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Law, Liberty and the Constitution

Law, Liberty and the Constitution: A Brief History of the Common Law

Copyright Date: 2015
Edition: NED - New edition
Published by: Boydell and Brewer,
Pages: 304
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  • Book Info
    Law, Liberty and the Constitution
    Book Description:

    Throughout English history the rule of law and the preservation of liberty have been inseparable, and both are intrinsic to England's constitution. This accessible and entertaining history traces the growth of the law from its beginnings in Anglo-Saxon times to the present day. It shows how the law evolved from a means of ensuring order and limiting feuds to become a supremely sophisticated dispenser of justice and the primary guardian of civil liberties. This development owed much to the English kings and their judiciary, who, in the twelfth century, forged a unified system of law - predating that of any other European country - from almost wholly Anglo-Saxon elements. Yet by the seventeenth century this royal offspring - Oedipus Lex it could be called - was capable of regicide. Since then the law has had a somewhat fractious relationship with that institution upon which the regal mantle of supreme power descended, Parliament. This book tells the story of the common law not merely by describing major developments but by concentrating on prominent personalities and decisive cases relating to the constitution, criminal jurisprudence, and civil liberties. It investigates the great constitutional conflicts, the rise of advocacy, and curious and important cases relating to slavery, insanity, obscenity, cannibalism, the death penalty, and miscarriages of justice. The book concludes by examining the extension of the law into the prosecution of war criminals and protection of universal human rights and the threats posed by over-reaction to national emergencies and terrorism. Devoid of jargon and replete with good stories, Law, Liberty and the Constitution represents a new approach to the telling of legal history and will be of interest to anyone wishing to know more about the common law - the spinal cord of the English body politic. Harry Potter is a former fellow of Selwyn College, Cambridge and a practising barrister specialising in criminal defence. He has authored books on the death penalty and Scottish history and wrote and presented an award-winning series on the history of the common law for the BBC.

    eISBN: 978-1-78204-481-9
    Subjects: Law, History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Illustrations
    (pp. ix-ix)
  4. Abbreviations
    (pp. x-x)
  5. Introduction
    (pp. 1-6)

    When the BBC asked me to present a series on the history of the English legal system — broadcast under the title ofThe Strange Case of the Law— like many other lawyers, I knew little about the subject. I have tried to make up for that deficit. It struck me that the story of the law should be better known, and that a short selective history was called for, devoid of jargon, replete with good stories, a restitution of the key of knowledge. This is the result: breaking no new ground, but providing a new approach to the telling of...

  6. PART I LAYING DOWN THE LAW:: 600–1500

    • CHAPTER 1 The Promulgation of the Law in Anglo-Saxon England
      (pp. 9-22)

      The Angles and Saxons were invaders of the land later called England who fought, conquered and stayed, as the Romans had done before, and the Vikings and the Normans would do after. They migrated from Germany in the fifth and sixth centuries and established a number of kingdoms, most notably Kent, Wessex, East Anglia and Mercia. Anglo-Saxon law, which took root in England, has often been portrayed as part of the history of this receding Germanic past almost unchanging in the five hundred years from the code of Aethelbert to the laws of Henry I, and as the province not...

    • CHAPTER 2 The Enforcement of the Law in Anglo-Saxon England
      (pp. 23-32)

      Many – perhaps most – disputes in Anglo-Saxon England would have been settled between the parties without bothersome recourse to law, on the sensible basis that ‘agreement trumps law, and love trumps judgment’.¹ Some were not. Courts were necessary to hear cases and make determinations, but also to mediate, or broker compromise. Over time the Anglo-Saxons developed a sophisticated network of assemblies, the hierarchy extending perhaps from manor and village courts, certainly throughburh(or borough), hundred, and shire courts to the royal court – thewitanagemot– where the king alone or with his ealdormen gave the final judgment in person.

      Shires were...

    • CHAPTER 3 A Norman Yoke?
      (pp. 33-45)

      In 1066 Duke William of Normandy landed at Pevensey Bay in East Sussex, and killed Harold, the last Anglo-Saxon king, at the battle of Hastings. England was conquered. Two meteors had collided. Edmund Burke called it ‘the great era of our laws’ when the poor stream of English jurisprudence was replenished ‘as from a mighty flood’.¹ Later, F.W. Maitland, our pre-eminent legal historian, in a memorable phrase stated that ‘the Norman conquest is a catastrophe which determines the whole future of English law’.²

      Well was it and did it? Yes and no. The effects of the Norman Conquest are debated...

    • 4 Henry II and the Creation of the Common Law
      (pp. 46-51)

      Hope reposed in the twenty-one-year-old Henry of Anjou. His ascension to the throne in 1154 was anticipated in words Shakespeare would later echo: ‘England, long numbed by mortal chill, now you grow warm by the heat of a new sun.’¹ The thaw came just in time. Much of the kingdom, including the legal system, was in jeopardy, and justice was administered in a haphazard and arbitrary manner. The proliferation of laws and the combination of Anglo-Saxon and Norman practices had led to overlapping jurisdictions, delay and confusion. The recent troubles had left courts prey to subversion by powerful noblemen, who...

    • 5 Becket and Criminous Clergy
      (pp. 52-61)

      The common law was triumphantly created by regal power. In its emergence, that law and that power were already locked into a dangerous struggle with a rival system: canon law and the power of the Church, embodied in the person of Thomas Becket, archbishop of Canterbury. Becket asserted that secular courts had no jurisdiction over clergymen because it was the privilege of clergy not to be accused or tried for crime except before an ecclesiastical court. The Church was attempting to exempt a substantial part of the population from the jurisdiction of royal justice. Canon law

      was setting up as...

    • 6 The Achievement of Henry II
      (pp. 62-68)

      In the early twelfth century the legal lieutenants who were responsible for the king’s justice in the localities had limited authority. As the passive representatives of an absent king they presided over special sessions of a county court where others — local worthies or suitors following local custom — passed judgment. Henry II transformed their status and power. From 1176 the royal justices in eyre made judgments themselves in what was a local session of a national royal court.¹ They were becoming fully-fledged judges with the beginnings of an independent authority, not the mere mouthpieces of the king. For the first time,...

    • 7 Magna Carta
      (pp. 69-76)

      The extraordinary year 1215 has an unparalleled significance in English law and culture, and for two reasons: the proclamation of Magna Carta and the abolition of trial by ordeal. The former is by far the more famous, but the latter is just as significant.

      The momentous confrontation at Runnymede between the barons and the king stemmed from need coupled with suspicion, and from the flawed personality of the king. In temperament John was unsuited to kingship. He had cunning but lacked confidence. He exercised power through the prism of paranoia. He thought others as base as himself, distrusting all the...

    • 8 From Ordeal to Jury
      (pp. 77-81)

      If 1215 was the year in which the law outgrew the king, it was also the year it outgrew that rival power in the land, the Church. This institution had not only enjoyed its own separate legal system, but maintained a strong foothold in the common law: only a cleric could preside over trial by ordeal, only a cleric could judge the result. To possess an ordeal pit and the accoutrements of ordeal conferred dignity and status, but in addition priests were paid handsomely for their participation. The ordeal, despite those who doubted its efficacy, or questioned its rationale, remained...

    • 9 Legal Eagles
      (pp. 82-94)

      Having been hatched, the law grew fast and fit, and soon took flight. Originally the king’s council had carried out executive as well as legislative and judicial functions. Over time, royal courts split off from the council and were established as separate entities at Westminster Hall. Built by William Rufus, and later enlarged and re-roofed by Richard II, its enormous dimensions – three hundred feet long with a high, beamed roof – could accommodate a plethora of royal courts. By the mid 1160s ordinary litigation was being transacted before the king’s justices at Westminster. But there could be lengthy absences. It was...

  7. PART II CONFLICT OF LAWS:: 1500–1766

    • CHAPTER 10 The King’s Conscience, the Lord Chancellor’s Foot
      (pp. 97-102)

      The social turmoil occasioned by the Wars of Roses, and the time it took for the new Tudor dynasty to assert its supremacy, unsettled the rule of law. To what extent is open to debate, but it was the perception at the time. Since the 1460s, maintained Richard III’s parliament, the realm had been ‘ruled by self-will and pleasure, fear and dread’, and ‘all manner of equity and laws [had been] laid apart and despised’.¹ For chaos to be banished and order imposed, for the law to be enforced, and for justice to be administered, a strong central authority was...

    • CHAPTER 11 Star Chamber: Keeping England in Quiet
      (pp. 103-108)

      Conflict coalesced in the Court of Star Chamber. The very name is now a byword for tyranny but this is a misnomer. In its inception, and throughout most of its history, it represented precisely the opposite. Its demise was tragic in the true sense that it was as a result of the corruption of the best. Star Chamber —camera stellata– consisted of two interconnected rooms in the Palace of Westminster. From the fourteenth century on the king’s council met there, around a large table covered by a green carpet, to exercise its delegated powers, including judicial ones. It derived its...

    • CHAPTER 12 Torture
      (pp. 109-114)

      Another common myth is that Star Chamber resorted to torture. It did not. Torture was reserved for capital cases and was part of the royal prerogative, deriving from sovereign immunity from legal action. The king, or far more often his privy council, could warrant torture, and those so warranted could conduct torture, without fear of prosecution.¹ The exercise of this power became one of the important issues in the struggle between the Crown and the parliamentary common law lawyers, since to the latter torture was totally repugnant to the fundamental principles of English law as well as to reason, justice...

    • CHAPTER 13 The Writ and Charter of Liberty
      (pp. 115-118)

      Star Chamber had increasingly excited the animosity and jealousy of the common law lawyers, particularly Edward Coke, its erstwhile defender, who now questioned the very legality of its jurisdiction. Chancery, and other equitable courts, were coming to be viewed as creating a separate system of justice rivalling the common law. Coke and others invoked and developed remedies to frustrate what they considered to be an abuse of the prerogative.

      First among these remedies washabeas corpus, a judicial writ originating in the king’s prerogative and having all the authority accorded a royal command. Its original purpose was to secure the...

    • CHAPTER 14 Rex Lex v. Lex Rex: Sir Edward Coke
      (pp. 119-132)

      Edward Coke was born in the reign of Edward VI to Robert Coke, himself a lawyer of Lincoln’s Inn. After a period at Trinity College, Cambridge, Edward became a student at the Inner Temple, being called to the Bar in 1578. Living in turbulent times, Coke honed his views of the law into a weapon not merely by learned disquisition, but by excavation, and irrigation. ‘Out of the old fields must spring and grow the new corne’, he was to write.² His learning was prodigious, his industry untiring. As a practising barrister he kept copious notes of his own cases...

    • CHAPTER 15 Oedipus Lex: The Trial of Charles I
      (pp. 133-148)

      Charles, when he felt financially secure enough, ignored the Petition of Right and dissolved parliament. He would rule alone, enforcing his will through the Court of Star Chamber. He resorted to an alternative form of taxation, raising finance by levying Ship Money — to pay for a navy — and by fining those who opposed his demands. For over a decade parliament’s doors were locked and the king ruled on his own meagre wits and resources. After a costly military fiasco against the Scottish Covenanters, provoked into opposition by Charles’s attempts to impose episcopacy in Scotland, the king, in 1640, was forced...

    • CHAPTER 16 Free-born John
      (pp. 149-156)

      John Lilburne was the most public and persistenthabeas corpuslitigant of any age. He was also a constant irritant in the side of every government, royal or republican, under which he lived. He was imprisoned by each in turn. A leading member of the radical sect known as Levellers, a passionate and idealistic rabble-rouser, an inveterate pamphleteer, and a self-taught lawyer, he was unstoppable and unquenchable. It was one of his friends who said of him: ‘if the world were emptied of all but John Lilburne, Lilburne would quarrel with John and John with Lilburne’.¹

      He had been inspired...

    • CHAPTER 17 From Restoration to Revolution and Reaction
      (pp. 157-170)

      One major legacy of Lilburne’s forensic forays was confirmed and reinforced in the Restoration period. In 1670 the principle of the independence of the jury came once more to the fore inBushell’s Case.¹ Jury independence had never been sacrosanct. Star Chamber had punished recalcitrant juries for a century and a half, and even after its demise in 1641 common law judges continued penalising jurors, particularly during the 1660s. But had they such power? John Kelyng, Chief Justice of the King’s Bench from 1665 to 1671, thought so. He was ‘an unbending representative of public power, who showed little patience...


    • CHAPTER 18 The Purity of England’s Air
      (pp. 173-184)

      On Thursday 28 November 1771, a ship called theAnn and Marywas moored in the Thames ready to leave for the West Indies with its cargo. That cargo had a name that would reverberate in English legal history for the case that bore it and for the ruling that concluded that case, known simply to posterity as the Mansfield Judgment.

      The cargo had been a domestic slave and had been given the name James Somerset by his white owner, a Virginia trader aptly called Charles Stuart. Stuart came over to England and of course, along with a lot of...

    • CHAPTER 19 The Menace of the Mob
      (pp. 185-196)

      In August 2011 rioting swept England, and the mob, for a time, seemed to rule the streets. The police initially held back, although they had the power to intervene in public disturbances without any other interposition. They had legal sanction vested in them by the 1986 Public Order Act. Before the eighteenth century, governments would have relied on the common law to suppress disorder — under common law riot was a misdemeanour unless it was politically inspired, in which case it was deemed treason. After 1715 reliance was placed on the reading of the Riot Act, which had been enacted the...

    • CHAPTER 20 The Fear of the Felon
      (pp. 197-200)

      In a land of increasing wealth, where freedom was paramount and police were absent, property crime was a perennial problem. As far back as 1690 John Locke had asserted that ‘government has no other end but the preservation of property’. Blackstone in 1766 opined that ‘nothing so generally strikes the imagination and engages the affection of mankind as the right of property’. It could equally be said that ‘the greatest offence against property was to have none’.¹

      With no police force and no forensic science service, the only means of deterring crime was through exemplary punishment: whipping, transportation and hanging....

    • CHAPTER 21 Garrow’s Law?
      (pp. 201-205)

      One of the beneficiaries and main instigators of these changes was a barrister who was largely lost to history until he was recently resuscitated by academic historians, and latterly by the BBC: William Garrow.¹ His fall into rapid obscurity is due to the fact that unlike his great contemporaries he was no defender of civil liberties and no great orator. In his later years he became a Tory MP and Attorney-General who opposed both political and penal reform, and, in cases of criminal libel, defended the use of special juries selected by the Crown. Perhaps paradoxically, Garrow’s early years as...

    • CHAPTER 22 The Tongue of Cicero: Thomas Erskine
      (pp. 206-217)

      Both Garrow and Thomas Erskine were of Scottish origin, both were called to the Bar by Lincoln’s Inn, and both rose to prominence in London in the period in between the American and French Revolutions. Charismatic and with a superb analytical mind, the latter was in tune with the new chords of political thought of the eighteenth century. Whereas Garrow appears to have been driven largely by ambition, and to have been deeply conservative by nature if not always in action, Erskine throughout his long career deployed his considerable talents selflessly in the defence of wider Enlightenment values and of...

    • CHAPTER 23 The Drum Major of Liberty: Henry Brougham
      (pp. 218-223)

      Born the year Garrow entered, and Erskine left, Lincoln’s Inn, the third member of the Scottish trinity of great common law lawyers is Henry Brougham. Although his father was English, his mother was Scottish, and Henry was born and brought up in the intellectual centre of the Enlightenment world, Edinburgh. He was educated at both the Royal High School there and at its university, studying natural sciences and mathematics as well as law. Admitted to the Faculty of Advocates in 1800, he practised little in Scotland before he too, in 1803, enrolled in Lincoln’s Inn. Five years later he was...

    • CHAPTER 24 The Bonfire of the Inanities: Peel, Public Protection and the Police
      (pp. 224-231)

      In the early nineteenth century a campaign began to restrict the scope of the noose. Members of parliament, such as Sir Samuel Romilly and Sir James Mackintosh, led the way. In 1819 a House of Commons Select Committee on Criminal Law chaired by the latter, advocated means of increasing the efficiency of the criminal laws by abating their undue rigour. It proposed the repeal or amendment of obsolete statutes, the revision of the forgery laws, and the abolition of capital punishment for larceny in shops, houses and ships, and for stealing horses, cattle and sheep. Instead, the alternatives of transportation...

    • CHAPTER 25 Lunacy and the Law
      (pp. 232-240)

      There is a rule of law still extant that can be indirectly attributed to Robert Peel. In 1843 he was enjoying a second term as Prime Minister. On Friday 20 January a young Glaswegian woodturner called Daniel M’Naghten (variously spelt McNaughton or McNaghten) shot Edward Drummond, the Prime Minister’s secretary, at point-blank range in the back of the head. The wound was mortal, ensuring Drummond a lingering death. Had it not been for the intervention of one of Peel’s new police constables — James Silver of A Division — M’Naghten would have fired again and finished off his victim on the spot....

    • CHAPTER 26 Necessity Knows No Law
      (pp. 241-251)

      As the nineteenth century progressed, and despite the proliferation of legislation as the source of law, leading cases and precedent had not disappeared from the legal scene. When important legal issues arose, the judges did not have to wait on parliament to act or ask a question: they could establish or develop the law themselves. They rather enjoyed it.

      Before 1848 the procedure had been an informal one. Criminal cases in which a legal difficulty arose were ‘reserved’ for consideration by the judiciary in London. The question of law was ‘argued before the judges by counsel, not in a court...

    • CHAPTER 27 The Apollo of the Bar: Edward Marshall Hall
      (pp. 252-258)

      Parliamentary legislation in the nineteenth century continued the reform of the criminal law. Today no courtroom drama is complete without the defence barrister vehemently addressing the jury on his client’s behalf. It is the culminating point of the defence, cross-examination merely providing the material for the speech. Yet until 1836, except in treason trials, only the prosecution had this privilege, not the defence. In that year the Prisoners’ Counsel Act specifically authorised defence barristers to address the jury. Defendants could not yet give evidence under oath in their own defence, and barristers, allowed at last to speak on their behalf,...

  9. PART IV THE RULE OF LAW:: 1907–2014

    • CHAPTER 28 ‘The Martyrdom of Adolph Beck’ and the Creation of the Court of Criminal Appeal
      (pp. 261-266)

      The more the newspapers covered trials, the more their reporters took an interest in the cases they covered and developed a degree of forensic expertise. Something was to happen that had never happened before. Trials, and the investigations behind them, were put under public scrutiny. Some of the latter seemed to show the hand of Inspector Lestrade more than that of Sherlock Holmes. The prurient and pugnacious upstarts of the press were straining at the leash to savage the system of justice. Doubts about it were creeping in. Perhaps it was not infallible; perhaps mistakes could be made; perhaps the...

    • CHAPTER 29 Liberty Sacrificed to Security
      (pp. 267-275)

      Historically, as during the war with revolutionary France, parliament has suspendedhabeas corpusto allow for executive detention. More recently the preference has been to pass emergency powers explicitly authorising it. In 1915, Regulation 14B was brought in under powers delegated to the privy council under the Defence of the Realm Act 1914 (DORA), in response to the perceived threat of pro-German collaborators within the populace. Arthur Zadig, of German birth but a naturalised British subject, was one of those so detained. He soughthabeas corpusand challenged the very validity of the regulation. DORA contained nothing about detention and...

    • CHAPTER 30 Nuremberg and Norman Birkett
      (pp. 276-284)

      Perhaps the gravest threat to the rule of law came during the twentieth century, and in an international context, when brutal totalitarian regimes, in particular Hitler’s and Stalin’s, passed unconscionable laws, subverted legal safeguards, corrupted the independence of the judiciary, and instigated show trials. The law was made subject to naked evil. After the horrors of the Second World War, swift and brutal revenge could have been exacted on the beaten foe, Nazi Germany, especially by its equally vicious adversary, Soviet Russia. Churchill himself initially expressed a preference for summary execution with the use of an Act of Attainder to...

    • CHAPTER 31 Wrongs and Rights
      (pp. 285-288)

      The European Convention on Human Rights, formerly known as the Convention for the Protection of Human Rights and Fundamental Freedoms, was drafted in 1950 by the Council of Europe. This body had been founded on 5 May 1949 by the Treaty of London, the United Kingdom being one of the initial ten signatories. The Council pre-dated the European Union and remains a completely separate entity. It is a purely an intergovernmental and consultative body with no power to bind individual member states, of which there are now forty-seven. These include serial human rights offenders such as Russia, but not Belarus...

    • CHAPTER 32 Deprave and Corrupt: Blasphemy, Obscenity and Oscar Wilde
      (pp. 289-304)

      Law, by regulating behaviour, constrains freedom. Liberty has rarely meant licence: not only are actions that harm others — such as assaults and thefts — prohibited, but also, at varying times in English and British history, behaviour that, if it harms at all, harms only the individual. For instance, suicide until 1961 was a criminal offence in England, and homosexual acts were punishable until 1967. Conversely, drug-taking, which once was legal, is now an offence. In contrast, the consumption of alcohol, the intoxicant directly related to much violent crime, has never been prohibited by law in the western world, other than in...

    • CHAPTER 33 Hanging in the Balance
      (pp. 305-313)

      England in the late eighteenth century had witnessed the highpoint of hanging. In the nineteenth century Peel and more radical reformers such as Romilly and Mackintosh had successfully restricted its ambit, until by 1861 only murder, treason, piracy with violence, and arson in the royal dockyards were deemed worthy of death. Progress thereafter stymied. In the eyes of public moralists such as Dickens and Thackeray, the worst excesses of public hangings — the lewd deportment of the crowds who came to gawk and get drunk — were removed after 1868 by confining all hangings behind prison doors. The process was sanitised, the...

    • CHAPTER 34 A Murder in Catford
      (pp. 314-318)

      In 1984, the single most important piece of criminal justice legislation in modern times, other than the abolition of the death penalty, was placed on the statute book. Just as the Adolf Beck scandal gave rise to the Court of Criminal Appeal, so it took another miscarriage of justice before parliament would act to protect suspects on the street and in the police station. The 1984 Police and Criminal Evidence Act for the first time ensured due process by laying down the rights of those in police detention, as well as the criteria governing the stopping, searching or questioning of...

    • CHAPTER 35 The Rule of Law under Threat?
      (pp. 319-326)

      As well as substantial substantive changes to the law, such as the Police and Criminal Evidence Act 1984, there have been procedural changes, some of considerable significance. Foremost, the ancient assize courts and quarter sessions were replaced by the Crown Courts in 1971, and the judicial committee of the House of Lords by a newly constituted Supreme Court, established in 2005 and starting work four years later.

      The symbolism of the newly constituted ‘Westminster Triangle’ is striking. On the south side of Parliament Square is Westminister Abbey, the royal chapel, the national shrine, the embodiment of the Established Church and...

  10. Bibliography
    (pp. 327-334)
  11. Index
    (pp. 335-352)
  12. Back Matter
    (pp. 353-353)