[This began as a short note in comparison with the US but got expanded into a potted history of English law.]
During the period historians call the waning of the Middle Ages, the history of England was shattered and then shaped by the Wars of the Roses. As Shakespeare envisioned it, these wars were ignited during a meeting of the leading members of the ruling class at a place called the Inner Temple, a lawyers’ communal house in central London. They argued about who had the better title to the English crown. It got so loud that they quit the hall and repaired to the garden. Richard Plantagenet, the Duke of York, had stated his claim and he asked those who followed him to pluck a white rose for the House of York. Others chose a red rose for the House of Lancaster. It was all very English – people of power and substance who had been trained in the law debating ‘nice sharp quillets of the law’ – until it descended into ‘blood-drinking hate’ condemning a ‘thousand souls to death and deadly night.’ We get a grim combustion of privilege, savoir faire, and raw violence.
Well, that is certainly high drama – enough to be shown in an evocative painting that hangs in the House of Commons. There is a copy of it at the entrance to my Yarraville flat, because it stands for the confluence of the law, history, language, and theatre that has coloured my whole professional life.
And it leads to the following reflections.
The ‘activist’ is commonly the kind of person who gets up the noses of other people. Just look at the fate of the Jewish hasid whose gruesome execution on Good Friday is annually recalled with reverence by millions throughout the world.
The institution known as the English bar, the grouping of its first lawyers, has a very long history. It is a story that comes from centuries before the white men arrived in America, and even more before they settled, if that’s the word, in Australia.
An English legal historian – it was Theodore Plucknett – said that by about 1300 there was ‘a very brilliant bar’ in England. I once wondered how a legal historian or jurist could be so confident about that – but I don’t now. And what I do know is that this bar would unleash activists who shaped the history of England in a way not seen anywhere else in the world.
The lawyers were obviously involved in drafting Magna Carta, which we now see with the common law as the foundation of the English constitution – and therefore ours here in Australia – and what we call the rule of law. You can watch Kenneth Clark’s Civilization yet again, but I doubt if you will see any reference to the rule of law. What Magna Carta established in 1215 was that the king was under the law because the law made the king. And the king could not proceed against me except by and with the law.
The world had not seen anything like it – and most of the world – say China, Russia and nearly all of Africa and South America – is yet to experience anything like it even now. But there is not much point in having a Ph D on the enigmatic smiles in Leonardo, or the opera buffa of Mozart, if you live in perpetual fear of a knock on the door just before dawn, when two programmed thugs in black leather take you away, and you are not seen or heard of again. We only get a hint of that powerlessness when we go, say, to Moscow or Rio for the first time – or, as I am now told, you get off the plane now in the U S under President Trump.
For reasons I have never understood, English jurists tend to be coy about the contractual effect of the Great Charter. Well, there was an enforcement clause, that was Exhibit A in the duress case at the Vatican, but the promises were mutual, and intended to be binding, by the most sacred bonds then known to the law, and by and large they were. That is what we call a contract. It was just like the service contract entered into now by the CEO of a public company or the principal of a private school. And Richard II was just one of a number of kings removed from office, and then life, for falling into what lawyers might call a fundamental breach of contract or a repudiation of his fundamental obligations contained in his coronation oath.
The lawyers made their presence felt in Magna Carta. They could see a monopoly in the offing and moved to protect it. 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’. This is still part of our law (although it is routinely ignored by governments intent on promoting activists that are to their liking).
Then in 1292, the king sent a writ (a form of letter) to the Common Bench ‘concerning attorneys and learners’ stipulating that the ‘better, worthier and more promising students…. should follow the court and take part in its business; and no others’. It is fundamental that legal education and the profession as a whole were put under the direction of the courts, and not some institution of learning or government at large. From the very start, the English bar, or profession, asserted its independence from government by the crown. That has been so for 800 years. It is no longer so in the United States.
The English, for this is what they now called themselves, liked to get involved ‘politically’ at all levels. They also invented pubs and gentlemen’s clubs. It was only natural, then, that the lawyers would gather socially and professionally in collegiate groups. They were called Inns of Court. One of them was the Inner Temple referred to above, and eating dinners was a fixed part of the regime of becoming a lawyer. You went there to be indoctrinated – rather as a Catholic later might subscribe to the Society of Jesus the better to practise and champion his religious faith, rather than a learned profession.
You had the bar and the bench, and the tradition that judges should only come from the bar soon hardened into custom, and then into law. But your membership of an Inn stayed with you for life, and over time the Inns would become a kind of finishing school for young men wanting to take part in the governance of England. The apprentices had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy. They learned on the job, and only on the job. That is still the case. Universities had little or no place in the training of working lawyers until many centuries had passed. The result was that the lawyers were not just involved in formulating the law – they were driving it from birth.
Now, people coming together to gain strength in numbers, especially if they owe a form of allegiance to their group, unsettle monarchs and government generally. (Milton noticed that ‘fear of change perplexes monarchs’.) The French revolutionaries quickly banned combinations in a manner that would be followed by the ruling class elsewhere to the appearance of trade unions. Indeed, as the great French historian Marc Bloch suggested, it is hard to think of a more evocative term in the history of Europe than commune. Well, the communal life of the English bar would justify all those apprehensions, and it would haunt and finally tame the English crown.
The Serjeants at the bar had their curious outfits and head gear; their coifs reminded some of tonsured clerics (or latterday nuns); and their descent into the esoteric may have reminded others of strolling players, the Freemasons in The Magic Flute, or besotted Tarot card readers. But their whole training and close upbringing led them, in the words of the legal historian Sir William Holdsworth, to ‘maintain in the common law and the common lawyers that boldness in the face of authority which has always been the chief bulwark of our constitutional liberties.’ This attribute of the lawyers, and the readiness of the nobility to join with them against the English Crown, are two massive columns of the political differences between England and Europe.
Then there was the way the English bar and bench went about making the law. The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law. It is rarely taught now. That is worse than a blunder. What we call the common law is law made by judges applying the doctrine of precedent. It is as natural as Pavlov’s dog to deal with a problem by asking ‘How did we deal with this before?’. The notion that like cases should be treated alike is fundamental to our sense of fairness – that is, justice.
It started in England with arguments about whether the person moving the court had bought the right form from the court. Not just pink for trespass or blue for debt, but something like that. This dedication to forms was par for ‘primitive’ law – as it is now the curse of our lives under robots.
After a while, lawyers started taking notes of these arguments. These were published as the Year Books. They are our first law reports. (I used to be the proud owner of a complete set – Law French and Latin in Gothic Print.) Perversely, our ancestors worked back from the legal process to look at what kind of legal right was being invoked – a process that led to the celebrated remark of Sir Henry Maine that our substantive law was secreted in the interstices of procedure.
(The English also played a leading part in the development of sports like football, cricket, tennis and golf. It may well be that in each case, what started as a simple custom for idle pastimes settled into something more permanent and mature when the English took the trouble to formulate elaborate bodies of written rules for the governance of sports that now underlie businesses worth billions of dollars. You can see a similar thread of accidental growth. Perhaps the Corsican parvenu may have been closer to the mark had he described them as a nation of book-keepers rather than shopkeepers.)
While the bar argued and the 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.
The descendants of the Anglo-Saxons in Germany had been corralled by the Normans from France, but whereas Germany and France adopted Roman law, the English willfully, stubbornly, and then proudly refused to do so. The common law was native to England – indigenous if you like, just as the boomerang was indigenous to the first peoples of Australia – so that a distinguished American jurist, Professor James Barr Ames, could say with a straight face in his Harvard lectures that the ‘English common law is more German than the law of Germany itself’. Their law was Teutonic in origin, even when filtered through German folk laws preserved in the Salic Law published in the fifth century.
It follows that the law books of the English were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary. Anyone looking for any 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 that had evolved from the Tablets of Rome over a period of about one thousand years, and by which almost all the known world had been ruled. In the result, this perverse island stubbornness has left the world divided between two great legal systems – common law and Roman law.
Students of philosophy – the few of them still left – are brought up to know the difference between the empirical approach of the English and the rationalist approach over the Channel. It, too, is fundamental, as is the difference between the adversarial and inquisitorial mode of trial. It is very sad that an insular attitude of our places of higher learning leaves our graduates ignorant of this mighty chasm which is as deep as the Atlantic.
The Roman law derived from codes. It prefers codification. The Code Napoléon is a good example. The common law eschews theory, grand designs, and codification. It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up.
One is the rationalist view of the world. It leans to theory. The other is the empirical. It leans to the experimental – or, simply, experience. Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning. From our point of view – that of the common law – there is a lot of truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’ (The risk in the rationalist view is that logic may dictate that there can only be one correct answer – and then you are on the path to the absolutism of totalitarian government.)
But the difference in world view (Weltanschauung) between England and Europe is far greater and of more significance than the difference between Aristotle and Plato or Hume and Hegel. Yet so few understand that difference, and nowadays it takes someone like Jonathan Sumption to refer to it.
If you go back to the period covered by the Year Books (1268 to 1535), you find something else we have not given nearly enough attention to. 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 guarded and abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue. Only the priest had the power to loose and bind – and the rest of us just had to take them on trust.
Now that monopoly was busted. Sure, the lawyers had their own tricks and quirks, that fascinated Shakespeare and that would revolt Dickens, but they were English foibles. And they were foibles held by people who did not duck a fight – as nations of Europe would find out severally to their cost.
History has in my view underestimated this achievement of the English bar. When you link it with events called the Reformation that we are coming to, the priesthood is being put back in its box in a way that we do not see much of anywhere else. It looks to me to be a form of emancipation in the long march of history from our own self-imposed immaturity.
Luther in Germany protested about religion and the Church. The Reformation in England had very little to do with religion. The Tudors came to power when the magnates had exhausted themselves and fractured the nation in the Wars of the Roses. Henry VIII had to secure his succession. The Vatican had an imperial conflict of interest, and could not accommodate Harry. England seceded, and it did so not by royal proclamation, but a series of carefully drawn statutes. The judges had used ‘fictions’ to break the fetters of the old forms of action. The parliament was not shy about doing the same in affairs of state. They trotted out the line used for Magna Carta – they were just confirming the status quo. ‘Where, by diverse sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire….’ Simple really – you just talk yourself into a position of moral rectitude – and not long after that, Shakespeare would descant on the ‘imperial’ theme in Henry V.
But from then the title of the crown derived from statute – the parliament. The English were moving toward democracy. Representatives of the people in parliament made the laws. Representatives of the people in a jury decided whether someone had broken one of those laws. They had given themselves Home Rule in religion, and no one else on the world had got even close to any such liberation.
Now, Thomas Cromwell, the lawyer, was actively involved in overhauling not just leadership of the English church, but the whole system of government in England – but we would not say that it was the lawyers who drove the Reformation. Their most vivacious political flowering time came in the seventeenth century with the Stuarts. It was as if these four kings were sent by God to put a bomb under the English Establishment that was far more explosive than any bomb dreamed of by Guy Fawkes.
These erratic kings ran into king-breakers from Hell – landed gentry who had God, and training in the Inns of Court, like Pym, Elliot, Hampden – and Thomas Cromwell. Behind these ‘amateurs’ was Sir Edward Coke, as tough as old boots, and the bane of the monarchy – whom he could contradict at will because he had the law in him and the kings didn’t. The others were for the most part polite revolutionaries, armed only by God and the law. The word ‘activist’ would have been the ultimate insult. Perhaps it now merely reflects on our anemia.
In the upshot, after a civil war, one king was executed, and another was deposed, or just thrown out. And the balance of power between parliament and the king was settled in the manner we now find it by the Bill of Rights.
A bright young junior barrister named John Somers was briefed to do the first draft. Jefferson would top and tail it for the Declaration of Independence. Everyone knows about Thomas Jefferson, and his memorial. Hardly anyone has heard of John Somers. But in my view, which is biased, Somers was a much better draftsman.
Perhaps I may just refer to one member of the bar, Oliver St John, of St John’s College, Cambridge and the Inner Temple. Charles I raised money without parliament by resorting to an ancient form of naval levy called Ship Money. To a constitutional lawyer now who is used to the complexity of tax cases, there were obvious legal problems (as there now are in the tariffs of Donald Trump). However, a challenge to their legality nearly 400 years ago in England was going to be hard – and out of the question anywhere else. But a challenge was set up and led by St John, whose arguments were gone over for days in the pubs at Westminster. It took me a full day to follow his argument in the octavo State Trials. They were differently educated back then – in Latin, grammar, logic, and rhetoric, and boy, can’t you see it.
St John lost by a tame, slim majority (that the parliament dealt with when recalled). The whole process would be very hard to replicate now, and just about impossible in most of the world. I am still not sure that I understand how the legal issue came to be formulated, but St John followed our preference, articulated by Sir Owen Dixon, for a ‘strict and complete legalism’ in sensitive issues of political governance. The whole process looks to me now to have been centuries before its time – centuries.
Then there was the trial of the Earl of Strafford. He had been on the side of the Commons, but he had gone over to the crown and King Charles I. He had an army in Ireland and the force of character to use it against the people in England. He really put the wind up the English and they determined to take him down – terminally.
On trial for his life, he ran rings around his pursuers in an impeachment in parliament. They then dusted off the old process of sentence to death by act of attainder. To put it softly, this was not really cricket. If you look at his portrait, you will see both aloofness and something like compassion in the tall striking figure of St John. But he was a most formidable advocate and opponent.
Strafford and his king were confident when St John got up to speak in Westminster Hall on 29 April 1641, but the ice in his veins left no room for compassion. He spoke for hours on legal arguments as sophisticated as those in the Ship Money Case. Then, after nearly three hours of high technique from the Year Books on, he struck to kill – an English gentleman acting like an Australian taipan.
It was never accounted either cruelty or foul play to knock foxes and wolves on the head as they can be found, because they be beasts of prey.
That is by far the deadliest submission I have ever seen or heard. Strafford was doomed, and his king had to sign the warrant.
So, the people who gave the world that polite game of cricket could be lethal when stirred. Many forget that Lord Denning, M R, that latterday champion of the people, had worn a uniform in the First World War. He held that the executive government must never be allowed more power than is absolutely necessary. His Lordship said so in a very English way.
…. there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’ We taught the kings that from Runnymede to the scaffold at Whitehall: and we have not had any serious trouble about it since.
Quite so.
Well, the governance of England was now set in place. In the eighteenth century, they developed the Cabinet and the Westminster model, and they started coming to terms with the quite blatant corruption, so finely detected by Sir Lewis Namier, by which the whole country had been run.
In the eighteenth century, Lord Mansfield rewrote English commercial law with the help of experts who made up special juries – and occasionally supped with his Lordship, even when they were all involved in hearing a case. Things were different then, and we cannot be heard to say that we do things better. But some things never change. The Elizabethans liked an old proverb: ‘Fools and obstinate men make lawyers rich.’ And they continue to smell each other out at the end.
In the nineteenth century, which is called the Age of Reform, the English sought to clean up their whole act in the administration of both the courts and parliament and the civil service, and make laws to deal with the grosser kinds of our inhumanity. Then the suffrage became universal, women got the vote, the Welfare State was set up, the United Kingdom saved Europe from Germany, England gave up its empire, and it’s been sadly downhill ever since.
Still, the common law went its own way, and still does. It does so very differently to the way in which Roman law works, and Sir Owen Dixon reminded us that the rule of law was not known to the Romans or their later followers. As the common law judges were wont to say to government ‘Don’t tell us what the law is – we made it.’
We must recall that as part of their profession, the lawyers spent their time protecting the liberty of the subject and ensuring due process. As often as not, it was their duty to argue against the crown, or moneyed interests, and if they felt intimidated, they were not up to it. In the 16th century, the Chancery had a sign on its door: …the refuge of the poor and afflicted; it is the altar and sanctuary for such as against the right of rich men, and the countenance of great men, cannot maintain the goodness of their cause.
Well, Dickens justly slammed that pious smugness in Bleak House and other novels, but the ‘oppressor’s wrong and proud man’s contumely’ dreaded by the prince of Denmark remain. Unlike the Romans, we have not yet developed contumely as a separate cause of action, but it is a term you will see in claims for damages to make an example of the oppressor. And it is in standing up against the oppressor’s wrong and proud man’s contumely that the profession of the lawyers justifies itself.
It all comes down in my view to a state of mind that is fundamental to what we understand, with the teaching of centuries of history, as the rule of law. And although these things cannot be measured, we see a kind of individualism that underlies our view of government. As Henry Lawson saw it, we are not keen on tugging the forelock.
This is all a very remarkable story. The romantically inclined could get downright starry-eyed about it all. But if we go back to the glory days of the revolts against the Stuarts, we see that 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.
I used to think that most of this kind stuff was just waffle. Now I fear that we are losing it altogether. And if you want to know what it might mean if you forget the history and role of the bar entirely, just look across the Pacific now. The legal industry there, for that looks to be all there is, having the dollar as its only regulator, tamely tossed in the towel to a greedy government, and all its members should hang their heads in shame. They have let down the people they are there to serve.
Perhaps I may be allowed a footnote on my experience with ancient forms of legal process, and the habit of our English ancestors in developing a form of writ, and then going about formulating a law to drive it.
A great instance is the writ of account. ‘I left you in charge of my stables while I took the Cross to Jerusalem. Now that I am back, I find that horses are missing or lame, and I am not happy with what you say about expenses and receipts – and the local ale house is flourishing. Here is a form of command from His Majesty that you duly account to me for your stewardship. You know what fate awaits you if you do not respond properly to our Lord King.’
Does this not smell just a little of the Inquisition? In order to justify this imposition, the judges of our common law later looked to Rome. They came up with the term fiduciary – which has dazzled and bedevilled us ever since.
I should know. I spent the best part of a quarter of a century of practice dealing with greedy but sloppy trustees of family trusts who treated their trust like an Amex account. I would open the war with a writ of account. What could be more polite? Well, this could lead to a public inquiry of great interest to the keepers of His Majesty’s revenue, and no one likes hanging out their dirty washing in public. (I spent eighteen years hearing tax cases, and could there see all kinds of very nervy diffidence at first hand.)
Only one lawyer in all that time really called my bluff. He later ascended the heights, and most worthily, but only after his definitively patriarchal client had made a seven-figure donation to my fair lady, and Truth, Justice, and the Australian Way. Who said that dragons don’t exist? They named a bloody footy team after them.
So, I was interested to read that a very long time ago, Professor Ames had said that the action of account ‘is very analogous to a trust,’ and that the important thing to remember is that the action of account is ‘the father of the count for money had and received’.
Too many lawyers don’t understand this. We still need every piece of bedrock we can find. And we should teach lawyers the history of the law because that is what the law is – history drawn up from events of the past to meet the needs of the present. We don’t unleash doctors on the public who have not been taught anatomy. Lawyers who do not know the history of their law are hard put to say that they know the law, or what it means to be a member of a learned profession.
NOTES
Wars of the Roses: Henry VI, Part 1, 2.4, 17, 108, 127.
Brilliant bar: T F T Plucknett, A Concise History of the Common Law, 4th Ed, 1948, 211
King under the law: Bracton, On the Laws and Customs of England, (Ed Woodbine, trans Thorne) Harvard, 1977, Vol I, 38.
1292 writ: Plucknett, above, 206.
Fear of change: Paradise Lost, Book One.
Ames on German law in England: Lectures on Legal History, Harvard, 1913, 34
Bloch on commune: Marc Bloch, Feudal Society, Folio Society, 2012, 433-4.
Holdsworth on boldness of common lawyers: History of English Law, cited in Gibson, The Common Law, A History, Federation Press, 2012, 41.
Maine on procedure: Sir Henry Maine, Law and Custom, John Murray, 1890, 389.
Homes on logic and experience: The Common Law, Little Brown, 1881, 1.
Self-imposed immaturity: Kant, What is Enlightenment? Kant’s Political Writings, Ed Reiss, Cambridge, 1970, 54.
Realm an empire: Act in Restraint of Appeals, 1533, 24 Henry VIII, c. 12.
Henry V: Henry V, 3.6.120 and 4.1.42.
Ship Money Case: Hampden’s Case, State Trials, 2nd Ed, 1730, Volume 1, 483.
Trial of Strafford: John Adamson, The Noble Revolt, Weidenfeld and Nicholson, 2007, 272
Denning on the executive: Freedom under the Law, Stevens, 1949, 15.
Dixon on legalism: Jesting Pilate, Law Book Co, 1965, 247.
Dixon on Roman law: Again, 101.
Sign in Chancery: I have lost the citation – this comes from a book yet to be published.
Trevelyan on English counsel under Coke: England under the Stuarts, Folio, 1996, 105-106.
Writ of account: this matter is now dealt with in great and scholarly detail by J A Watson, The Duty to Account, Development and Principles, Federation Press, 2016. Life may perhaps have been simpler had it been published forty years earlier.
Ames on action of account: Lectures, above, 119, 121.
With Compliments 