The story of English law – 6

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.

6 Politics as a profession

In some circles nowadays, the word ‘activist’ is uttered with disdain – especially by those haunted by the ‘green left’, whatever that means.  It is hard to know why.  If you hold political views, why should you not get active to advance them?

The people of England were apt to involve themselves in politics at all levels.  They have seen many activists.  Religious groups like Puritans and Methodists could get very political.  The Puritans led the way in the New World, where for better or worse, they would have the numbers.  The Quakers, to their eternal credit, would run a masterly PR campaign to end the slave trade in England.  But the primal activists would become the lawyers, who would in time become a more powerful caste in England than any priesthood had been – even including the Druids.

The men who argued the cases that started the common law – there were of course no women – naturally became clubbable.  England would be the birthplace of gentlemen’s clubs and pubs.  The lawyers after a while quickly divided into two – barristers and judges.  (Solicitors would come later.)  You had the bar and the bench.  And the tradition that judges should only come from the bar soon hardened into custom. 

The lawyers soon became adept at protecting their monopoly.  They got in early.  Clause 45 of Magna Carta provided that the crown would only appoint as officers of the law ‘such men as know the law of the kingdom and well desire to observe it’. 

If you look at the Charter, it is full of very technical drafting that could only have come from professional people operating at the height of their powers – and it is a shame that some in government with a party-political agenda have never heard of clause 45 (which, to repeat, is still part of our law).

By the end of the thirteenth century, the crown had issued a writ to the judges dealing with legal education and giving selected lawyers a monopoly.  The ‘better, worthier, and more promising students’ wishing to become serjeants were to ‘follow the court and take part in its business.’  The students would collect ‘in the crib’, and you will find in the Year Books references to what passed in the crib.  A leading legal historian would later say that at the turn of the century, ‘there was a very brilliant bar in England.’  That is remarkable – for 700 years ago.  The English may have thought that they and the law were cut out for each other.

Universities had their colleges; Freemasons had their lodges; and the lawyers had their Inns of Court.  That is where you started and learned – on the job, going to court.  The Inn would be your second home for life.  They naturally developed their own traditions and paraphernalia.  So, that is where you were indoctrinated – and, how.  You had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy.  You learned on the job.  Universities had little or no place in the training of working lawyers until many centuries had passed.

As lawyers argued and judges decided cases, texts began to appear that that would become what were called ‘works of authority.’  There were names like Glanvill, Bracton, Fortescue and Hale.  In the 18th century, Blackstone’s Laws of England would achieve something like biblical status in the U S. 

But these books were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary.  Anyone looking for the theory of the law would have sounded very odd – as odd as someone sounding off about the elegantia juris (juristic excellence) of the laws of Justinian.

Now any tight cadre of men can easily get up people’s noses and this lot certainly did, but what did they do for the law?  The short answer is that they made it, but we need to go a little further.

First, the Inns were coming into being and their teaching was taking effect at that point in medieval history when English universities were still getting off the ground.  Until then, the priesthood had had a monopoly of higher learning.  And they had abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue.  And they had taken the simple teaching of a Jewish hasid and drenched it in the theories of Aristotle and Plato, so putting it beyond almost all the flock.  Only the priest had the power to loose and bind – and the rest of us just had to take them on trust. 

Now all that monopoly was busted.  Sure, the lawyers had their own tricks and quirks, but they were English foibles.  And they were foibles held by people who would be just as happy to have a fight as a feed.

History has in my view underestimated this achievement of the English.  When you link it with events called the Reformation looked at in the last section, the priesthood is being put back in its box in a way that we do not see anywhere else.  It looks to me to be a form of emancipation.

Secondly, as part of their profession, the lawyers were engaged on a daily basis in protecting the liberty of the subject and ensuring due process.  As often as not, it was their duty to argue against the crown, and if they felt intimidated, they were not up to it.  That is still very much the case today, but I am not aware of anything remotely like it in any other part of the world back then – or for some centuries to come.  It is a state of mind fundamental to our concept of the rule of law.

Thirdly, and although you can’t measure any of this, these crotchety, wizened, and smelly denizens of the courts both personally and professionally bespoke a kind of individualism that is central to the way the English – both rulers and ruled – regard government.  Except for purely ceremonial purposes, they are not keen on bending the knee.

Fourthly, they were not beyond following one of the tricks of the priesthood.  The judges were apt to say ‘Don’t tell us what the law is – we made it.’  Or, ‘Your Majesty cannot act as a judge because Your Majesty is not learned in the law.’  Indeed, when Sir Edward Coke, as tough an old nut as any of them, said just that to Charles I – point blank, and on a Sunday morning – His Majesty came close to striking him, in what Dean Roscoe Pound called one of the glories of our jurisprudence.

Fifthly, for all those reasons, Roman law would never take hold in England.

Finally, and for present purposes, most importantly, the English people were about to have it out with their king.  The Stuarts would be silly and devious enough to offer the chance, and people trained in the Inns of Court would take it and become king-breakers from Hell.  People like Elliott, Hampden and Pym – and another man called Oliver Cromwell – had standing, property, character, indoctrination – and God.  They also have towns or streets named after them in the U S. One Stuart was executed; another deported.  The whole House was gone – over the way to Skye, and a bonnie prince who would never make it.

The lawyers were in league with the parliament against the crown.  The Trevelyan clan were apt to go over the top about all this, but it is worth recalling what G M Trevelyan said:

‘Coke had not striven in vain.  He had enlisted the professional pride of the students of the common law against the rival systems especially favoured by the Crown and the Star Chamber, the Admiralty and the Ecclesiastical Court.  He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional functions and of political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England had gone to the law with her King.’

Rhapsodic, really.  But let me close with one anecdote.  The dispute with Charles I, which ended on the scaffold, was about whether he had to submit to parliament to get revenue.  This was the ultimate crunch point between parliament and the crown.  The king claimed the right to get ship money.  That claim was very suspect.  Hampden refused to pay and the matter went to court.  The case occupies a large part of one volume of State Trials.  It took me more than one day to read the submissions of Oliver St John.  It is very, very high learning – the high technique of the Year Books.  In the end, enough judges went to waterto allow the crown to stagger on.  They would be dealt with for their failure by the Commons later when order was restored.  But the court was asked to rule that the king’s tax was unlawful.  In most other parts of the world now, people would just fall about the floor laughing at such a lunatic suggestion.

Then the parliament had to deal with the threat of Strafford.  Their court process failed, and they resorted to parliament.  St John was on hand again with a most elaborate argument.  Capped by a coup de grȃce right across the throat of the Earl – who then suffered the fate that would later befall the king obliged to sign his death warrants.

In truth, these were blood sports, and the English and their lawyers were up to them.  It’s a wonder cricket ever took on.

Law -history – English bar – English constitution.

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