J.P.SOMMERVILLE

 

Custom, common law and constitutionalism


Sir Edward Coke (1552-1634)

367 - 4 (4)

"The first thing we do, let's kill all the lawyers."

(Henry VI.ii, 4.2)

 

Common and Civil Law

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In much of Continental Europe, the laws were based on those inherited from the Roman Empire, i.e. Roman (or Civil) Law. In every country, the laws had been altered and adapted in response to local customs and circumstances. The French legal theorists Jacques Cujas (1520-90) and Francis Duaren (François Douaren) (1509-99) even argued that custom was the supreme form of law.

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However, it was in England that custom played the most important role in shaping law. The English system of Common Law was relatively unaffected by Roman Law - in England, law was not codified, but determined by judges on the basis of earlier decisions (precedent) and custom.

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Common lawyers were important in English society - they made up a large proportion of those sitting in the House of Commons. Sir Edward Coke and many other common lawyers shared a political ideology based on the notion that ancient custom (as interpreted by common lawyers) was superior to the king and to all other forms of law.
A classic expression of common law thinking was given by Thomas Hedley in a Speech in Parliament in 1610

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Common law thinking was a largely conservative ideology designed to protect the status quo from the intrusion of government and was as opposed to doctrines of popular sovereignty as to those of royal absolutism. The conservative theorist, Edmund Burke (1729-97) preserved many of the elements of common law thought when he lauded the "wisdom of our ancestors," expressed "no very exalted opinion of the virtue of paper government," and insisted that "to innovate is not to reform."

 

 


Sir John Popham (1531-1607)
Lord Chief Justice of the Queen's (later King's) Bench from 1592

 

Sir John Fortescue (c. 1397-1479)

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Sir John Fortescue was Chief Justice of the King's Bench from 1442. He sided with Henry VI in the Wars of the Roses and when Henry was defeated and deposed, Sir John fled abroad.

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While in exile in France, Sir John Fortescue wrote De laudibus legum Angliae and The Governance of England, a work that compared English and French society and government.

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Fortescue asserted that the English form of government - because it was a "regimen politicum et regale" (i.e. a constitutional monarchy) - was superior to foreign forms of monarchy such as the French. Because taxation and legislation required the people's consent in England, the whole population was free and prosperous. People were motivated to defend the country from foreign foes and to take civic responsibilities, like jury service, seriously. Jurors, being prosperous free farmers, could not easily be bribed. In France, by contrast, the jury system would not work, because the downtrodden French peasantry could easily be bribed or overawed by wealthy lords.

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Fortescue took many ideas from Saint Thomas Aquinas and from Leonardo Bruni (1369-1444), but his stress on the excellence of the English constitution was his own.

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Despite or because of the fact that Fortescue saw contemporary England through rose-colored glasses and trashed the French unfairly, his work was immensely influential.

 

"But to my mind, though I am native here
And to the manner born, it is a custom
More honour'd in the breach than the observance."

(Hamlet 1.4)

 

 

Sir John Davies (1569-1626)

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Sir John Davies was not only a legal theorist, a Member of Parliament, and Solicitor General for Ireland, but a distinguished poet.

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Davies introduction to his Irish Law Reports provided a classic expression of the the common law outlook.

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Unlike Sir Edward Coke, Davies believed that the king had many extra-legal prerogatives (i.e. emergency powers) - it was simply that English monarchs had the sense and moderation only rarely to exercise them.

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Another lawyer who took a very high view of the royal prerogative was Sir Francis Bacon. Bacon was an advocate of law reform, but was more concerned to advance scientific knowledge.

 

 

Sir Edward Coke
(1552-1634)

"For a man’s house is his castle, et domus sua cuique tutissimum refugium"[and his home his safest refuge].

"Magna Carta is such a fellow that he will have no sovereign." (another and perhaps more accurate version has "no saving," but since he was discussing a proposal to make a "saving" or exception to Magna Carta in favor of the king's sovereign power, the difference in sense is slight).

 

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The most important of the common law theorists was Sir Edward Coke. He was widely recognized by contemporaries as the greatest living lawyer. Related by marriage to the William and Robert Cecil, he was steadily promoted, becoming Solicitor General in 1592, Attorney General in 1593, and Lord Chief Justice of the Common Pleas in 1606; in 1613 he was transferred to the Chief Justiceship of the King's Bench, which was technically a promotion but meant a drop in salary..

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Coke pronounced on a series of cases of great constitutional importance

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In Bonham's Case (1608), Coke came close to asserting the supremacy of common law over statute, arguing that the judges could sometimes pronounce statutes to be void. 

"…when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void."

 

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Peacham's Case (1615). A Somerset clergyman, Edmund Peacham was accused of treason, and potentially incriminating papers - notes for a sermon hostile to the government -  were found in his possession. King James and his minister, Sir Francis Bacon, were eager that the papers should be judged treasonable and tried to consult the Judges in the case individually so that it would be easier to bring pressure to bear on them. Coke protested at the individual consultation because it gave the crown too great power to influence the judiciary. He also denied that the attack on James constituted treason.

"no words of scandal or defamation, importing that the King is utterly unworthy to govern, were treason, except they disabled his title"

 

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Coke also played an important role in a dispute over the writ De non procedendo rege inconsulto. This writ commanded judges of a court not to proceed in a case which might prejudice the king until his pleasure should be known. Bacon advised James to use the writ in this way, but Coke protested.

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In the Case of Commendams (1616), King James had granted to the Bishop of Lichfield, Richard Neile, a benefice to be held in commendam (i.e. by special license granted by the king, and exempting the holder of the benefice from laws against holding multiple jobs in the church). The king's right to do this in this particular case was questioned, and so was his general right to grant commendams. James wanted to discuss the case with the Judges before they reached a decision and told Sir Francis Bacon to write to them and arrange a meeting. Sir Edward Coke said that Bacon's instructions were illegal, and refused to agree that he had to consult with James on any case.





Prohibitions.The English legal system included not only common law courts but church courts (of which High Commission was the most powerful)  and Chancery (a court of equity). Coke struggled for jurisdiction (and fees) with these other courts, and objected to the High Commission's use of the oath ex officio (which infringed common law rules against self-incrimination). Coke sometimes prevented cases from being heard in rival courts by issuing "prohibitions" that stated that the case was really one for the courts of common law. Coke's wholesale use of prohibitions infuriated Sir Thomas Egerton (Baron Ellesmere and Viscount Brackley) and the Archbishop of Canterbury, George Abbot. Coke once again bandied words with the king in a way James thought impudent.
Coke's frequent opponent and rival, Sir Francis Bacon


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Coke also opposed James'  idea that the king could personally act as a judge.
 

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 Coke's frequent opposition and general audacity exasperated James, who believed that the King's Chief Justices should share the King's interests, and in 1616 he dismissed Coke from the judiciary. Coke continued to oppose many crown policies - he was imprisoned after the Parliament of 1621, and took a major part in drawing up the Petition of Right.

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Yet Coke was extremely ambitious, and tried to regain royal favor by forcing his daughter into marriage with Sir John Villers  (brother of the royal favorite George Villiers (later Duke of Buckingham). He never regained his post as Chief Justice, though he was intermittently readmitted as an advisor; after 1621 he fell altogether from royal favor.

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Coke's writings were generally regarded as authoritative  both by contemporaries and later lawyers and constitutional theorists in England and America.
In a series of thirteen Reports Coke summarized the arguments in contemporary cases spinning them in his own way. His Institutes (which appeared in four parts) formed a comprehensive outline of English law.

 


Magna Carta

Common law theory

 

 

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Common Law was essentially time-honored customs. Even Magna Carta was viewed as a codification and confirmation of earlier customs rather than original legislation.
Sir Edward Coke saw these customs as essentially unchanged from the earliest times; others (for example Thomas Hedley) saw them as developing over time in accordance with changing needs.
It was accepted that Parliament could add to or amend inconvenient customs, but some common lawyers thought that even parliamentary legislation  should be ignored by judges if it directly contravened custom on fundamental points. Common law was superior to statute because many generations of English people had found it useful.

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Yet common law was also essentially rational. Its defenders insisted that common law reflected essentially reasonable decisions.

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Because common law combined custom and reason, special training was needed to understand its logic or maxims, what Coke called "artificial reason".

 

"Then the king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me that true it was that God had endowed His Majesty with excellent science and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law — which law is an act which requires long study and experience, before that a man can attain to the cognizance of it …"

(Coke Reports)

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Common law was held to be "immemorial."  In the case of particular laws and customs, proving that it existed in 1189 was sufficient to establish that it had existed for time out of mind. But the idea of "immemoriality" was often much looser and vaguer.

 

Common lawyers and politics

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It was possible to use some of the key concepts of common law thinking to support determined royal action. Sir John Davies and Chief Baron Fleming, for example, held that custom gave the king the power to levy taxes without consent when this was necessary for the public good.
 

"The absolute power of the king is not that which is converted or executed to private uses to the benefit of particular persons, but is only that which is applied to the general benefit of the people and is salus populi [public good]; and this power is not guided by the rules which direct only at the common law, and is most properly named policy or government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdom of the king, for the common good;…"

Chief Baron Fleming on Bate's Case

 

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Often, however, common law thinking was deployed to limit royal power - and particularly to protect property and individual rights. The most central contention was that common law protected the freedom of English people from laws and taxes to which they had not consented.

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Common lawyers were in some ways very conservative - they wished to enforce customary limitations on royal power, not to invent new ones, and certainly not actively to resist the monarch.
Yet the common law maxim rex nihil potest nisi quod jure potest (the king can do nothing except what he can do by law; the king can do no wrong) was applied to mean that the king's personal orders should be disobeyed if they were contrary to law. The customs officers who tried to collect extra-parliamentary customs duties in 1629 were prosecuted by the House of Commons despite the fact that they had clearly been acting on royal orders..

 


Assize Judge

 

Common law and individual rights

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One of the greatest concerns of common law thought was to protect individual property rights against government. Many common lawyers also insisted on other individual rights - such as freedom from arbitrary arrest, when Charles I undermined habeas corpus in 1626-7.

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In their stress on individual rights, common law theorists differed from other political thinkers (most of whom subordinated individual rights to the public) good. Common law theorists, in contrast, saw the public good as lying in the maintenance of individual property and liberty: no state would prosper if its citizens (like bondsmen or villeins) could have their property arbitrarily seized.

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Common law theory forms one of the most important foundations of modern liberalism, because of its stress on individual rights and on the limitations of state power. It also contributed to conservative thought, because of its respect for custom and property and suspicion of radical "reforms" and social engineering.

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Common law thinking was largely based on specifically English customs. Common lawyers often stressed that the rights which they discussed were those of "free-born Englishmen" - not of French peasants, nor of Eastern despots' slaves. Yet they sometimes implied that all nations would do well to imitate English practice, and that if they did so people everywhere would be able to eat good roast beef and wear leather shoes - rather than wooden clogs.

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Despite these universalizing tendencies, in order to be truly worldwide in its application social and political theory had to look beyond English common law to universal human nature; John Locke gave universal reasons in favor of many of the claims of the common lawyers.

 

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