Common law

1. Schuyler, ed., Maitland: Historian (2 Jan)

by kurto

Frederic Maitland renovated understanding of the medieval common law, perhaps the most distinctive of English institutions. Resisting generalization in fidelity to the era’s documents, his scrutinous work also established methodological standards for the historical profession. Legal history was to be distinguished from antiquarianism, and not to blandly accept Whiggish constitutional narratives.

The medieval law was fairly criticized by humanists. Written in bad Latin and worse French, its weaknesses might have opened the door for Continental Roman law – a ‘reception’. Under Henry VIII, the Parliamentary act Lex Regia gave force of statute to the king’s proclamations. There were new courts grown out of the king’s council and using a summary procedure devised by legists. Scotland was contemporaneously establishing a Roman Court of Justice under James V. In 1535 More was executed and the Year Books ceased publication. Maitland quotes Burke: ‘To put an end to reports is to put an end to the law of England’.
‘Might not the council and the Star Chamber and the Court of Requests do the romanizing work that was done in Germany by the Imperial Chamber Court, the Reichskammergericht?’

After Henry VIII passed in 1547, the common lawyers pushed back; civil law was preeminent in Mary’s reign; but the common law afterward recovered its former status. Maitland’s opinion that the common law was in danger in the second quarter of the 16th century had not been sustained by mid-20th century historians, Schuyler observes.

The Inns of Court and also the Year Books are characteristically English. No other institution could have preserved common law in the Renaissance era. Not so Parliament, nor trial by jury, which existed in France. England’s schools of the national law had no parallel on the Continent, whose universities (e.g., Bologna) had faculty of Roman civil law and ecclesiastical canon law. The Year Books are further notable in as much as printed books did not yet exist; lawyers advanced their skills and practice by taking notes and sharing works. Every lawyer had to read them, every prominent lawyer had to give lectures of them. This hardened the cohort of the common-law tradition. They are medieval England’s distinctive intellectual product, vernacular reports or oral debate, written by lawyers for lawyers. They show the dynamics of economic and moral currents in which the logic of law elicits the settled views of contemporary society.

Bracton’s main debt to Roman law is spirit and method but not principle, contra Sir Henry Maine, who wrongly asserted one-third of his work was Roman. Much less so, it was ‘a method of reasoning, of interdependence of rules and place in hierarchy. He assumed Roman law was complementary to distinct English law and borrowed to fill in the gaps, there being nothing like copyright.

Why was there little or no historiography of medieval English law? English lawyers, intimidated by the record of French and German law, have exaggerated the latter’s earlier development. Second, the lawyer wants authority – precedent – the newer the better. Third, those who understand the topic want to build their practice, not to write an account.

Much of this work’s excerpts are set in the reigns of Edward I and II (1272-1307 and 1307-27, respectively). Examining the Parliament of 1305’s concerns with affairs of state (especially ‘foreign policy’), legislation, taxation or supply, petitions of the crown (in three courts), and judicial matters (criminal and civil), Maitland showed there were yet no hard lines between petition for royal justice and grace, and wide scope for discretion. Further, petitions of the lords and commoners assembled were indistinct. It was also not yet established that representatives of the shires or towns could put their grievances and interests to the king in council. He concludes: it’s easy to fall into anachronism, and to dismiss institutions and techniques that seemed to contemporaries to work well enough, however flawed or frail they may appear to successors.

A separate essay on law prior to Edward I examines the varying meaning of words used in contemporary documents, showing they do not map to latter-day understandings. For example, a serf is not a chattel slave. On the manor, even the lowliest were rarely working for the lord, and even Bracton discusses the ‘relativity’ of status.

Studying Anglo-Saxon land books and charters, Maitland concluded historians had underestimated the king’s extent of rights over the land of freeholders. He might be entitled to a large, yearly quantum of produce while he was in situ. If in England the duty of feeding the king became a tax or rent, it was comparable to Scandinavia, German tribes and even Romans. Such derived practices – down to tenancy – did not appear as an abuse during feudal times when kingship devolved to landlordship, office to property, tax to rent. The early land books evidence that the king’s giving land is more the giving of certain privileges that are yet some ways from ownership; the Anglo-Saxon land book (i.e., the charter) never really ceased to be an ecclesiastical instrument. The king gave privileges of land for the benefit of his soul. It was land held by royal grant under Church sanction.

Feudalism, various services owed to superiors for protection and used of land, was a natural stage of English history. He insists: there is no way to reach from the 8th to the 16th century without its features. Feudalism was a civilizing sequence: separation of employment (division of labor); possibility of national defense, of art and science; the cathedral and the library. The growth of peasants subject to seignorial justice (i.e., the manor and its villeins) in place of free village / open fields is explicable and demonstrable in law. Civilizational progress is often cruel, especially in hindsight.

On county courts: there were many small freeholders on estates of lay lords, and many other residents with defined rights. When Henry I revived the duty to attend courts, it was incumbent of freeholders whose overlords had no immunity to attend; no one attended who didn’t have to. The ‘right’ to do what no one wants to do is no right.

The difficulty of historiography is in erasing clear views and returning to obscure, yet-undefined concepts – in a systematic fashion. For example, by overpopulating towns and villages. In previous centuries, the ‘corporate one’ held sway over common lands. The ‘plural many’ is a latter development. Where were the powers of the nebulous majority? ‘The law sees differences of kind where nature has made differences of degree’.

Maitland noted the Celtic language faded from use, though historiography suggested the Celts were the balance of the population: why? The victors established themselves: ‘true English villages with open fields are not Celtic, not Roman, but German’.
On the Mirror of Justices: in 1289 the English legal regime had sunk to a low level through corruption, a unique event of the late medieval era. Maitland exposed the document as the work of an amateur: even then trained jurists did not speak of law as being for the purposes of religious redemption. Written between 1285-90, it is a jumble playing on the known loss of public confidence in tribunals.

On criticizing text: Maitland rationally concludes that divergent copies of the same event may have been made simultaneously; he shows that a supposed statute could not have been so. All is in attention to detail.

In a final extract, Schuyler culminates by showing even careful scholarship could prove erroneous or in need of correction, as when Maitland surmised Elizabeth had adopted ‘etc’ in her title in order to sidestep controversy over the English crown doubling as head of the Church. Subsequently scholars shared Mary had previously done the same, for the converse reason of wishing not to offend the Pope.

NB: ‘Simplicity is the outcome of technical subtlety; it is the goal not the starting point.’ Moreover, the further back one goes ‘instead of the simple we find the indefinite’.

10. Burgess, The Politics of the Ancient Constitution (28 May 2025)

by kurto

Charles I undermined English common law by misusing the rhetoric of monarchical prerogative where custom or sometimes theology normally prevailed, thus calling into question the ‘ancient constitution’ and precipitating the Civil War.

Enshrined by common law, the ancient constitution preserved continuity, but had to account for the Saxon and Norman invasions. It defined the English realm, establishing a balance between prescriptive rights and royal prerogative, and separating England from written, promulgated Roman law. Common lawyers viewed the constitution as deeply historical, holding moral lessons; however, unlike French, Scottish, and Dutch constitutionalists who were more Protestant rebels than traditionalists, the English were evolutionary.

Aquinas had held some human laws are formal, demonstrative conclusions of natural laws, a conclusion shared by Christopher St German and Sir John Doddridge among others. Custom as law is acceptable so long as not contrary to natural law, a choice among possibilities left open, or reason applied to circumstance. ‘Artificial reason’ supports law as embodying rationality superior to positive rule (in a person), in that no one can claim higher authority; and unites custom and reason. Some Stuart thinkers emphasized more custom, some more reason. Either way, the artificial reason of lawyers largely consisted of discerning the rational core of custom.

There had never been an ancient constitution as it was in the 17th century, but its elements were demonstrable, as in John Selden’s identifying positive laws from Saxon times, land tenure after the Normal conquest, and legal officers over various dynasties had persisted in England. He assumed government was to serve its ends via accepted institutions, that long use made for the best fit – custom. Many common lawyers, notably Coke, were disquieted about changing laws, preferring to accept imperfection rather than introduce new defects, a residue of the Aristotelian view shared by Aquinas, Bodin, Machiavelli, Bacon. Custom did not have conservative overtones, however, for it was but a tool for explaining how positive law could be rational yet independent of any person or institution, drawn from natural reason alone. Common lawyers followed St German, active in the 1520s (save for Coke, who tended toward John Fortescue’s unchanging simplicity). Bacon did not go so far as Doddridge in uniting law and reason, but held common law contained laws of reason (i.e., nature), making it sufficient to rule out common law’s subordination to higher law or authorities (save common lawyers). The central tenets of Hooker’s ecclesiology, marked by Aristotelian possibilities actuating to identity, followed suit: custom provided rationality, change is best when evolutionary, circumspect of deliberate alteration, using articifical reason to elucidate matters.

During the first Stuart era, the rhetoric of the common law was one of three ‘master languages’ in England. The others were civil law, drawn from European politics and trade and focused on sovereignty (i.e., the monarch); and canon law or theology, originating in natural law but playing a lesser role following Henry VIII’s suppression of the monasteries. Civil law was associated with absolutism, though not only for ideological reasons, for it tended to compare itself to natural law be more highly abstract than common law. Whereas theology comprised statements of moral duty, based on theory of natural order and millenarian, and so tending to be politically unspecific. The working of these languages required users to know the time and place for employing idiom.

The problem of the right to resist in the ancient constitution required the king to be subject to common law, but not contract theory and natural rights; nor was it opposed to absolutism. In this era, monarchy was agreed to possess a ‘duplex’ character, comprising participation in the common law and simultaneously enjoying an ill-defined prerogative: the duplex conjoined the three languages. Common law was first among equals while civil law and theology were more attuned to prerogative. Hence the 17th-century elaboration of prerogative did not make it absolutist. James never asserted he could simply override the common law, even as king-in-parliament. But Charles misused the common-law rhetoric, causing distrust at the same time Laudian rhetoric was rising and the Calvinist declining. In the five Knights case, Attorney General Sir Robert Health argued the king could use prerogative to deprive habeus corpus, conflating common law powers and prerogative. Forced loans were also justified outside the common law. Ship money was not a question of absolutism versus constitutionalism but dishonest use of prerogative in the common law context.

The Petition of Right shows the common law under threat early in Charles I’s reign. His spokesmen were not advocating political ideology but using prerogative where it was unwelcome, thereby questioning the adequacy of its application to the king himself. Hence the Commons rejected the Lords’ attempt to introduce ‘sovereign power’, Coke observing it would place prerogative above the common law because the term was undefined and could not be defined according to the law: the Petition was about the liberties of the English subject, not the monarch’s reserved power. When ship money came to the courts, the judge rightly observed there were no bounds against an ‘unruly king’; but it was broken idiom which had raised the public’s fears. This was a crisis for the common law, and when the Civil War came, it was because Parliament has been taught by Charles the common law was not reliable. Charles I had been exploiting ambiguities which were better left so. The problem of the un-idiomatic speaker is not that he can’t be understood but that he loses control of the mood and nuance.

Ironically, royalists and Parliamentarians didn’t divide according to common law view; they had to choose because religious views (high church versus Protestant conscience) created another fissure. The law had turned to questions of religious liberty, and the un-idiomatic king had played his hand so badly as to lose control. ‘Legal’ no longer meant guided by custom but justified by prerogative in the interest of public welfare.

Burgess draws heavily on JGA Poock’s contention that contemporary thought is explanatory in its own right, versus a tool for understanding. Ironically, he criticizes Pocock for overstating the role of Coke, who had tried to graft Fortescue’s unchanging simplicity onto the common law, contending John Selden was closer to the majority view. In making Coke primes inter pares, Pocock underestimated the common lawyers’ acceptance of evolutionary change, and mistook the role of artificial reason (via custom).

24. Prest, William Blackstone (27 Dec 2015)

by kurto

A narrative life of 18th-century jurist William Blackstone, renowned for distilling dense English common law into a more readily understood framework. The fatherless son of minor gentry, Blackstone rose through diligent classical studies to a place at Oxford’s All Souls, where postgraduate and administrative energies led to intra-university political activity. His initial foray as a London barrister was unsuccessful; his lectures on the common law made him a name; but his taking most of the income of newly endowed chair earned Blackstone a whiff of odium. Or was it more simply undignified ambition in Hanoverian and Georgian England? The future George III was a fan, Jeremy Bentham was not. The author’s counterbalances his own opinion. Later an MP, Blackstone was only modestly effective because of his back-bench independence and also a diffident speaking style: he failed notably during the rough-and-tumble of the Wilkes affair. But his practice grew, and some years after leaving Oxford for good, he won the judgeship he sought. Again opinions were divided, between churlish, high-church Tory and diligent national treasure. In fact he was something of a rationalist modernizer. Like Everitt’s

    Cicero

, the book could spend a bit more time elucidating the kernel of Blackstone’s thinking itself.