A Concise History of the Common Law. Theodore F. T. Plucknett
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