, laws, directions, instructions, forms, and ceremonies of government and magistracy, fit and necessary for and concerning the government of the said colony’. Settlers, often Quakers and Puritans, were soon establishing small communities in other territories as well under charters which granted them power to make their own laws as long as they were ‘near’, ‘agreeable’, and ‘not repugnant’ to the laws of England.30
The English governments were distracted by the upheavals of the English Civil War in the mid-seventeenth century, and for a while they left the colonies largely free to govern themselves.31 Many developed forms of local justice emphasizing informality and consensus. But as their populations expanded, most established courts that followed English models, selecting local leaders to act as magistrates. Already in 1618, the London Company had introduced a system of property tenures that followed common law principles, and Virginia lawyers began to refer to the texts of Littleton and Coke in property disputes. They also found useful precedents in the laws of the councils of the English border regions. In practice, those who acted as lawyers in the new American settlements had rarely received much training. Many were simply laymen who took an interest in the law, reading English practice manuals and commentaries on legal texts, while the magistrates studied guides created for justices of the peace and treatises on wills. But the settlers found the new courts useful and flocked to them in large numbers. In the seventeenth century, the courts of Massachusetts heard cases brought by merchants, debtors, creditors, Swedes, Quakers, farmers, artisans, servants, and even slaves.32
Back in England, there was considerable debate over the status of the American settlements, which largely centred on the question of whether the English Parliament had jurisdiction over their territories or the Crown could administer them directly. The issue had some significance in the tensions between king and Parliament, which culminated with the execution of Charles I in 1649. Some judges backed the king and his claims to rule without any constraints, and it seemed for a while as if this might undermine the authority of the common law and its ability to control monarchical absolutism, for which Coke had argued so strenuously. In his Leviathan, published in 1651, Thomas Hobbes famously called for a strong ruler who would impose order through law.33 But the common law and its judges survived. Oliver Cromwell committed himself and his regime to upholding the common law—he needed its legitimacy—even as scholars debated whether he had ‘usurped’ the crown.34
After the Glorious Revolution of 1688, when James II was deposed in favour of his daughter Mary and her husband William of Orange, the parliaments began to take a more active role in the government of the country, debating and passing new statutes. But the kings’ courts successfully maintained their authority and now made a deliberate effort to expand their jurisdiction.35 They took over more of the cases traditionally handled by the church courts and developed the law relating to commercial activities, to some extent assimilating it with the laws applied in continental Europe. This meant assuming jurisdiction in the application of the Lex Mercatoria, the legal practices followed by merchants. Chancery remained a separate jurisdiction, as did the admiralty courts, but the king’s judges successfully restricted their remit, eventually drawing both into the system of the common law.
Taking an interest in the changing dynamics of local government, the King’s Bench judges also expanded their capacity to pass judgement on the activities of officials. From the Tudor period, urban governments had begun to expand their responsibilities, taking charge of roads and bridges, licensing alehouses, enforcing labour regulations, and caring for paupers and illegitimate children. Royal charters granted them powers to hold markets and raise tolls, and many created long sets of bylaws. In Leicester, for example, the town’s laws confirmed rights to common fields, required Sabbath observance, and took measures to ensure the supply of tallow for candles, a stock of coal for sale to the poor, and leather buckets for firefighting. They regulated the repair of pavements and the weighing of wool for sale, and forbade the sale of bread and gloves by ‘foreigners’, that is, anyone from another county.36 Urban authorities now regulated the lives of town dwellers more than the local groups that made up their guild and manor courts. Enclosures and drainage in the Fens, meanwhile, caused social unrest, encouraging those who were dislocated to try to disrupt schemes that primarily, as they saw it, benefitted wealthy Essex landowners. They launched complaints against members of the drainage commissions along with town councillors and justices of the peace and found the royal courts ready to hear their cases. The King’s Bench duly developed new forms of action which allowed people to complain about ‘misgovernment’ and to argue that officials should uphold the common good, and officials themselves often brought cases against their peers. The higher courts were now sitting in judgement on officials and their administration.
Both judges and magistrates continued to emphasize the liberties granted by Magna Carta, along with the Petition of Right, the statement of civil liberties Parliament sent to Charles I in 1638, and the Habeas Corpus Amendment Act of 1679.37 Together, these laws guaranteed people freedom from arbitrary arrest, equal treatment before the courts, and trial by a jury of their peers. As one scholar has put it, the educated classes associated the legal regime centred on the common law and the courts with ideas of justice, equality of process, and active consent, which elevated them above the oppressed condition of other European peoples.38 In practice, too, the cumulative effect of the new legislation was a relatively uniform set of principles for such things as relief for the poor and regulation of labour. Meanwhile, many local courts adopted forms of action and procedure from the common law, including the use of juries instead of oath-helpers.39 All this, along with the involvement of the King’s Bench in local government, contributed to at least some sense of a common system of justice. But it was still not unified.
MOST AMERICAN SETTLERS also believed in the benefits of the English common law, but by the late seventeenth century some were already arguing that they should not be subject to the laws of its Parliament.40 They were, after all, a long way from London. But the post-Restoration parliaments were not inclined to give up control over their foreign possessions or the benefits of the transatlantic trade, to which the French posed a threat. Various government bodies tried to assume more direct control, granting charters to new colonies, such as Pennsylvania, which required the governors to send legislation for approval by the Privy Council. The Board of Trade, meanwhile, set up to regulate the colonies and their commerce, reviewed colonial legislation for conformity with the common law, although the older colonies had more freedom to pass new laws as long as they were ‘not repugnant to the laws of Great Britain’.
