An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
5 Religious home rule
We saw that King John scuttled off to the Vatican to get Magna Carta annulled – and to pawn his whole realm. That is an annihilation of sovereignty, rather than a mere incursion. You can still detect something like a purr of recognition in an English audience to Shakespeare’s play when King John tells the papal legate ‘from the mouth of England’ that no ‘Italian priest’ shall collect revenue ‘in our dominions’. He goes on to refer to our ‘great supremacy’ – a word we will come back to.
The issue blew up fatally under Henry II when Beckett sought to shield his priests from the ordinary law of the land. Here was another challenge to the authority of the English crown – a dint in its story that would enrage Henry VIII – and would be unthinkable today.
If we then move forward to the sixteenth century, we are at the end of that phase of history called the Middle Ages. The advisers consulted by the crown are now meeting in what we call a parliament. Its growth is fragmented, and, as ever, unplanned, but it is beginning to resemble the parliament we know today. By the reign of Elizabeth, it can cause real trouble to the crown. The jostle for power has begun.
The time of feudalism is about spent. Under that system, the standing of people in the community would be determined by a convoluted system of ranking of a kind that people would later see in the civil service of India or Prussia. Too much of it was fixed from birth. We are moving to what is called the modern phase of history, where your standing was determined by your efforts and what you could negotiate.
In other words, we are seeing what Sir Henry Maine called the movement from ‘status to contract’. That statement may be large – large enough to be one those that I suspect made Maitland nervous – but it is a very useful prism when we come to look at what we like to call ‘progress’. Indeed, one reason the common law judges were slow to give legal effect to an agreement between parties may have been that they thought they would be giving people the power to make their own law. The French Code says in terms that ‘Contracts legally made have the force of law between those who have made them.’
There is another movement that we can observe. Kant said that enlightenment was our emergence from our self-incurred immaturity. ‘Immaturity is the inability to use one’s own understanding without the guidance of another’ – the problem, Kant said, was not a lack of understanding, but a lack of resolution and courage to use it without help from someone else. That is a riveting insight – that bears on our professional conduct today and the failures of our courts.
It also underlies what we know as the Protestant revolt or Reformation. As nations matured, their peoples did not just seek to reduce the place of the supernatural, or magic, in their lives – they wanted to reduce the role of the middle man, the priest. They were coming to the view that the church might be causing more trouble than it was worth. In medieval Europe, there were three groups – those who fought, those who worked, and those who prayed. Well, that does sound very medieval – and one group was ready to take a hit.
The protest of Luther was about faith and the church. The English revolt had next to nothing to do with either. Putting Harry’s errant carnality to one side, the issue was not merely political, but constitutional. The Tudors emerged from the splintering of the nation that came with the Wars of the Roses. The paramount duty of the crown was to secure the succession. Because of a conflict of interests, the pope could not accommodate the English king. So, the English broke away.
They did so not by royal proclamation, but by a series of acts of parliament. By doing that, the crown tacitly acknowledged that ultimately sovereignty in England rested in the crown in parliament – or at least, that is what the parliament and its champions could argue.
Here was a real accretion of power. Among other things, the title of the crown, and the government of the church, all derived from the parliament. The church became in substance a department of state. The crown was at the head of both, and by and large the Anglican church has behaved itself since, and not caused trouble to the crown or the nation.
There was an Act of Supremacy. It followed an act that had a recital of complacent self-satisfaction that Jefferson would later mimic – ‘Where, by diverse sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire….’ It’s like Magna Carta. ‘Nothing much going on here, Officer – just a spot of cleaning up some odds and ends with those clerical wallahs.’
Here, then, was a declaration of independence. Fine – but what did it have to do with the law?
Well, the English had to defend it against a Spanish invasion. The soldiers of the Vatican would certainly have burnt Elizabeth at the stake as a heretic; would-be assassins had already been offered Paradise. After that speech at Tilbury from their queen, England was about to flower as a nation.
In the next century, the English would finally come to terms with their king. But now they had dealt with God and his church. After they had fixed things with their king, they could turn their full attention to the aristocracy.
In 1789, the French blew up all three at once, and they have still not recovered from the explosion. The Russian experience hardly bears mention – and we are about to face another problem with them as a result. People of the cloth have wrought misery on their flocks in places like Greece, Italy, Spain and Russia. The Americans erected solid barriers under their constitution, and they are now being torn apart by illiterate devotees of a faith perverted by mammon, and people who prefer fiction to fact.
The Anglican vicar, then, comes down to us now as quite a relief.
Legal history – reformation – religious self-government.